Pitman and another v Nuneaton and Bedworth Borough Council
Blight notice – Reference – Claimants’ property affected by blight from urban regeneration project – Claimants serving blight notice on appropriate authority to require them to acquire that property – Authority serving counternotice and matter referred to Upper Tribunal – Property repossessed and sold by mortgagee before reference determined – Authority applying to strike out reference – Whether notice deemed to be withdrawn on sale of property – Whether reference to be struck out on other grounds – Application allowed
The claimants’ owned a freehold residential property in Nuneaton, which was affected by an urban regeneration project involving the construction of several hundred dwellings in various phases and the exercise of compulsory purchase powers in respect of existing properties. The local borough council was involved with the company that managed the project and was the appropriate authority for the purposes of dealing with claims by residents for consequent blight to their properties. Until 2008, there was an early purchase scheme to assist persons whose properties were not in a phase currently being acquired but who could show hardship on grounds of health, finance or employment. In 2011, in light of the first claimant’s inability to work due to ill health, the claimants were rehoused in a council house adapted for the disabled, with the project company paying for the removal costs and retaining the keys to the vacated property. The company then obtained a valuation of the property at £62,500. The claimants’ expectation was that the appropriate authority would acquire the property but they subsequently refused to do so.
The claimants served a blight notice on the appropriate authority, under section 150 of the Town and Country Planning Act 1990, to require them to acquire the property. The authority served a counternotice and the claimants referred the matter to the Upper Tribunal (UT). Meanwhile, the claimants proved unable to afford both the mortgage payments on their property and the council house rent. Their property was repossessed by their mortgagee and sold to a third party in June 2012 for £39,000, a price that did not reflect its pre-blight value.
The authority applied to have the claimants’ reference struck out on the ground that it had no reasonable prospect of success. The authority contended that the sale of the claimants’ interest, before the tribunal had determined whether their blight notice was well founded, constituted a deemed withdrawal of that notice.
The claimants submitted that there had been no deemed withdrawal of the blight notice in circumstances where their freehold interest had been sold against their wishes by the mortgagee in possession, rather than voluntarily. They submitted that they retained a relevant interest since they still owed £20,393 on their mortgage, which debt would not have arisen had the authority purchased the property for its unblighted value.
Blight notice – Reference – Claimants’ property affected by blight from urban regeneration project – Claimants serving blight notice on appropriate authority to require them to acquire that property – Authority serving counternotice and matter referred to Upper Tribunal – Property repossessed and sold by mortgagee before reference determined – Authority applying to strike out reference – Whether notice deemed to be withdrawn on sale of property – Whether reference to be struck out on other grounds – Application allowed
The claimants’ owned a freehold residential property in Nuneaton, which was affected by an urban regeneration project involving the construction of several hundred dwellings in various phases and the exercise of compulsory purchase powers in respect of existing properties. The local borough council was involved with the company that managed the project and was the appropriate authority for the purposes of dealing with claims by residents for consequent blight to their properties. Until 2008, there was an early purchase scheme to assist persons whose properties were not in a phase currently being acquired but who could show hardship on grounds of health, finance or employment. In 2011, in light of the first claimant’s inability to work due to ill health, the claimants were rehoused in a council house adapted for the disabled, with the project company paying for the removal costs and retaining the keys to the vacated property. The company then obtained a valuation of the property at £62,500. The claimants’ expectation was that the appropriate authority would acquire the property but they subsequently refused to do so.The claimants served a blight notice on the appropriate authority, under section 150 of the Town and Country Planning Act 1990, to require them to acquire the property. The authority served a counternotice and the claimants referred the matter to the Upper Tribunal (UT). Meanwhile, the claimants proved unable to afford both the mortgage payments on their property and the council house rent. Their property was repossessed by their mortgagee and sold to a third party in June 2012 for £39,000, a price that did not reflect its pre-blight value.The authority applied to have the claimants’ reference struck out on the ground that it had no reasonable prospect of success. The authority contended that the sale of the claimants’ interest, before the tribunal had determined whether their blight notice was well founded, constituted a deemed withdrawal of that notice.The claimants submitted that there had been no deemed withdrawal of the blight notice in circumstances where their freehold interest had been sold against their wishes by the mortgagee in possession, rather than voluntarily. They submitted that they retained a relevant interest since they still owed £20,393 on their mortgage, which debt would not have arisen had the authority purchased the property for its unblighted value.
Held: The claim was struck out. The personal circumstances of the claimant, and any hardship to them, were irrelevant to the issue of whether the sale of their property had rendered the blight notice nugatory and were not to be taken into account in determining that issue: Mancini v Coventry City Council (1983) 49 P&CR 127; [1984] 1 EGLR 178; (1983) 270 EG 419 applied. The only remedy available to claimants under a blight notice was the acquisition by the appropriate authority of the claimants’ interest. If the claimants’ interest was sold to a third party at any time between the service of a blight notice and the determination by the UT, then no remedy would be available to the claimants: Carrel v London Underground Ltd (1995) 70 P&CR 135; [1996] 1 EGLR 179; [1996] 12 EG 129, Bennett v Wakefield Metropolitan District Council [1997] RVR 32 and Thomas v Plymouth City Council [1999] RVR 315 applied. It made no difference whether the sale of the claimants’ interest was a voluntary act or the result of a mortgagee in possession exercising its power of sale; it was the fact of the sale, not the reason for it, which was relevant.Applying those principles, the sale of the claimants’ property by the mortgagee in possession meant that the claimants were unable to avail themselves of the only remedy available under the blight notice procedure. The claimants were not entitled to any compensation in respect of the service of the blight notice or otherwise; in particular, they were not entitled to be compensated in respect of their outstanding mortgage debt following the sale of their freehold interest. The claimants’ lack of a remedy meant that it would be inappropriate to proceed to a substantive hearing to consider the blight notice and the grounds of objection specified in the counternotice.The claim should therefore be struck out on the ground that, in the absence of any available remedy, there could be no reasonable prospect of a reference succeeding, rather than by reason of any deemed withdrawal of the blight notice. There was no statutory mechanism for the deemed withdrawal of a blight notice. Moreover, the claimants had not themselves sold their interest; it had been sold by the mortgagee in possession. At all times, the claimants had consistently maintained their desire that the appropriate authority acquire their interest. In those circumstances, it would not be appropriate for the claimants to be deemed, against their will, to have withdrawn the blight notice.
Arthur Greenway, surveyor, of Course & Shelton, of Nuneaton, appeared for the claimants; Rebecca Clutten (instructed by Pinsent Masons LLP, of Birmingham) appeared for the appropriate authority.
Sally Dobson, barrister
