Riddle and another v Secretary of State for the Environment and another

Compulsory purchase — Whether orders valid — Appeal from decision of Mr Graham Eyre QC, sitting as a deputy judge of the Queen’s Bench Division — Whether correct statutory powers had been used by local authority — Appellants, a father and son, were each the owner (or at any rate the person having control) of a house which had been for years uninhabited and was indeed uninhabitable and deteriorating — Letters from the authority to the appellants drawing attention to the condition of the properties had met with no reply — As a result the authority resolved to make compulsory purchase orders under Part V of the Housing Act 1957 but informed the appellants that the orders would be withdrawn or not implemented if the appellants took the necessary steps to bring the properties back into habitable occupation — The orders were in due course confirmed by the Secretary of State after a public local inquiry — The appellants then applied to the High Court under section 23 of the Acquisition of Land Act 1981 to have the orders quashed for invalidity but the application was dismissed by Mr Graham Eyre — The appellants now appealed against this decision The appellants argued that the orders were ultra vires because made under Part V of the Housing Act 1957 (now replaced by Part II of the Housing Act 1985) — Appellants contended that the orders should have been made under Part II of the 1957 Act (replaced by Part VI of the 1985 Act), which provided machinery for securing the repair of houses by those who were in control of them; this would have allowed the appellants to apply to the county court to settle any matters in dispute — The Court of Appeal rejected this argument — The authority were entitled to use their powers under Part V to bring properties below the statutory standard into habitable occupation; the appellants could have put their case before the inspector at the inquiry but they did not; the suggestion that the authority were using their powers improperly solely to coerce the appellants to do the work was unfounded; and it was paradoxical to criticise the authority for offering by way of indulgence to refrain from implementing the orders if the appellants themselves carried out the repairs — The orders were not ultra vires — Appeals dismissed The following case is referred to in this report. R v Secretary of State for the Environment ex parte Leicester City Council [1987] JPL 787 These were appeals by James Riddle senior and James Riddle junior from the decision of Mr Graham Eyre QC dismissing their applications to challenge compulsory purchase orders in respect of 16 and 17 Queens Road, Haringey, London N11, respectively. The appellants appeared in person; David Holgate (instructed by the Treasury Solicitor) appeared for the Secretary of State; Michael F Harris (instructed by the solicitor to Haringey London Borough Council) represented the council. Giving judgment, SIR STEPHEN BROWN P said: This is an appeal by Mr James Riddle senior and Mr James Riddle junior from the decision of Mr Graham Eyre QC sitting as a deputy judge of the Queen’s Bench Division on July 21 of last year (1987). The learned judge had before him an application by Mr Riddle senior and Mr Riddle junior under section 23 of the Acquisition of Land Act 1981 whereby they challenged the validity of a compulsory purchase order which had been made by the London Borough of Haringey on May 31 1985 and subsequently confirmed by the Secretary of State for the Environment after he had held an inquiry by an inspector. The compulsory purchase order related to the acquisition of two houses in the administrative area of the Haringey London Borough Council, 16 and 17 Queens Road. It appears that Mr James Riddle senior is an executor of a will under which no 16 is part of the estate. (In any event he came before the court and attended the inspector’s inquiry upon the basis that he was a person having control of 16 Queens Road.) No 17 Queens Road is owned by his son, Mr James Riddle. It is not disputed that for a substantial period, something of the order of four years or more, before the compulsory purchase order was made, these two houses had been in serious want of repair and had been deteriorating. They were uninhabited and plainly on the evidence which was not in dispute were uninhabitable. In February 1984 the London Borough of Haringey wrote to Mr Riddle a letter which appears in the bundle of documents before this court; it is dated February 7 1984 and is addressed to Mr E J Riddle: Dear Sir, Re: 16 Queens Road, London N11. It has come to my attention that the above-mentioned house is vacant and that it may have been so for a considerable period of time. There is a shortage of housing accommodation in the Borough. It is Council policy that every effort is made to ensure that all vacant housing accommodation is brought back into full and effective use, and where necessary, repaired and improved prior to re-occupation. The letter went on to refer to the Housing Act 1974, stating that the council were permitted to approve house renovation grants towards the costs of certain works. The fourth paragraph of the letter said: As I understand that you are the owner of the above-mentioned property, I should be obliged if you would inform me of your proposals for the future use of the premises within the next 42 days, ie by not later than March 20 1984. This will enable me to consider what action, if any, the Council may need to take in order to ensure that this house is brought back into full use. Enclosed with this letter is a Statutory Notice served under the provisions of Section 16 Local Government (Miscellaneous Provisions) Act 1976. This requires you to detail your interest in the property, together with any other information known to you concerning other interested persons and it was signed by the senior environmental health officer. There was no reply to that letter and indeed, as the learned judge stated in his judgment, some 20 letters or notices were sent to Mr Riddle and none were answered. In the result, the area housing subcommittee of the council passed a resolution on October 31 1984. The relevant part reads: HOUSING ACT 1957 — PART V — COMPULSORY PURCHASE ORDERS: The Subcommittee received details of ownership, occupation, past history of statutory action, together with the Council’s proposals in respect of 16 and 17 Queens Road, N11. Resolved: (1)   That Compulsory Purchase Orders be made under Part V of the Housing Act 1957 in respect of Nos 16 and 17 Queens Road, N11. (2)   That the owner of the two properties be informed that, if the Council’s objectives with regard to necessary repairs and improvements and bringing the properties back into occupation are achieved to the satisfaction of the Environmental Health Service, then the Order will be withdrawn. (3)   That, where satisfactory proposals are received prior to a Public Local Inquiry, officers be authorised to inform the owner that, if the Council’s objectives are rapidly and effectively secured then the Order will not be implemented, even if confirmed. In point of fact no proposals were put forward by Mr Riddle, and in due course the order was made on May 31 1985. The minister in due course held a public local inquiry into the compulsory purchase order and Mr Riddle senior and Mr Riddle junior both appeared as objectors at that inquiry and the inspector made a report of the inquiry to the minister. His report is dated November 12 1985. In it he states that he has the honour to report that on November 5 1985 ‘I held a public local inquiry at Wood Green Civic Centre in connection with an application for confirmation of the London Borough of Haringey . . . Compulsory Purchase Order 1985, made under Part V of the Housing Act 1957 by Haringey London Borough Council.’  He then set out the ‘general case for the Council’. Para 17 reads: The council did not want to acquire the houses simply to increase the stock of municipal dwellings. The restoration of the 2 houses would take from 12 to 18 months after confirmation of the order but the council were agreeable not to use the order to acquire one or other or both houses if within 2 months of today satisfactory proposals were made by the owners and work was started within 6 months of today and continued in a satisfactory manner. Both objectors at this inquiry would still have time to restore the houses if they owned them and if they had the financial resources. He recorded the evidence adduced and wrote: The council called Mrs Pearl Rose Bye who said she was Mr Riddle’s sister. Their mother died in 1978. Mrs Bye did not know of any will which disposed of 16 Queens Road and did not know until today that she was a beneficiary. If the property were vested in her she would not object to the council acquiring it. There was, however, another beneficiary who would have to be consulted. Her brother was understood not to be a beneficiary as regards 16 Queens Road. Para 30: The council said that Mr Riddle (senior) was in no position to do any work on the house, or deal with it independently, as legal owner. His position was as executor. He had not produced the will and had not obtained probate. His mother had died 8 years ago and yet the house had still not been vested in the beneficiaries. Para 31: Even if he were able to deal with the property as legal owner free of the executory trust, he could not undertake the work without having to sell other property owned by himself and his wife. There was great uncertainty in the matter. Para 32: Mr Riddle had ignored the council’s attempts to get something done to the house. The registered proprietor was still Kathleen Properties Ltd and it now transpired that this aspect of the title had been unchanged since 1964 when, apparently, Mr Riddle’s mother purchased the house. Para 33: Everyone agreed the house was in a very bad state. The objector had admitted it had been vacant for at least 4 years. Other evidence today was that it had been vacant since 1978. Para 34: No reliance could be placed upon Mr Riddle’s ability to restore this house and get it properly occupied. It should remain in the order. In his findings of fact the inspector stated: 1      The council want to secure the restoration and improvement of the 2 houses in the order and get them occupied. 2      The council’s district has a housing shortage. Then he dealt with the question of disrepair. Para 15 stated: The objectors at both houses have not replied to the council’s inquiries and statutory notices since February and May 1984. Para 16 of the findings read: The council intend to convert 16 Queens Road as 2 small flats and have planning permission. Para 17: The council intend to restore 17 Queens Road for single family use. Para 18: The council have agreed not to use the order, if confirmed, to acquire either or both houses if satisfactory proposals for the restoration of one or both houses are made within 2 months of the day of the inquiry, work is in progress within 6 months of the day of the inquiry, and repairs and improvements then proceed towards completion. Para 19: Both objectors would be content for a decision on the order to be deferred long enough for them to show their ability to do the work which they have promised. In his conclusions (para 53 of his report) the inspector said: There is uncertainty over the competence of the executor objector at 16 Queens Road. This arises from his inactivity regarding the house during the last 8 years since becoming an executor, from the wishes of one of the 2 beneficiaries which favour the council’s proposals rather than those of the executor, from the house not having been vested in the beneficiaries, from the unregistered state of title for a house which has been unoccupied for at least the last 4 years. There is more uncertainty over the executor objector having to finance the high cost of rehabilitating 16 Queens Road by proceeds of the sale of other property said to be in his ownership or his wife’s ownership, or their joint ownership. I do not believe there will be any satisfactory rehabilitation of 16 Queens Road while the present state of ownership or qualified ownership, continues. The house should remain in the order. As to no 17, the inspector said at para 54 of his report: There is also uncertainty regarding the future of 17 Queens Road. The objector has not provided evidence of the cost of restoring the house, or of his financial resources. If the objector, who is still the unregistered proprietor, makes satisfactory progress with restoring the house for owner-occupation by himself and his family, the council will not use the order to acquire the house. To defer a decision on the order, or to exclude the house from the order, will encourage further delays arising from circumstances similar to those which have occasioned the house being vacant and in disrepair over much of the last 4 years. Para 55: In consideration of the facts stated I am of the opinion that acquisition by the council of the 2 houses in the order is justified and that the order should be confirmed. Para 56: I recommend that the London Borough of Haringey (16 and 17 Queens Road, N11) Compulsory Purchase Order 1985, be confirmed. In due course the Secretary of State did in fact confirm the order and it was against that that Mr Riddle senior and Mr Riddle junior applied to the High Court under section 23 of the Acquisition of Land Act 1981. The submissions for both appellants have been put by Mr Riddle senior and have been adopted by Mr Riddle junior. The relevant arguments are the same in relation to both 16 and 17 Queens Road. Quite shortly, Mr Riddle’s case is that the order was ultra vires the power of the council because it was made under the provisions of Part V of the Housing Act 1957, whereas, he contends as he contended at the inquiry and before the learned judge, the council should have sought to use their powers under Part II of the Housing Act 1957 to have the property repaired by the owners or those responsible for the houses. If they had done that, the owners would have had the opportunity of going to the county court and getting the county court to settle the details of what repairs were required. Furthermore, he says that a mandatory grant would have been applicable in such a case. Mr Riddle has argued strenuously that it was an abuse of power on the part of the council — though he does not argue that they acted in bad faith — to proceed under Part V of the Housing Act 1957. The learned judge referred to the relevant sections of Part V of the Housing Act 1957 at p 9 of his judgment. He cited section 91: It shall be the duty of every local authority to consider housing conditions in their district and the needs of the district with respect to the provision of further housing accommodation and for that purpose to review the information which has been brought to their notice, either as a result of inspections and surveys carried out under Part I of this Act or otherwise. There is, therefore, as the judge pointed out, a statutory duty to consider the housing needs of the district with respect to the provision of further housing accommodation. Section 92(1) so far as it is material provides: A local authority may provide housing accommodation . . . (c) by acquiring houses. Section 96 provides: A local authority shall have power under this Part of the Act– 18 . . . (b) to acquire houses, or buildings which may be made suitable as houses, together with any lands occupied with the houses or buildings, or any estate or interest in houses or in buildings which may be made suitable as houses. ‘Finally,’ said the judge, ‘there is section 97(1).’  That provides that: Land for the purposes of this Part of this Act may be acquired by a local authority by agreement, or they may be authorised to purchase land compulsorily for those purposes by the Minister; and the Seventh Schedule to this Act shall apply in relation to a compulsory purchase under this section. Part II of the Act gives to a housing authority powers in relation to repairs of unfit houses and so forth, and it is those powers, Mr Riddle submits, which should have been implemented by the council in preference to proceeding under Part V of the Act. Subpara (2) of the relevant resolution, to which I have already referred, of October 31 1984 resolved: That the owner of the two properties be informed that, if the Council’s objectives with regard to necessary repairs and improvements and bringing the properties back into occupation are achieved to the satisfaction of the Environmental Health Service, then the Order will be withdrawn. Mr Riddle has argued that in this case the council intended all along merely to put pressure on him and on his son, the owner of no 17, to get the work done, and that this was an improper use of compulsory purchase powers under Part V of the Act. He claims that their principal witness at the inquiry in effect acknowledged that. It has to be said, however, that that is not borne out by the inspector’s report; I have already referred to para 17 of his report, where the general case for the council is recorded. I repeat it: The council did not want to acquire the houses simply to increase the stock of municipal dwellings. The restoration of the 2 houses would take from 12 to 18 months after confirmation of the order but the council were agreeable not to use the order to acquire one or other or both houses if within 2 months of today satisfactory proposals were made by the owners and work was started within 6 months of today and continued in a satisfactory manner. As the inspector found, there was no certainty — indeed, he described it as uncertainty — as to the competence of Mr Riddle to be able to put the house into repair. Having regard to the history of the matter — the disrepair over four years and the fact that the state of disrepair was of the degree recorded in his report (there were complaints by neighbours as to damage threatening their own properties) — there was no real prospect of the council’s getting the work done and the houses being put into order unless they acquired the houses. Mr Riddle’s argument is flawed. There was no obligation upon the council to use their powers under Part II. Part V of the Act gave them powers which they might properly use. The whole point in this case was whether they were within their powers in making that compulsory purchase order. The learned judge said at p 12F of his judgment: As I say, the sole question is whether or not this compulsory purchase order is within the powers of the Act. As a matter of principle I could not accept the proposition that an authority, exercising its powers of compulsory acquisition under Part V, can only do so if it has already applied its mind to what may be a multiplicity of alternatives. That is not a consideration, in my judgment, which is relevant to the question as to whether or not to exercise their power under V. I entirely agree. The learned judge at p 12C and D referred to Mr Riddle’s argument that the real purpose was one of coercion. He said: If I thought this authority was using its compulsory purchase powers solely for the purpose of forcing or persuading or coercing persons having control of houses in their administrative area, and for no other purpose, I might well take a wholly different view as to whether or not such a compulsory purchase order was intra vires. But that is not the case. The sole question in this case is whether the compulsory purchase order was properly made in relation to the powers in Part V. The learned judge had regard to the terms of the resolution, to the reasons given by the council, the statement of reasons, and the case as recorded by the inspector at the public local inquiry, and to the Secretary of State’s decision letter, and then at the top of p 13 he said: I entertain no doubt whatsoever that the objective underlying that compulsory purchase order was to bring properties which were below the statutory standard into a habitable condition (and I use that in a non-technical sense) and to bring into occupation houses that have not been occupied for many years. Those objectives are precisely the objectives to which Part V and its duty as contained in section 91 are directed, and there cannot be a more clear exercise of those powers if those two objectives underlie the making of the compulsory order. I do not take the view that there was any coercion, or that Mr Riddle and his son were deprived of rights to challenge the action on the part of the authority in the County Court. The judge went on to say: On the contrary, they could have gone to the inquiry, where they both appeared, and indicated what their proposals were and sought to persuade the inspector to recommend to the Secretary of State that those proposals were satisfactory; that there was every prospect of them being implemented and therefore a compulsory purchase order was not necessary. They did not take that course and, indeed, the inspector quite clearly from his report takes the view that the prospect of achieving those twin aims, to which the authority, quite rightly, were giving high priority, was open to question, to put it no higher than that. It seems to me that that was a perfectly proper finding by the learned judge on the material before him. The judge added in the following paragraph at p 13: It is somewhat paradoxical that the additional undertaking given by the authority, which could avoid depriving an owner of his rights, is now being used in this court as a reason for vitiating the order itself. In my judgment, the approach of both the authority and the Secretary of State, as I derive it from one of the circulars relating to the housing legislation, is that a compulsory purchase order can be made to deal with a very difficult situation. But if that situation is capable of resolution, then it should not be proceeded with. That is an indulgence, and there are no grounds for saying that that is the fundamental basis of the order. It is a perfectly proper approach as a matter of policy, and it would be a sad day if this court held that that practice was in any way unlawful. In those words the learned judge dealt with the argument which Mr Riddle put forward and which he has put again to this court. He seeks to say that the undertaking which was given at the inquiry and which appears to be in effect in the same terms as the resolution of October 31 1984 was in some way a matter which vitiated the validity of the order. As the learned judge said, that was a rather paradoxical submission to make. Mr Riddle has sought to derive support from a decision of McCullough J in relation to an application for judicial review of a decision by the Secretary of State for the Environment in respect of a compulsory purchase order made under the Town and Country Planning Act 1971. He has supplied the court with a transcript of the judgment in that case. It is R v Secretary of State for the Environment, ex parte Leicester City Council*. The judgment was delivered on January 29 1987. It related to a compulsory purchase order which was made by the Leicester City Council in 1983 but was not confirmed by the Secretary of State after holding an inquiry. It related to the provision of land for drainage purposes. The facts were very different from those in this case. Furthermore, the statute involved is also wholly different. *Editor’s note: Reported at [1987] JPL 787. The point which Mr Riddle has argued is that from that judgment it appears that the minister had found on the basis of his inspector’s report that the Applicant’s intention was to acquire land simply to improve, by development, the Order Land. Therefore at public and local inquiries into the purchase orders the Applicant was prepared to give undertakings to the individual owners of plots on the Order Land that it would not compulsorily acquire the individual parcels of land so long as they entered into agreement with the Applicant to make financial contributions towards the construction of roads and sewers. This undertaking was given as otherwise the Applicant would be acquiring from individual owners land within the Order Land which would then be resold to those owners to carry out the necessary development although the resale price of course would have to take into account the costs of installing the roads and sewers and other services. That seems to me to be a wholly different situation. Owners of land were being persuaded to make financial contributions towards sewers. It was a wholly different situation and cannot in any way be compared with the council’s offer in this case not to proceed with the compulsory acquisition of these houses if they were put into repair satisfactorily within the time-limit noted by the inspector in his report. Although Mr Riddle has argued this case with considerable skill and care and has submitted a very substantial written argument of his case, I am bound to say that I think his submissions are misconceived. It is quite plain that this compulsory purchase order was made only after numerous endeavours had been made by the council to achieve their objective by other means and when it became the only sensible and satisfactory way of carrying out their duties under section 91 of the Housing Act 1957. That is, of course, under Part V of the Act — to provide housing accommodation in their area. The power was properly exercised. In my judgment the appeal fails in relation to both properties and both appellants, and I would dismiss both these appeals. NEILL and TAYLOR LJJ agreed and did not add anything of their own. The appeals were dismissed with costs; an application for leave to appeal to the House of Lords was refused.