Sunley Homes Ltd v Secretary of State for the Environment and another

High-value site in high-value area compulsorily acquired for council housing–Inspector says CPO should not be confirmed, but Secretary of State nevertheless confirms it–Differences between inspector and Secretary of State held to be differences of opinion only–No ground available on which order might be quashed This was an application by Sunley Homes Ltd, of Henrietta Street, London WC2, for an interim order suspending the operation of the Westburn Lodge/Sweetmans Compulsory Purchase Order 1972, made by the second respondents, the London Borough of Harrow, and confirmed by the first respondent, the Secretary of State for the Environment. Mr G Dobry QC and Mr A B Dawson (instructed by E P Rugg & Co) appeared for the applicants; Mr J H R Newey and Mr H K Woolf (instructed by the Treasury Solicitor) for the first respondent; and Mr R P Ground (instructed by the legal department, London Borough of Harrow) for the second respondents. Giving judgment, WILLIS J said that the substantial point of the case was whether the Secretary of State had failed to comply with rule 9 of the Compulsory Purchase by Local Authorities (Inquiries Procedure) Rules 1962. This rule provided that an appointed person, in this case an inspector, should make a report in writing to the Secretary of State with findings of fact and his recommendations and that where the Secretary of State differed from the inspector on a finding of fact or took into consideration any new issue of fact he should take certain steps. The council wanted to acquire the site in question for council housing. When they heard it was for sale they negotiated with the vendors, but failed to agree a price. They then heard that tenders were being invited, and they made the compulsory purchase order complained of, Sunley Homes made the successful tender. In view of the compulsory purchase order a public inquiry was held. There was a great deal of evidence on whether the site should be developed as private houses or council houses. The land had been valued at £1.4m. It was argued that this was an exceptional site of high value. Housing in the immediate vicinity was of high value, and the inspector’s view was that local authority housing was inappropriate. The quality of council housing would have to be of such a high standard as to make council development unacceptable. Mr Dobry had conceded that the Secretary of State was entitled to differ from the inspector, but only if he complied with rule 9. In four instances, said counsel, the Secretary of State had differed from the inspector’s findings of fact. Firstly, the inspector concluded that a comparison of the economics of private and council housing made the site too expensive for council housing, and that such use could be justified only by dire necessity. The Secretary of State did not accept that this factor should have great weight attached to it, and he had taken into consideration an estimate of what such a council project would cost in comparison with other local authority projects in outer London. Mr Dobry said that the Secretary of State was differing fundamentally here from his inspector, but the defendants argued that the Secretary of State was not differing on a fact but merely expressing a government policy: housing needs must be met at any cost. It seemed to him (his Lordship) that a comparison between what the inspector had said, and his conclusion, and what the Secretary of State had decided revealed no difference of fact. Any difference was one of opinion. The second difference was on the occupancy rates to be expected. The council maintained that their plan would mean housing for more people. The inspector merely said that he had doubts. The Secretary of State differed from that view. This was a conjectural matter and not a finding of fact. The third difference was based on the view that council housing would lead to mixed development in view of the high quality of the private housing in the vicinity, and that this could be harmful socially. The inspector was sympathetic to this view, but this was a matter of judgment and not a finding of fact. The Secretary of State did not accept that mixed development might be harmful. The fourth difference was a comparison between the rival schemes having regard to the extent to which each was worked out. The inspector held the view that the council scheme had not been worked out in sufficient detail, but in differing on this matter the Secretary of State had not come to a conclusion of fact. For these reasons the grounds of the application fell away, and there would be judgment, with costs, for the Secretary of State and the Borough of Harrow. His Lordship granted a stay until the first day of next term provided that the applicants lodged notice of appeal within 28 days.