AS TO THE ADMISSIBILITY. Application No /84 by R. and W. HOWARD against the United Kingdom

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1 AS TO THE ADMISSIBILITY Application No /84 by R. and W. HOWARD against the United Kingdom The European Commission of Human Rights sitting in private on 16 July 1987, the following members being present: MM. C.A. NØRGAARD, President J.A. FROWEIN S. TRECHSEL F. ERMACORA E. BUSUTTIL A.S. GÖZÜBÜYÜK A. WEITZEL J.C. SOYER H.G. SCHERMERS H. DANELIUS G. BATLINER H. VANDENBERGHE Mrs. G.H. THUNE Sir Basil HALL MM. F. MARTINEZ C.L. ROZAKIS Mr. H.C. KRÜGER, Secretary to the Commission Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms; Having regard to the application introduced on 9 November 1983 by R. and W. HOWARD against the United Kingdom and registered on 27 February 1984 under file No /84; Having regard to the report provided for in Rule 40 of the Rules of Procedure of the Commission; Having regard to: - the report provided for in Rule 40 of the Rules of Procedure of the Commission; - the Rapporteur's request of 25 October 1984 pursuant to Rule 40 (2)(a) of the Rules of Procedure for information from the respondent Government and the information submitted by the respondent Government on 21 November 1984; - the Commission's decision on 4 December 1984 to request the respondent Government pursuant to Rule 42 (2)(b) of the Rules of Procedure to submit written observations on the admissibility and merits of the application; - the observations of the respondent Government dated 20 March 1985 and the observations of the applicants in reply dated 19 June 1985; - the Commission's partial decision on admissibility of 18 October 1985 and the Commission's decision to invite the parties to submit further observations in writing on the admissibility and merits of the remaining part of the application; - the further observations submitted by the respondent Government on 25 February 1986 and the further observations

2 THE FACTS submitted by the applicants' representatives on 16 September 1986; Having deliberated; Decides as follows: The facts, as they have been submitted on behalf of the applicants, British citizens and brothers born in 1910 and 1919 respectively, by their solicitors, Raley & Pratt of Barnsley, and which are apparently not contested by the respondent Government, may be summarised as follows. The applicants were the owners and occupiers of a house (Rose Cottage, also known as Garden Cottage) and surrounding land with a total area of approximately 6,000 square yards at Cope Street, Barnsley, South Yorkshire. The house was built in 1830 and was the home of the applicants for over 50 years. In 1982 the Barnsley Metropolitan District Council ("the local authority") issued a compulsory purchase order in respect of the applicants' property under Section 112 (1) of the Town and Country Planning Act 1971 as amended by Section 91 (1) of the Local Government Planning and Land Act 1980 (1). The applicants' property, at the time the compulsory purchase order was made, was surrounded by existing urban development. The local authority decided to improve the area by making public money available for this purpose to improve existing dwellings and by permitting and encouraging new development. (1) Section 112 (1) and (1A) Town and Country Planning Act 1971 as amended provides: (1) "A Local Authority to whom this section applies shall on being authorised to do so by the Secretary of State, have power to acquire compulsorily - (a) any land which is required in order to secure the carrying out of one or more of the following activities, namely development, redevelopment and improvement;" (1A) "A Local Authority and the Secretary of State in considering for the purposes of subsection (1)(a) above whether land is suitable for development, redevelopment or improvement shall have regard - (a) to the provisions of the development plan, so far as material; (b) to whether planning permission for any development on the land is in force; and (c) to any other consideration which, on an application for planning permission for development on the land, would be material for the purpose of determining that application." The compulsory purchase of the applicants' property, together with some adjacent land, was implemented with a view to demolishing the applicants' house so as to make the land available for the construction of new dwellings. The applicants objected to the compulsory purchase order as did one other person affected, and a

3 public enquiry was held by an inspector on 18 and 19 January The applicants were represented by Counsel. Although the applicants had originally objected to the compulsory purchase order on various plots of land, they finally agreed, at the enquiry, to drop their objections to the compulsory purchase of all their land, except area 11, which included their home and its immediately adjacent land, provided that they could retain adequate access from the adjacent public highway. The inspector's report to the Secretary of State for the Environment, dated 28 February 1983, examined the possibility of whether the area the applicants sought to retain could be excluded from the compulsory purchase order, or whether even a part of that area could be so excluded. The inspector's report found that if area 11 was not included it would leave in the centre of the redevelopment area "an element which is undoubtedly most unsightly with its high corrugated iron fence and heaps of scrap". It was further stated that it would leave the General Improvement Area incomplete, the development would be more difficult and probably nearly all of the sheltered accommodation would have to be eliminated from the scheme because no other low lying land was available. The inspector's report took into account the applicants' small scale scrap cardboard business and the consideration that the applicants were elderly and would naturally wish to live the remainder of their days in the house they had lived in for so long. The inspector's report, however, found that these considerations did not outweigh the requirement for the land to carry out redevelopment and improvement. The inspector's report stated that attempts had been made to negotiate a voluntary purchase from the applicants but these negotiations had failed. The inspector's report recommended that the compulsory purchase order be confirmed concluding that "there is not only a need, but an urgent need for the order land to be redeveloped". The Secretary of State followed the recommendation of the inspector, and confirmed the compulsory purchase order on 27 June The applicants contend that any further appeal against this decision is restricted by Section 25 of the Acquisition of Land Act 1981 (1). This provision prevents any challenge to the order, except under Section 23 (1) and (2) of the Acquisition of Land Act 1981, which provide for an appeal if the order was not authorised by (1) Section 25 of the Acquisition of Land Act 1981 provides: "Subject to the preceding provisions of this Part of this Act, a compulsory purchase order... shall... not... after it has been confirmed... be questioned in any legal proceedings whatsoever." a statute, or where any relevant requirement has not been complied with in relation to the order. The applicants have been advised, and accept, that it cannot be contended that the order was not authorised by statute, nor that any relevant requirement was not complied with on this narrow, formal, legal basis provided by Section 23 (1) and (2). In addition, the validity or legality of the Town and Country Planning Act or the Acquisition of Land Act 1981 themselves cannot be challenged in the United Kingdom. The local authority made a vesting declaration under the Compulsory Purchase (Vesting Declarations) Act 1981 which had the

4 effect that the applicants' home and land became the property of the local authority on 30 November The local authority took possession of the land and the applicants' home on 19 November 1986 and the house was demolished in December The applicants are entitled to compensation under the Land Compensation Act 1961 for the market value of their land and home and related losses, such as removal expenses, and are entitled to be rehoused by the local authority. Three offers of alternative accommodation have been made, but refused by the applicants. The most recent has been to rehouse the applicants in a newly built fourbedroomed house with a large garden, adjacent to their former home. The applicants were offered a tenancy of this property at a rent of 30 per week. COMPLAINTS The outstanding matter about which the applicants complain under Article 13 of the Convention is that Section 25 (1) Acquisition of Land Act 1981 prevents them from challenging in the national jurisdiction the decisions to purchase their house and land compulsorily either on their merits, or on the grounds that they infringe the rights guaranteed by the Convention. They complain that they would have been better able to challenge the necessity for the interference with their right had their property been compulsorily purchased under other statutory provisions. The applicants refer to statutory provisions which permit the compulsory purchase of houses on the ground that they are unfit for human habitation or that the land is required to satisfy a housing need and cite the Town Department Act 1952, the Housing Act 1957, the New Towns Act 1965 and the Housing Act PROCEEDINGS BEFORE THE COMMISSION The application was introduced on 9 November 1983 and registered on 27 February On 25 October 1984, the Rapporteur requested information from the respondent Government pursuant to Rule 40 (2)(a) of the Rules of Procedure concerning the imminency of enforcement measures against the applicants. The respondent Government replied on 21 November The Commission examined the admissibility of the application on 4 December 1984 and decided, in accordance with Rule 42 (2)(b) of the Rules of Procedure, to invite the respondent Government to submit written observations on its admissibility and merits. After an extension of the time limit by two weeks granted by the President, the respondent Government submitted their observations on 20 March The applicants' submissions in reply were received on 19 June 1985, three weeks after the expiry of the time limit. On 18 October 1985 the Commission decided to declare inadmissible the applicants' complaints under Article 8 of the Convention and Article 1 of Protocol No. 1 and to adjourn its examination of the complaint under Article 13 of the Convention concerning the alleged inadequacy of the available remedies. The Commission decided at the same time to invite the respondent Government pursuant to Rule 42 (3)(a) of the Rules of Procedure to submit further written observations on the admissibility and merits of the applicants' adjourned complaint. The respondent Government's observations were submitted on 25 February 1986 and communicated to the applicants' then representative, who was invited to submit before 18 April 1986 observations in reply. After an exchange of correspondence with the

5 applicants' representative, during which an extension of this time limit until 30 June 1986 was requested, the Commission was informed by telex on 8 July 1986 that the applicants had appointed their current representative. The latter confirmed this position by letter of 5 August 1986 and requested a further extension of the time limit for their reply to the respondent Government's observations. On 13 August 1986 the President granted the extension requested until 23 September The applicants' observations are dated 16 September WRITTEN OBSERVATIONS OF THE PARTIES 1. The respondent Government a) Domestic law and practice The order authorising the local authority to acquire the applicants' property was made and confirmed under Section 112 (1) of the Town and Country Planning Act 1971 as amended by Section 91 (1) of the Local Government Planning and Land Act The procedure governing the exercise of these compulsory purchase powers is contained in the Acquisition of Land Act This requires a local authority to submit an order in a presented form to the Secretary of State. For two successive weeks prior to this, a notice must advertise the proposed order in a local newspaper, giving details and explaining how objections may be made. If an objection is made, the Secretary of State must hold a public local inquiry or afford objectors another opportunity of making representations. Where, as in this case, an inquiry is held, the procedure is governed by the Compulsory Purchase by Public Authorities (Inquiries Procedures) Rules Forty-two days' notice must be given to all concerned and the local authority must provide each objector with the written reasons for making the order by 28 days before the inquiry. At the inquiry, objectors may make representations and examine witnesses either in person or through their legal representatives. The inspector makes a written report to the Secretary of State, which includes the findings of fact and his recommendations. The Secretary may not differ from his findings of fact without allowing further representations from interested parties. His decision must be notified in writing to each objector and a copy of the inspector's report provided if requested. A right of appeal against the Secretary of State's decision is afforded by Section 23 of the Acquisition of Land Act The case-law on this provision illustrates that an order may be quashed where the Secretary has taken into account something he ought not to have done, where he has not taken into account something he ought to have done, where he has misdirected himself in law, where he has given reasons unsupported by the facts, or where there has been a breach of natural justice. Further appeal to the Court of Appeal, and with leave, to the House of Lords is possible on a point of law. The order and the decision of the Secretary of State may also be challenged at certain stages and in appropriate circumstances by an application for judicial review pursuant to Order 53 of the Rules of the Supreme Court. Judicial review may lie where it is alleged that an irrelevant consideration has been taken into account, or a relevant consideration disregarded, or where the decision is one which no reasonable Secretary of State could properly have reached.

6 The procedure for a compulsory acquisition by a local authority therefore reveals seven stages. The first stage is the resolution of the local authority that it will make a compulsory purchase order. Second, there is the sealing of the order whereby the local authority actually makes the order and seals it. Third there is the advertisement of it. Fourth, the objections are lodged. Fifth, the public inquiry is held. Sixth, the confirmation by the Minister, and seventh the notice of confirmation. The case-law submitted by the respondent Government illustrates that an application may be made for judicial review to challenge the decision of a local authority to resolve to make a compulsory purchase order (R. v. Camden London Borough Council, ex parte Comyn Ching & Co. (London) Ltd (1984) 47 P & CR 417). From the second stage onwards a person affected by the compulsory purchase order which has been made may object and thereafter participate in the public enquiry before the inspector. In the words of Woolf J giving judgment in that case: "<The inspector> would fully investigate the case, hear evidence orally, and conduct a much more detailed inquiry than it is possible for this court to do." In these circumstances, and at this stage of the proceedings judicial review would therefore not normally be available in the light of the availability of an alternative remedy (the inquiry) and the terms of Section 25 Acquisition of Land Act However, Section 23 Acquisition of Land Act 1981 provides the opportunity for any person aggrieved by an order to question its validity on the ground that the authorisation of the order is not empowered to be granted under the Acquisition of Land Act An owner of land subject to compulsory purchase is also entitled to receive compensation, assessed on the open market value. Detailed provisions are laid down in the Land Compensation Acts 1961 and 1973 and in the Compulsory Purchase Act Depreciation in value as a result of the order is disregarded for this valuation and the owner is entitled to compensation for removal and other associated expenses. Where an owner is displaced from residential accommodation, and suitable alternative residential accommodation on reasonable terms is not otherwise available, the local authority has a duty to rehouse. b) Article 26 of the Convention The respondent Government submit that the application is inadmissible by reason of the applicants' failure to exhaust domestic remedies both under Section 23 of the Acquisition of Land Act 1981 and by an application for judicial review. They contend that the issues raised in this application could have been raised in the course of either or both of those proceedings. c) Articles 6 and 13 of the Convention The respondent Government submit under Article 13 that, insofar as the complaint concerns the making of the order by the local authority, the applicants had a remedy in that they were able to make their objections known to the inspector who, though unable to make a decision, is able to present these objections to the Secretary of State in his report. The Secretary of State has the power to overrule the inspector's recommendation, to confirm an order, or to impose modifications.

7 The applicants were also able to challenge the Secretary of State's confirmation of the order by way of judicial review (Rules of the Supreme Court Ord. 53) and by way of appeal under Section 23 of the Acquisition of Land Act In this connection the respondent Government refer to No. 9261/81, Dec , D.R. 28 p. 177, where the Commission found that, in proceedings to quash a compulsory purchase order and the Secretary's decision, the High Court and the Court of Appeal must have taken into account the applicant's right to respect for her home, by balancing her rights against the public interest in assessing the legal reasonableness of the inspector's report and the Secretary of State's decision. If the present applicants had challenged the order and the Secretary's decision in either of these proceedings, the court would have similarly been able to take into account the applicants' right to respect for their home and property, reviewed the rejection of the omission of the property from the scheme and the reasons on which the decision was based, and finally have quashed the decision, had they found for the applicants. The respondent Government further submit that the procedure under the Acquisition of Land Act 1981 is sufficient to comply with Article 6 of the Convention in that the applicants were entitled to, and in fact enjoyed, a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. The respondent Government also argue that these procedures together with the compensation provisions previously described comply with the requirements of Article 13 of the Convention that the applicants should have an effective remedy before a national authority. In addition to the statutory procedures the respondent Government state that the applicants could have sought judicial review either of the local authority's decision to make the compulsory purchase order, or of the Secretary of State's decision to confirm it, using the procedure laid down in Order 53 of the Rules of the Supreme Court. The basis of this review would be that the discretion used by a public authority must be exercised reasonably. As already stated, the reasonableness of the exercise of such a discretion may be challenged where an irrelevant consideration has been taken into account or a relevant consideration disregarded, or where the decision is one which no reasonable person or authority could properly have reached. The respondent Government state that there are several examples of cases involving compulsory acquisition where judicial review proceedings have been brought. In Islington London Borough Council v. Secretary of State for the Environment and Another (1980) 43 P & CR 300 the court held that it had jurisdiction to review a decision of the Secretary of State not to confirm a compulsory purchase order. Similarly in Stockport Metropolitan Borough Council v. Secretary of State for the Environment and Others (1980) 43 P & CR 300, the court held that the local authority could apply for judicial review of the Secretary of State's decision not to confirm part of a compulsory purchase order and then quashed his decision after considering the merits. Another example is the case of R. v. Camden London Borough Council ex parte Comyn Ching & Co. and Another (1984) 47 P & CR 417 (supra) in which the court exercised its powers in judicial review proceedings where a local authority had passed a resolution to make a compulsory purchase order. The court quashed the council's decision on various grounds including that the council had adopted the wrong approach to the construction of the relevant legislation and that its resolution was defective in various respects. Another more recent example of a compulsory acquisition case where the court exercised its jurisdiction in judicial review proceedings is R. v. Secretary of State for the Environment ex parte Melton Borough Council (17 January 1985, unreported) in which the local authority sought to quash a decision of the Secretary of State

8 whereby he refused to confirm a compulsory purchase order. The respondent Government submit that from these examples it can be seen that the courts are prepared to exercise their jurisdiction by way of judicial review in compulsory purchase cases. There is a further right of appeal from the decision of the High Court to the Court of Appeal and to the House of Lords. This protection fortifies the statutory remedies available to the applicants. Taken as a whole, it is submitted, by the respondent Government, that the available remedies fully comply with both Articles 6 and 13 of the Convention. 2. The applicants The applicants do not accept that they could have appealed under Section 23 of the Acquisition of Land Act 1981 or that they could have sought judicial review in connection with their complaint since such appeal or review is only feasible on very limited grounds, i.e., where the Secretary of State has misdirected himself in law, where he has taken into account irrelevant considerations or disregarded relevant considerations, where he has reached a decision no reasonable person could properly have reached, or where there has been malice, bad faith or a breach of natural justice. The applicants do not complain of any of the above and such proceedings would inevitably fail. It is further emphasised that as an appellate procedure the scope of judicial review is strictly limited. It does not involve an investigation of the merits or even a consideration of whether the original decision was right or wrong. Judicial review is simply an examination of the original decision-making process to ascertain whether or not it complied with certain broad criteria which are largely of a procedural nature. These criteria include: were relevant matters considered, were relevant matters ignored, were the parties given a fair hearing, was the correct procedure followed, was the decision based on an erroneous view of the relevant law, was the decision of a type permitted by the relevant statute? Provided that these limited criteria are satisfied the decision will be upheld. An assertion that the decision was wrong or should not have been reached on the evidence is not an admissible ground of review. Judicial review controls the making of decisions in the exercise of a discretion by ensuring that that exercise is procedurally correct; it is not concerned with the content or substance of the decision itself. THE LAW The applicants complain under Article 13 (Art. 13) of the Convention that Section 25 Acquisition of Land Act 1981 prevents them challenging in the national jurisdiction the decisions affecting them in so far as those decisions may be challenged either on their merits or on the grounds that they infringe the rights guaranteed by the Convention. They complain that had their property been compulsorily purchased under other statutory provisions, they would have been better able to challenge the necessity for interference with their rights. Article 13 (Art. 13) of the Convention provides: "Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity." The respondent Government contend that the applicants have failed to exhaust their domestic remedies and thus failed to comply

9 with the requirements of Article 26 (Art. 26) of the Convention in that they have not challenged the validity of the compulsory purchase order under Section 23 of the Acquisition of Land Act 1981, nor have they sought judicial review of the local authority's exercise of its compulsory purchase power or of the Secretary of State's decision to confirm the compulsory purchase order. The respondent Government contend that both the statutory remedy under Section 23 of the Acquisition of Land Act 1981 and judicial review are effective remedies in compliance with Article 13 (Art. 13) of the Convention. The applicants do not accept that they could have appealed under Section 23 of the Acquisition of Land Act 1981 against the confirmation of the order or that they could have sought judicial review of the order. They submit that the statutory remedy under Section 23 and judicial review only provide a remedy in respect of procedural defects, rather than a substantive review of proportionality and necessity for the interference with their rights. The applicants state that they have no complaint against any of the procedural matters but that their complaint is concerned with the content or substance of the decision itself, a matter which neither judicial review nor the statutory remedy is concerned with. The applicants contend that, had proceedings been brought under different statutory provisions, greater scope would have been available to them to challenge the merits of any compulsory purchase order. The Commission notes the various stages in the compulsory purchase process as it applied in this case. At the different stages different remedies are available to a person who wishes to challenge a proposed compulsory purchase; these remedies were available to the applicants. At the first stage, where the local authority has resolved to make a compulsory purchase order, it appears that judicial review is available to challenge the basis for such a decision. The criteria upon which such review would be exercised include the question whether the authority has acted in accordance with its statutory powers as well as the question whether it has taken into account an irrelevant matter, failed to take a relevant matter into account or has reached a conclusion which no reasonable authority could reach. After a compulsory purchase order has been made, the availability of judicial review appears to be limited by the terms of Section 25 Acquisition of Land Act However, at this stage a person affected by a compulsory purchase order which has been made by the local authority has the right to object to the order and thereby secure a public inquiry in the order. Such an inquiry is conducted by an inspector who can fully investigate the case and hear oral evidence. In the present case the applicants did object to the order affecting their house and land and took part fully at the public inquiry which was subsequently held and at which they were also legally represented by Counsel. The inquiry lasted for two days and was substantially concerned with the applicants' objections, there being only one other objector. As the inspector's conclusions illustrate, the inquiry was able to consider not only the applicants' objections to the compulsory purchase of any of their land, but also the possibility that they retain only the land immediately adjacent to their house and the house itself. The subsequent stage in the compulsory purchase process is the consideration by the Secretary of State of the inspector's conclusions and his decision to confirm or not to confirm the order. It appears that where an order is not confirmed, judicial review may lie to challenge the Secretary of State's decision. From the domestic case-law established in this respect it emerges that, when a public authority wishes to acquire the land of a private citizen compulsorily, it is the duty of that acquiring authority to prove that

10 there is a necessity for that step (Brown v. Secretary of State for the Environment (1978) 40 P & CR 285). A person aggrieved by the confirmation of the compulsory purchase order may also pursue the statutory remedy provided by Section 23 Acquisition of Land Act The Commission notes that this Section provides: "(1) If any person aggrieved by a compulsory purchase order desires to question the validity thereof, or of any provision contained therein, on the ground that the authorisation of a compulsory purchase thereby granted is not empowered to be granted under this Act or any such enactment as is mentioned in section 1(1) of the Act, he may make an application to the High Court. (2) If any person aggrieved by (a) a compulsory purchase order desires to question the validity thereof on the ground that any relevant requirement has not been complied with in relation to the order he may make an application to the High Court." The Commission further notes the interpretation given to this section by the English courts as submitted by the respondent Government. An order may be impugned if the Secretary of State has taken into account something he ought not to have done, or failed to take into account something he ought to have done, or he misdirected himself in law, or has given reasons which on the facts cannot stand. The Commission recalls that the applicants had the opportunity of requiring a public local inquiry following the making of the compulsory purchase order. During this, the applicants were afforded the opportunity of making representations to the inspector which were then communicated in his report to the Secretary of State. The Commission also takes account of the fact that the applicants could clearly have tested the lawfulness of the Secretary of State's decisions under the terms of the statutory remedy afforded by Section 23 of the Acquisition of Land Act Furthermore, compensation for full value is available to the applicants under the Acquisition of Land Act 1981 and the applicants were offered alternative accommodation by the local authority before their eviction. In addition, judicial review proceedings would have been available to the applicants at certain stages of the procedure. The Commission finds, in view of the remedies that were in fact open to the applicants, and after fully examining the application as it has been presented, that it does not reveal any appearance of a violation of Article 13 (Art. 13) of the Convention. It follows that this aspect of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. For these reasons, the Commission DECLARES THE REMAINDER OF THE APPLICATION INADMISSIBLE. Secretary to the Commission President of the Commission (H.C. KRÜGER) (C.A. NØRGAARD)