AS TO THE ADMISSIBILITY
Application No. 10825/84
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. 10825/84;
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
submitted by the applicants' representatives on 16 September 1986;
Having deliberated;
Decides as follows:
THE FACTS
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
public enquiry was held by an inspector on 18 and 19 January 1983.
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 1983.
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
effect that the applicants' home and land became the property of the
local authority on 30 November 1984. The local authority took
possession of the land and the applicants' home on 19 November 1986
and the house was demolished in December 1986.
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 four-
bedroomed 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
1969.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 9 November 1983 and
registered on 27 February 1984. 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 1984. 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 1985.
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
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 1986. The applicants' observations are
dated 16 September 1986.
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 1980.
The procedure governing the exercise of these compulsory
purchase powers is contained in the Acquisition of Land Act 1981.
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 1976. 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 1981.
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.
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:
" 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 1981. 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 1981.
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 1965. 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.
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 1981. In this connection the respondent
Government refer to No. 9261/81, Dec. 3.3.82, 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
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
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 1981. 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
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 1981.
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 1981. 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)