AS TO THE ADMISSIBILITY OF
Applications Nos. 18592/91 and 18593/91
by Ikechukwu Ifoloma ORAKPO
against the United Kingdom
The European Commission of Human Rights (Second Chamber) sitting
in private on 31 March 1993, the following members being present:
MM. S. TRECHSEL, President of the Second Chamber
G. JÖRUNDSSON
A. WEITZEL
H.G. SCHERMERS
H. DANELIUS
Mrs. G.H. THUNE
MM. J.-C. GEUS
M. NOWICKI
Mr. K. ROGGE, Secretary to the Second Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the applications introduced on 1 May 1991 by
Ikechukwu Ifoloma ORAKPO against the United Kingdom and registered on
25 July 1991 under file Nos. 18592/91 and 18593/91;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a British citizen born in 1935. He lives in
London. The present case relates to two interrelated matters, one
concerning a compulsory purchase order (Application No. 18592/91) and
one concerning a control order (Application No. 18593/91). The facts
of the two applications, as submitted by the applicant, may be
summarised as follows.
On 4 November 1985 the Wandsworth London Borough Council ("the
Council") made a control order against a building owned by the
applicant. A control order is a measure which vests management of a
building in a local authority for a limited period of time. Ownership
is not affected, and any income from the building continues to accrue
to the owner after various expenses and costs incurred in repair work
and the like have been met. The order vested management of the
building in the Council for a period of five years.
On 27 November 1985 the Council made a Compulsory Purchase Order
on the premises. The Compulsory Purchase Order was made under Section
17 of Part 2 of the Housing Act 1985, which entitles a local housing
authority to "acquire houses, or buildings which may be made suitable
as houses, together with any land occupied with the house or
buildings".
On 28 April 1988, the Compulsory Purchase Order was quashed
because the Secretary of State accepted that the applicant should have
been granted an adjournment in the prior proceedings. A second
Compulsory Purchase Order was made on 1 July 1988. In its reasons it
included the following paragraphs:
"6. The Council will continue to carry out necessary or minor
works to this property under the Control Order which would not
require planning permission, but if the [Compulsory Purchase]
Order is confirmed the property will be sold to the Threshold
Single Persons Housing Association who have obtained a planning
permission and intend to convert the property into four self-
contained flats while putting the property into a thorough state
of repair. Their proposals have been agreed with the tenants,
who would be granted tenancies in the converted property.
7. The Council considers that both a quantitative and a
qualitative housing gain would be best achieved [and is most
unlikely otherwise to be achieved] by the compulsory acquisition
of this property and its immediate transfer to the Threshold
Single Persons Housing Association."
The applicant appealed against the Control Order to the County
Court. His appeal was dismissed on 7 November 1989. The applicant
also appealed against the Compulsory Purchase Order by way of
application for the confirmation of the Compulsory Purchase Order to
be quashed. Mr. Justice Otten gave his decision in respect of the
Compulsory Purchase Order on 4 April 1990.
On 12 October 1990 the Court of Appeal gave its judgment in the
applicant's appeal against the decision of Mr Justice Otten to confirm
the Compulsory Purchase Order. The Court of Appeal held, inter alia,
as follows:
"It is common ground that between October 1979 and June 1985
Wandsworth London Borough Council served on Mr. Orakpo in total
23 notices relating to the house under a variety of statutory
provisions. According to Otten J., after being granted some
indulgence to enable him to complete the works in conformity with
those notices, by and large Mr. Orakpo succeeded in doing so.
However, he had not done so wholly to the satisfaction of the
London Borough Council, and indeed some of the works the borough
council had itself carried out.
...
It is apparent that at the time when the matter came before
Skinner J. [1985] the council had under consideration the making
of a compulsory purchase order.
...
A control order comes into force as soon as it is made, and the
authority are then both empowered, and indeed obliged, by the
statute to enter on the premises and take such immediate steps
as appear to be required to protect the safety, welfare or health
of people living in the house.
...
Mr. Seaward, for Mr. Orakpo, has advanced with force - and, if
I may say so, very considerable skill, considering that, as I
understand it, he was only seized of this matter at a relatively
late stage - an argument that, on the proper interpretation of
the provisions of the Housing Act 1985 there was no power to make
or to confirm a compulsory purchase order after the expiration
of the 28 day period after the making of the control order.
Alternatively, as a result of the making of the control order the
housing gain that could have been achieved could have been
achieved under the control order and by allowing the house to
revert to Mr. Orakpo and thus the compulsory purchase order was
unnecessary. That is his principal argument.
...
I have already said that I shall have to come to the fundamental
point whether the compulsory purchase order was dealing with a
matter separate from the control order. But, given that it was,
then, in my view, the inspector was entirely justified. It was
a matter for him to reach conclusions about the past history and
the responsibility for the partial lack of repair of this
property at the time when the control order was made, and he was
entitled to base upon those conclusions the exercise of his
discretion not to grant an adjournment. Mr. Seaward, of course,
properly concedes that we could only say, and Otton J. could only
have said, that that exercise of discretion was wrong if it was,
to use a phrase to which we still all cling lovingly, Wednesbury
unreasonable, perverse. In my view, it was in no sense perverse
or Wednesbury unreasonable. There was material, and ample
material upon which that decision could properly be based.
...
I come then to what really is the central issue in this case.
Mr. Seaward's argument that, first of all, the wording of the
1985 Act, particularly the wording of section 394 (which I
repeat) -
'Further provisions as to matters arising on the
cessation of a control order are contained in
Parts III and IV of Schedule 13 -
Part III relates to the cessation of control
orders generally, and
Part IV provides for the case where a control
order is followed by a compulsory purchase
order'
lead to the conclusion that a compulsory purchase order may only
be made under Part II of the 1985 Act after a control order if
it be made under the provisions of Part IV of Schedule 13.
It is perfectly right that the last few words of section 394
refer to the case where a control order is followed by a
compulsory purchase order. But the words do not say in terms or
even suggest that there is no other circumstance in which a
compulsory purchase order can be made. It is dealing with a
particular set of provisions which relate to a situation in which
within the boundaries of Part IV of Schedule 13 a compulsory
purchase order is made after the making of a control order.
...
I found, if I may say so, Mr. Seaward's argument under this head
very attractive. The Act does not say that these are the only
provisions under which a compulsory purchase order may be made.
But they do appear to envisage that in the ordinary way at least,
if a compulsory purchase order is to follow a control order, the
council will normally make its order under the Schedule 13, Para
IV, provisions within 28 days. But I have concluded that those
provisions are not exclusive. One can well see that if a council
decides that it should as a matter of urgency make a control
order so that it can immediately obtain possession of the
premises and carry out necessary works of repair but that it is
desirable also to do something more in order to secure housing
gain, then virtually simultaneously it can both make a control
order and a compulsory purchase order and, if it does, then the
schedule 13 provisions apply. But I see no valid reason why a
council should not make a control order, follow it through, and
then some time later, on material that then seems to it to be
valid, seek to achieve a housing gain by making the compulsory
purchase order in respect of the same property. Of course, it
will have had to have made a management scheme by that time and
of course it will face the difficulty that the land owner may
very well say, with a good deal of justification 'Well, now you
have repaired the property and put it in good condition, I would
be very happy to take the house back and do myself exactly what
you intend', and it would then be for the council to show, if it
could, that his proposition was either impracticable or unlikely
to come about. It may be that in many cases a council that seeks
to make a compulsory purchase order after a lapse of time will
find it more difficult in proving what it has to prove. But that
it does not have the power to make such an order I for my part
do not accept.
That brings me to the second general proposition which is that,
quite apart from the provisions of Schedule 13, effectively the
control order gives and gave this council all the powers it
needed to carry out the works necessary to achieve what it wanted
to achieve in the second compulsory purchase order. In other
words, the making of the second compulsory purchase order was
unnecessary, unjustified and thus should never have been made or
confirmed.
...
Mr. Ter Haar submits, and I agree with him, that although a
control order requires a local authority to carry out the works
necessary to put the property in a condition where it does not
suffer from the defects which lay behind the making of the order,
and authorises it generally in section 381 to do what a person
having an estate or interest in the premises would do not but for
the making of the order, nevertheless the totality of the
statutory provisions do not entitle a local authority under a
control order to do works the purpose of which is to provide more
accommodation for more people in the property or better
accommodation for people in the property. It provides, broadly,
that the property can be put into proper condition for those
already there or for a lesser number, if that is necessary, in
order to make them fit for proper occupation. But it does not
empower any works to be carried out which would have the object
of permitting it to be occupied by more people than are there at
the time when a control order is made.
...
...if a quantitative or qualitative housing gain is to be
achieved, that cannot be done solely by the making of a control
order. If it is the view of the council, genuinely held and
proved to be correct, that it is unlikely to be achieved if the
property remains in the ownership of its existing owner, then
that is the foundation for the making of a compulsory purchase
order. ..."
On 31 October 1990 the Court of Appeal gave its judgment on the
applicant's appeal against the decision of the Wandsworth County Court
of 7 November 1989. In its judgment, the Court of Appeal held, inter
alia, as follows:
"... the applicant's failure to win that appeal [against the
control order] would at first sight render the result of this
appeal somewhat academic, but we have been assured that if he
succeeds in this appeal in showing that the control order was
invalid he will have claims for loss and expenses which he will
seek to enforce against the council.
...
In the autumn of the year the appellant purchased the
property [1974] the council served upon him the first of a long
series of notices requiring works to be carried out under their
various statutory powers. On 15 October notices were served
under section 39 of the Public Health Act 1936 for defective
guttering and drainage, and under section 26 of the Public Health
Act 1961 requiring the roofs at the front and back of the house
to be made water-tight. The appellant did not comply with either
notice. In due course the necessary work was carried out by the
council exercising their powers in default by the landlord.
There followed in the next five years up to the making of
the control order no less than 21 further notices under various
Acts requiring work to be done of which only three were ever
complied with by the appellant. On another three work remained
outstanding when the control order was made. The remainder all
had to be carried out by the respondents under their enforcement
powers. There is legally due by the appellant to the council for
that work over £5,000 still outstanding. No monies have ever
been paid to them. Further, the appellant was convicted twice
for offences arising from breaches of the management regulations
which applied to the house under the management order.
All this clearly led to a feeling of resentment in the appellant
and accusations of mala fides made by him against the officers
of the council which were at the trial rejected by the judge and
have not been pursued on this appeal.
I now turn to the substance of the matters under appeal.
On his appeal to Judge White the appellant (who then was acting
in person) took, amongst others, the following points:
(1) That the state of the premises did not justify the
making of the control order;
(2) That the order was not necessary to protect the
safety, health and welfare of the persons living in the
house;
(3) That in making the control order before the time
limits for the completion of the works comprised in his
undertakings to the court had expired, the council acted
unfairly and in bad faith and in contravention of the
court's order; and, further, were in breach of contract;
(4) That the council was in any event estopped in equity
from enforcing the control order; and
(5) That he had a legitimate expectation that the council
would do nothing to prevent him from complying with the
undertakings he had given to the court.
The latter point embraced unfairness and natural justice in the
same concept.
The judge rejected these submissions and made important findings
which I will summarise.
In dealing with the attitude of fairness the judge had no
hesitation in rejecting the appellant's allegation that there was
a deliberate vendetta against him or that the officers of the
council were acting other than in a perfectly bona fide manner,
and I quote from page 42:
'I have no hesitation in finding whether in error or not
the decision was based on reasoning which was bona fide
held by the (council's) officers responsible at the time.'
Mr. Seaward, rightly, has not sought to challenge that finding.
The judge made a further finding in relation to Section 73
of the 1964 Act, namely that the living conditions within the
house were such that it was necessary to make a control order in
order to protect the safety, welfare and health of the persons
living in the house. That finding is challenged by Mr. Seaward.
[The judge at first instance said]
'There is considerable force at first sight in this
submission but it has at the end of the day to be taken in
the perspective of the overall situation that had
developed.
Considerable care was needed and had not been exercised by
the appellant's workman in making the roof covering
watertight when they had last left the site before the
1st November. It was not simply a question of adjusting a
brick used as a weight but of properly fixing the sheeting
on to the battening so that it would not be dislodged in
the wind and would be watertight where it abutted on to the
surrounding walls. Clearly, also the down pipe should not
have been left to direct water into the void as seen in
photograph 2(1)A. The appellant himself accepts that if
the sheeting and down pipe was left as shown in the
photograph on the 1st November, which I find that it was,
there is plainly evidence of lack of diligence in the
carrying out of such work as had been put in hand before
him. In simple terms it was careless and/or bad
workmanship.
To the [council] the lack of care in ensuing the roof was
watertight was the last straw - I use the appellant's
phrase in the cross-examination of Mr. Copeland - but it
was a straw of substance and it was added to by an already
heavy bale namely the long history of delay, incompetence
and inadequacy in dealing with the disrepair of this house.
The appellant has said that if he had not been stopped on
the 4th November the structural work would have been
completed by the 14th November and he could then have moved
on to carry out the 9(1A) and Schedule 24 works as had been
agreed. His proposed programme for the structural works
was set out in his affidavit sworn on the 7th July 1985
(3/117). The [council] accept that they cannot prove that
the work could not have been completed on time but their
case simply is that they concluded by the 4th November - or
were entitled to conclude on the history of this matter -
that quite apart from the immediate hazard there was a real
risk of further delay or problems developing of the nature
so often encountered if they did not there and then take
the control of the property the Order would give them. I
am satisfied that this assessment of the situation made by
the [council's] senior officers concerned was fully
justified. Not only was there the immediacy of the risk
caused by the careless fitting of the bay roof covering but
the substantial prospect of a continuing failure by the
appellant to remedy the living conditions which have
affected the safety, welfare and health of the occupants
with the urgency and competence which was required. I am
satisfied that it was necessary for the Order to be made.'
I pause there to make the comment that in his submissions, which
he made very ably, Mr. Seaward accepted that unless he could
attack that finding made by the judge his appeal really could not
succeed, and he attacked it on the basis of concentrating on the
extra works that had become necessary over the weekend of 1st and
4th November. He submitted that the fact that Mr. Copeland was
quite happy not to do anything immediately on the Friday but was
content to leave it till the Monday would give the lie to any
suggestion of immediate urgency requiring peremptory exercise of
the powers to make a control order and that the rectification was
a matter of simplicity and, as the judge rehearsed the points
already made by Mr. Orakpo in person, it could so easily have
been dealt with either, as it were on the spot, by complaining
to Mr. Orakpo or, if he showed the sort of attitude which he did
on some occasions in the past, taking him on 48 hours notice back
to the court. The judge, in my view, had those matters well in
mind. He weighed them up, and came to the conclusion that it was
not merely a matter of putting right the immediate problems which
had arisen over that weekend but that those problems had to be
taken in the context of the complete history of this matter. The
conduct of the appellant over the years and his attitude towards
the efforts on the part of the council to discharge their
statutory duties in respect of this house of multi-occupancy
entitled the council not only to form the view that it was
necessary to make the order in order to preserve the safety,
health and welfare of the inhabitants but also that, in the
judge's view as an objective matter they were entitled so to do.
Mr. Seaward submits that the overall approach of the court and
the judge in a case of this kind, the control order being
described by him in any event as a Draconian step, is that such
step should not be taken unless all other avenues have been
explored. I find myself, with regret, unable to follow him in
that submission. I think all that is required of the council is
to act reasonably and fairly in the exercise of their powers.
On the findings made by the judge, which it is impossible to
challenge in this court, the council were entitled to act not
merely on the immediate necessities arising over the weekend of
1st-4th November but to take those events in the context of the
performance by the appellant in the past in relation to work of
this kind and the carrying out of undertakings under statutory
notice and so forth. I cannot agree that this is such a
Draconian step, such as the compulsory acquisition of somebody's
property. It is a step that interferes with the enjoyment of his
property by the property owner. But the only interference is to
insist on proper and efficient management when it is clearly
shown that the property owner is not or will not achieve
management of that kind, bearing in mind that there are third
parties in multi-occupancy premises who are very directly
involved. I do not, therefore, feel that this is a case where
the council are under a duty otherwise than to act genuinely in
conditions which are established where something must be done to
protect the health, welfare and safety of the persons living in
the building.
The last two grounds on which Mr. Seaward developed I can take
together under the general rubric that it was unfair for the
council to change horses, as he put it, having decided to give
Mr. Orakpo a chance in July and August.
I find that in this case the reasons underlying the judge's
assessment of the actions taken by the council that in the whole
context of this matter they were entitled to form the conclusion
that this work was not going go be done diligently, that it was
going to be a repetition of past events, and that in order to
secure the safety, health and welfare of the persons living in
the house it was necessary to make this order. I am unable to
[find] that, in taking that action, the council acting unfairly
or in abuse of power."
The applicant was refused leave to appeal to the House of Lords.
On 1 June 1991 the premises vested in the Council.
COMPLAINTS
The applicant complains that the Control Order of 4 November 1985
violated Article 1 of Protocol No. 1 to the Convention in that it did
not comply with domestic law. He also alleges a violation of Article
6 para. 1 of the Convention in that an agreement he had entered into
with the Council was superseded by the Control Order.
He further considers that the invalidity of the Control Order
renders illegal, and therefore in further violation of Article 1 of
Protocol No. 1, the subsequent Compulsory Purchase Order, and that the
Compulsory Purchase Order was in any event invalid because it, like the
Control Order, failed to comply with domestic law.
Finally, the applicant alleges that the fact that the Compulsory
Purchase Order appeal was heard before the Control Order appeal
violated Article 6 para. 1 of the Convention, and that the United
Kingdom courts, in finding against the applicant, discriminated against
him in violation of Articles 14 and 6 of the Convention.
THE LAW
1. The Commission finds, given the interrelation between the facts
in the present applications, that it is necessary to join the two
applications under Rule 35 of its Rules of Procedure.
2. The applicant alleges a violation of Article 1 of Protocol No.
1 (P1-1) to the Convention in that the Control Order made against a
building owned by him did not comply with domestic law. Article 1 of
Protocol No. 1 (P1-1) provides, so far as relevant, as follows.
"Every natural or legal person is entitled to the peaceful
enjoyment of his possessions. No one shall be deprived of his
possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law.
The preceding provisions shall not, however, in any way impair
the right of a State to enforce such laws as it deems necessary
to control the use of property in accordance with the general
interest ..."
A control order is a measure which vests management of a building
in a local authority for a limited period of time. Ownership is not
affected, and any income from the building continues to accrue to the
owner after various expenses and costs incurred in repair work and the
like have been met. Such an order is therefore a measure "to control
the use of property" within the meaning of the second paragraph of
Article 1 of Protocol No. 1 (P1-1). The Commission recalls that States
enjoy a wide margin of appreciation in striking the balance between the
demands of the general interest and the interest of the individual
concerned (cf. Eur. Court H.R., AGOSI judgment of 24 October 1986,
Series A no.108, p. 18, para. 52). The applicant complains that the
control order did not comply with domestic law. However, given the
findings of the County Court and the Court of Appeal with regard to the
applicant's complaints, the Commission cannot find that the Control
Order failed to comply with domestic law and hence with the
requirements of the second paragraph of Article 1 of Protocol (P1-1)
as to "lawfulness".
It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
3. The applicant also alleges that an agreement he had entered into
with the Council was superseded by the Control Order. He alleges a
violation of Article 6 (Art. 6) of the Convention in this respect.
However, Article 6 (Art. 6) of the Convention relates solely to
judicial determinations of civil rights and obligations, and of
criminal charges.
The Commission finds that this complaint raises no issues under
this provision.
It follows that this part of the application is also manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
4. The applicant further complains that the Compulsory Purchase
Order was invalid, on the one hand because it was tainted by the
illegality of the Control Order, and on the other hand because it
failed to comply with domestic law. He alleges violation of Article
1 of Protocol No. 1 (P1-1) to the Convention in this respect.
The Commission has already found (at para. 1 above) that the
Control Order was not at variance with the requirements of Article 1
of Protocol No. 1 (P1-1) as to "lawfulness". Consequently, the
Compulsory Purchase Order cannot be rendered "unlawful" by the
"unlawfulness" of the Control Order.
As to the Compulsory Purchase Order itself, the Commission notes
that the building, the subject of the Compulsory Purchase Order, vested
in the local authority on 1 June 1991. There was therefore a
"deprivation of possessions" within the meaning of the second sentence
of the first paragraph of Article 1 of Protocol No. 1 (P1-1), and the
complaint in this respect must be taken to be that the "conditions
provided for by law" have not been complied with. The Commission
recalls that the phrase "subject to the conditions provided for by law"
requires in the first place adequately accessible and sufficiently
precise domestic legal provisions. It also refers to more than
domestic law (Eur. Court H.R., Lithgow and Others judgment of 8 July
1986, Series A no. 102, p. 47, para. 110). The applicant's complaint
is directed not to the inadequacy of domestic law but to its not having
been properly applied in his case.
The Commission has had regard to the judgments of the High Court
and of the Court of Appeal in relation to the Compulsory Purchase
Order, but cannot find any indication that domestic law is inadequate
or that it was not complied with in a way which could have any impact
on Article 1 of Protocol No. 1 (P1-1).
As to the question whether the deprivation in the present case
was a measure which was proportionate in all the circumstances of the
case - including the interaction with the Control Order - the
Commission recalls that in assessing whether a fair balance has been
struck between the rights of the individual and the rights of the
community in such matters, the availability and amount of compensation
will be a significant factor (cf. No. 10825/84, Howard v. the United
Kingdom, Dec. 18.10.85, D.R. 52 p.198 at p. 206). To date, the
applicant has not instituted proceedings for compensation.
Accordingly, the Commission is not able to consider this aspect of the
case.
It follows that this part of the application is at present
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
5. The applicant complains that the appeal in connection with the
Compulsory Purchase Order was decided before that of the Control Order,
whereas the order should have been reversed. He alleges a violation
of Article 6 para. 1 (Art. 6-1) of the Convention in this respect, and
also alleges a violation of Articles 6 and 14 (Art. 6, 14) of the
Convention generally in connection with the proceedings in which he was
involved.
The Commission notes that the Court of Appeal, in its judgments
of 12 October 1990 (on the Compulsory Purchase Order) and 31 October
1990 (on the Control Order) was dealing with legal submissions as to
the two cases. The applicant, through his barrister, insisted on the
Control Order appeal being dealt with, even though the Compulsory
Purchase Order had been confirmed by the Court of Appeal, on the ground
that he could have an action for loss and expense if the Control Order
were found to be invalid. The Commission finds no indication, either
in the applicant's submissions or in the case-file, that the
juxtaposition of the two appeal hearings in any way prejudiced his
rights under Article 6 para. 1 (Art. 6-1) of the Convention. In
particular, there is no indication that the proceedings in the present
case were unfair within the meaning of this provision. The applicant
was able to put all matters he wished to raise to the County Court and
the Court of Appeal in connection with the Control Order, and to the
High Court and the Court of Appeal in connection with the Compulsory
Purchase Order.
In respect of the applicant's complaint that the courts
discriminated against him contrary to Article 14 (Art. 14) of the
Convention, the Commission notes that the accusations of mala fides on
the part of the Council were rejected by the trial judge in the Control
Order case and not pursued on appeal; no specific examples of
discriminatory conduct on the part of the judges have been given by the
applicant, and the mere fact that the applicant was unsuccessful in his
various attempts to challenge the Control Order and the Compulsory
Purchase Order is not sufficient to make out even a prima facie case
of discrimination.
It follows that this part of the application is again manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission unanimously
JOINS APPLICATIONS NOS. 18592/92 and 18593/92 and
DECLARES THEM INADMISSIBLE.
Secretary to the Second Chamber President of the Second Chamber
(K. ROGGE) (S. TRECHSEL)
Full & Egal Universal Law Academy