Simon Bell considers the lessons for local authorities and claimants from a recent High Court challenge to a council's decision to execute a general vesting declaration.
There are many reasons as to why (and many powers under which) acquiring authorities may seek to compulsorily purchase land and properties – whether it be to bring forward much needed regeneration projects, seek to protect and preserve listed building or, as in the case of R (oao Zoe Dawes) v Birmingham City Council  EWHC 1676 (Admin) as part of a policy aimed at bringing empty properties back into use for the public good. This latter power can be found in s.17 of the Housing Act 1985.
The Housing Act 1985
Section 17 of the Housing Act 1985 provides that:
“(1) A local housing authority may for the purposes of this part—
(b) Acquire houses, or buildings which may be made suitable as houses, together with any land occupied with the houses or buildings, …
(3) Land may be acquired by a local housing authority for the purposes of this Part by agreement, or they may be authorised by the Secretary of State to acquire it compulsorily."
This particular power was considered by the Court in R (Joyce) v The Secretary of State for Transport, Local Government and the Regions  EWHC 2213 (Admin) and found to include housing that was in a state of disrepair – housing which an acquiring authority could acquire under the power found within s.17 with a view to undertake repairs and improvements before bringing it back into use as housing stock. More often than not, local authorities seek to use this power to assist them in providing affordable, quality housing to address local need for such accommodation.
The CPO Process
Compulsory Purchase Orders are intended to be measures of last resort. They are not powers that can be easily and readily accessed and a series of processes have to be followed – concluding with confirmation by the relevant Secretary of State – before the interests that the CPO can be acquired.
Looking to the example of a local authority - In brief, in order to utilise CPO powers, there are a number of stages that a local authority has to go through before it can take ownership of land and property. First, it has to identify the purpose or scheme for which it considers land may need to be compulsorily acquired and under which compulsory acquisition power. Secondly it needs to resolve to use CPO powers. Thirdly, it needs to formally identify the land to which it has resolve to include as part of a CPO. Fourthly, it needs to make the CPO, which includes a requirement to include a statement of reasons explaining the purpose for which the property included in the CPO will be used and demonstrating that the purpose, and indeed CPO is in the public interests.
Having made the CPO, there is a requirement to serve notices on those affected by it. Time is allowed for objections to be made. If valid objections are received the CPO is examined by a Planning Inspector on behalf of the Secretary of State. This can be done either by written representations or through a public local inquiry with the case in favour of the CPO being put forward, together with the objections made against it. At the conclusion of the examination a decision is made either by, or on behalf of, the Secretary of State to confirm the CPO (with or without modifications).
Once confirmed, the CPO allows the local authority a period of three years in which to implement it.
As set out above, a CPO is a measure of last resort where there is a compelling case to acquire property rights in the public interest. There is, therefore, an onus on an acquiring authority to seek to acquire property rights through negotiation with the owners of the property concerned and the Secretary of State expects an acquiring authority to demonstrate all reasonable steps in seeking to acquire property rights by agreement.
For a more detailed overview of the CPO process, see the Ministry of Housing, Communities and Local Government’s “Guidance on Compulsory Purchase Process and The Crichel Down Rules ”
Challenging a CPO
Under s.23 of the Acquisition of Land Act 1981, a person aggrieved by the making of a CPO may question the validity of the CPO concerned. There is a six week time limit in which to do so and limited grounds on which to being a challenge – either that the authorisation of the order is not empowered to be granted (s.23(1) ALA 1981) or that any relevant requirement has not been complied with (s.23(2) ALA 1981). The Court of Appeal has summarised the principles governing applications made under s.23 ALA 1981 – see Margate Town Centre Regeneration Company Limited (and others) v Secretary of State for Communities and Local Government and Thanet District Council  EWCA Civ 1178).
Implementing a CPO
There are two methods for implementing a CPO and acquiring the property interests contained within in it – by means of a Notice to Treat or a General Vesting Declaration.
Again, in brief, under a Notice to Treat a formal request is made to agree a price before moving to obtaining possession and acquiring title. Although a relatively quick means of securing possession of land, it can take time to formally acquire the title of that land. A Notice to Treat can be withdrawn at any time (by agreement).
A General Vesting Declaration (“GVD”) is a formal process. Once executed, a local authority is unable to withdraw it and once it takes effect, both possession and title are acquired at the same time.
Challenging a GVD
There are a handful of examples of a GVD being challenged by way of judicial review. In doing so, the Court has been very clear that any such challenge has to be to the decision to execute the GVD and is not a means to challenge the decisions to make and confirm the CPO under which the GVD has been executed. Until R(oao Zoe Dawes) v Birmingham City Council there have been no reported examples of a GVD being quashed following a successful judicial review.
R (oao of Dawes) v Birmingham City Council
In April 2019, the Secretary of State confirmed a CPO made by Birmingham City Council under s.17 of the Housing Act 1985. The CPO was made in respect of 12 properties, two of which belonged to the Claimant at that time. The CPO was made in furtherance of the Council’s Private Sector Empty Property Strategy – a policy aimed at bringing empty houses back into occupation. In June 2020, the Council made the decision to execute a GVD relating to the second of the Claimant’s properties, with the GVD itself being executed in August 2020.
The Council required the Claimant to undertake works to both properties to ensure that they were made habitable and to bring them back into occupation. Both properties were treated separately under the CPO. At various times the Council required internal inspections of the properties to check that they had been made habitable and to be reassured that they were being used as main residences. If they were not satisfied than GVDs would be executed, and the properties sold for housing use. The Council did not serve a schedule of works on the Claimant, but neither did the Claimant supply a work specification as to the works she was carrying out.
The Claimant’s position was that she had originally objected to the making of the CPO, but that unbeknownst to her that objection had been withdrawn by another, by means of a mutual undertaking provided by the Council. As such her objection was not considered at a public inquiry into the CPO. The Claimant did not bring a s.23 ALA 1981 in time and the first property was the subject of an earlier GVD. In respect of the second property, the Claimant’s position was that she was intending to, and in the process of, moving into that property to use as a family home for her and her disabled son. She had made the Council aware of this intention and the fact that she was attempting to undertake renovation work to make the property habitable but had been facing significant difficulties in doing so in a timely manner due to her personal circumstances. She asserted that work was being undertaken to the property to bring it back into a habitable condition. The Council’s last internal inspection of the property took place in September 2019 before contact between the Claimant and the Council effectively broke off in February 2020.
The Claimant challenged the decision to execute the GVD on three grounds:
- The Council had acted in breach of a “Tameside Duty” (see Secretary of State for Education and Science v Tameside Metropolitan Borough Council  AC 1014) in deciding to execute the GVD.
- The Council had failed to have due regard the Public Sector Equality Duty under s.149 of the Equality Act 2010.
- The decision to deprive her of the property was a breach of her, and her son’s, rights under Article 8 of the ECHR.
The Court’s Decision
Based on the information before it the Council had behaved irrationally in deciding to execute the GVD in June 2020 (before executing it in August 2020) without having carried out an internal inspection of the property to check on the condition, use and occupation and to require the production of documents on the issue of occupation. The last internal inspection had taken place 11 months before the execution of the GVD. No rational authority could have supposed that the information it had in its position or the enquiries it had made were sufficient for it to make the decision to exercise the powers granted to it under the CPO. The claimant succeeded on her Tameside ground.
The Court undertook an analysis of the legal principles for challenges to a GVD and whether particular grounds of challenge (in this case grounds alleging breaches of the public sector equality duty (s.149 Equality Act 2010) and Article 8 of the ECHR) could be raised as challenges to a GVD where a claimant has failed to raise them at an earlier stage in the CPO process under the Acquisition of Land Act 1981. In doing so, the Court expressed reservations as to whether it would be permissible for such matters to be raised in challenge to a GVD, but as the claim did not depend upon the merits of such additional grounds it was not required to resolve this issue for the purposes of this case.
What does this mean?
The Court’s judgment in R(oao Dawes) v Birmingham CC turns very much on the particular circumstances of the case. However, it does provide useful guidance for acquiring authorities looking to exercise CPOs under s.17 of the Housing Act 1985 to bring vacant properties back into use and the level of inquiry that is to be expected of an acquiring authority when executing a GVD.
For potential claimants, the judgment sets a warning as to the types of challenges that the Court may (at a future date) hold to be impermissible in respect of judicial review challenges to a GVD and how the Court would expect certain challenges to be dealt with in earlier proceedings – either through the Public Inquiry process or by way of a challenge under s.23 ALA 1981.
For Miss Dawes and her son, the judgment means she now has a permanent family home.