Owner persuades High Court to quash general vesting declaration made by city council over empty property

The High Court has quashed a general vesting declaration (GVD) made by Birmingham City Council because of what Mr Justice Holgate called “the unusual circumstances of this case.”

He said in Dawes, R (On the Application Of) v Birmingham City Council [2021] EWHC 1676 (Admin) that claimant Zoe Dawes had established the council had acted irrationally.

Birmingham made the order under s4 of the Compulsory Purchase (Vesting Declarations) Act 1981 to compulsorily purchase a house owned by Ms Dawes that had long lain empty and fallen into disrepair.

The council wished to bring the property back into use to help meet demand for housing.

After negotiations, Birmingham delivered a 'mutual undertaking’ under which Ms Dawes would withdraw her objection to the compulsory purchase order - so that it could be confirmed by the Secretary of State - and in return the council undertook that it would not acquire the property under the confirmed CPO unless Ms Dawes failed to comply with conditions to renovate it and either live in it herself or try to sell it.

The council though moved to activate the compulsory purchase without properly checking whether Ms Dawes had complied with the conditions in the undertaking.

Holgate J said a council team leader sent an email to its Birmingham’s private rented service manager that included a note of a relevant meeting on 24 June 2020 but with different text.

He noted: “[The team leader] had prepared the original file note of that meeting…and no explanation has been given in the evidence as to how the additional text came to be inserted.

“Now it was suspected that because of ‘constant difficulties’ the authority had had when trying to inspect the premises, the claimant would use Covid as a delaying tactic and would further resist inspection. It was also now claimed that the possibility of getting into the property was very remote.”

The judge said it was “most surprising that this text should appear in the email of 13 July 2020 without any proper explanation, given that it is so different from the file note".

Birmingham had no evidence that Ms Dawes would prevent or delay an inspection because of Covid-19 or anything else, and so “I am left in no doubt that it was irrational for Birmingham to decide on 24 June 2020 to execute the general vesting declaration, and then to execute it on 13 August 2020, without having carried out an internal inspection of the property to check on the condition, use and occupation of the property and to require the production of documents on the issue of occupation".

The judge said: “I am satisfied that no rational authority could have supposed that the information it had in its possession, or the enquiries it had made, were sufficient for making the decision to exercise its powers of compulsory purchase…the approach previously taken by the authority, at the time when the CPO was confirmed and subsequently (even down to March 2020), was that the purposes of the CPO would be fulfilled, and so the powers of acquisition would not be used, if the owner satisfied the terms of her undertakings, or subsequently the conditions set by the authority in its correspondence.

“On any rational view, that did not cease to be the position by the time Birmingham decided on 24 June 2020 that a GVD should be executed, or indeed by the date when it was in fact executed.”

He rejected though grounds that Birmingham failed to consider the Public Sector Equality Duty and failed to assess whether the GVD would breach the article 8 rights of Ms Dawes and her son.

Holgate J said: “I have already expressed my reservations about reliance upon the PSED or Article 8 as a basis for challenging a GVD in relation to points which could and should have been pursued as an objection to the CPO and thereafter as a potential legal ground of challenge to that order.”

Birmingham submitted that Section 31(2A) of the Senior Courts Act 1981 applied and that is was highly likely the outcome would not have been substantially different if the conduct complained of had not occurred.

Holgate J said this was “untenable” as if an inspection had been made it would have revealed the condition of the property and whether it was suitable for habitation.

He added that Birmingham officers devoted many pages of witness statements to making claims about why they did not accept that Ms Dawes moved into the property on 1 July 2020.

“By definition, this is not evidence which was available to the authority at the time of the decision impugned,” the judge said.

“It is all 'fresh evidence’ which is not admissible under any of the recognised categories.”

He quashed the declaration but noted: “the court's decision very much rests on the unusual circumstances of this case and the unusual events which occurred”.

Mark Smulian