Braithwaite v Secretary of State for Communities and Local Government & Anor

Whether property is an “empty property” for compulsory purchase purposes under the Housing Act 1985 is not determined by whether it is an “empty dwelling” under the separate EDMO regime in the Housing Act 2004. The EDMO regime provides additional powers and safeguards; it does not cut back or qualify the compulsory purchase regime. A decision-maker is required to consider only matters which the statute expressly or impliedly makes legally relevant. A compulsory purchase order may be proportionate where a property has remained vacant and in serious disrepair, there is no realistic prospect of the owner restoring it to residential use, and the authority’s proposals are realistic and likely to secure a substantial public benefit.

The claimant sought judicial review under section 23(1) of the Acquisition of Land Act 1981 of the Secretary of State’s confirmation of a compulsory purchase order made by the London Borough of Enfield concerning his property.

The order was made under section 17 of the Housing Act 1985 to facilitate the property’s return to residential use. The claimant argued that the inspector and the Secretary of State had failed to consider the separate empty dwelling management order regime under the Housing Act 2004, had wrongly compared the authority’s proposals with his own, and had failed to assess proportionality under Articles 1 of Protocol 1 and 8 of the European Convention on Human Rights.

1. Application dismissed. The Secretary of State was entitled to confirm the compulsory purchase order.
2. The relevant consideration principle is statutory. A matter must be expressly or impliedly required by the statute, because it is obviously material, to be taken into account as a matter of legal obligation. The court applied the approach stated in Derbyshire Dales DC v Secretary of State for Communities and Local Government [2009] EWHC 1729 (Admin).
3. Nothing in the Housing Act 2004 required a decision-maker under the Housing Act 1985 to determine whether a property was an “empty dwelling” under the EDMO regime. Parliament could have imposed such an obligation but did not. The EDMO regime was intended to create additional powers, with specific safeguards, rather than to reduce the scope of the existing compulsory purchase regime.
4. The statutory power in section 17 of the Housing Act 1985 permits acquisition of houses or buildings needing repair and improvement for housing accommodation, consistently with Joyce v Secretary of State for Transport, Local Government and the Regions [2002] EWHC 2213 (Admin).
5. The inspector was entitled, and required by the applicable guidance, to compare the authority’s realistic proposals with those advanced by the owner. The inspector found the property to have been empty, seriously neglected and unlikely to be restored by the claimant, while the authority’s proposals were well defined and more likely to secure residential use.
6. The compulsory purchase engaged Article 1 of Protocol 1 and potentially Article 8. On the facts found, the acute housing need and the realistic prospect of achieving residential use outweighed the claimant’s rights. The order was therefore proportionate.