Foley v The County Council of the City And County of Cardiff

A compulsory purchase order may be made where there is a compelling public-interest case and the interference with property rights is justified. A council’s established policy of bringing long-empty dwellings back into beneficial use may constitute a provision, criterion or practice for the purposes of the duty to make reasonable adjustments. The duty to have due regard to equality objectives is substantive, continuing and non-delegable, but its scope depends on the function being performed. A breach does not automatically require an order to be quashed where the court has a discretion and it is highly likely that the outcome would have been the same. The court upheld the order because the property had remained empty for many years, cooperative measures had failed, the claimant’s disabilities had been taken into account, and compulsory purchase was proportionate to the legitimate aim of returning the dwelling to beneficial occupation.

The claimant challenged the defendant council’s compulsory purchase order concerning a dwelling that had stood empty since 1994. The order was made under Parts I and II of the Acquisition of Land Act 1981 and section 17 of the Housing Act 1985. The claimant suffered from chronic depression and anxiety and argued that the council had failed to comply with duties under the Equality Act 2010, had acted irrationally and disproportionately, had acted unfairly, and had breached his human rights.

The central issues were whether the council had discriminated against the claimant, failed to make reasonable adjustments, failed to have due regard to equality objectives, or acted unlawfully in making and pursuing the compulsory purchase order.

1. Outcome. The claim failed on all four grounds. The compulsory purchase order was valid. The court directed counsel to file a draft consequential order.
2. Equality Act duties. The making of the order was not treatment because of something arising in consequence of the claimant’s disabilities for the purposes of section 15 of the Equality Act 2010. Alternatively, if section 15 applied, the order was a proportionate means of achieving the legitimate aim of returning a long-empty dwelling to beneficial occupation in an area with significant housing need.
3. The council’s practice of bringing empty houses back into beneficial ownership, and using compulsory purchase where a cooperative approach failed, was a provision, criterion or practice under section 20(3). However, the council had made reasonable adjustments. It had engaged with the claimant over many years, considered his disabilities, allowed additional time, explored funding options, and delayed progression when his plans appeared capable of producing the property’s rehabilitation.
4. The council had not breached the public sector equality duty in section 149. The scope for action was limited because the property was an investment property rather than the claimant’s home, compensation would be payable, and the council had taken his disabilities into account. There was no requirement to carry out a formal equality impact assessment. Even if there had been a breach, the court had discretion whether to quash the order and it was highly likely that the outcome would have been the same.
5. The decision was neither irrational nor disproportionate. The statement of reasons and appended report, read fairly, showed a balanced consideration of the public interest and the claimant’s interests. The reference to deduction of costs did not vitiate the decision.
6. The procedural-fairness ground added nothing beyond the rejected equality arguments. The order was compatible with article 1 of the First Protocol to the Convention and section 6(1) of the Human Rights Act 1998. Less intrusive measures had been attempted without meaningful progress over approximately ten years, and the council was entitled to conclude that compulsory purchase was necessary in the general interest.

First-instance judicial review challenge under section 23 of the Acquisition of Land Act 1981. The court upheld the compulsory purchase order confirmed on behalf of the Welsh Ministers.