Memorandum by Martin Edwards and Christiaan
Zwart (EMP 26)
1. We make these submissions on our behalf
and not by or on behalf of 39 Essex Street.
2. We were instructed by the Bar Pro Bono
Unit to assist the Whitefield Conservation Action Group ("WCAG")
in opposing the Borough of Pendle No 101 (Nelson (West) No.1)
Compulsory Purchase Order 2000. WCAG comprised local affected
residents and their neighbours. The effect of the order, had the
Deputy Prime Minster confirmed it would have resulted in the eventual
demolition of 145 or so homes in the first phase against the will
of the residents.
3. Unusually two public inquiries were held
into this order, the first consequent upon the second. We attended
and represented WCAG at both. We attach copies of our closing
submissions and other relevant documents which set out the main
basis of WCAG's objection to this order. On both occasions the
inspector recommended that the order should not be confirmed.
It is to the credit of the Deputy Prime Minister that, in the
light of his inspector's recommendation, he did not confirm the
order.
4. In our view a number of important features
emerge from our experience relevant to issue (f), and more generally.
Firstly, the 42 day notification period was insufficient for residents
to prepare a cpo defence because our clients could not instruct
during the month of Ramadan, and Christmas followed. Secondly,
and of key importance, there was insufficient consultation with
the residents before the order was made, both in real terms and
in its effect, or outworking. For example, a majority of residents
had little, if any, idea that the cpo would authorise demolition
of their own homes if they ticked option B and not option A. The
cpo wool was pulled effectively over our client's eyes from the
outset. For example, the lack of challenge to an earlier statutory
declaration of clearance order was, remarkably, relied upon as
"support" for demolition at inquiry. Thirdly, (and as
appears presently happening at Darwen—please see attached),
there was a failure by the acquiring authority to properly assess
the physical condition of the properties in accordance with the
statutory procedure, and with relevant qualified professionals,
so that the statutory presumption of fitness remained intact.
For example, many surveys were "drive-by" from the back
of a car. After close of evidence, the Council was driven to ask
the inspector himself to inspect the properties. The unfairness
of placing facts in issue beyond the inquiry will be self-evident.
Furthermore, the authority failed to understand the "cause
and effect" nature of the statutory test to avoid the presumption
of fitness. For example, a wrong assumption was made that if there
was an identified defect from the statutory provision, it necessarily
followed that the home was unfit. This was wrong because it short-circuited
the need for an expert judgement to establish a causative link
between defect and unfitness. Fourthly, there was a failure to
appreciate the operation of the "local" housing market.
The Muslim community operated a housing market outside the traditional
housing market. Consequently, from the traditional perspective,
the area appeared depressed and with no through flow to estate
agents. In reality the "local" market was thriving,
with Muslims exchanging (in effect) options to purchase each other's
homes for their family successors. Plainly, the shadow of the
cpo meant that during its threat, little if any refurbishment
was undertaken. However, confirmation of the cpo would have been
self-justified and irrational. Moreover the actions of the acquiring
authority in acquiring certain homes by agreement and then leaving
those homes empty exacerbated and accelerated any perception of
decline in the area. It is our view that such an act could, potentially,
contravene the rights of the remaining residents under Article
8 and Article 1 of the First Protocol of the European Convention
on Human Rights. It is also shocking to find that in 2005 residents
in low value homes are not provided with any legal assistance
to challenge the order. Legal aid is not available and they do
not have the resources themselves to fight to save their community.
Consequently there is a real danger that these orders will be
foist upon unwilling communities who are unable to challenge these
orders. Fifthly, a cpo is a remedy of "last" resort.
This means that its threat should not be regarded as a likely
and inevitable end—but rather as a mediation tool to stimulate
and to encourage refurbishment where this is an option. An Englishman's
home is his castle. If he told that it is unfit, it should be
open to him to pull his socks up, render his home fit, and delete
his castle from the cpo. Indeed, this is the effect of the current
statutory regime. It follows that the authority should not be
closed to other forms of urban regeneration once a declaration
and cpo has been issued—but awaits confirmation. This should
mean that the cost of expensive inquiries might be avoided and
the strain on the public purse lessened. To this end, the current
considerable fiscal incentive to the use of demolition for regeneration
as opposed to refurbishment led regeneration, should, in our respectful
view, be reviewed.
5. We are also concerned that the increased
powers of compulsory purchase in the modified section 226 of the
Town and Country Planning Act 1990 as amended by the Planning
and Compulsory Purchase Act 2004 will have the unintended effect
of making acquiring authorities less conscious of the community's
needs as the scope for objecting to an order has been significantly
diminished.
6. Of the above, the most important feature
was that the acquiring authority had clearly failed to gain the
support of the local community from the outset. If the community
does not support these projects then their imposition upon any
community smacks of authoritarianism of the worst kind to be,
as at Pendle, resisted.
|
