CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 31 mars 1993

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                            AS TO THE ADMISSIBILITY OF                         Applications Nos. 18592/91 and 18593/91                       by Ikechukwu Ifoloma ORAKPO                       against the United Kingdom         The European Commission of Human Rights (Second Chamber) sitting in private on 31 March 1993, the following members being present:                      MM.   S. TRECHSEL, President of the Second Chamber                       G. JÖRUNDSSON                       A. WEITZEL                       H.G. SCHERMERS                       H. DANELIUS                  Mrs. G.H. THUNE                  MM.   J.-C. GEUS                       M. NOWICKI                    Mr.   K. ROGGE, Secretary to the Second Chamber           Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the applications introduced on 1 May 1991 by Ikechukwu Ifoloma ORAKPO against the United Kingdom and registered on 25 July 1991 under file Nos. 18592/91 and 18593/91;         Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;         Having deliberated;         Decides as follows:       THE FACTS         The applicant is a British citizen born in 1935.   He lives in London.   The present case relates to two interrelated matters, one concerning a compulsory purchase order (Application No. 18592/91) and one concerning a control order (Application No. 18593/91).   The facts of the two applications, as submitted by the applicant, may be summarised as follows.         On 4 November 1985 the Wandsworth London Borough Council ("the Council") made a control order against a building owned by the applicant.   A control order is a measure which vests management of a building in a local authority for a limited period of time.   Ownership is not affected, and any income from the building continues to accrue to the owner after various expenses and costs incurred in repair work and the like have been met.   The order vested management of the building in the Council for a period of five years.         On 27 November 1985 the Council made a Compulsory Purchase Order on the premises.   The Compulsory Purchase Order was made under Section 17 of Part 2 of the Housing Act 1985, which entitles a local housing authority to "acquire houses, or buildings which may be made suitable as houses, together with any land occupied with the house or buildings".         On 28 April 1988, the Compulsory Purchase Order was quashed because the Secretary of State accepted that the applicant should have been granted an adjournment in the prior proceedings.   A second Compulsory Purchase Order was made on 1 July 1988.   In its reasons it included the following paragraphs:         "6.   The Council will continue to carry out necessary or minor       works to this property under the Control Order which would not       require planning permission, but if the [Compulsory Purchase]       Order is confirmed the property will be sold to the Threshold       Single Persons Housing Association who have obtained a planning       permission and intend to convert the property into four self-       contained flats while putting the property into a thorough state       of repair.   Their proposals have been agreed with the tenants,       who would be granted tenancies in the converted property.         7.   The Council considers that both a quantitative and a       qualitative housing gain would be best achieved [and is most       unlikely otherwise to be achieved] by the compulsory acquisition       of this property and its immediate transfer to the Threshold       Single Persons Housing Association."         The applicant appealed against the Control Order to the County Court.   His appeal was dismissed on 7 November 1989.   The applicant also appealed against the Compulsory Purchase Order by way of application for the confirmation of the Compulsory Purchase Order to be quashed.   Mr. Justice Otten gave his decision in respect of the Compulsory Purchase Order on 4 April 1990.         On 12 October 1990 the Court of Appeal gave its judgment in the applicant's appeal against the decision of Mr Justice Otten to confirm the Compulsory Purchase Order.   The Court of Appeal held, inter alia, as follows:         "It is common ground that between October 1979 and June 1985       Wandsworth London Borough Council served on Mr. Orakpo in total       23 notices relating to the house under a variety of statutory       provisions.   According to Otten J., after being granted some       indulgence to enable him to complete the works in conformity with       those notices, by and large Mr. Orakpo succeeded in doing so.       However, he had not done so wholly to the satisfaction of the       London Borough Council, and indeed some of the works the borough       council had itself carried out.       ...       It is apparent that at the time when the matter came before       Skinner J. [1985] the council had under consideration the making       of a compulsory purchase order.       ...       A control order comes into force as soon as it is made, and the       authority are then both empowered, and indeed obliged, by the       statute to enter on the premises and take such immediate steps       as appear to be required to protect the safety, welfare or health       of people living in the house.       ...       Mr. Seaward, for Mr. Orakpo, has advanced with force - and, if       I may say so, very considerable skill, considering that, as I       understand it, he was only seized of this matter at a relatively       late stage - an argument that, on the proper interpretation of       the provisions of the Housing Act 1985 there was no power to make       or to confirm a compulsory purchase order after the expiration       of the 28 day period after the making of the control order.       Alternatively, as a result of the making of the control order the       housing gain that could have been achieved could have been       achieved under the control order and by allowing the house to       revert to Mr. Orakpo and thus the compulsory purchase order was       unnecessary.   That is his principal argument.       ...       I have already said that I shall have to come to the fundamental       point whether the compulsory purchase order was dealing with a       matter separate from the control order.   But, given that it was,       then, in my view, the inspector was entirely justified.   It was       a matter for him to reach conclusions about the past history and       the responsibility for the partial lack of repair of this       property at the time when the control order was made, and he was       entitled to base upon those conclusions the exercise of his       discretion not to grant an adjournment.   Mr. Seaward, of course,       properly concedes that we could only say, and Otton J. could only       have said, that that exercise of discretion was wrong if it was,       to use a phrase to which we still all cling lovingly, Wednesbury       unreasonable, perverse.   In my view, it was in no sense perverse       or Wednesbury unreasonable.   There was material, and ample       material   upon which that decision could properly be based.       ...       I come then to what really is the central issue in this case.       Mr. Seaward's argument that, first of all, the wording of the       1985 Act, particularly the wording of section 394 (which I       repeat) -              'Further provisions as to matters arising on the            cessation of a control order are contained in            Parts III and IV of Schedule 13 -            Part III relates to the cessation of control            orders generally, and            Part IV provides for the case where a control            order is followed by a compulsory purchase            order'         lead to the conclusion that a compulsory purchase order may only       be made under Part II of the 1985 Act after a control order if       it be made under the provisions of Part IV of Schedule 13.         It is perfectly right that the last few words of section 394       refer to the case where a control order is followed by a       compulsory purchase order.   But the words do not say in terms or       even suggest that there is no other circumstance in which a       compulsory purchase order can be made.   It is dealing with a       particular set of provisions which relate to a situation in which       within the boundaries of Part IV of Schedule 13 a compulsory       purchase order is made after the making of a control order.       ...       I found, if I may say so, Mr. Seaward's argument under this head       very attractive.   The Act does   not say that these are the only       provisions under which a compulsory purchase order may be made.       But they do appear to envisage that in the ordinary way at least,       if a compulsory purchase order is to follow a control order, the       council will normally make its order under the Schedule 13, Para       IV, provisions within 28 days.   But I have concluded that those       provisions are not exclusive.   One can well see that if a council       decides that it should as a matter of urgency make a control       order so that it can immediately obtain possession of the       premises and carry out necessary works of repair but that it is       desirable also to do something more in order to secure housing       gain, then virtually simultaneously it can both make a control       order and a compulsory purchase order and, if it does,   then the       schedule 13 provisions apply.   But I see no valid reason why a       council should not make a control order, follow it through, and       then some time later, on material that then seems to it to be       valid, seek to achieve a housing gain by making the compulsory       purchase order in respect of the same property.   Of course, it       will have had to have made a management scheme by that time and       of course it will face the difficulty that the land owner may       very well say, with a good deal of justification 'Well, now you       have repaired the property and put it in good condition, I would       be very happy to take the house back and do myself exactly what       you intend', and it would then be for the council to show, if it       could, that his proposition was either impracticable or unlikely       to come about.   It may be that in many cases a council that seeks       to make a compulsory purchase order after a lapse of time will       find it more difficult in proving what it has to prove.   But that       it does not have the power to make such an order I for my part       do not accept.         That brings me to the second general proposition which is that,       quite apart from the provisions of Schedule 13, effectively the       control order gives and gave this council all the powers it       needed to carry out the works necessary to achieve what it wanted       to achieve in the second compulsory purchase order.   In other       words, the making of the second compulsory purchase order was       unnecessary, unjustified and thus should never have been made or       confirmed.       ...       Mr. Ter Haar submits, and I agree with him, that although a       control order requires a local authority to carry out the works       necessary to put the property in a condition where it does not       suffer from the defects which lay behind the making of the order,       and authorises it generally in section 381 to do what a person       having an estate or interest in the premises would do not but for       the making of the order, nevertheless the totality of the       statutory provisions do not entitle a local authority under a       control order to do works the purpose of which is to provide more       accommodation for more people in the property or better       accommodation for people in the property.   It provides, broadly,       that the property can be put into proper condition for those       already there or for a lesser number, if that is necessary, in       order to make them fit for proper occupation.   But it does not       empower any works to be carried out which would have the object       of permitting it to be occupied by more people than are there at       the time when a control order is made.       ...       ...if a quantitative or qualitative housing gain is to be       achieved, that cannot be done solely by the making of a control       order.   If it is the view of the council, genuinely held and       proved to be correct, that it is unlikely to be achieved if the       property remains in the ownership of its existing owner, then       that is the foundation for the making of a compulsory purchase       order. ..."         On 31 October 1990 the Court of Appeal gave its judgment on the applicant's appeal against the decision of the Wandsworth County Court of 7 November 1989.   In its judgment, the Court of Appeal held, inter alia, as follows:         "... the applicant's failure to win that appeal [against the       control order] would at first sight render the result of this       appeal somewhat academic, but we have been assured that if he       succeeds in this appeal in showing that the control order was       invalid he will have claims for loss and expenses which he will       seek to enforce against the council.       ...            In the autumn of the year the appellant purchased the       property [1974] the council served upon him the first of a long       series of notices requiring works to be carried out under their       various statutory powers.   On 15 October notices were served       under section 39 of the Public Health Act 1936 for defective       guttering and drainage, and under section 26 of the Public Health       Act 1961 requiring the roofs at the front and back of the house       to be made water-tight.   The appellant did not comply with either       notice.   In due course the necessary work was carried out by the       council exercising their powers in default by the landlord.              There followed in the next five years up to the making of       the control order no less than 21 further notices under various       Acts requiring work to be done of which only three were ever       complied with by the appellant.   On another three work remained       outstanding when the control order was made.   The remainder all       had to be carried out by the respondents under their enforcement       powers.   There is legally due by the appellant to the council for       that work over £5,000 still outstanding.   No monies have ever       been paid to them.   Further, the appellant was convicted twice       for offences arising from breaches of the management regulations       which applied to the house under the management order.         All this clearly led to a feeling of resentment in the appellant       and accusations of mala fides made by him against the officers       of the council which were at the trial rejected by the judge and       have not been pursued on this appeal.              I now turn to the substance of the matters under appeal.       On his appeal to Judge White the appellant (who then was acting       in person) took, amongst others, the following points:              (1)   That the state of the premises did not justify the            making of the control order;              (2)   That the order was not necessary to protect the            safety, health and welfare of the persons living in the            house;              (3)   That in making the control order before the time            limits for the completion of the works comprised in his            undertakings to the court had expired, the council acted            unfairly and in bad faith and in contravention of the            court's order;   and, further, were in breach of contract;              (4)   That the council was in any event estopped in equity            from enforcing the control order;   and              (5)   That he had a legitimate expectation that the council            would do nothing to prevent him from complying with the            undertakings he had given to the court.         The latter point embraced unfairness and natural justice in the       same concept.         The judge rejected these submissions and made important findings       which I will summarise.         In dealing with the attitude of fairness the judge had no       hesitation in rejecting the appellant's allegation that there was       a deliberate vendetta against him or that the officers of the       council were acting other than in a perfectly bona fide manner,       and I quote from page 42:              'I have no hesitation in finding whether in error or not            the decision was based on reasoning which was bona fide            held by the (council's) officers responsible at the time.'         Mr. Seaward, rightly, has not sought to challenge that finding.       The judge made a further finding in relation to Section 73       of the 1964 Act, namely that the living conditions within the       house were such that it was necessary to make a control order in       order to protect the safety, welfare and health of the persons       living in the house.   That finding is challenged by Mr. Seaward.         [The judge at first instance said]              'There is considerable force at first sight in this            submission but it has at the end of the day to be taken in            the perspective of the overall situation that had            developed.                Considerable care was needed and had not been exercised by            the appellant's workman in making the roof covering            watertight when they had last left the site before the            1st November.   It was not simply a question of adjusting a            brick used as a weight but of properly fixing the sheeting            on to the battening so that it would not be dislodged in            the wind and would be watertight where it abutted on to the            surrounding walls.   Clearly, also the down pipe should not            have been left to direct water into the void as seen in            photograph 2(1)A.   The appellant himself accepts that if            the sheeting and down pipe was left as shown in the            photograph on the 1st November, which I find that it was,            there is plainly evidence of lack of diligence in the            carrying out of such work as had been put in hand before            him.   In simple terms it was careless and/or bad            workmanship.              To the [council] the lack of care in ensuing the roof was            watertight was the last straw - I use the appellant's            phrase in the cross-examination of Mr. Copeland - but it            was a straw of substance and it was added to by an already            heavy bale namely the long history of delay, incompetence            and inadequacy in dealing with the disrepair of this house.              The appellant has said that if he had not been stopped on            the 4th November the structural work would have been            completed by the 14th November and he could then have moved            on to carry out the 9(1A) and Schedule 24 works as had been            agreed.   His proposed programme for the structural works            was set out in his affidavit sworn on the 7th July 1985            (3/117).   The [council] accept that they cannot prove that            the work could not have been completed on time but their            case simply is that they concluded by the 4th November - or            were entitled to conclude on the history of this matter -            that quite apart from the immediate hazard there was a real            risk of further delay or problems developing of the nature            so often encountered if they did not there and then take            the control of the property the Order would give them.   I            am satisfied that this assessment of the situation made by            the [council's] senior officers concerned was fully            justified.   Not only was there the immediacy   of the risk            caused by the careless fitting of the bay roof covering but            the substantial prospect of a continuing failure by the            appellant to remedy the living conditions which have            affected the safety, welfare and health of the occupants            with the urgency and competence which was required.   I am            satisfied that it was necessary for the Order to be made.'         I pause there to make the comment that in his submissions, which       he made very ably, Mr. Seaward accepted that unless he could       attack that finding made by the judge his appeal really could not       succeed, and he attacked it on the basis of concentrating on the       extra works that had become necessary over the weekend of 1st and       4th November.   He submitted that the fact that Mr. Copeland was       quite happy not to do anything immediately on the Friday but was       content to leave it till the Monday would give the lie to any       suggestion of immediate urgency requiring peremptory exercise of       the powers to make a control order and that the rectification was       a matter of simplicity and, as the judge rehearsed the points       already made by Mr. Orakpo in person, it could so easily have       been dealt with either, as it were on the spot, by complaining       to Mr. Orakpo or, if he showed the sort of attitude which he did       on some occasions in the past, taking him on 48 hours notice back       to the court.   The judge, in my view, had those matters well in       mind.   He weighed them up, and came to the conclusion that it was       not merely a matter of putting right the immediate problems which       had arisen over that weekend but that those problems had to be       taken in the context of the complete history of this matter.   The       conduct of the appellant over the years and his attitude towards       the efforts on the part of the council to discharge their       statutory duties in respect of this house of multi-occupancy       entitled the council not only to form the view that it was       necessary to make the order in order to preserve the safety,       health and welfare of the inhabitants but also that, in the       judge's view as an objective matter they were entitled so to do.         Mr. Seaward submits that the overall approach of the court and       the judge in a case of this kind, the control order being       described by him in any event as a Draconian step, is that such       step should not be taken unless all other avenues have been       explored.   I find myself, with regret, unable to follow him in       that submission.   I think all that is required of the council is       to act reasonably and fairly in the exercise of their powers.       On the findings made by the judge, which it is impossible to       challenge in this court, the council were entitled to act not       merely on the immediate necessities arising over the weekend of       1st-4th November but to take those events in the context of the       performance by the appellant in the past in relation to work of       this kind and the carrying out of undertakings under statutory       notice and so forth.   I cannot agree that this is such a       Draconian step, such as the compulsory acquisition of somebody's       property.   It is a step that interferes with the enjoyment of his       property by the property owner.   But the only interference is to       insist on proper and efficient management when it is clearly       shown that the property owner is not or will not achieve       management of that kind, bearing in mind that there are third       parties in multi-occupancy premises who are very directly       involved.   I do not, therefore, feel that this is a case where       the council are under a duty otherwise than to act genuinely in       conditions which are established where something must be done to       protect the health, welfare and safety of the persons living in       the building.         The last two grounds on which Mr. Seaward developed I can take       together under the general rubric that it was unfair for the       council to change horses, as he put it, having decided to give       Mr. Orakpo a chance in July and August.         I find that in this case the reasons underlying the judge's       assessment of the actions taken by the council that in the whole       context of this matter they were entitled to form the conclusion       that this work was not going go be done diligently, that it was       going to be a repetition of past events, and that in order to       secure the safety, health and welfare of the persons living in       the house it was necessary to make this order.   I am unable to       [find] that, in taking that action, the council acting unfairly       or in abuse of power."           The applicant was refused leave to appeal to the House of Lords.         On 1 June 1991 the premises vested in the Council.     COMPLAINTS         The applicant complains that the Control Order of 4 November 1985 violated Article 1 of Protocol No. 1 to the Convention in that it did not comply with domestic law.   He also alleges a violation of Article 6 para. 1 of the Convention in that an agreement he had entered into with the Council was superseded by the Control Order.         He further considers that the invalidity of the Control Order renders illegal, and therefore in further violation of Article 1 of Protocol No. 1, the subsequent Compulsory Purchase Order, and that the Compulsory Purchase Order was in any event invalid because it, like the Control Order, failed to comply with domestic law.         Finally, the applicant alleges that the fact that the Compulsory Purchase Order appeal was heard before the Control Order appeal violated Article 6 para. 1 of the Convention, and that the United Kingdom courts, in finding against the applicant, discriminated against him in violation of Articles 14 and 6 of the Convention.     THE LAW   1.     The Commission finds, given the interrelation between the facts in the present applications, that it is necessary to join the two applications under Rule 35 of its Rules of Procedure.   2.     The applicant alleges a violation of Article 1 of Protocol No. 1 (P1-1) to the Convention in that the Control Order made against a building owned by him did not comply with domestic law.   Article 1 of Protocol No. 1 (P1-1) provides, so far as relevant, as follows.         "Every natural or legal person is entitled to the peaceful       enjoyment of his possessions.   No one shall be deprived of his       possessions except in the public interest and subject to the       conditions provided for by law and by the general principles of       international law.         The preceding provisions shall not, however, in any way impair       the right of a State to enforce such laws as it deems necessary       to control the use of property in accordance with the general       interest ..."         A control order is a measure which vests management of a building in a local authority for a limited period of time.   Ownership is not affected, and any income from the building continues to accrue to the owner after various expenses and costs incurred in repair work and the like have been met.   Such an order is therefore a measure "to control the use of property" within the meaning of the second paragraph of Article 1 of Protocol No. 1 (P1-1).   The Commission recalls that States enjoy a wide margin of appreciation in striking the balance between the demands of the general interest and the interest of the individual concerned (cf. Eur. Court H.R., AGOSI judgment of 24 October 1986, Series A no.108, p. 18, para. 52).   The applicant complains that the control order did not comply with domestic law.   However, given the findings of the County Court and the Court of Appeal with regard to the applicant's complaints, the Commission cannot find that the Control Order failed to comply with domestic law and hence with the requirements of the second paragraph of Article 1 of Protocol (P1-1) as to "lawfulness".         It follows that this part of the application is manifestly ill- founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   3.     The applicant also alleges that an agreement he had entered into with the Council was superseded by the Control Order.   He alleges a violation of Article 6 (Art. 6) of the Convention in this respect. However, Article 6 (Art. 6) of the Convention relates solely to judicial determinations of civil rights and obligations, and of criminal charges.         The Commission finds that this complaint raises no issues under this provision.         It follows that this part of the application is also manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   4.     The applicant further complains that the Compulsory Purchase Order was invalid, on the one hand because it was tainted by the illegality of the Control Order, and on the other hand because it failed to comply with domestic law.   He alleges violation of Article 1 of Protocol No. 1 (P1-1) to the Convention in this respect.         The Commission has already found (at para. 1 above) that the Control Order was not at variance with the requirements of Article 1 of Protocol No. 1 (P1-1) as to "lawfulness".   Consequently, the Compulsory Purchase Order cannot be rendered "unlawful" by the "unlawfulness" of the Control Order.         As to the Compulsory Purchase Order itself, the Commission notes that the building, the subject of the Compulsory Purchase Order, vested in the local authority on 1 June 1991.   There was therefore a "deprivation of possessions" within the meaning of the second sentence of the first paragraph of Article 1 of Protocol No. 1 (P1-1), and the complaint in this respect must be taken to be that the "conditions provided for by law" have not been complied with.   The Commission recalls that the phrase "subject to the conditions provided for by law" requires in the first place adequately accessible and sufficiently precise domestic legal provisions.   It also refers to more than domestic law (Eur. Court H.R., Lithgow and Others judgment of 8 July 1986, Series A no. 102, p. 47, para. 110).   The applicant's complaint is directed not to the inadequacy of domestic law but to its not having been properly applied in his case.         The Commission has had regard to the judgments of the High Court and of the Court of Appeal in relation to the Compulsory Purchase Order, but cannot find any indication that domestic law is inadequate or that it was not complied with in a way which could have any impact on Article 1 of Protocol No. 1 (P1-1).         As to the question whether the deprivation in the present case was a measure which was proportionate in all the circumstances of the case - including the interaction with the Control Order - the Commission recalls that in assessing whether a fair balance has been struck between the rights of the individual and the rights of the community in such matters, the availability and amount of compensation will be a significant factor (cf. No. 10825/84, Howard v. the United Kingdom, Dec. 18.10.85, D.R. 52 p.198 at p. 206).   To date, the applicant has not instituted proceedings for compensation. Accordingly, the Commission is not able to consider this aspect of the case.         It follows that this part of the application is at present manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   5.     The applicant complains that the appeal in connection with the Compulsory Purchase Order was decided before that of the Control Order, whereas the order should have been reversed.   He alleges a violation of Article 6 para. 1 (Art. 6-1) of the Convention in this respect, and also alleges a violation of Articles 6 and 14 (Art. 6, 14) of the Convention generally in connection with the proceedings in which he was involved.         The Commission notes that the Court of Appeal, in its judgments of 12 October 1990 (on the Compulsory Purchase Order) and 31 October 1990 (on the Control Order) was dealing with legal submissions as to the two cases.   The applicant, through his barrister, insisted on the Control Order appeal being dealt with, even though the Compulsory Purchase Order had been confirmed by the Court of Appeal, on the ground that he could have an action for loss and expense if the Control Order were found to be invalid.   The Commission finds no indication, either in the applicant's submissions or in the case-file, that the juxtaposition of the two appeal hearings in any way prejudiced his rights under Article 6 para. 1 (Art. 6-1) of the Convention.   In particular, there is no indication that the proceedings in the present case were unfair within the meaning of this provision.   The applicant was able to put all matters he wished to raise to the County Court and the Court of Appeal in connection with the Control Order, and to the High Court and the Court of Appeal in connection with the Compulsory Purchase Order.       In respect of the applicant's complaint that the courts discriminated against him contrary to Article 14 (Art. 14) of the Convention, the Commission notes that the accusations of mala fides on the part of the Council were rejected by the trial judge in the Control Order case and not pursued on appeal; no specific examples of discriminatory conduct on the part of the judges have been given by the applicant, and the mere fact that the applicant was unsuccessful in his various attempts to challenge the Control Order and the Compulsory Purchase Order is not sufficient to make out even a prima facie case of discrimination.           It follows that this part of the application is again manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.         For these reasons, the Commission unanimously         JOINS APPLICATIONS NOS. 18592/92 and 18593/92 and         DECLARES THEM INADMISSIBLE.       Secretary to the Second Chamber         President of the Second Chamber            (K. ROGGE)                             (S. TRECHSEL)