Orakpo v. the United Kingdom



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)