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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Hayes, R (on the application of) v SS Communities and Local Government [2009] EWHC 3520 (Admin) (6 November 2009) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2009/3520.html Cite as: [2009] EWHC 3520 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		Friday, 6 November 2009

1. MR JUSTICE CHARLES: The decision challenged in these proceedings for judicial review was conveyed by a letter dated 23 June 2006. It was a decision to grant consent for the transfer of the Clapham Park estate to Clapham Park Homes Limited who are the second interested party in these proceedings. In very general terms, the background to the transfer is something called a new deal for communities, which was a programme introduced by the government in, I think, 1998, and its aim was to promote the regeneration of deprived neighbourhoods. An aim of the programme is to eliminate the different causes of deprivation in the community and it takes a multi-pronged approach.
2. The estate was selected as an estate to which that approach should be applied, and, for example, in the original planning document, the present position at that stage was said to be that the estate was perceived by many to have declined through decades of neglect, reaching a critical state about three years previously, relating both to issues of the quality of the housing provided, and neighbourhood concerns such as policing, problems in the estate, et cetera.
3. The claimant before me, Mr Hayes, has lived on the west side of the estate for a great number of years, as has his family before him. The west side of the estate has a residents' association of which he has been an active member. Before me, he has appeared in person with the assistance of a gentlemen, Dr De Maynard, who lives on the estate, and who himself has put in written objections in the history of the matters leading up to the transfer. He has taken a role which goes beyond that of a McKenzie friend, and has effectively acted as the claimant's advocate. That, to my mind, quite rightly, has not been objected to by any of the other parties. It is plain that the document that the claimant relies on, and this was confirmed I think in a hearing before Mr Justice Blair, has had considerable legal input. The skeleton argument that is relied on reflects the very closely revised grounds which are put in, and as Dr De Maynard informed me, it had been prepared by people who know about these things, which he does not.
4. I turn to the statutory scheme and framework. It is in fact helpfully and succinctly described by Lord Justice Wilson in his judgment in the Queen on the application of Swords vs the Secretary of State for Communities and Local Government and others which is reported at 2007 BLGR 757. However, I propose at this stage also to go to the source material, and to refer to various sections to be found in the Housing Act 1985. Section 9 deals with the provision of housing accommodation by the local housing authority. The most relevant sections are Section 32, which finds a mirror in Section 43. Section 32 provides in sub-section 1 that:

"Without prejudice to the provisions of part 5, the right to buy, a local authority has the power by this Section and not otherwise to dispose of land held by them for the purposes of this part."

5. Sub-section 2:

"A disposal under this section may be effected in any manner, but, subject to sub-section 3, should not be made without the consent of the Secretary of State."

6. Sub-section 3 does not apply in this case, and I don't think I need read other sub-sections. Section 34 provides and relates to consent under Sections 32 and 33. Sub-section 1 provides:

"This section applies in relation to the giving of the Secretary of State's consent under Section 32 or 33. Sub-section 2 provides that consent may be given (a) either generally to all local authorities, or to a particular authority or a description of authority; (b) either in relation to particular land or in relation to land of a particular description.

"(3) consent may be given subject to conditions.

"(4) consent may particularly be given subject to conditions as to price, premiums or rents to be obtained on the disposal, including conditions as to the amount by which on the disposal of a house by way of sale or by the grant or asylum to be released at a premium, the price or premium is to be or may be discounted by the local authority."

7. 4A provides, and provided at the time, it having been introduced by amendment in 1988, as follows:

"The matters to which the Secretary of State may have regard in determining whether to give consent and if so, to what conditions consent should be subject, shall include; (a) the extent, if any, to which the person to whom the proposed disposal is to be made, in this sub-section referred to as 'the intending purchaser' is, or is likely to be, dependant upon, controlled or by, or subject to influence from the local authority making the disposal or any members or officers of that authority; (b) the extent, if any, to which the proposed disposal would result in the intending purchaser becoming the predominant or a substantial owner in any area of housing accommodation let on tenancies or subject to licences; (c) the terms of the proposed disposal; and (d) any other matters whatsoever which he considers relevant."

8. I pause there to indicate that to my mind sub-section 4 gives an indication of the matters the Secretary of State is concerned with. That is reflected when one turns to 4A, (a) and (b). As far as (c) is concerned, as I understand it from circumstances of this case, the terms of the proposed disposal include a wide range of matters, because here, as was pointed out to me, the proposal in the relevant master plan takes on a contractual element as and when a transfer takes place, in that the purchaser is bound contractually with the local authority housing body to carry out the relevant redevelopment, refurbishment, demolition, et cetera, and the planned decanting of people from place A to place B. So the whole scheme is brought in in respect of those terms, as are then:

"(d) any other matters whatsoever which the Secretary of State considers to be relevant."

9. I don't think I need Section 43 for the purposes of this review. I turn to schedule 3A which is headed:

"Consultation before disposal to private sector land rule."

10. It provides in paragraph 1:

"This schedule applies to the disposal of our local authority of an interest in land as a result of which a secure tenant or an introductory tenant of the authority will become the tenant of a private sector landlord. For the purposes of this schedule, the grant of an option, which if exercised, would result in a secure tenant, or an introductory tenant, of a local authority becoming the tenant of a private sector landlord shall be the treated as a disposal of the interest which is the subject of the option.

"(3) where a disposal of land by the local authority is in part a disposal to which this schedule applies, the provisions of this schedule apply to that part as to a separate disposal.

"(4) in this paragraph 'private sector landlord' means a person other than an authority or body within Section 80 (the landlord condition for secure tenancies)."

11. Then paragraph 2.1:

"The Secretary of State shall not entertain an application for his consent to a disposal to which this schedule applies, unless the authorities certify either; (a) that the requirements of paragraph 3 as to consultation have been complied with; or (b) that the requirements of that paragraph as to consultation have been complied with, except in relation to tenants expected to have vacated the dwelling-house in question before the disposal:

"And the certificate shall be accompanied by a copy of the notices given by the authority in accordance with that paragraph 2."

12. I don't think I need read 2. Paragraph 3 provides:

"(1) the requirements as to consultation referred to above are as follows.

"(2) the local authority shall serve notice in writing on the tenant informing him of; (a) such details of their proposal as the authority consider appropriate, but including the identity of the person of whom is the disposal is to be made; (b) the likely consequences of the disposal of the tenant; and (c) the effect of the provisions of this schedule, and (in the case of a secure tenant) of Sections 171A to 171H (preservation of right to buy on disposal to private sector landlord),And informing that he may, within such reasonable periods as may be specified in the notice, make representations to the authority.

"(3) The authority shall consider any representations made to them within that period and shall serve a further written notice on the tenant informing him; (a) of any significant changes in their proposal; and (b) that he may within such period as is specified (which must be at least 28 days after the service of this notice) communicate to the Secretary of State his objection to the proposal,

"And informing him of the effect of paragraph 5 (consent to be withheld if majority of tenants are opposed).

"(4) When a notice has been served under sub-paragraph 3, the authority shall arrange a ballot of the tenants in accordance with sub-paragraph 5, to establish whether or not the tenants wish the disposal to proceed."

13. I pause to comment that that part of the sub-paragraph was not in play when these proceedings took place. But that amendment reflects the practice of guidance that was given by the Secretary of State at the relevant time.

"(5) the authorities shall; (a) make arrangements for such persons as they would consider appropriate to conduct the ballot in such a manner as that person considers appropriate; or (b) to conduct the ballot themselves."

"(6) After the ballot has been held, the authority should serve a notice on each tenant whether or not he voted in the ballot informing him (a) of the ballot result; and (b) if the authority intend to proceed with the disposal that he may, within 28 days after the service of the notice, make representations to the Secretary of State, or as the case may be, the Welsh ministers."

14. Paragraph 4:

"The Secretary of State may require the authority to carry out such further consultation of their tenants and to give him such information as to the results of that consultation, as he may direct."

15. Paragraph 5, I propose to read in its amended form, and then in the form that it was at the time of the relevant consent. In its amended form it reads:

"(1) The Secretary of State shall not give his consent if the result of the ballots under paragraph 3.4 shows that a majority tenants of the dwelling-houses to which the applications relate who voted in the ballot, do not wish the disposal to proceed. This does not affect his general discretion to refuse consent on grounds relating to whether a disposal has the support of the tenants or on any other ground. In making this decision, the Secretary of State may have regard to any information available to him, and the local authority shall give him such information as to the representations made to them by tenants and others, and other relevant matters as he may require."

16. Paragraph 5A relates to the giving of guidance. It was in the form of the housing transfer manual at the time that this transfer took place. And then:

"(6) The Secretary of State's consent to a disposal is not invalidated by a failure on his part or that of the local authority to comply with the requirements of this schedule."

17. In its form at the time of the transfer, paragraph 5 read:

"(1) The Secretary of State shall not give his consent if it appears to him that the majority of the tenants of the dwelling-houses to which the application relates do not wish the disposal to proceed."

18. Then it continued as presently enacted. Returning to paragraph 12 of the judgment of Lord Justice Wilson in the Swords decision, I read from paragraph 12(g) where he refers to paragraph 5 in the following terms:

"Paragraph 5.1 is particularly important in that it relates to the Secretary of State's discretion, because he cannot give his consent if it appears to him that the majority of the tenants do not wish the disposal to proceed. The necessary majority is, of course, not of the tenants who choose to take part in any ballot conducted by or on behalf of the local authority, but rather all the tenants subject to the proposed disposal."

19. The rest of the sub-paragraph is also important:

"Although the initial presentation on behalf of the Secretary of State in these proceedings betrayed confusion in this regard, said by Mr Wolfe to afford significant window into the unlawfulness of her procedure, (2) is now common ground that that is made amply clear by paragraph 2.3, and a reference in paragraph 5.1 to the Secretary of State's general discretion to refuse consent is not an introduction of some fresh or additional discretion, but a reference back to the discretion confirmed by Sections 32 and 43 of the Act."

20. In paragraph 14, Lord Justice Wilson points out that the manual, that is the housing transfer manual, has no statutory effect:

"It is not an issue pursuant to the statute. That was the position now and at the time of this transfer. Thus no statutory requirement (inaudible) to have regard to it, but, of course, it is not (inaudible) that the contents of the manual have no legal significance. They may, for example, represent statements of policy in which it would be unlawful for the Secretary of State to depart, save for good, express reason. They may engender legitimate expectation on the parts of tenants and others which, if frustrated, may require the court to intervene."

21. Pausing there, one sees from the provisions of the statute, the introduction of the power in Sections 32 and 43, and then a process in schedule 3A, that the process includes provisions in paragraph 3 for what were described before me as a stage one process and a stage two process. I have been taken to the documents in this case which gave effect to those stages. It can be seen that the first stage is an informative stage. Stage two is also an informative stage which has regard to the product of stage one, and includes in it an ability for the persons affected, or potentially affected, by the proposal, to make representations directly to the Secretary of State within a specified time limit. Here there were four such representations made in that time limit. Also, standing back from these provisions and reading them in their context, it is apparent that in this case, and in many others, the context is a significant redevelopment project or proposal. Essential to any such project and proposal will be a number of detailed considerations relating to a wide range of matters, and a number of regulations and regulatory bodies will be become engaged. First, for example, the planning authorities will become engaged. Second, bodies relating to housing corporations and their registration will become engaged, and will have to take a fairly close interest in what is proposed by the intended transferee, ie the purchaser, and they will have regard to a whole raft of matters which are set out in a statement I have from a representative of the department. Consent would not be obtained until the relevant registration of the transferee has been obtained by the intended purchaser.
22. Also internal to the local authority itself in making the decision, there will be a range of matters which will have to be gone through. Also, it seems to me, it is important to remember in the context of this schedule, the obvious point that what actually brings about the transfer is the transfer itself. What precedes that is the decision of the local authority, which is a public body, and they have to decide that they want to transfer the land on the raft of conditions that will be included in the relevant documentation. So, for example, in this case, those conditions will relate to demolition of buildings, refurbishment of buildings, decanting of residents, both of buildings that are demolished and refurbished, where that is appropriate, placing them in alternative accommodation, and the choices as to where they will be as and when the relevant works are carried out. All of that is in the relevant documentation. All of that is plainly available and known to those who will be affected by the transfer, before the transfer itself takes place, and indeed before the Secretary of State is asked for consent.
23. I make those comments because it seems to me that it is important to have regard to what the role of the Secretary of State was intended to be by Parliament in the context of giving the Secretary of State the powers that the schedule and sections provide. By its wording, it seems to me that the Secretary of State is given a statutory power to take into account a wide range of matters. No statutory power, of course, is unfettered or arbitrary, and has to be exercised having regard to its underlying purpose and to further that underlying purpose. It seems to me that what is apparent from this legislation looked at in its content, is that the Secretary of State was not taking on the position of a decision-maker equivalent to an appeal, or a revisiting, or a reconsideration in general terms of the underlying issues. It would, to my mind, be remarkable and an inordinate waste of public time and expense if that was the role because, as I have already indicated, at different levels there will have been earlier close consideration of the relevant matters.
24. In this context, my attention was drawn during the course of argument to a conclusion reached by Mr Justice Schiemann at first instance in a case called the Queen on behalf of Walters vs the Secretary of State for the Environment and on behalf of O'Malley and Brent London Borough Council, 30HLR at page 328. It appears from the headnote and at 342, and I cite:

"Mr Howell then submitted that no reasonable Secretary of State would consider giving his consent to a disposal without having regard to the views of the secured tenants. I am not persuaded that one can impose a common law duty to consult alongside the statutory duty. Even if there were such a duty, it seems to me that Parliament has in effect enacted that a consent is not to be invalidated by a failure by the council or the Secretary of State to have regard to the views of tenants."

25. It is unnecessary for me at this stage to go further in determining the issues as to the extent of the consultation and/or the factors that the Secretary of State is obliged by law to take into account in the decision making process relating to consent. To my mind, paragraph 6 has a relevance to a consideration of what should or should not be done by the Secretary of State because it provides that the consent to a disposal is not invalidated by a failure on the Secretary of State's part, or that of the local authority, to comply with the requirements of the schedule. It must be remembered that the schedule has put in place the consultation process at stage one and stage two. It is clear from what Lord Justice Wilson says, and from looking at the wording of the Section and schedule, that a primary concern of the Secretary of State, because it is a limit on the discretion, is that the Secretary of State has to be satisfied that the majority of the tenants are in favour. Those are the secured tenants, not others on the estate who have been described as leaseholders, and are persons who, as I understand it, own their property or the relevant long lease.
26. I should now refer to the important passage in the housing transfer manual, and it is to be found in paragraph 10.41 and that reads as follows:

"In order to ensure that a ballot reflects the views of the tenants and residents at the time of transfer, the authority shall seek to minimise the time between ballot and the transfer. Ideally, it should be six to twelve months. In cases where the period between the ballot and completion of the transfer extends to twelve months or beyond, which may be the case in some of the more complex urban transfers (such as mixed community developments) the Secretary of State will take a view on whether the original ballot reflects the views of current tenants, or whether further consultation or further evidence is required. This will involve consideration of local circumstances; for example, the number of re-lets and whether all tenants, particularly new tenants, have been kept informed about the transfer proposal, and have been given an opportunity to make their views known to the authority and the department."

27. That indicates, as indeed does the schedule, that the Secretary of State may, and I emphasise may, in that context and others, seek information and consider what further, if any, consultation should take place. So that gives a power, in the context of these provisions, as do to my mind the statutory provisions, to look at anything that the Secretary of State may consider to be relevant.
28. I now turn to the procedural history of this case. Firstly, I should refer to earlier proceedings and earlier claims relating to the same consent and transfer. This was a claim brought by a Mr Akinsanmi and it was brought in June of 2006, and therefore at the time that the consent was being considered and the transfer was about to be put into in effect. Briefly, permission was refused to bring proceedings for judicial review. At that stage, the focus of attack included, and it seems to me was primarily focused on, the decision of the local authority. But also the claimant in those proceedings appealed, or sought permission to appeal, the conclusion of the judge refusing him leave. That matter came before Lord Justice Laws, whose experience in this kind of work is perhaps unrivalled. On the first hearing before him, he was satisfied that the judge was correct, but a point arose on the witness statements before him, which he considered warranted further investigation. That point related to whether or not the council had voted appropriately on the matter, and therefore whether the decision of the council to seek the Secretary of State's consent and to enter into the transfer was flawed procedurally, or substantively, because of the lack of a proper vote. He gave the parties an opportunity to address that further, and when the matter came back to him, and I quote now from paragraph 8 of his judgment, he said this:

"Other points are made to the effect that there are inconsistencies in the council's own records and documents relating to the various procedures adopted, not least as regards to the meeting of 13 February 2006. Overall, the applicant says that the respondent's evidence involves deliberate falsehoods. I have to say there is simply no basis for so grave an accusation. I suspect though without oral evidence, one cannot be sure that what happened here is that the accelerated procedure adopted after the guillotine led to misunderstandings by members of the public attending the meeting, many of whom no doubt felt and feel very strongly about this project. One respects that, but as it seems to me, what is clear is that there was a resolution to seek the Secretary of State's consent. No complaint was made to the Secretary of State to the effect that there had been such procedural defects as are now asserted. The Secretary of State's grant of consent does not itself form the subject of these proceedings, and even if it did, I cannot see how arguments about the precise events of 22 February 2006 could possibly affect the legality of that consent."

29. I mention those proceedings and that conclusion for two reasons; one to indicate that there was an attack made at that stage which was refused by the court, and second, because it is relevant to an application that was made at the start of this hearing to introduce material that had recently come into the possession of the claimant from a freedom of information search that had been made concerning the voting of the council. The application was to allow that evidence in, and to bring into these proceedings an attack both on the decision of the council and on the validity of the Secretary of State's consent relating to the voting procedure by the council at those meetings in February. When refusing that, I indicated that my reasons would be demonstrated on the transcript from my exchange with the claimant's representative. I can confirm now that the short point on that is that it seems to me that the relevant point had already been asked and answered in the context of this transfer, and further. And in any event, the information would have been available at that time, but perhaps more importantly to my mind, it adds nothing to the dispute on the various witness statements that was in play before Lord Justice Laws.
30. I now turn to the position in these proceedings. The claim form was issued in September of 2006 and therefore some time after the transfer in June of that year. Consent was granted by His Honour Judge Gilbart sitting in the administrative court. The relevant order is stamped 12 December, and it supersedes an earlier order stamped 5 December. The judge heard from Dr De Maynard for the claimant and from counsel on behalf of the defendant. He ordered that permission to apply for judicial review be granted, but it needed to be limited to grounds relating to:

"(1) the defendant's consideration and reasoning; and (2) the defendant's failure to give reasons in her policy as required in paragraph 10.41 of the Housing Transfer Manual, in a case where more than twelve months had elapsed since the original ballot."

31. He further ordered that the defendant file evidence describing the representations received and consideration given by her, that is the Secretary of State. When one reads the relevant decision letter, it is clear that that order is based upon the assertion in that letter to the effect that the Secretary of State had considered the representations made to her. Pausing there, on my reading of that permission, it includes a reasons challenge and a challenge which could be based upon classic public law grounds, namely that the Secretary of State had failed to have regard only to relevant factors, and/or erred in law, and/or on a ground based on unreasonableness.
32. However, matters moved on, and the case came before Mr Justice Burnton, as he then was, in February 2008. In this context, I have been referred not only to the orders, but also to the argument that took place before the judge, and at that stage the claimant was represented by counsel. A backdrop to that was that an application was made to amend the claim form and the grounds. The amendment importantly included a claim for an order quashing the Secretary of State's consent in the letter dated 23 June, and then a declaration that with the aforesaid quashing order having been granted, no further proceeding in relation to the master plan would be lawful until there had been a lawful ballot of the tenants, in accordance with the principles set out in a paragraph of the grounds. I am told by counsel and accept that the argument before the judge was on the basis that should such a quashing order be made relating to the consent, that would have the impact of rendering the transfer itself ultra vires the local authority. In any event, whether that be right or wrong, that argument would certainly have been in play.
33. Also, it is to be noted that the relief sought was effectively for a stand still of all work in the major redevelopment that is set out in the master plan. In that context therefore, full square before Mr Justice Stanley Burnton, was the question whether or not this claimant should be entitled to seek a quashing order and the accompanying declaration. His order, to my mind, makes it clear that the answer to that question was no, the claimant was not to be allowed to do that. The order provides that:

"The claimant was to be permitted, however, to submit an amended version of the paragraphs in the grounds that are set out, and then importantly as far as the challenge is restricted to allegations that the Secretary of State failed to take into account the alleged disparate impact of the proposals on residents living in Clapham Park West, that does not relate to the conduct of the ballot."

34. That was not the end of the interim orders, because problems arose as to whether or not the amendment satisfied, or was in accordance with, the order of Mr Justice Stanley Burnton. The matter then came before Mr Justice Blair on 11 June 2009. He made an order which confirms that this claimant was not entitled to seek a quashing order. Also, and importantly, as to what is now paragraph 33 of the grounds, he provided that those grounds shall be understood as alleging that:

"The Secretary of State acted contrary to the Human Rights Act 1998, by failing to take into account the alleged disparate negative impact of the proposal on residents living in Clapham Park West."

35. Standing back from those series of interim orders, the result, to my mind, is that the grounds of challenge have been limited by the court in the way in which the respondents understand them to have been limited. That is that albeit they still remain in parts of the language of the ground, the challenge on the basis of what I have described as classic English public law grounds, and which to my mind were included in the original consent, have now been excluded, other than in the context of founding a claim based on a breach of human rights. The grounds therefore are limited to a reasons challenge in the context of a general assertion that the Secretary of State should have given reasons and did not, and in the context that, in particular, the Secretary of State should have given reasons as to why, having regard to the manual, steps were not taken to have a further ballot, or a further investigation was not carried out, because more than twelve months had passed from the first ballot, and then the Human Rights Act challenge made by the claimant.
36. The overall effect of that is that at the most in these proceedings the claimant is entitled to seek declaratory relief, and part of that declaratory relief could be a springboard to a claim for damages in relation to a breach of human rights. Whether damages would be awarded is, of course, an entirely different matter. I think I am going to stop there, and I will start again at 2 o'clock.
(The short adjournment)
37. MR JUSTICE CHARLES: When I broke off for lunch, I had just completed dealing with the interlocutory orders defining the issues. At this stage, I pause to jump forward and record that even if the ambit of the argument and the ambit of the relief had not been so limited, applying the approach set out in the Walters case, in particular at pages 381 and 382, I am in full agreement with Mr Justice Burnton, as he then was, that it would not be appropriate to grant orders quashing the consent.
38. The issues as defined therefore relate essentially to a legal issue as to whether or not the Secretary of State has a general duty in this context to give reasons, and/or to give reasons on a particular aspect of the case, in the context of the guidance because the ballot was in March of 2005 and the decision in June 2006. On the human rights challenge as submitted on behalf the Secretary of State, and as I accept, it is for the court to make its own mind up as to whether or not there has been a breach of human rights. For example, in that context, I was referred to Belfast City Council vs Miss Behavin', but there are other cases to that effect also referred to in the skeleton argument. The relevance of that is that the court itself has to form views on matters advanced on behalf of the claimant, which in the original form of challenge were included within a challenge to the reasoning of the Secretary of State. There are therefore links between the human rights points and issues relating to matters under the reasons challenge, and also to the issues which are no longer, in my judgment, open to the claimants in this judicial review.
39. The claimant, and if I can put it this way, his supporters, or those that agree with him and live on the estate, plainly feel very strongly that their wishes and their interests have effectively been overridden. They oppose the master plan and the scheme for a number of reasons. It is clear to me that that has been their consistent, and I think it is right to say and I do not say this as any form of criticism, persistent view that this scheme should not go ahead. In that context, to my mind unsurprisingly, and again I do not say this by way of criticism, the submissions that have been made to me by and on behalf of the claimant have ranged outside the confines of the legal arguments that are open to them on this judicial review. I have therefore had an opportunity to consider them in that context. The central themes of his complaints are gathered together in the amended grounds under headings. The first is an assertion of a failure to take into account the views of the west estate residents. That is the disparate effect point referred to in the orders that I have mentioned. I read from the grounds:

"There were numerous complaints that west estate homes were being demolished to make way for private homes and businesses, and in essence were being sacrificed to allow east estate homes to be refurbished, whilst west estate residents who were in a minority overall on the estate had no realistic chance of affecting the outcome."

40. That is the heart of this complaint. Next under the heading "Health Impact", and again I quote:

"It was asserted that according to the local primary care association, the proposals would have resulted in the premature deaths of 10 to 30 per cent of elderly and vulnerable west estate residents, possibly rising to 50 per cent. See the further complaints about increased mortality."

41. And then page references are given. The report, which was a report into these matters, does not give specific figures in relation to mortality, however it was alleged that senior PCT officers provided the figures referred to in the above assertion at public roadshows from 2003 designed to further explain and elucidate the report. Then the next heading is "Planning Changes and Objections". I quote:

"The master plan underwent seven, then eight, then eleven changes after the ballot took place."

42. There is then an assertion relating to a petition, to which I will return, and there is also an issue relating to a conclusion of the Advertising Standards Board relating to the content of relevant advertising. Within the health impact assessment, one should also include under that heading a complaint that the Secretary of State did not have regard to environmental and economic assessments relating to the master plan. In closing submissions, the challenges to this plan went wider, and indicate, and I accept genuinely, that the claimant and the people I have referred to have numerous complaints as to the way in which the master plan is being implemented, and assertions to the effect that what is promised in the documents is not being delivered on the ground. In that context, it is undoubtedly the case that the claimant has strayed way beyond anything that is the subject of these proceedings.
43. I turn now to refer to the decision letter. It reads as follows. In the first paragraph:

"(1) I refer to your application on behalf of the London Borough of Lambeth and the Secretary of State's consent for proposed plans for related correspondence and the engrossment of the Principal Agreement ("the Agreement") between the Council and Clapham Park Homes ("the Company") appended to this letter.

"(2) The Secretary of State is satisfied that she is not precluded by paragraph 5.1 of Schedule 3A to the Housing Act 1985 from giving consent to the disposal. In considering whether or not to give consent she has had regard to the requirements of Schedule 3A, the views of tenants liable as a result of the disposal to cease to be secure tenants or introductory tenants, all representations made to her and all relevant matters. She is satisfied that it is appropriate to give consent to the disposal."

44. As I have already indicated, it seems to me clear that it is the final part of that paragraph which triggered the order made when permission was first given as to evidence.
45. The evidence put in includes the submission made by the relevant officers of the department to the minister for the minister's consideration. In that context, it is accepted that the submission internally makes no reference to the environment, economic, social or health impact issues, or to the other matters I have referred to, with the exceptions that I shall now indicate. In particular the submission itself does refer to a consideration of paragraph 5.1 of schedule 3A, and as will appear in a moment, the letters that were sent to the Secretary of State with the submission, include reference to the health impact point made by the claimant, and to a petition signed by some 504 people.
46. The submission deals with background, it then under a heading "Statutory Requirement" says:

"The majority of secure tenants affected by the proposed transfer are not opposed to it."

47. It then refers to the Lambeth Council's consultation exercise, and to the result of the ballot which had been carried out by an independent body and that the view of the relevant officials was that "the consultation was adequate and had met the statutory requirements, and that a majority of secure tenants voting, voted in favour of the proposals."
48. It refers to the leaseholders as being consulted and there is further comment about the leaseholders. Then it says:

"The time interval between the ballot and transfer has exceeded the one year mark due to the complexity of the transfer. Firstly, the planning approval issue had to be resolved with the outline planning approval being given by the planning committee in March 2006. Further negotiations on the fundability of the plan also had to be addressed to ensure the viability of the business plan. We are, however, satisfied that the tenants were kept informed, and the majority of tenants still support transfer. New tenants were kept informed of the transfer through newsletters and door to door consultation."

49. So it is clear on the face of that document that that issue was addressed. Within the letters annexed to the submission, there is a letter from a Mr Starling, dated 20 March 2006 in which it is said:

"I note that 504 residents of the NDC [that is the new deal for communities] also have similar concerns to myself, and signed a petition to ask the London Borough of Lambeth to postpone the transfer of any assets, pending a full investigation into the use of public funds by and the accountability of Clapham Park Project and Clapham Park Homes. This should be weighed heavily by your organisation. Many residents have not been able to obtain minutes, supporting documents and the meetings and the AGMs of both organisations are poorly advertised and attended. Also the board of CPP do not publish the full results of elections to their board."

50. The response to that is:

"Any petitions or representations will be considered by ODPM before ministers take the final decision. However, the ballot result does hold considerable weight as a gauge of residents' opinion."

51. It seems to me, I pause here, that that answer is one that is phrased with care to indicate that what will be considered are petitions that are actually provided to the Secretary of State. That to my mind also fits with what I have described as the general position under the relevant statutory scheme, that the Secretary of State under that scheme is not going through everything all over again. What the Secretary of State is considering is what actually is presented to him and/or what he considers he should follow up. There is then a letter dated 25 March 2005 from a Philippa Stone who is a person who put in evidence on behalf of the claimant, which contains the following in paragraph 2:

"Increased mortality rates on Clapham Park West are due to the threat of demolition. There have been three premature deaths to my knowledge over the last nine months. All occurred to local residents who were 'worried sick' over the Clapham Park Project (CPP), Masterplan. I also understand that national statistics show that 30 per cent of elderly people die before a planned move, and that this increases to 50 per cent within six months of moving."

52. There is a letter which contains essentially an identical paragraph dated 25 March from another person.
53. I now turn to consider the factual bases for the claimant's assertions. I start this by making the point that the court must act on the evidence before it and mere assertion is not necessarily probative. In fact, mere assertion is not probative, and one must look at the background material that is in evidence. I start with the assertions as to the disparate impact of the effects of what was proposed, that is the assertion that those who live on the west part of the estate would all essentially vote against the proposal, whereas those who live on the east or the southern parts of the estate would be likely to vote in favour. To my mind, this is simply assertion. When one looks at the underlying material, it appears to me, and I conclude albeit that those who assert it believe it, when assessed objectively, there is no basis for that assertion. I therefore accept the submission made by the defendant and the interested party to the effect that this basis of attack is not properly founded evidentially. I do not need to go into this in enormous detail, but I will try to explain my reasons briefly. I record that in my judgment the points made in this context in the skeleton argument put in on behalf of the interested party are made good by reference to the underlying documents. Broadly, the position is that the estate has historically had two residents' associations, if not more, but certainly a residents' association for the west and a residents' association for the east and the south. It is correct that if one looks at the tenanted units that are to be demolished, 60 per cent are in the west as opposed to the balance of the estate. But when one then stands back and looks at the entirety of what is proposed, to my mind albeit subjectively, the claimant and his supporters have reached the conclusions that they have, the stepping stones upon which they have reached them, when analysed objectively and unemotionally, do not lead to that conclusion. I say that because of the nature of the scheme. To my mind, the scheme has always been presented and reasonably presented as a composite whole. A financial background to it is that the relevant local authority would never be in a position to produce this result. The result can only be produced by a range of funding from outside in the pursuance of the government initiative I have referred to. As soon as one gets to that, one realises that the nature of such a plan will inevitably involve some demolition, some refurbishment and significant amounts of disruption and decanting for those who are living on the relevant estate. The achievement of the ultimate objective to greatly improve the living standards and conditions of those on the estate inevitably has those consequences whilst the plan is put into being. So one asks, why is it that somebody who is decanted from a demolished block is going to take a different view to someone who is going to be decanted to a refurbished block, assuming that the move will be longer. It is not immediately apparent that all tenants would take the view that because their block is being demolished they would oppose the scheme, not least because of the plans made for their re-accommodation in other properties on the redeveloped site. Equally, when one looks at the other facilities that are proposed on the redeveloped site, it seems to me impossible to reach the conclusion on the objective basis I have described, that each and every tenant on the west side would reach the conclusion that is asserted. The scheme is specifically designed, whatever criticisms are now being made of it, to bring about significant improvements over the entirety of the estate, not just to housing but also as to the availability of other facilities. To my mind, it simply does not follow, as is asserted, that because more tenanted units are to be demolished on the west side, that the west side, to a man and woman, or in large numbers, will reach the conclusion that is asserted.
54. I then look to see whether there is any evidence to demonstrate that that is in fact the position. There is not any. The petition that is referred to is one which to my mind demonstrates that those who signed it were opposed to the plan. The centre of attack or theme of that petition was not on conditions which are subject of this review, but on internal matters relating to the organisation of the local authority's housing department. But for present purposes I am happy to proceed on the basis that, and assume that, it indicates a body of opinion against the plan. But, when one looks at the petition, and it is fair to say this has not been followed through on behalf of the claimant to make it any clearer, it is unclear what information it actually provides. For example, it is not directed to those who would vote in a ballot, it is not clear which signatories are secure tenants and which are not, and it is not clear which are leaseholders and which are not, and even on my assumption, it is not clear that those who were signing it would sign up to the disparate effect argument which is being urged before me. To my mind, therefore, it is not a piece of evidence which carries any weight in favour of the view advanced by the claimant.
55. Trespassing outside the areas of review that are open to the claimant. As demonstrated in exchanges with counsel for the Secretary of State, it seems to me that there may well be cases in which the identification of an estate could give rise to disparate effects, which could impact the decision making process in the context of whether or not a majority of secure tenants are in favour of the scheme. It seems to me in those exchanges, and still does, that given the nature of the Secretary of State's power, there would need to be something fairly obvious to trigger that thought process on behalf of the Secretary of State in a given case, having regard to the timing of the relevant consultation and the time when the Secretary of State comes to make his decision to give consent. I have asked myself whether there is anything that would so strike the outsider from the material in this case and to my mind the answer is plainly that there is not.
56. So the factual basis for the west/east or the west/east-south divide leading to significant unfairness to the tenants on the west side, to my mind is not simply made out on the evidence.
57. I turn to the assertion relating to health and environmental impacts. The assertion that is made here is a stark one. The percentages asserted of 10 to 30 per cent of elderly and vulnerable west estate residents effectively being at risk of dying increasing to 50 per cent are stark. I accept the evidence that if those figures were in play, that they would have been taken into account, and one would expect to see them writ large in minutes and a number of other documents relating to the health and environmental impact assessment. I do not doubt that the statement of Philippa Stone is a recording of something which she believes happened at the relevant meeting. But again, that has to be assessed against the factual dispute, and others present at the meeting have said they have no such recollection. Applying a balance of probability test against the other documents, I have to say that I have come very firmly to the conclusion that Philippa Stone's recollection must be faulty. The claimant in submissions and in reply accepted that he is not in a position to produce independent evidence relating to such figures. Therefore, for example, he is not in a position to make good the assertion made in the letter I have referred to that that is what is shown by national statistics. The assertion made is not one based on national statistics as such, but on a recollection on what it is said representatives of the PCT said at a meeting at which the health impact assessment was being discussed. The first point is that no PCT representatives are shown as being present at that meeting in the minutes. That is perhaps not such a strong point, because later in the minutes, it is clear that people who were there have been left out as being present. But what is, it seems to me, highly significant is that the minute itself simply makes no reference to this very stark and troubling assertion. As I have indicated, no other documents that have been presented to me make such a reference. The health impact assessment itself makes no such reference. The health impact assessment itself was looking at three options at that stage, one was effectively leave as is, and then there was an option B and option C, which involved decanting and demolition and refurbishment. The assessment itself faces up to the problems of decanting, and the risks that that places upon particularly the elderly and vulnerable through moving, through worry and through uncertainty. There is a cross-reference to papers that have been written on the subject. I was also shown papers by the claimant. None of them come anywhere close to providing evidence to support this assertion made on behalf of the claimant. Rather what the documents do show is, as it seems to me would necessarily be the case, that it is always going to be very difficult to attribute cause or primary cause to problems of this nature which arise in the context of such a scheme. Again, subjective views no doubt will differ. The health impact assessment also records, and on an evidential base, the mortality problems and illness problems relating to seriously sub-standard housing, and people living on estates where there are significant problems relating to crime and that sort of thing. One of the aims as described by the documents is to seek to alleviate those problems. The assessment also identified that in seeking to alleviate problems, you could create a separate and essentially equivalent problem. The answer in the assessment and the plans that had been put in place seek to address that problem in a number of ways. The addressing of the problem is; one, to identify appropriate accommodation for the relevant elderly and vulnerable; and two, is to seek to keep them properly and reliably informed so as to reduce worry and concern, and to set aside from their thinking rumours which have no factual base.
58. Also there is a project put in place which seeks to put those matters into effect. It is essentially a decanting protocol or a decanting methodology which is set in place so as to address the problem. As far as the claimant is concerned, as I understand it, and I confess that I am sympathetic, he is at the end of the queue on decanting in that his property is one of the last that will be either refurbished or demolished; as I understand it, demolished. A point he makes is that he will suffer disturbance for a long period of time, and he asserts that during that period it is unlikely that appropriate repairs will be carried out to his property. But that comes nowhere near to establishing the point that the health impact position, the environmental issues and the financial issues, are as asserted by the claimant, or include information that would be likely to trigger a line of enquiry by the Secretary of State as to whether the scheme as a whole should go ahead on its merits or because of possible disparate effects.
59. As far as the asserted changes are concerned, again the assertion made by the claimant lacks particularity. The relevant period, of course, is the period between ballot and consent by the Secretary of State. In that context, I accept the evidence put in on behalf principally of the interested party, that such changes as there were in that period were not significant changes, and were well within the bounds of what would be inevitable in the context of a scheme of this size. I also find that the vast majority of the changes took place outside that period, and again they can be so described.
60. So returning to what is paragraph 33 of the amended grounds which was couched in the context of Wednesbury unreasonableness, on the evidence there is, to my mind, no factual basis for the points being advanced factually.
61. With that background, which digresses outside the strict areas of this review, I return to the specific areas of challenge. In that context, I note that the authorities referred to in the grounds and the skeleton argument put forward on behalf of the claimant, are not cases which are specifically directed to the giving of reasons, but rather, as is asserted in the relevant paragraph, are cases directed to the points that public bodies and officials who assist them are under a public law duty to ensure that the relevant material, including the views expressed by officials are fairly and adequately presented to the decision makers, and public law decision makers have a duty to ensure that they adequately consider the representations made to them and address those representations. Those are, I think, uncontroversial points, and they are not directed to the reasons challenge, rather they are directed to challenges which these claimants have been prevented from pursuing by the earlier orders I have mentioned.
62. So does the Secretary of State have a general duty to give reasons when refusing or granting consent? Here the Secretary of State was granting consent, and what is complained of is that the Secretary of State did not give reasons as to why the Secretary of State was not persuaded by the opposition to the proposed transfer. Here I was referred to authority on behalf of the Secretary of State, namely the Queen on the application of Hasan vs the Secretary of State for Trade and Industry [2008] 3 All England 539, and in particular passages from the judgment of Sir Anthony May, the President of the Queen's Bench Division, paragraphs 8 and 19. At paragraph 8 he says:

"Certainly, the categories of cases in which reasons are required are not closed, but it remains that there is no general duty to give reasons for an administrative decision."

63. Then he makes a reference to a 1996 authority, R vs Kensington and Chelsea Royal London Borough Council ep Grillo. Then he goes on to refer to the Stefan's Case [1999] 1 WLR 1293 and says:

"Lord Clyde there contemplated the future possibility that upon direct application of the Human Rights Act 1998, it might become appropriate to have a wide-ranging review of the position at common law."

64. But that review was not carried out in that case, and as far as I am aware, has not been carried out since. In paragraph 19 of the decision Sir Anthony May says:

"There is a trend towards an increased recognition of the duty upon decision makers of many kinds to give reasons. But the trend is proceeding on a case by case basis, and the law does not at present recognise a general duty to give reasons for administrative decisions. There are exceptions to this for individuals and classes of individuals, and there may be a trend for the exceptions to become the norm and the cases where reasons are not required may appear to be exceptions. But the general rule has not been departed from, and Stefan was not an appropriate case to explore such a departure."

65. Here the statute does not expressly provide that the Secretary of State is to give reasons. That is far from being the end of the matter, because the matter then turns to an issue as to whether, as a matter of fairness on public law principles, this is a decision of a type which requires reasons to be given. To my mind, looking at the underlying purpose and effect of the relevant provisions, which as I have already indicated, is to give or refuse consent at the very end of the chain of a process that involves a number of detailed steps and considerations, I have concluded that this is not a case in which the Secretary of State has a general duty to give reasons. Testing that generally, if there was such a duty it would carry with it a duty, it seems to me, to go back and pick over essentially the whole exercise all over again, and that, to my mind, is not what is envisaged by these provisions. Rather what the Secretary of State is entitled to do is to look at matters and decide, exercising a wide discretion, whether or not certain matters require further investigation. If the Secretary of State does that, that might give rise to further issues. But that is not what was done here. That conclusion, is to my mind, reinforced by the passage I have referred to in the judgment of Mr Justice Schiemann, as he then was, in the Walters case. Also to my mind correctly, the Secretary of State later relied on the approach taken by the Court of Appeal in the Swords decision that I have already referred to, and in particular at paragraph 47(a) of the judgment in Lord Justice Wilson. This was in the context of whether or not the Secretary of State should be permitted to put in additional information describing their approach. He says:

"This was not a situation, as was that in which Ermakov itself, in which the statute required the decision-maker to give reasons for the decision, or even to identify the matters which had to be taken into account in reaching it."

66. In that case, the Secretary of State had given some reasons, and it was common ground that because of what was stated in the manual, there was an obligation to give reasons, but I accept the submission that the clear message from that passage in the judgment is that the Court of Appeal did not regard this as a statutory framework, which imposed a general duty to give reasons.
67. I then turn to the next point as to whether or not the Secretary of State had a particular obligation to give reasons relating to the manual paragraph 10.41, which I have referred to. We now know that this is in fact a matter which the Secretary of State took into account, and which in my view she properly took into account. This is a freestanding point as to whether or not having done so, there was an obligation in the decision letter to set out expressly what had been done, and the reasons why the decision had been made not to take further steps, given that more than twelve months had passed. To my mind, in large measure, this turns on an analysis of 10.41 to see whether it imports that duty. I return to its wording:

"In order to ensure that a ballot reflects the view of tenants resident at the time of transfer, an authority should seek to minimise the time between ballot and the transfer. Ideally, it should be six to twelve months. In cases where the period between the ballot and completion of the transfer extends to twelve months or beyond, which may be the case in some of the more complex urban transfers ... "

68. I pause, and ask is this such a scheme? Answer; certainly potentially yes, and I would say yes:

" ... such as mixed community developments. The Secretary of State will take a view on whether the original ballot reflects the views of current tenants, or whether further consultation or further evidence is required."

69. To my mind, the language "will take a view" against a backdrop of a situation in which the Secretary of State has no general duty to give reasons does not import a duty to give reasons as to that aspect of the process.
70. That conclusion does not preclude challenges on classic public law grounds. But here I am looking at a more confined issue: is there this duty to give reasoning? To my mind, there is no reasonable expectation from that language, against the backdrop that there is no general duty to give reasons, that the Secretary of State in the decision letter will isolate that matter for the purposes of giving reasons in respect of it. So for the reasons I have sought to give, the two reasons challenges fail.
71. I turn then to the human rights challenges. The challenges are based on Articles 1, 3, 8 and 14 of the Convention, and Article 1 to the First Protocol. Article 1 is an introductory article, and carries with it no separate claim. Article 3 is a freestanding and absolute right, and it is well established in authority, in particular the Pretty case, Pretty vs United Kingdom 2002 35 EHRR 1 at page 1, that the threshold to establish that right is high. The written arguments, clearly professionally prepared on behalf of the claimant, do not address how that threshold is said to be satisfied in this case by reference to that authority. To my mind, there is no factual basis for asserting that the claimant's Article 3 rights have been breached.
72. Turning to Article 14, which in broad terms is the Article which precludes discrimination, I confess that I have not understood from the written submissions the basis upon which discrimination is being asserted. I think that it returns to the disparity argument. Assuming for present purposes that that is sufficient to trigger the discrimination provision as I have indicated, factually it has not been established. The point is made on behalf of the Secretary of State that potentially within Article 14 and what perhaps the claimant is seekig to rely on is discrimination by reference to property. But that is not easy to follow and if that is the basis of the argument to my mind it has not been put clearly or established in fact or law.
73. That leaves what can be dealt with together, namely Article 8 and Article 1 of the First Protocol. Counsel for the Secretary of State accepted, and to my mind correctly accepted, that Article 8 rights and the rights under Article 1 of the First Protocol are both triggered. Those are effectively the claimant's right to respect for his family life in the broadest sense, and in the protocol his property rights. But here one has to look at the second part of Article 8. To my mind it is clear that what is proposed is pursuant to the law. To my mind it is clear that the balancing act that has to be carried out in the second part of Article 8 falls firmly in favour of the view that the claimant cannot assert his Article 8 rights. The balance that has to be performed has regard to the purpose of the underlying scheme and the impact that has on the claimant and others. It seems to me that the Secretary of State is correct in the submission that the second part of Article 8 is satisfied in the sense that the claimant cannot advance his Article 8 rights, or put the other way, there is no breach of his Article 8 rights. The balance brings into account the purpose, which is to serve the community at large.
74. That deals with the issues of challenge.
75. It will be apparent from what I have said that my conclusions on my assessment of the facts relating to the human rights challenges, would render the Wednesbury unreasonable challenge at the stage of irrationality, hopeless. It is outwith the range the of this judicial review, but given the fact that points have been put before me, I also express the view that having regard to my interpretation of the legislation, the arguments that were originally advanced to the effect that the Secretary of State failed to take into account factors, or to properly take into account factors in reaching her decision, were also doomed to failure in this case. As I have indicated, it seems to me on the facts that there is nothing in the points raised by the claimant which would warrant the Secretary of State at the end of this process, to effectively reopen parts of it in the context of the exercise of giving consent to the transfer. The time for them to be dealt with, in my judgment, was at the earlier stages of the process, as indeed was attempted in the earlier set of proceedings for which permission was not given. I therefore dismiss this claim.
POST-JUDGMENT DISCUSSION
76. MR BLUNDELL: My Lord, I am very grateful for that judgment. I have no application for costs.
77. MR BHOSE: My Lord, I am very grateful for such a full extemporary judgment. There is one matter in my Lord's judgment, a tiny matter, this claim was issued on 20 September 2006 not October 2006.
78. MR JUSTICE CHARLES: Sorry, I read the wrong stamp.
79. MR BHOSE: My Lord, we do have an application for costs against the claimant. I know that my learned friend, the Secretary of State, does not seek costs and therefore the court is not faced with the difficult issue of whether or not to order two sets of costs. In my submission, we were entitled to be here, and indeed needed to be here, firstly to assist the court on critical matters of fact in dispute, upon which my Lord has found largely in our favour. That involved not only representation today, but also the considerable expense of putting together the witness statements and the evidence. We also needed to be here to support the legality of the decision, particularly as matters arose during the course of the hearing about the issue of quashing. Thirdly, we were concerned to ensure that the scope of the challenge that remained to the consent in June 2006, and did not range over later matters impugning the organisation's action thereafter, and again that is clearly something upon which the claimant is concerned. My Lord, the claimant has lost, there is no reason why we should not have our costs, I would ask for a detailed assessment please.
80. MR JUSTICE CHARLES: What do you say about costs?
81. MR DE MAYNARD: The claimant is not in a position to meet any costs. He is receiving benefits. However, he accepts that he failed today and waits for judgment.
82. MR JUSTICE CHARLES: It seems to me that the obvious fact that the claimant is not in a position to meet costs is not something which should automatically lead to a conclusion that an order for costs should not be made. If, for example, the claimant had remained in a position of being funded through the Legal Services Commission, the position, as I understand it, would have been that the normal course would have been followed, that an order for costs would have been made, but it would not be enforced, save through the usual procedures. I propose to adopt an equivalent position, and I will make the order for costs, but I am going to direct that it not to be enforced without the leave of the court.
83. MR BHOSE: Thank you.
84. MR JUSTICE CHARLES: I will make it on the basis that there should be a detailed assessment.
85. MR BHOSE: I am grateful.
86. MR JUSTICE CHARLES: Thank you very much.