Department of transport — Construction of bypass — Road to be situated close to property — Secretary of State having power to purchase property — Owners applying to Secretary of State to exercise power to purchase — Whether property seriously affected by construction work and noise — Secretary of State refusing to exercise power of purchase — High Court refusing judicial review of decision as not unlawful or unreasonable
In March 1990 the applicants became interested in Ashgrove, The Whiteway, Cirencester, Gloucestershire (“the property”). At the end of the month the Department of Transport announced the preferred route for the Cirencester bypass, depicted by a line on the Ordnance Survey Map, passing very close to the property. The applicants knew that the property would be adjacent to the proposed bypass, and undoubtedly be affected by the construction work, and by traffic noise after its completion. However, they made no inquiries about possible implications for the property before they purchased it in November 1990. During 1990 and 1991 they carried out substantial work and an extension to the property and purchased further land to increase privacy and generally make it a more attractive home. At the end of 1991 the Department of Transport published the details of the work required to complete the bypass. The applicants became aware for the first time that it was to be a dual carriageway, that it would be in a cutting under the Whiteway, would require realignment of the Whiteway close to their property to carry it over the bypass on a bridge, and that a nearby landfill site would be removed with problems of disturbing and moving old rubbish. They applied to the Secretary of State to exercise his powers under section 246(2A) of the Highways Act 1980 to purchase the property on the grounds that it was seriously affected by the construction work or the noise of the bypass. The Secretary of State declined to do so.
Held The application for judicial review was refused.
1. The Secretary of State had to determine whether the enjoyment of the property would be “seriously affected by the carrying out of the works or the use of the highway” in which case the power to acquire the property arose under section 246(2A); and if that power did arise, whether it would be right to exercise it.
2. The Secretary of State had provided guidelines to administrators in January 1992 to help them determine the circumstances in which an application under the section should succeed. These were to the effect that there was power to acquire property for reasons of hardship in the case of the owner occupier as well as for intolerable living conditions during works or once the road was opened.
3. The guidelines were not to be construed literally, but used as an appropriate aid to answering the questions raised under section 246(2A).
4. The Department had asked themself the right question in deciding whether the power under section 246(2A) existed, ie in considering whether a property was seriously affected the Department had to take into account likely degrees of noise, dust, vibration, etc, which would result from the works.
5. The fact that the applicants had purchased the property in circumstances where they were put on notice of the existence of the bypass scheme was not an immaterial consideration. The Department had a discretion to exercise.
6. The decision letter dealt properly and logically with the application and there was nothing in it which could render the decision unlawful.
Ian Glen (instructed by Burningham & Brown, of Bridgwater) appeared for the applicants; David Elvin (instructed by the Treasury Solicitor) appeared for the respondent.
