Highways–Dual-lane road to be constructed to relieve section of A38 near Plymouth used primarily for local traffic–Secretary of State has power to build such a road and is not limited to roads to be used by through traffic, alone or primarily–No force in further points taken against confirmation of line order for the new road–Motion to quash order dismissed
This was an
application by John Duncan Waters ARICS to quash the London to Penzance Trunk
Road (Marsh Mills to, Tamar Bridge) line order made by the respondent, the
Secretary of State for the Environment, on March 12 1976.
The applicant
appeared in person. H K Woolf (instructed by the Treasury Solicitor)
represented the respondent.
Giving
judgment, SLYNN J said that on December 15 1972 the respondent Secretary of State
published a draft order, ‘London to Penzance Trunk Road (Marsh Mills to Tamar
Bridge).’ That order was to be made
under sections 7 and 44 of the Highways Act 1959 and section 8 of the Highways
Act 1971. It referred to certain highways that the Secretary of State proposed
to construct along routes described, and to certain other highways already in
existence, and the purpose of the order was that these routes should become
trunk roads from the dates specified in the order. A public inquiry was held between
March and June 1974 which, together with site inspections, lasted some 37 days.
By a letter dated March 25 1976 the Secretary of State said that having
considered representations, objections, alternative routes and
counter-proposals and the report of the inspector, he had decided to accept all
the inspector’s recommendations and had made the main order and a slip road
order as published and two side road orders with modifications. The main order
was in fact made on March 12 1976 and came into operation on March 26 1976.
Mr Waters now
applied under para 2, schedule 2 to the Highways Act 1959 to quash the main
order. He did so as a person who had appeared at the public inquiry while a
resident of Plymouth, although he now lived in London. In his notice of motion
he set out his main grounds supplemented by an affidavit. This had been most
carefully and ably prepared and had been of great assistance. First he said
that the order was ultra vires of the Secretary of State under section 7
of the Highways Act 1959. Secondly he said that if the order was intra vires,
false and misleading statements had been made by witnesses called to support
the making of the order, either because they knowingly made false statements or
because they were misled by the Secretary of State; and it followed that there
had been a breach of section 279 of the Highways Act 1959, read with section
240 of the Local Government Act 1933. Thirdly, Mr Waters said that the
Secretary of State had changed his case so radically at or towards the end of
the public inquiry that objectors were not able to deal with the true case and
that there should have been, but was not, an adjournment; accordingly he (Mr
Waters) had been prejudiced, and on that ground the order should be quashed. Mr
Waters had made it clear that of his three grounds it was the second, which, if
any, he preferred over the others.
At the
inquiry, the Department of the Environment presented a statement of their case
which described in paragraph 6 their proposals for improving the A38 at
Plymouth by the construction of a new road. The draft section 7 order published
in 1972 would, if made, authorise the Secretary of State to construct about 5
1/2 miles of new trunk road. It was made plain that the existing stretch of
road was simply not coping with the amount of traffic which it was having to
take, and that for the future more traffic was expected. A distinction was made
between through and local traffic. The history of the matter was recounted, and
showed that from the 1930s proposals had been made for dealing with the
problem. By 1961 a dual-lane highway was suggested from Marsh Mills to Tamar
Bridge. In June 1971 the Department of the Environment accepted responsibility
for preparation and construction of this, including procedures to establish the
route as a trunk road. In his report, the inspector remarked that there had
been considerable doubt in his mind about the purpose of the road. He said that
he found himself puzzled as to the circumstances in which the Department had
decided to pursue responsibility, having regard to their claim that the road
was for the solution of Plymouth’s own traffic problems. It was clear from
later paragraphs of the report that some at least of those appearing at the
inquiry had fully appreciated that the user of the road would be primarily by
local traffic. In his decision letter of March 25 1976 the Secretary of State
said that before the inquiry some 34 proposals had been considered. He was
satisfied that the new road would be open for the purposes of through traffic,
although he appreciated that it would be used by local traffic too; and he had
accepted the inspector’s recommendations and had made the order.
It was clear
from all this material that there was a need to deal with the volume of traffic
on the A38. The first question for him (his Lordship) was whether the order was
intra vires. Mr Waters submitted that section 7 entitled the Secretary
of State to make a road a trunk road only where the purpose of the road was for
through traffic alone. In his (Slynn J’s) judgment, section 7 required the
Secretary of State to keep under review the national system of routes for
through traffic in England and Wales. The question was therefore whether the
Secretary of State could reasonably have concluded that to make this a trunk
road was expedient for expanding or reorganising the system of routes for
through traffic. He (his Lordship) did not consider that Parliament intended by
this section to limit the Secretary of State to the sort of case where the road
was to be used exclusively for through traffic. In his judgment it was possible
under this section for a road to be made a trunk road even if it was
mainly to be used by local traffic. In his judgment, therefore, the Secretary
of State was entitled to make the order as he did, and the order was intra
vires.
Mr Water’s
second point was the allegation that some of the witnesses had given false and
misleading evidence. As to this, he (his Lordship) considered that in dealing
with the user of the road the witnesses concerned were making it clear that the
principal user of the road would be by local traffic. He did not accept that
the witnesses were giving false evidence, either deliberately or because they
had been duped by the Secretary of State. Looking at the matter in a general
way, it might be that the ratepayers of Plymouth were in a sense lucky, in that
the Department were to take over 100 per cent rather than, as was usually the
case, 75 per cent of the cost of the road concerned. Nor did he (Slynn J) accept
that the inspector had been fooled as to what the Secretary of State’s
intention was, even though he had expressed puzzlement as to the financial
aspect of the matter. Lastly there was the argument that there should have been
an adjournment. It seemed to him (his Lordship) that from the beginning the
problem had been made clear. He saw no change at any stage in the nature of the
user of the road which was being talked about by various witnesses. Mr Waters
had not asked for an adjournment at the hearing, and seemed to be presenting
his legal arguments and proposals for an alternative route with skill and care.
He (Slynn J) was not satisfied that Mr Waters had been prejudiced. He would
therefore not accept that there were grounds upon which he could quash the line
order, and Mr Waters, despite the skill and care of his arguments, had not
satisfied him that it would be right for him to do so.
