Highways Act 1980, section 10(2) and Schedule 2, paras 2-4 — Appeal to Court of Appeal from decision of deputy High Court judge dismissing application by landowners to quash orders relating to trunk roads and road works — Severe criticism by court in regard both to merits and procedure of application — The substantive ground of the application was that the Secretary of State reached his decision without knowing the costs of certain accommodation works — In fact the costs of the works in question were negligible in relation to the costs of the scheme as a whole, which were in the region of £51.7 million, of which £2.6 million was for land acquisition and compensation works — Further, the land acquisition component included in the cost benefit analysis covered items for severance or injurious affection which would be diminished by the execution of accommodation works — In any case, the route proposed in the present case was to be preferred to the other routes canvassed by objectors on environmental rather than costs grounds — It appeared that the complaint about the alleged failure to provide costs was an exercise seized upon solely for the purpose of delaying the implementation of the road improvements
the notice of motion failed in respect of identification and particularisation
and the ‘grounds’ did not comply with RSC Ord 94 — The judge below was correct
in rejecting fresh affidavits by two experts with exhibits of about 500 pages
of inquiry documents — Normally the court will consider only the decision
letter and the inspector’s report — It is for the Secretary of State, with the
assistance of the inspector, to find and evaluate the facts — The court’s task
is to ascertain whether the decision has been come to lawfully and whether the
procedural requirements have been complied with — If it were necessary to go
beyond the inspector’s report and decision letter, it is more likely that the
court would be assisted by material which was before the inspector and the
minister than by fresh evidence — There had been a genuine misconception in
this case of the requirements
the court expressed the view that consideration should be given to a ‘filter’
procedure, comparable with the requirement to obtain leave to apply in judicial
review cases, in order to ensure that applications were within the area
intended by Parliament and not used as a vehicle for achieving unwarranted and
unacceptable delay — Such a filter would be preferable to using the machinery
of applying to strike out for abuse of the process of the court
The following
cases are referred to in this report.
Ashbridge
Investments Ltd v Minister of Housing and Local
Government [1965] 1 WLR 1320; [1965] 3 All ER 371; (1965) 63 LGR 400;
[1965] EGD 216; 195 EG 205, CA
Bushell v Secretary of State for the Environment [1981] AC 75;
[1980] 3 WLR 22; [1980] 2 All ER 608; (1980) 78 LGR 269; 40 P&CR 51, HL
This was an
appeal by Robert Lingen Burton and Robin Montier John Freeman (Richard Lingen
Burton having died since the proceedings below), owners of the land affected by
orders made by the Secretary of State for Transport in relation to road
improvements, from the decision of Mr Graham Eyre QC, sitting as a deputy High
Court judge. Mr Eyre dismissed an application made by the appellants to quash
the orders in question. The land affected was the Longer Estate and the Pimley
Manor, Uffington.
Philip Newman
and William Jackson (instructed by Sharpe Pritchard & Co, agents for
Sprott, Stokes & Turnbull, of Shrewsbury) appeared on behalf of the
appellants; Duncan Ouseley (instructed by the Treasury Solicitor) represented
the respondent Secretary of State.
Giving the
first judgment at the invitation of Purchas LJ, WOOLF LJ said: This is an
appeal from a decision of Mr Graham Eyre QC, sitting as a deputy High Court
judge on July 10 1987. Mr Eyre dismissed an application made by the present
applicants under para 2 of Schedule 2 to the Highways Act 1980 to quash three
orders made by the Secretary of State for Transport under section 10 of the Highways
Act 1980 and one order under section 14 of that Act, those orders having been
made pursuant to a decision of the Secretaries of State for the Environment and
Transport contained in a letter dated September 27 1985.
The orders
authorised the Secretary of State for Transport to construct two new lengths of
trunk road, detrunk the existing road and carry out ancillary side-road works
in connection with the A5/A49 Shrewsbury Bypass.
The three
applicants before the learned judge were statutory objectors who appeared at
the public local inquiry which was held into the proposals from November 26 to
December 21 1984. They owned land which was affected by the proposals, in the
case of the Burtons the Longer Estate and in the case of Mr Freeman the Pimley
Manor, Uffington. Since then, Mr Richard Burton has died and the appeal to this
court is now being conducted on behalf of his brother and Mr Freeman alone.
In his report
to the Secretaries of State dated April 4 1985 the inspector, subject to
modifications, recommended the implementation of the Department of Transport
proposals, and the Secretaries of State in general accepted the Inspector’s
findings of fact, conclusions and recommendations. The inspector expressed the
view that the proposed road deserved urgent construction. The Secretaries of
State considered that the bypass would provide wide benefits in the area,
alleviating through-traffic, increasing road safety and improving the
environmental conditions of the town of Shrewsbury and the villages of Atcham,
Bicton and Montford Bridge. They recognised that there would be disturbance but
were satisfied that the proposal would keep that disturbance to a minimum.
I mention the
urgency of the need for the road and the benefits of the proposal because
approximately 2 1/2 years have now elapsed since the decision and, in so far as
delay has been caused by these proceedings, such delay is to be especially
deplored because the proceedings are manifestly without merit.
The
application to the High Court is made under Schedule 2, para
Para 2 of the Schedule provides as follows:
If a person
aggrieved by a scheme or order to which this Schedule applies desires to
question the validity of it, or of any provision contained in it, on the ground
that it is not within the powers of this Act or on the ground that any
requirement of this Act or of regulations made under this Act has not been
complied with in relation to the scheme or order, he may, within 6 weeks from
the date on which the notice required by paragraph 1 above is first published,
make an application for the purpose to the High Court.
Para 3(b)
provides:
On any such
application, the Court . . .
(b) if satisfied that the scheme or order, or any
provision contained in it, is not within the powers of this Act or that the
interests of the applicant have been substantially prejudiced by a failure to
comply with any such requirement as aforesaid, may quash the scheme or order or
any provision contained in it, either generally or in so far as it affects any
property of the applicant.
Para 4
provides:
Subject to
paragraph 3 above, a scheme or order to which this Schedule applies shall not,
either before or after it has been made or confirmed, be questioned in any
legal proceedings whatever, and shall become operative on the date on which the
notice required by paragraph 1 above is first published, or on such later date,
if any, as may be specified in the scheme or order.
It will be
noted that although the public could be gravely prejudiced by an application
under Schedule 2, and the safety of the public could be affected by the
non-implementation of a road scheme, and the environment damaged, there is no
requirement of leave in relation to an application under Schedule 2 as there is
in the case of an application for judicial review under Ord 53. In addition,
there is no requirement of leave to appeal from the decision of a High Court
judge to the Court of Appeal. I draw attention to this because the only
procedural remedy which is available to minimise the inevitable consequences of
an application of the sort that has been made here is an application to strike
out the notice of motion as an abuse of the process of the court.
Ord 94 r 1(2)
provides:
The
application must be made by originating motion and, without prejudice to Order
8 rule 3(2), the notice of such motion must state the grounds of the
application.
Ord 8 r 3(2)
provides:
The notice of
a motion must include a concise statement of the nature of the claim made or
the relief or remedy required.
However, these
requirements can be complied with, or there can be a purported compliance with
those requirements, which fail to reveal whether there is any merit in the
application. This is what happened in relation to the present application.
Although the grounds purported to give particulars, they did not do so.
The notice of
motion set out three grounds. It is necessary that I should refer to those
grounds.
The first
ground reads:
The
Respondent failed to take into account relevant considerations in making the
said Orders.
And the
particulars are:
The Manual of
Environmental Appraisal was not complied with and evidence was not presented to
the public inquiry which was held in respect of the said orders in accordance
therewith.
Accordingly
the Inspector’s Report made following the said public inquiry and the decision
of the Secretary Respondent in making the said orders failed to take into
account a substantial body of evidence which should have been obtained,
prepared and presented as provided for by the Manual of Environmental
Appraisal.
The Manual of
Environmental Appraisal (‘the MEA’) there referred to is a volume of
considerable size. One of its purposes is to provide a framework against which
the department can evaluate road proposals, and those proposals can in turn be
evaluated at a local inquiry. The MEA contains six groups of information or
data which have to be considered. Group 1 is the effects on travellers; group
2, the effect on occupiers of property; group 3, the effect on users of
facilities; group 4, the effects on policies for conserving and enhancing the
area; group 5, the effects on policies for development of transport; and group
6, the financial effects.
The notice of
motion did not even identify the group to which it was referring; nor did it
identify the substantial body of evidence which should have been obtained,
prepared and presented. The particulars provided no guidance whatsoever as to
the nature of the complaint.
Ground 2 made
exactly the same point as ground 1; it provided no more information but used
different language.
Ground 3 was
in these words:
In the
premises the Respondent in making the orders acted in a grossly unreasonable
manner to the extent that no authority properly directing itself on the
relevant law and acting reasonably could have made the said Orders.
Although I
have referred to the notice of motion as containing grounds, in fact it
provides no grounds whatsoever. Grounds of this sort do not comply with Ord 94.
Grounds should identify the actual point relied on in terms which enable the
department to ascertain the case it has to meet and whether or not it has any
merit. If this is not done, then the department should consider making an
application to strike out the notice of motion. In considering any such
application the court will, I hope, bear in mind that Parliament has laid down
a six-week time-limit for making the application to the High Court which the
courts have no power to extend — Schedule 2, para 2. Parliament has also
indicated that such an application is the only means by which an order made by
the Secretary of State can be challenged. The time-limit and the limited scope
of appeal provided by the Schedule indicate that Parliament intended
applications to the High Court to be dealt with expeditiously and therefore the
court should deal firmly with applications which are designed to frustrate that
intention.
There was
another respect in which the procedure on this application was open to
criticism, and was justifiably subjected to trenchant criticism, by the judge.
But before I turn to this aspect of the appeal, I shall deal with the
substantive ground of the application which, having been rejected by the judge,
was renewed before this court. As it was argued in this court, it was that the
Secretary of State had failed to perform his statutory duty and had thus gone
outside his powers because he came to a decision without knowing the cost of
three sets of accommodation works which would be necessary as a result of the
implementation of the department’s proposals. It is submitted on behalf of the
appellants that: (a) the Secretary of State for Transport was under a duty,
before he put forward his proposals, to ascertain those costs; (b) the
inspector was under a duty to ascertain those costs before he made his
recommendation to the Secretary of State which is contained in his report; and
(c) that the Secretary of State for Transport was under the same duty prior to
making his order.
It was
originally suggested that this information as to cost was required for MEA
purposes, and this created the duty. However, this submission manifestly
involves attaching an excessive importance to the MEA, whose true function has
already been indicated. On the second day of this appeal the duty was said to
arise out of the requirements of section 10(2) of the 1980 Act, that the
minister should take into account the needs of agriculture.
Section 10(2)
provides as follows:
The Minister
shall keep under review the national system of routes for through traffic in
England and Wales, and if he is satisfied after taking into consideration the
requirements of local and national planning, including the requirements of
agriculture, that it is expedient for the purposes of extending, improving or
re-organising that system either
(a) that any highway, or any highway proposed to
be constructed by the Minister, should become a trunk road, or
(b) that any trunk road should cease to be a
trunk road,
he may by
order direct that that highway or proposed highway shall become, or, as the
case may be, that that road shall cease to be, a trunk road as from such date
as may be specified in that behalf in the order.
Mr Ouseley, in
his helpful submissions on behalf of the department, said that this section
created a general duty and that it is impossible to spell out of this general
provision the duties contended for by the appellants. I agree. It is not
without relevance that the section includes the requirements of agriculture as
part of the requirements of local and national planning.
Having
considered the documents which have been put before us, the cost involved in
the additional accommodation works would appear to be negligible compared with
the costs of the scheme as a whole, which were in the region of £51.7m, of
which £2.6m was for land acquisition and compensation costs. It is absurd to
suggest that because the Secretary of State and the inspector were, as is
accepted, unaware of the cost of the additional accommodation works, they
ignored the requirements of agriculture.
As was also
pointed out by Mr Ouseley, there was in fact a figure included for
compensation, and if accommodation works were required to be paid for by the
department, this figure would be
compensation payments which would have to be made if the accommodation works
were not carried out.
There was
nothing mysterious about the costs being unavailable. As frequently occurs at
long inquiries, the accommodation works which will be required were the subject
of protracted negotiations, and the road proposal could not be held up on this
account, as the costs were by no means critical. The most expensive of those
costs was probably in connection with the creation of a new slurry lagoon at
Forge Farm. Without these costs a perfectly satisfactory cost-benefit analysis
had been carried out by the department on their proposals, and it was never
suggested on behalf of the appellants or anyone else at the inquiry that it was
not possible for the inspector to report and for the Secretary of State to
determine the outcome of the proposals without knowing these costs.
There are
numerous references in the inspector’s report to the fact that all these costs
were not known, and this was also expressly mentioned by the Secretary of State
in para 10 of his decision letter. At this inquiry it happened that the cost
factor was not decisive, as the inspector’s report made clear, and the proposed
route was to be preferred to the other routes canvassed by the objectors on
environmental rather than cost grounds. The submissions of counsel on behalf of
the appellants as to the duty placed on the Secretary of State, and
particularly on the inspector, displays a misconception of the purpose of the
inquiry.
The purpose of
the inquiry is clearly identified by Lord Diplock in Bushell v Secretary
of State for the Environment [1981] AC 75 at p 94. Lord Diplock said at
just below E on that page:
The subject
matter of the inquiry is the objections to the proposed scheme that have been
received by the minister from local authorities and from private persons in the
vicinity of the proposed stretch of motorway whose interests may be adversely
affected, and in consequence of which he is required by Schedule 1, paragraph
9, to hold the inquiry. The purpose of the inquiry is to provide the minister
with as much information about those objections as will ensure that in reaching
his decision he will have weighed the harm to local interests and private
persons who may be adversely affected by the scheme against the public benefit
which the scheme is likely to achieve and will not have failed to take into
consideration any matters which he ought to have taken into consideration.
At such
inquiries the department opens the inquiry and puts forward the nature of their
case so as to enable the objections to be properly heard. If the objectors had
wished to do so they could have given evidence about these costs, but the
department, if they were of opinion that their proposal could be evaluated
without those costs, were under no obligation to provide the evidence and
certainly were not called on to take any action as a matter of duty.
I am afraid
that this complaint about the failure to provide the costs of these items
which, as Mr Newman concedes, was first made after the decision was announced,
gives the impression of being an exercise which was seized upon solely for the
purpose of delaying the implementation of the road improvements.
I turn to the
outstanding procedural matter, which I referred to previously. This arises out
of the attempt of the appellants to rely on a number of fresh affidavits by two
experts, which exhibited 500 pages, or thereabouts, of inquiry documents. Although
he looked at the documents de bene esse, the judge required counsel to
satisfy him at the outset that it was proper for him to rely on these
affidavits and documents. Having heard counsel, the judge was quite satisfied
that it would be wrong for the documents to be admitted in evidence, not least
because they would extend the hearing by days, if not weeks.
As now has
been long established, on a statutory application to the High Court of this
sort into the decision by a minister made after considering an inspector’s
report, the court will normally consider only the decision letter and the
inspector’s report; the reason being that normally it is unnecessary, unhelpful
and undesirable to look at any other documents unless they are incorporated by
reference into the decision letter or report. This is the position because it
is for the Secretary of State, with the assistance of the inspector, to find
the facts and to evaluate those facts and then, as a matter of judgment, to
come to his decision. This is not the task of the High Court. The task of the
High Court is to ascertain whether the decision has been come to lawfully and
whether the procedural requirements have been complied with; and the decision
letter and report were all the material that is needed for this purpose. If
this material is not sufficient, then in special circumstances, most of which
have been identified by previous decisions of this court, other evidence which
is relevant and necessary can be admitted. However, the court is rightly cautious
about admitting further evidence, for the good reason that to look at one or
two of the many documents which may have been produced can, as Mr Ouseley
pointed out, give a completely false impression. This is particularly true of
highway inquiries, when there can be many hundreds of documents.
On this appeal
this court was asked to look at only about 10 documents de bene esse,
and the court looked at those documents on that basis. The documents did help
to give an impression of the scale of the accommodation works.
However,
having regard to the references in the inspector’s report and the decision
letter to the accommodation works, even that limited help was not really
necessary and therefore the judge cannot be faulted for excluding them, albeit
they were documents before the inspector and the Secretary of State. So little
harm could be done by referring to them. Certainly, on the way the matter was
presented to the judge, that the vast quantity of additional documents should
be looked at, his decision was inevitable.
The judge also
came to the only possible decision as to the contents of the affidavits. These
were not confined to exhibiting documents but included matters of opinion and
argument, which could not be regarded as evidence.
If it were
necessary to go beyond the inspector’s report and decision letter, then it is
more likely that the court will obtain assistance from the material which was
before the inspector and the minister than the evidence which is entirely
fresh. I recognise, as did Lord Denning MR in Ashbridge Investments Ltd
v Minister of Housing and Local Government [1965] 1 WLR 1320, that such
material can provide grounds for saying that the minister has gone wrong in
law.
However, this
does not mean that such material is automatically irrelevant and therefore
inadmissible.
In his
judgment the learned judge listed certain situations in which additional
material had been recognised as being admissible, but I prefer not to regard
those categories as being more than a practical guide, and instead adopt the
general approach, that in most cases the additional material is not necessary
but that additional material can be looked at by the court when it is relevant
and is required to do justice between the parties.
Accordingly, I
would dismiss the appeal.
However,
before I conclude, I should add that although I have felt compelled to
criticise strongly the way in which this application was made to the High
Court, and this appeal, I am not suggesting that counsel and solicitors
retained by the appellants intended to abuse the procedure of the court.
Counsel has sought to argue this case with courtesy, and I am sure the
explanation for what occurred is due to a genuine misconception of what is
required in proceedings of this nature. I do hope, however, that in future
there will be no further similar misconceptions.
Agreeing, MANN
LJ said: An application under Schedule 2, para 2, to the Highways Act 1980 must
state the grounds of the application; see Ord 94 r 1, para 2.
The
originating motion of January 21 1986 in this case does not, as Woolf LJ has
pointed out, contain any grounds at all. The absence of grounds was not
improved on July 10 1987 when, during the hearing, an amendment to the motion
was presented.
Subject to one
possibility to which I shall refer, the sole discernible point of this
application emerged on the second day of the hearing before this court; that is
to say, there was an absence of the costing of three sets of farm accommodation
works. Whether in truth there was an absence is not clear; it may well be that
the land acquisition component included in the cost-benefit analysis included
items for severance or injurious affection, which would be diminished by the
execution of accommodation works.
I have little
doubt that if this application had been subjected to a filter such as is
necessary to secure leave to move for judicial review by reason of section
31(3) of the Supreme Court Act, it would not have passed through the filter;
the application would have been given its quietus long ago.
As it is, an
urgent scheme of public works has been set back by this barren application for
nearly 21/2 years. The public bears the burden of that in travel costs and
environmental disbenefit.
In my
judgment, it is for consideration whether certain of the applications which are
subject to Ord 94 should not be subject to a filter procedure. If a filter
procedure is not judged to be appropriate,
nature would move of their own motion to cut the case down at an early stage.
I have
mentioned that there was one possibility apart from that which emerged on the
second day of the hearing in this court; that is hinted at in ground 3 of the
notice of motion, which Woolf LJ has read. It is also, perhaps, deducible from
some of Mr Newman’s arguments.
The
possibility is that the Secretary of State’s decision was Wednesbury
unreasonable; that is to say perverse, irrational or absurd. In my judgment,
the proposition has only to be stated to reveal its untenability. The lack of
identity of the precise cost of the three farm accommodation works (the nature
of which was known) was, in regard to a scheme the total cost of which was to
be £51.17m at 1984 prices, quite incapable of rendering the decision perverse,
irrational or absurd.
Also agreeing,
PURCHAS LJ said: I wish only to add my own personal support of the criticism of
the way in which this originating summons came before the Queen’s Bench
Division to that expressed by my Lords.
It is clear
that the provisions of the Highways Act 1980 are directed, in section 10 of and
Schedule 2 to that Act, to providing a remedy which should be confined within
strict limits. It savours, as Mann LJ has just commented, of the kind of relief
which is envisaged by moving for judicial review within the provisions of RSC
Ord 53, but providing within its own context the route by which a person aggrieved
may, within a comparatively short period of six weeks, have recourse to the
courts on the ground that any requirement of the Act, or of regulations made
under the Act, has not been complied with by the Secretary of State responsible
for the order.
That provides
a limited framework, and Ord 94 r 1(2) refers to Ord 8 r 3(2), to which
reference has already been made in the judgments already delivered.
There must be
an onus upon those responsible for presenting the originating motion under Ord
94 to ensure that the requirements of Ord 8 r 3(2) are met.
As my Lords
have already indicated in the judgments delivered, in this case the Secretary
of State was faced with an ill-defined, if not misleading, motion. It is
perhaps a lacuna in the statutory provisions that there is no easy remedy to
the Secretary of State to deal with the kind of position which was achieved in
the early stages of this case.
A motion to
strike out for an abuse of the process of the court has its own obvious
difficulties. It is for that reason that I respectfully support, and agree
with, the suggestions made by my Lords that there is here an urgent need of
some procedure by which these sorts of applications, which were clearly
intended by Parliament to be within a clearly defined and restricted area,
should not be the vehicle for achieving unwarranted and unacceptable delay in
schemes which are otherwise approved for the benefit of the public at large.
I do not wish
to add anything further to the judgments which have already been delivered,
other than the few comments which I have included in this judgment.
I agree that
the appeal must be dismissed.
The appeal
was dismissed with costs.
