Opencast Coal Act 1958–Acquisition of Land (Authorisation Procedure) Act 1946–Authorisation to work coal by opencast methods–Public inquiry–Refusal by inspector to allow plaintiff to cross-examine local authority witnesses–Whether breach of rules of natural justice–Inspector wished to avoid repetition and irrelevancies and considered that points could be made in plaintiff’s examination-in-chief–Plaintiff substantially prejudiced–Limits of inspector’s discretion–Authorisation quashed and inquiry to be reconvened
In these
proceedings Michael Burrows Nicholson, of The Manor, South Hiendley, near
Barnsley, Yorks, applied under paragraph 13 of Schedule 1 to the Acquisition of
Land (Authorisation Procedure) Act 1946, as applied by paragraph 10 of Schedule
1 to the Opencast Coal Act 1958, to quash an authorisation by the first
respondent, the Secretary of State for Energy, to the second respondents, the
National Coal Board, for the working of coal by opencast methods at Cawker,
near Royston, South Yorkshire, on the ground that the public inquiry preceding
the authorisation was invalid in that the plaintiff was refused the right of
cross-examination.
Michael Barnes
(instructed by Conway Kremer & Co, of Leeds) appeared for the plaintiff;
Harry Woolf (instructed by the Treasury Solicitor) represented the first
respondent; Lord Colville (instructed by the solicitor to the National Coal
Board) represented the second respondents.
Giving
judgment, SIR DOUGLAS FRANK QC said that section 1 of the Opencast Coal Act
1958 prohibited the working of coal by opencast methods except in pursuance of
an authorisation granted by the Secretary of State for Energy, who, in turn,
could not grant an application for authorisation unless it were made in
accordance with the provisions of Schedule 1 to the Act. Those provisions
included the hearing of any objections at a public inquiry.
In the present
case the plaintiff was one of 16 objectors. He prepared his case with
considerable care and cross-examined at the inquiry at least one of the
witnesses called on behalf of the National Coal Board. But the inspector
refused to allow him to ask questions of two of the witnesses who gave evidence
on behalf of the West Yorkshire County Council and one each on behalf of the
Wakefield Metropolitan District Council and the South Yorkshire County Council.
In his affidavit the inspector said he was anxious to avoid unnecessary
repetition and irrelevancies and, in addition, considered that any points which
the plaintiff wished to develop were more properly developed when he called
evidence and presented his case.
For the
plaintiff it was now contended that there was a breach of the rules of natural
justice. He referred to Professor S A de Smith in Judicial Review of
Administrative Action at p 188 where it was said, ‘Refusal to permit
cross-examination of witnesses at an administrative hearing will usually be a
denial of natural justice. Seldom can such a refusal be justified if a witness
has testified orally and a party requests leave to confront and cross-examine
him–the fact that the proceedings may be inquisitorial and informal is
inconclusive–but there may exceptionally be valid grounds for disallowing
questions to a witness on a particular matter.’
In Halsbury’s Laws of England (4th ed vol 1 para 76) the same
author said, ‘Rejection of a request to be permitted to cross-examine witnesses
who appear at a hearing for the other side will normally be construed as a
breach of natural justice. . . .’
The plaintiff
particularly relied on Wednesbury Corporation v Ministry of Housing
and Local Government (No 2) [1966] 2 QB 275 and, in particular, on
the judgment of Diplock LJ, as he then was, in which he said, ‘He [the
inspector] must permit persons making such representations a reasonable
opportunity of adducing relevant material in support of their representations,
and if such material includes oral statements of witnesses of fact or of
opinion I am inclined to think he must permit a reasonable opportunity of
cross-examination of such witnesses by persons appearing at the inquiry who
wish to dispute what witnesses have said.’
That case, like the present, concerned an inquiry into objections. The
plaintiff also relied on the speech of Martin B in Osgood v Nelson
(1872) LR 5 HL 636 at p 645 in which stress was laid upon the right to
cross-examine: and on Marriot v Minister of Health (1935) 154 LT
47 at p 50 in which it was held that at a public local inquiry into a
compulsory purchase order the strict rules of evidence did not need to be
observed provided that substantial justice was done between the parties. Swift
J, referring to the speeches in Board of Education v Rice [1911]
AC 179, said ‘Nothing should be done which could offend against that instinct
which every citizen possesses, to offend against which is said to deny
something which is contrary to natural justice . . . if one party is heard
without the other having the opportunity of knowing what he has said or of
testing what he has said by cross-examination . . . then clearly there has been
an infringement of the rules of natural justice’
The plaintiff
had also relied on R v Deputy Industrial Injuries Commissioner, ex p
Moore [1965] 1 QB 456 and contended that that case was clear authority for
the proposition that a person at an inquiry had a right to cross-examine
anybody who gave evidence contrary to his case because only in that way could
the inspector fulfil his function of inquiring into objections.
The policy
behind the authorisation procedure was to merge economic and town planning
considerations and make the first respondent the final arbiter. The pre-inquiry
procedure ensured that those directly affected because of their ownership or
occupation of the land concerned and those representing broader interests could
require a public inquiry to be held. Paragraph 7(2) of Schedule 1 to the 1958
Act originally provided, ‘If any objection duly made by any
lessee or occupier, is not withdrawn, the minister shall cause a public local
inquiry to be held, and shall consider the objection and the report of the
person who held the inquiry before determining whether to grant the
authorisation; and if he determined to grant it, he may do so either in
accordance with the board’s application or subject to such modification as he
may determine.’ The Coal Industry Act
1975 amended that paragraph so that the words ‘the objection’ were amended to
‘all objections to the grant of the authorisation which are duly made and not
withdrawn.’
Mr Woolf now
contended that the effect of the amendment was that ‘all objections’ included
objections by whomever made. Lord Colville, however, contended that there were
two classifications of persons–specified objectors and others–and that the
first respondent’s primary duty was to the first class. He also contended that
the obligation to the latter class was no more than that their representation
should be heard. He said that under rule 7(3) of the Compulsory Purchase by Public
Authorities (Inquiries Procedure) Rules 1976 (SI 1976 No 746), the right of
cross-examination was denied to any non-statutory objector. He went on to argue
that it would offend commonsense for objectors at inquiries where such rules
did not apply–such as in the present case–to have greater rights. The rules did
not apply, but it did not follow that because a certain objector did not have
an express right to cross-examine he might not have such a right as a rule of
natural justice, depending upon whether his objection was bona fide. It was
clear that all objectors had equal status and were entitled to the benefit of
the rules of natural justice. The question was to what extent those rules
required an objector to be permitted to cross-examine. Mr Woolf submitted that
the inspector had a discretion to disallow cross-examination by a person
intending to give evidence and that discretion had been properly exercised.
It had been
said that the phrase ‘contrary to natural justice’ was sadly lacking in
precision. A helpful starting point was the judgment of Kerr J in Lake
District Special Planning Board v Secretary of State for the Environment
[1975] JPL 220 where he said, ‘In administrative procedures the question [of
natural justice] had to be approached on broad lines. The test was whether a
reasonable person, viewing the matter objectively, and knowing all the facts,
would consider that there was a risk that injustice or unfairness had resulted.
It was a question of fact and degree in administrative procedures whether the
rules of natural justice had been broken.’
The views of
the ‘reasonable person’ varied according to the climate of public opinion.
Undoubtedly public opinion in relation to administrative acts had altered
considerably over the years. Its development had taken the form of increasing
vigilance. The recent case of Performance Cars v Secretary of State
for the Environment [1977] JPL 585, at p 586, showed how ready courts were
to impute a rule of natural justice. In that case Lord Denning MR said: ‘People
should not go away from an inquiry feeling ‘I’ve not had a fair deal.”
He (his
Lordship) had been led to the conclusion that a reasonable person, viewing the
matter objectively, would consider that there was a risk that injustice or
unfairness would result if a person considering himself to be directly affected
by a proposal was denied the opportunity to cross-examine a witness who had
given evidence contrary to his case. Cross examination was not to be used for
the purpose of a ‘fishing expedition’ but the plaintiff had been denied the
right to cross-examine the very evidence upon which his own case turned. An
inspector was entitled to refuse to hear, or at least to stop cross-examination
by objectors who intentionally engaged in irrelevancies and repetition, and
also by those whose objection was not to the proposed development as such but
to any development notwithstanding that it was authorised by statute.
It was common
ground that the plaintiff was a person aggrieved and, being deprived of
cross-examination, he lost ‘a chance of being better off in relation to the
proposed authorisation.’ Therefore,
having regard to the test propounded by Browne J in Hibernian Property
Company Ltd v Secretary of State for the Environment [1974] P &
CR 197 at p 218, he was substantially prejudiced. The authorisation should be
quashed and the matter remitted to the Secretary of State for Energy so that he
might reconvene the inquiry and allow the plaintiff to cross-examine at least
the witnesses called by the West Yorkshire and Wakefield local authorities.
The
defendants were given leave to appeal.
