Bypass – Blight – Owners requesting that council purchase property – Council refusing – Matter investigated by parliamentary commissioner – Commissioner finding no maladministration- Owners seeking judicial review of commissioner’s finding – Whether council’s failure to consider properly powers of purchase – Whether commissioner’s findings flawed – Court quashed commissioner’s finding
In 1984 the applicants purchased a property in Wroxham, Norfolk. The searches at the time revealed no road proposals which would affect the property. In 1986 the council adopted a preferred route for a bypass and in 1987 compulsorily acquired the adjacent property. The applicants asked the council to exercise their powers under section 246(2) of the Highways Act 1980 to purchase their property, which had been valued at £40,000, but had become unsaleable overnight. In 1987 the council declined to purchase the property purchase as no part of it was required for the bypass. The inspector’s report after a public inquiry contained the statement that "in all fairness, if the council will not purchase the property adequate compensation agreements should be agreed urgently in the light of the applicants’ financial situation". That report did not reach the Department of Transport until March 1992. In September 1990 in a letter from the council to the applicants’ MP, who had taken up the matter, the council said that to acquire the property would set a precedent which would have enormous capital and revenue consequences for them. In June 1992 the Secretary of State for Transport issued a decision letter agreeing with the inspector’s conclusions, and including the standard text saying that compensation was a matter for negotiation with the council. In December 1992 the applicants’ bank wrote to the council to ask whether consideration had been given to the new power in section 246(2A) contained in the Planning and Compensation Act 1991, which extended a highway authority’s power to alleviate hardship by acquiring by agreement property which "will be", as opposed to "is" in the 1980 Act, seriously affected by the works. They replied that they had not. Meanwhile the applicants had written to their MEP who wrote to the Secretary of State enclosing the letter. In 1994 the applicants’ MP referred the whole matter to the parliamentary commissioner who concluded that the department had not caused injustice by maladministration in overlooking section 246(2A) as a means of mitigating the effect on the appellants of confirming the road order because the council would have refused to operate the provision in any event. He also said that there was no evidence that the department ever considered the possibility of a discretionary purchase. The applicants sought to quash the adverse decision of the commissioner on their complaint of maladministration on the part of the Secretary of State in confirming road orders in respect of the bypass without seeking an assurance from the county council that they would be given adequate compensation for the effect which the proposed bypass would have upon it. The order was granted.
Held The decision of the commissioner was quashed.
1. In declining to consider the ostensible propriety of council’s negative attitude to their compensatory powers and their amenability to correction by the department, the commissioner omitted a potentially decisive element from his consideration of whether the department had caused injustice to the applicants by maladministration in its dealings with the council.
2 Once the county council’s apparent disregard for their obligations under section 246(2A) had been established by the commissioner, he could not properly avoid the question whether correct advice from the department might have made a difference. Whether the department’s failure to tender such advice amounted to maladministration, and whether, if it did, it caused injustice to the applicants was a question for the commissioner to decide, the matter was remitted for reconsideration.
Charles George QC and Barry Payton (instructed by Kenneth Beavis & Co, of Chelmsford) appeared for the appellants; David Elvin (instructed by the Treasury Solicitor) appeared for the respondent.