Highways — Bridleway — Bridleway diversion order — Written representation procedure — Whether person seeking diversion order entitled to make representations — Whether breach of natural justice
In
February 1988 the appellant landowner made an application to the council for a
public path diversion order in respect of a bridleway that ran through her
land. The application was made pursuant to section 119 of the Highways Act
1980. The highway authority resolved to promote the diversion order and gave
notice of the making of that order. F submitted written objections and agreed
that these could be dealt with by the written representation procedure before
the inspector appointed by the Secretary of State for the Environment. The
appellant indicated that she wished to make written representations to the
inspector. In the course of the written representation procedure the DoE said
that the inspector would only be concerned with written representations from
the local highways authority and F, the objector; the department made clear
that the appellant had no right to make representations. The appellant was not
provided with copies of F’s objections. The appellant’s application to quash
the decision of the Secretary of State, by his inspector, to refuse to confirm
the diversion order, on the ground that the inspector had wrongly refused to
consider her representations, was dismissed in the court below.
In
the context of section 119 of and Schedule 6 to the 1980 Act, a person who
makes a representation in a context of an opposed order, even if that
representation is in support of the order, must be given the opportunity to be
heard either at the local inquiry or by the inspector. Once a diversion order
is submitted to the Secretary of State for confirmation and he causes a local
inquiry to be held or directs an inspector to hold an inquiry by means of oral
or written representations, it is his duty, through the inspector, to ensure
that persons entitled to be heard, are heard, or who are entitled to be
provided with objections or representations, are so provided: see pp10 and 13C.
referred to in the judgments
Hibernian Property Co Ltd v Secretary
of State for the Environment (1973) 72 LGR 395; 27 P&CR 197
Kanda v Government of Malaya
[1962] AC 322; [1962] 2 WLR 1153, PC
Lake District Special Planning Board v Secretary
of State for the Environment [1975] 2 EGLR 135; (1975) 236 EG 417; [1975]
JPL 220
Lasham Parish Meeting v Hampshire
County Council (1992) 91 LGR 209; 65 P&CR 331; [1993] JPL 841
Performance Cars Ltd v Secretary of
State for the Environment (1977) 34 P&CR 92; [1978] 1 EGLR 143; 246 EG
563; [1977] JPL 585, CA
Appeal
against the decision of Hidden J
This
was an appeal by Anne Slot against the decision of Hidden J, who had dismissed
her application to quash a decision of the Secretary of State refusing to
confirm a diversion order under section 119 of the Highways Act 1980.
Lewis (instructed by Davies Blunden & Evans, of Farnborough) appeared for
the appellant, Anne Slot.
the respondent, the Secretary of State for the Environment.
Swinton Thomas LJ: This is an appeal from a decision of Hidden J dated July 16 1996,
whereby he dismissed a motion on behalf of Mrs Anne Slot seeking an order of certiorari
to quash a decision, dated August 9 1995, of Mr J Frears, a planning inspector
for the Secretary of State for the Environment, not to confirm a bridleway
diversion order under the provisions of section 119 of the Highways Act 1980.
The
bridleway in respect of which the diversion order was sought runs through
Rydings Farm, Ockham, near Guildford in Surrey. Rydings Farm is owned by Mrs
Slot. The present bridleway and the proposed diversion are clearly shown on a
plan annexed to the order made by Surrey County Council and known as Bridleway
No 29 (Part) Ockham Public Path Diversion Order 1991. An objection to the order
was made by Mr Farrow and the matter was referred to the Secretary of State,
who appointed Mr Frears, of the planning inspectorate, to determine the issue.
The
present bridleway, with the right of access, passes through some gates leading
to Rydings Farm and then across a yard on the farm between the farm itself and
a bungalow in which Mrs Slot lives. It emerges on to a road called Ockham Road
North. The effect of the proposed diversion was to move the bridleway on to
another track some 650m in length, between some fields about 100m to the
south-east of the existing bridleway. The inspector, in his decision letter
dated August 9 1995, recorded that Ockham Road North, the B2039, is a busy road
leading to the junction of the M25 and A3.
Section
119 of the Highways Act 1980 provides:
(1)
Where it appears to a council as respects a footpath or bridleway in their area
(other than one that is a trunk road or a special road) that, in the interests
of the owner, lessee or occupier of land crossed by the path or way or of the
public, it is expedient that the line of the path or way, or part of that line,
should be diverted (whether on to land of the same or of another owner, lessee
or occupier) the council may, subject to subsection (2) below, by order made
by them and submitted to and confirmed
by the Secretary of State, or confirmed as an unopposed order —
(a) create, as from such date as may be
specified in the order, any such new footpath or bridleway as appears to the
council requisite for effecting the diversion, and
(b) extinguish, as from such date as may be
so specified in accordance with the provisions of subsection (3) below, the
public right of the way over so much of the path or way as appears to the
council requisite as aforesaid.
An
order under this section is referred to in this Act as a ‘public path diversion
order’.
Subsection
(5) provides:
Before
determining to make a public path diversion order on the representations of an
owner, lessee or occupier of land crossed by the path or way, the council may
require him to enter into an agreement with them to defray, or make such
contribution as may be specified in the agreement towards, — compensation and
expenses.
Para
1 of Part I of Schedule 6 provides:
(1)
Before a public path creation order, a public path extinguishment order or a
public path diversion order is submitted to the Secretary of State for
confirmation or confirmed as an unopposed order, the authority by whom the
order was made shall give notice in the prescribed form —
(a) stating the general effect of the order
and that it has been made and is about to be submitted for confirmation or to
be confirmed as an unopposed order.
Para
2 provides:
(1)
If no representations or objections are duly made, or if any so made are
withdrawn then —
(a)
the Secretary of State may, if he thinks fit, confirm or make the order, as the
case may be, with or without modifications;
(b) the authority by whom the order was made
(where not the Secretary of State) may, instead of submitting the order to the
Secretary of State, themselves confirm the order (but without any
modification).
(2)
If any representation or objection duly made is not withdrawn, the Secretary of
State shall, before confirming or making the order, as the case may be, if the
objection is made by a local authority cause a local inquiry to be held, and in
any other case either —
(a) cause a local inquiry to be held, or
(b) afford to any person by whom any
representation or objection has been duly made and not withdrawn an opportunity
of being heard by a person appointed by him for the purpose,
and,
after considering the report of the person appointed to hold the inquiry or to
hear the representations or objections, may, subject as provided below, confirm
or make the order, as the case may be, with or without modifications.
It
will be seen, therefore, that the general scheme of the Act in relation to
diversions of footpaths or bridleways is that either the council, or an
owner, lessee or occupier, may make the original proposal for the diversion
order. It is then for the council to make or to refuse to make the order. The
council may require the owner to enter into an agreement to defray the costs
and they did so in this case. If no representations or objections are made, the
Secretary of State or the local authority may make a confirmation order. If
there are representations or objections other than by a local authority, the
Secretary of State may either cause a local inquiry to be held or afford to any
person by whom any representation or objection has been made an opportunity of
being heard by the person appointed by the Secretary of State for the purpose.
Accordingly, it is the council who make the order and submit the order to the
Secretary of State for confirmation, and other persons who have objected or
made representations must be given an opportunity to be heard.
The
issue that arises in this case is as to whether Mrs Slot was, or indeed could
be, a person by whom ‘any representation has been duly made’. However, in order
to answer that question one has to look briefly at the chronology and the
correspondence passing between the various persons concerned. Mrs Slot made her
application to Surrey County Council to make the diversion order on February 1
1988. On March 12 1988 she agreed to pay the costs incurred by the county
council of advertising the diversion order. On February 16 1990 there was an
agreement by which she undertook to carry out all the necessary works if the
diversion order was made and to pay any compensation that might become payable.
On November 7 1990 there was a resolution by Surrey County Council to promote
the bridleway diversion order. On April 8 1991 notice was given of the making
of the proposed Bridleway No 29 (Part) Ockham Public Path Diversion Order 1991.
On May 6 1994 Mr Farrow submitted the first of his objections to Surrey County
Council.
On
May 6 1994 Mr Farrow wrote to the county council stating that, in his opinion,
the proposed diversion would create a serious traffic hazard. He wrote again on
May 22 making further objections. On July 9 1994 he wrote again:
I
have consulted a number of local riders and none would be prepared to use the
proposed route or permit their children to use it because of lack of adequate
visibility at the point of access to Ockham Road North.
Then
later in the letter he said:
As
a result of threats, abuse, obstruction etc, use of the existing Bridleway past
Rydings farmhouse has almost ceased and that there has been virtually no horse
traffic along Ockham Road North between BW29 and BW26. This is confirmed by the
observation of local people and the lack of horse droppings on the road. Riders
have preferred to use Long Reach and Green Lane to get access to BW25.
On
July 14 1994 the rights of way officer with the county council wrote to Mrs
Slot as follows:
As
you know there has been one objection to the Order: the objector has declined a
site meeting and wishes to maintain his objections.
I
shall now forward the Order to the Secretary of State for the Environment for
determination.
He
indicated that the county council might wish the matter to be dealt with by
written representations to avoid the expense of a public inquiry. By a letter
dated July 18 Mr Farrow agreed that the matter should be dealt with by written
representations.
On
October 1 1994 Mrs Slot wrote saying that she hoped that matters might be
resolved between the county council and ‘all parties’. She asked whether she
should send her written representations to the council or to the Department of
the Environment. She was, accordingly, indicating that she wished to make
written representations.
On
October 10 1994 the council replied:
The
written representation procedure involves only the Planning Inspectorate, the
objector to the Order and the County Council as Highway Authority. The Planning
Inspectorate will ask the Council for comments on the points the objector has
made and the Inspector will make his decision based on that exchange of correspondence.
If
there are any points which require clarification I shall of course contact you
for your comments.
The
council did not say that Mrs Slot would be consulted in relation to the points
made by the objector or that they would send her copies of Mr Farrow’s letters
on the substance of his objections. Indeed, they did not do so. Clearly, the
council did not regard themselves as acting on Mrs Slot’s behalf.
In
my judgment, the contents of that letter were wrong and misleading. If Mrs Slot
was a person who had made representations, she was entitled to be heard or, if
she agreed, to make written representation or if she were a person who wished
to make a representation, she was entitled to do so. On October 11 1994 Mrs
Slot wrote to the council saying that she had been confused in thinking that
she ought to be a party and to make representations.
Then,
on October 14 the council wrote:
‘The
parties’ referred to in the CLA booklet are generally viewed as being the Order
Making Authority, in this case the County Council and the objector. Having
decided to make the Order the County Council is expected to give the Inspector
its reasons for doing so and to support the Order at a Public Inquiry or during
written representations. In other words the two sides are the County Council
and the objector. As stated in my earlier letter the applicants for a diversion
do not normally participate in the procedure because the case is being handled
by the Order Making Authority. The written representations procedure is
intended to be a quicker and cheaper method of dealing with these matters than
holding a Public Inquiry. It cannot therefore be adopted if several parties are
involved as the exchange of correspondence through the Planning Inspectorate
becomes extremely complicated and protracted.
I
would therefore suggest that if you wish the Council to make any particular
points to the Inspector that you send them to me for inclusion in the Council’s
submissions.
Again,
in my judgment, that letter was misleading. A person who wishes the diversion
order to be made and has proposed it, may or may not be entitled to be heard at
a public inquiry depending upon whether she is a person who has made
representations. It is quite true that the owner of the land who wishes the
diversion order to be made is not a party to the proceedings as such. That is
not the question. The question is whether she is a person entitled to be heard.
On
receipt of that letter Mrs Slot, not surprisingly, agreed to that course being
taken and said:
Can
you send our points to the inspector that I sent you.
On
October 17 1994 Mr Farrow wrote again setting out his objections. On October 18
the council wrote to the planning inspectorate stating that they enclosed a
letter from Mrs Slot agreeing to the matter being dealt with by the council on
her behalf. In that letter Mrs Slot began by saying: ‘In support of the County
Council’s Order’, and then continued, making a number of points. She stressed
the number of people who used the bridleway, made some comments about traffic
hazards and made some reference to the objection and the views of people using
the bridleway. On January 24 1995 Mr Farrow wrote again stressing his objections.
On
June 18 1995 Mrs Slot wrote:
Would
the Inspector please send me a copy of the decision when he makes his Report.
Also may we please have a copy of the objectors’ letter as we believe we ought
to have exchanged our view as stated in the extract of ‘A guide to procedures
for Public Path Orders’ by the Countryside Commission.
On
June 29 1995 an officer in the Department of Environment replied:
I
refer to the above Order and your letter of 18 June, 1995.
I
understand that you are the Applicant for this Diversion Order. Once the
Council made an Order it becomes the Council’s Order and as such the
Inspectorate deal with the Council in all respects. In effect the Order making
authority, in this case Surrey County Council act on behalf of the Applicant.
The
exchange of representations you mention is carried out between the order making
authority and the objector, the order making authority promoting the
Applicant’s cause. In this case the exchange has been completed.
The
department was, in that letter, making it clear that, in its opinion, Mrs Slot
had no right to make any representations.
If
Mrs Slot had not made it plain before she was making it absolutely plain in
that letter that she wished to make representations. In his decision letter of
August 9 1995 the inspector stated that it was his decision not to confirm the
order.
In
the letter he set out fully a description of the bridleway and the surrounding
area. Then, on p2, he sets out ‘cases of
the parties’.
In
para 7 he said:
The
diversion would remove riders and walkers from the farmyard at Rydings Farm and
potentially dangerous machinery. A new section of Bridleway would be added,
providing riders with a safe route parallel to B2039 to a point convenient for
Bridleway 26. It would be more commodious and no less convenient for the
public. The advantages and attractiveness of the new route along the Bridleway
but inside the field, and also boggy nature of the existing route, were
emphasised in representations from Mrs Slot.
The
case for the objector in para 8:
It
would be quite dangerous for riders to cross the unrestricted B2039 at the
proposed point almost, but not quite, opposite Bridleway 26.
He
then set out his conclusions.
In
para 9 the inspector concluded that the diversion was expedient for the
landowner, but he did not consider that to be a very weighty argument in favour
of diversion in this particular case.
In
para 10 he accepted that the diversion had benefits for riders of horses and
referred to representations that had been made by the British Horse Society.
In
para 11 he considered the position of riders and found that the visibility and
length of the proposed crossing were acceptable. However, he said that he did
not consider that the diversion would be substantially less convenient for
riders. He agreed with the British Horse Society that it would be an
improvement and therefore expedient from the point of view of riders.
Then
in para 12 he said:
I
need, however, to consider the effect of the proposed diversion on the
convenience and enjoyment on all groups of riders. I am not satisfied that it
would be expedient for walkers for two reasons . . . I do not consider this
inconvenience would be outweighed by the improved and less muddy surface to
which Mrs Slot has referred.
Some
of the material supplied by Mrs Slot to the county council had obviously been
sent on to the inspector. The inspector refers to: ‘Representations from Mrs
Slot’, despite the fact that in the letters sent to her it had been stated
clearly by the county council and the department that she was not permitted to
make representations under the provisions of Schedule 6. The inspector made
reference to Mrs Slot again in para 12 of the letter. In that paragraph he was
contrasting the advantages and disadvantages of the diversion for those on
horseback and those using the bridleway on foot.
Mrs
Slot was not given an opportunity to make representations to the inspector,
although she wrote to him asking that she be allowed to do so, and she had no
knowledge of the case made against the diversion by the
The Secretary of State submits that that was the correct procedure to adopt.
Mr
Meyric Lewis, on behalf of the appellant, makes these submissions:
1.
That Mrs Slot was a party to the written representation procedure. As such, she
was entitled to make representations and to receive copies of relevant
documentation, in particular letters written by the objector. For my part, I
think the question is not whether Mrs Slot was a party to the proceedings, but
whether she was a person by whom any representation or objection had been duly
made in accordance with the wording of Schedule 6.
2.
That in failing to provide Mrs Slot with an opportunity to be heard or to make
representations there was a breach of natural justice.
3.
That in failing to provide Mrs Slot with an opportunity to be heard or to make
written representation, the Secretary of State was in breach of Article 6(1) of
the Convention for the Protection of Human Rights and Fundamental Freedoms.
Mr
Lewis derives support in respect of his first and second submissions from
Circular 3/931, which is headed Crossing Orders and provides at para
6:
Objections
to orders, and their determination by the Secretary of State, fall within the
public domain and, as such, are outside the applicant’s control. It is
considered unreasonable to expect the applicant to bear the extra expense
incurred by the local authority in pursuing opposed orders through to
confirmation and these costs have therefore been excluded from the power to
charge. The authority will nevertheless wish to ensure that the applicant is
afforded every opportunity to participate in any public inquiry.
1 Recovery of Costs of Public Path and
Rail Crossing Orders
In
support of his first submission, Mr Lewis stresses that para 2(2)(b)
refers to any person by whom any representation has been duly
made. The applicant, Mrs Slot, is, accordingly, not excluded, and the word
‘representation’ is not in any way restricted. He contrasts ‘representation’
with ‘objection’ and submits that the former may include representations in
support of the confirmation of the order.
Mr
Timothy Corner, for the Secretary of State, submits that the scheme of section
119 of and Schedule 6 to the 1980 Act is that once the local authority have
made the order, it has the carriage of the confirmation procedure to the
Secretary of State; the applicant is not a party to that procedure or to any
subsequent hearing, and, indeed, has no right to be heard because, as she is
the applicant, and, as such, is supporting the making of the order, she is not
a person who has made an objection or representation. In order to qualify as
such a person, she must either object or propose some modification to the
order. She cannot be a supporter. Mr Corner relies on the juxtaposition of para
2(1) and para 2(2) of Schedule 6. Para 2(1) envisages that the Secretary of
State may, if he thinks fit, confirm
that if representations or objections are made, the Secretary of State shall
cause a public inquiry to be held or afford to that person the opportunity of
being heard by the inspector. It would be absurd, he submits, if the
legislation required the Secretary of State to hold an inquiry when the only
representations made are ones in support of the order. There is, clearly,
substance in that submission.
Mr
Corner’s submission was accepted by Hidden J, who said in his judgment:
Any
representation or objection in Schedule 6, para 2(2) cannot mean any expression
of support for the making of the order since the section and the Schedule make
provision for the existence of an opposed order.
He
then continued:
It
is clear that an order that had only attached to it an expression of support
would be an unopposed order. It is clear therefore that the word
‘representation’ must be read with the word ‘objection’ and ‘representation’
must therefore be read as meaning ‘representation in opposition to the order’.
If
that were not so, then any expression of support for the order would prevent
the making of an unopposed order and would necessitate that in circumstances
where the order was unopposed the Secretary of State would either have to cause
a local inquiry to be held or afford the person making the expression of
support an opportunity of being heard by a person appointed by him for this
purpose. That would be a completely futile exercise and in order to prevent such
an absurdity it is necessary that the representation in that paragraph be
construed as a representation adverse to the order.
I
cannot entirely accept the judge’s reasoning. If a representation must be
construed as meaning only a representation in opposition to the making of the
order, then, in my judgment, it would have no different meaning to objection.
The words used are ‘representation or objection’. The researches of counsel
have found no authority that assists as to the meaning of the word ‘representation’.
It would be wrong to attempt to give any general definition to it. As with all
words, in this Schedule it must be construed in the context of the particular
legislation only.
Lasham
Parish Meeting v Hampshire County Council
[1993] JPL 841 was concerned with the reclassification of a road. The parish
meeting objected that the road in question was used by walkers as well as
vehicular traffic. The council replied that under the relevant legislation they
were only entitled to take into account whether vehicular rights were shown to
exist when they considered reclassification and that the issues raised by the
parish were immaterial and legally irrelevant to the statutory test for
reclassification. The county council confirmed the order as an unopposed order.
The question that arose on an application of judicial review before Potts J was
whether the parish meeting’s objection was based on ‘legally irrelevant and
inadmissible considerations’, and, if it were, whether in such circumstances
the surveying authority were empowered to treat the
to the Secretary of State for confirmation, on the basis that the objection was
‘not duly made’; and if the authority were not entitled to treat the order as
unopposed, the legal consequences of that.
The
relevant provision was:
If
any representation or objection duly made is not withdrawn the authority shall
submit the order to the Secretary of State for confirmation by him.
It
was submitted on behalf of the Secretary of State that if the only basis for
the objection/representation was capable of effecting the reclassification as a
matter of law, the Secretary of State was not obliged to hold a public inquiry.
It was accepted by the Secretary of State that, as a matter of construction,
‘representation’ was different from ‘objection’. Potts J said that what was
meant by ‘a representation’ was obscure and difficult. He held that it was
unnecessary for him to construe the term because the material put forward by
the parish meeting amounted to a representation or objection, and, if not
withdrawn, it obliged the Secretary of State to hold a public inquiry or afford
an opportunity to that person to be heard, even though the representation or
objection was legally inadmissible or irrelevant. However, he found that the
applicants had not been substantially prejudiced and declined to quash the
order.
In Cassell’s
Dictionary ‘representation’ is defined as ‘a statement of argument’. In the
Shorter Oxford Dictionary it is defined as ‘a statement made by way of
allegation or to convey opinion’. General dictionary definitions have limited
value when construing legislation, but they may have some value. A statement of
argument or an allegation connotes an area of disagreement. In my judgment, the
word representation, while clearly different from the word objection, must be
read in conjunction with it. In the context of section 119(1) and the
juxtaposition of subparas (1) and (2) of Schedule 6 to the 1980 Act, the
representation must, before triggering the provisions of subpara (2), relate to
an issue that has arisen as to confirmation of the order. If that approach to
representations is correct, then it overcomes the problem referred to by Mr
Corner that the Secretary of State would be obliged to hold a public inquiry in
a case where there are no objections and the only representations are in
support of the order. If the only representations are in support of the order,
without modification and there is no objection, then the Secretary of State can
confirm the order as an unopposed order because no issue has arisen. But if a
person makes a representation in the context of an opposed order, even if that
representation is in support of the order, that person must be given the
opportunity either to be heard at the local inquiry or of being heard by the
inspector appointed for that purpose.
If
I should be wrong in this approach to Schedule 6 I would still come to the
conclusion that a representation in support of the order is a relevant
representation for the purposes of Schedule 6, and, if there were no objection
to the making of the order, the Secretary of State would be
of informing all those who had made representation that there was no objection
to the making of the order and inviting them to withdraw their representation.
However, for the reasons set out above, I consider that to be unnecessary. On
the facts of this case, I have no doubt at all that, on any basis, Mrs Slot was
a person who had made representations for the purposes of Schedule 6.
I
turn to Mr Lewis’ submission that the failure to provide Mrs Slot with a copy
of Mr Farrow’s letters of objection, and the failure to give her an opportunity
to reply to them, was a breach of natural justice.
Kanda v Government of Malaya [1962] AC 322 concerned the dismissal
of a police officer. It was held that the failure to supply the appellant with
the copy of the report of the board of inquiry, which contained matter highly
prejudicial to him and which had been sent to and read by the adjudicating
officer before he sat to inquire into the charge, amounted to a failure to
afford the appellant a reasonable opportunity of being heard in answer to the
charge. Lord Denning said at p337:
If
the right to be heard is to be a real right which is worth anything, it must
carry with it a right in the accused man to know the case which is made against
him. He must know what evidence is given and what statements have been made
affecting him: and then he must be given a fair opportunity to correct or
contradict them. It follows, of course, that the judge or whoever has to
adjudicate must not hear evidence or receive representations from one side
behind the back of the other. The court will not inquire whether the evidence
or representations did work to his prejudice. Sufficient that they might do so.
The court will not go into the likelihood of prejudice. The risk of it is
enough. No one who has lost a case will believe he has been fairly treated if
the other side has had access to the judge without his knowing.
That
principle was adopted by Browne J in Hibernian Property Co Ltd v Secretary
of State for the Environment (1973) 27 P&CR 197, a case a little closer
to the present case. Again, the complaint made was that an inspector had
received further information in the absence of one of the parties after the
close of the public inquiry, and the Secretary of State had failed to observe
the rules of natural justice. It was held that while it was not clear that the
applicants had been prejudiced by the information obtained by the inspector in
answer to her questions to the occupier, the question in relation to an alleged
failure to observe the rules of natural justice was not whether the information
had prejudiced them by contributing to the decision of the Secretary of State
to confirm the compulsory purchase order, but whether there was a risk that it
might have done so; that there was, on the facts, such a risk; that, therefore,
there had been a failure to observe the rules of natural justice; and that the
order of the Secretary of State confirming the compulsory purchase order was,
accordingly, not within the powers of the Act. Browne J said at p212:
If,
however, the people who gave this information to the inspector had been called
to give evidence at the inquiry the applicants would obviously have
wanted to cross-examine them, and no one can now say what the results of such
cross-examination would have been. No doubt counsel for the objectors, now the
applicants, would also have wished in his final speech to the inspector to
comment on that evidence.
In
my judgment the question is not whether the information obtained by the
inspector did in fact prejudice the applicants by contributing to the decision
of the Secretary of State to confirm the compulsory purchase order but whether
there is a risk that it may have done so.
He
then went on to quote the passage cited above from Kanda.
Performance
Cars Ltd v Secretary of State for the
Environment (1977) 34 P&CR 92 was a case where documents were produced
very late and the applicant was not granted sufficient time to study them. The
Court of Appeal held that the local planning authority had been in breach of
the relevant rules in refusing to let the company see the documents prior to
the inquiry; that the inspector was bound to give the company an adequate
opportunity of considering the documents; and that there had been a breach of
the natural rules of justice. Lord Denning MR said at p97:
It
seems to me in those circumstances that he would have a grievance. He would not
feel that justice had been done. It is that feeling, I think, which in all our
proceedings we should try to avoid. People should not go away from any inquiry
feeling: ‘I’ve not had a fair deal.’ It is for this reason that I feel we must,
although one regrets it, let the order go and set the matter aside.
Browne
LJ referred to the Hibernian Property Co case and said that the question
was not whether the applicants’ case had been prejudiced, but whether there was
a risk of prejudice.
Lake
District Special Planning Board v Secretary of
State for the Environment (February 13 1975) was again a case concerning
the failure to send a relevant communication to one of the parties. On p17 of
his judgment Kerr J said:
Applying
all these authorities it seems to me that Mr Woolf was right in submitting that
the test which I must apply is an objective one which may be formulated as
follows: would a reasonable person (and I do not think for this purpose that it
makes any difference whether he be a Judge, a member of the public, or the
complainant, since the standard or reasonableness should be the same in each
case) viewing the matter objectively and knowing all the facts which are known
to the Court consider that there was a risk that the procedure adopted by the
Tribunal in question has resulted in injustice or unfairness?
If
one applies those dicta to the present case, one can, in my judgment,
come to one conclusion only. Mrs Slot was the proprietor of the property
through which the bridleway ran. As such, she had a greater interest in the
outcome of this application than anyone else. She was the applicant for the
diversion order. She had been required to pay some of the costs relating to the
making of the original order. Mr Farrow had made objections: some of which
related to dangers on the highway; some to users of the bridleway;
and some related directly to Mrs Slot. If one posed the question as to whether
the public in general or Mrs Slot would take the view that justice had not been
seen to be done if she were denied an opportunity of answering those
objections, the answer must be that it had not. Furthermore, in my judgment,
there must be a risk that her case was prejudiced. In my view, Mr Lewis makes
out his case that there was, here, a breach of the rules of natural justice.
Mr
Corner submitted that the Secretary of State owed no duty to Mrs Slot and that
it was not for him, but for the council, to provide Mrs Slot with all the
relevant documentation. The council were, he submits, ‘dealing with the matter
on behalf of the Applicant’. In fact the council did not supply Mrs Slot with
Mr Farrow’s letters. Be that as it may, once the diversion order is submitted
to the Secretary of State for confirmation and he causes a local inquiry to be
held, or directs an inspector to hold an inquiry by means of oral or written
representations, the matter is in his hands and it is his duty, through the
inspector, to ensure that persons entitled to be heard are heard, or who are
entitled to be provided with objections or representations are so provided, and
to ensure that the rules of natural justice are complied with.
In
those circumstances there is no need to consider Article 6 of the Convention.
Finally,
Mr Corner submits that no injustice has been done in this case and that the
result would have been the same if Mrs Slot had seen Mr Farrow’s objections and
had had an opportunity to make representations in respect of them. He submits,
accordingly, that it would be futile to quash the decision because it would,
inevitably, be the same. First, importantly and correctly, Mr Corner points out
that the inspector rejected Mr Farrow’s primary point that the exit on to the
main road from the proposed diversion would be dangerous. Second, Mr Corner
says that it is clear from the inspector’s letter that Mr Farrow’s allegations
of threats, abuse and the like played no part in the decision-making process.
For my part, I would accept that submission. However, there remains the
important point as to the extent of the user of the bridleway raised by Mr
Farrow in his letters, and the extent of the use by people on foot and people
on horseback referred to in the decision letter. I do not think that it is
possible, in this case, to say that one can be sure that an inspector would
necessarily have come to the same conclusion if Mrs Slot had had an opportunity
to see Mr Farrow’s objections and to make representations herself.
For
these reasons I would allow this appeal, quash the decision of August 9 1995
and direct that there should be a redetermination of the application for
confirmation of the diversion order.
Sir Brian Neill:
The main facts of this case have been set out in the judgment of Swinton Thomas
LJ, which I have had the advantage of reading in draft. I need not repeat them.
I shall, however, have to make some reference to the relevant legislation.
The
first argument advanced on behalf of the appellant was that she
entitled to receive a copy of the objection or objections lodged by Mr Farrow,
the objector.
At
the outset it is necessary to remember that the statutory machinery provided
under the Highways Act 1980 (as amended) for the diversion of footpaths and
bridleways does not contain any specific provision enabling the Secretary of
State to confirm a diversion order without giving ‘any person by whom any representation
or objection has been duly made and not withdrawn an opportunity of being
heard’. There is no reference in the Act to a procedure involving only written
representations as opposed to a hearing before the Secretary of State’s
appointee. It seems clear, however, that the procedure by written
representations is well recognised, and I shall therefore consider the
appellant’s position on the hypothesis that she had the same rights as she
would have had if the matter had proceeded by way of a hearing before an
appointee. The question can then be rephrased: would she have been a party to
those proceedings? I turn, therefore, to the Act.
Section
119 of the Highways Act 1980 (as amended by the Wildlife and Countryside Act
1981) contains the following relevant provisions:
(1)
Where it appears to the council as respects a footpath or bridleway in their
area . . . that, in the interests of the owner, lessee or occupier of land
crossed by the path or way or of the public, it is expedient that the line of
the path or way, or part of that line, should be diverted (whether on to land
of the same or of another owner, lessee or occupier), the council may . . . by
order made by them and submitted to and confirmed by the Secretary of State, or
confirmed as an unopposed order —
(a) create, as from such date as may be
specified in the order, any such new footpath or bridleway as appears to the
council requisite for effecting the diversion, and
(b) extinguish, as from such date as may be
so specified . . . the public right of way over so much of the path or way as
appears to the Council requisite as aforesaid
An
order under this section is referred to in this Act as a ‘public path diversion
order’. . .
(5)
Before determining to make a public path diversion order on the representations
of an owner, lessee or occupier of land crossed by the path or way, the council
may require him to enter into an agreement with them to defray, or to make such
contribution as may be specified in the agreement towards, —
(a) any compensation which may become payable
under section 28 . . . or
(b) where the council are the highway
authority for the path or way in question, any expenses which they may incur in
bringing the new site of the path or way into fit condition for use for the
public, or
(c) where the council are not the highway
authority, any expenses which may become recoverable from them by the highway
authority under the provisions of section 27(2) . . .
(6)
The Secretary of State shall not confirm a public path diversion order, and a council
shall not confirm such an order as an unopposed order, unless he or, as the
case may be, they are satisfied that the diversion to be effected by it is
expedient as mentioned in subsection (1) above, and further that the
path or way will not be substantially less convenient to the public in
consequence of the diversion and that it is expedient to confirm the order
having regard to the effect which —
(a) the diversion would have on public
enjoyment of the path or way as a whole,
(b) the coming into operation of the order
would have as respects other land served by the existing public right of way,
and
(c) any new public right of way created by the
order would have as respects the land over which the right is so created and
any land held with it,
so,
however, that for the purposes of paragraphs (b) and (c) above
the Secretary of State or, as the case may be, the council shall take into
account the provisions as to compensation referred to in subsection (5)(a)
above . . .
(8)
Schedule 6 to this Act has effect as to the making, confirmation, validity and
date of operation of public path diversion orders.
I
should refer next to Part I of Schedule 6 to the Act, which contains provisions
as to the procedure to be followed. The following paragraphs of Schedule 6 are
relevant:
1.–(1) Before . . . a public path
diversion order is submitted to the Secretary of State for confirmation or
confirmed as an unopposed order, the authority by whom the order was made shall
give notice in the prescribed form —
(a) stating the general effect of the order
and that it has been made and is about to be submitted for confirmation or to
be confirmed as an unopposed order,
(b) naming a place in the area in which the
land to which the order relates is situated where a copy of the order and of
the map referred to in it may be inspected free of charge and copies thereof
may be obtained at a reasonable charge at all reasonable hours, and
(c) specifying the time (which shall not be
less than 28 days from the date of the first publication of the notice) within
which, and the manner in which, representations or objections with respect to
the draft order may be made . . .
2.–(1) If no representations or
objections are duly made, or if any so made are withdrawn, then —
(a) the Secretary of State may, if he thinks
fit, confirm or make the order, as the case may be, with or without
modifications;
(b) the authority by whom the order was made
(where not the Secretary of State) may, instead of submitting the order to the
Secretary of State, themselves confirm the order (but without any
modification).
(2)
If any representation or objection duly made is not withdrawn, the Secretary of
State shall, before confirming or making the order, as the case may be, if the
objection is made by a local authority cause a local inquiry to be held, and in
any other case either —
(a) cause a local inquiry to be held, or
(b) afford to any person by whom any
representation or objection has been duly made and not withdrawn an opportunity
of being heard by a person appointed by him for the purpose,
and,
after considering the report of the person appointed to hold the inquiry or to
hear representations or objections, may, . . . confirm or make the order, as
the case may be, with or without modifications.
It
will be apparent from the citation of these provisions that it is contemplated
that representations as to the making of a diversion order may be made at two
stages. Thus, an owner, lessee or occupier may make a representation that sets
the process of making a diversion order in train (see section 119(5), where the
potential financial liability of such a representor is set out). Representations
may also be made, however, at a later stage in response to a notice given in
accordance with para 1(1) of Schedule 6 by the authority making the order.
Indeed, in some circumstances representations may be made at an even later
stage in response to a notice under para 2(3) of Schedule 6.
It
is to noted, however, that the representations referred to in Schedule 6 are
qualified by the words ‘duly made’. Such representations, therefore, are
representations made in response to a statutory notice.
We
have not seen a copy of the notice that was given by Surrey County Council in
accordance with para 1(1) of Schedule 6. As I understand the facts, the notice
was given on April 8 1991. Such a notice had to be ‘in the prescribed form’ and
I shall therefore assume that it was given in substantially the same terms as
form no 1 in Schedule 2 to the Public Path Orders and Extinguishment of Public
Right of Way Orders Regulations 1983 (SI 1983 No 23). Form no 1 in Schedule 2
to the 1983 Regulations has now been replaced by form 1 in Schedule 2 to the
Public Path Orders Regulations 1993 (SI 1993 No 11), but I have not detected
any significant differences between the two prescribed forms.
The
concluding paragraphs in form no 1 in the 1983 Regulations provided:
Any
representation or objection with respect to the order may be sent in writing to
the [title or appropriate officer and name and address of authority]
before 19 , and should state the grounds on which it is
made.
If
no representations or objections are duly made, or if any so made are
withdrawn, the [name of authority] may instead of submitting the order to the
Secretary of State [for the Environment] [for Wales] confirm the order itself.
If the order is submitted to the Secretary of State any representations and
objections which have been duly made and not withdrawn will be submitted with
the order.
I
turn next to consider whether the representations that were sent by Mrs Slot to
the Secretary of State’s appointee in October 1994 were ‘representations’ within
the meaning of Schedule 6.
I
accept that the word ‘representation’ is capable of being interpreted broadly
and in an appropriate context can include any statement conveying an expression
of opinion. I also accept that in Schedule 6 the word is clearly intended to be
more than a synonym for ‘objection’. It seems to me, however, that if one
considers the scheme of section 119 and Schedule 6 the word ‘representation’ in
the Schedule indicates a submission that has two characteristics:
(a)
it is made in response to a notice given under para 1 and is made in the manner
and within the time specified in the notice; and
(b)
it raises some issue which would make the confirmation of a proposed order as
an unopposed order inappropriate.
I
doubt whether the precise form of any objection or representation made in
response to a statutory notice would be of critical importance, and it may be
that, in many cases, the timing of the objection or representation would not be
critical either. Indeed, in the present case, Mr Farrow’s first objection was
not made until May 6 1994. But I cannot think that the authority giving the
notice, and thus inviting responses, would anticipate receiving from the person
who was the original protagonist of the scheme a ‘representation or objection’
of a kind that, if not withdrawn, would be likely to precipitate some form of
hearing. The Act and the regulations seem to me to contemplate representations
that are not in harmony with the order proposed by the local authority. The
representations may, for example, suggest an extension of the diversion or,
though supportive in principle, suggest some modification or deviation in the
proposed route of the diversion.
Accordingly,
on what I regard as the proper construction of the Act and the regulations, I
would not include among the category of persons making ‘representations’ for
the purpose of Schedule 6 those who wrote to support the diversion and made no
comment that was inconsistent with the proposal espoused by the local
authority.
It
is necessary, however, to consider the special facts in this case.
In
the first place, it seems clear that Mrs Slot made her representations in
October 1994 in response to the objections submitted by Mr Farrow and not in
response to the notice given by Surrey Council. Although Mrs Slot was
throughout unaware of the terms of Mr Farrow’s objections, she had been told on
July 14 1994 that there was an objector to the proposed order. It is, however,
the council’s actions on receipt of her representations that seem to be of
importance.
On
October 18 1994 the council wrote to the planning inspectorate enclosing a copy
of Mrs Slot’s letter in which she set out her representations. In taking this
step the council, it can be said, were treating her representations as
‘representations’ that were being submitted to the Secretary of State’s
appointee for his consideration. In other words, the council themselves
conferred Schedule 6 status on the representations. Furthermore, it is
noteworthy that the inspector, in his report, treated Mrs Slot’s letter as a
letter containing her ‘representations’.
On
the facts of this case, therefore, I consider that, despite my general approach
to the construction of Schedule 6, Mrs Slot should have been treated as a party
to the proceedings.
I
would, however, prefer to decide this case principally on the second main
ground explained by Swinton Thomas LJ in his judgment. It must have been clear
to any reader of Mr Farrow’s letters that he was challenging the whole raison
d’être of the proposed order and that he was highly critical of Mrs Slot.
Any fair procedure should have ensured that Mrs Slot was made aware of the
terms of Mr Farrow’s objections. The decision of the inspector required the
balancing of a number of different
different conclusion had he received further information about the equestrian
use of the bridleway. Mrs Slot never had the chance to put that further
information forward.
I,
too, would allow the appeal.
HIRST
LJ: For the reasons given by Swinton Thomas LJ I
agree that the appeal should be allowed.
Appeal
allowed with costs; leave to appeal to the House of Lords refused.
