Proposal for privately funded road – Concession agreement between Secretary of State and builder of road – Public inquiry – Secretary of State adopting main inspector’s recommendations and approving proposals for construction – Applicant seeking to quash Secretary of State’s decision – Application dismissed – Appeal dismissed
In 1998, after a public inquiry, the inspector recommended that a relief road be constructed to go around the northern and eastern side of the West Midlands conurbationin order to provide an alternative route to the M6 between junction 4 at Coleshill and junction 11 at Langley. However, the recommendation was overtaken by the New Roads and Street Works Act 1991, which authorised privately funded road schemes. Thereafter it was proposed that a similar road be constructed (the BNRR), which would be the first private-toll motorway. It was to be designed, built, financed and operated by Midland Expressway Ltd (MEL) under the terms of a concession agreement that was entered into in 1992 by the Secretary of State with MEL. An inquiry into the BNRR was conducted and the inspector’s report was produced on 24 February 1997 which concluded that the need for the BNRR had been established and was generally favourable, but expressed concern about the lack of ministerial control over toll charges, which could be contrary to public interest. The Secretary of State accepted the inspector’s recommendations in general, apart from the inspector’s concern about toll charges. The appellants, objectors to the proposal, sought to quash the Secretary of State’s decision on three grounds: first, that the Secretary of State took into account an irrelevant consideration, namely compensation claims from MEL if the schemes were not approved; second, that the concession agreement was not made available to either the inspector or objectors at the inquiry, contrary to the Highways (Inquiries Procedure) Rules 1976 rule 5(3); and, third, that the Secretary of State had misdirected himself in failing to adequately deal with the concern as to lack of control over the tolls. The judge dismissed the application. The appellants appealed.
Held: The appeal was dismissed.
1. Whether compensation was relevant depended upon the basis upon which a decision was to be taken and the terms of the objections to which the proposal was subject. However, it had not been shown that the Secretary of State had considered the payment of compensation to be a material consideration or that it had influenced his decision.
2. In the case of an inquiry into a toll road, there was inevitably going to be mention made of a concession agreement. However, the fact that the legislation made provision for a concession statement containing prescribed information strongly suggested that the legislation itself did not contemplate that concession agreements would always have to be disclosed. In any event, it had not been established that any substantial prejudice to the appellants had resulted from its non-disclosure.
3. There was nothing in the 1991 Act that prevented the Secretary of State from imposing proportionate or relative tolls. However, there was no requirement for the Secretary of State to impose restrictions on the relative level of tolls and he had been entitled to allow the concessionaire to set the charges at whatever level he considered the market could bear.
John Howell QC and Nathalie Lieven (instructed by Leigh Day & Co) appeared for the applicants; Philip Sales (instructed by the Treasury Solicitor) appeared for the first respondents; Nigel Plemming QC and Sean Wilken (instructed by Ashurst Morris Crisp) appeared for the second respondents.
Thomas Elliott, barrister
