Crichel Down Rules –– Disposal of land –– Exemption from requirement to offer to original owner –– Land to be offered for park-and-ride scheme –– Whether decision to apply exemption perverse or Wednesbury unreasonable
In 1990 the respondent Secretary of State gave an undertaking that an area of land, forming part of the Winchester bypass, would be retained as chalk grassland. At all material times, the land was owned by the Highways Agency. Hampshire County Council, the highways authority, wished to develop the land as a park-and-ride site and obtained planning permission for this purpose. They then sought to acquire the land from the agency. In November 1998 a local conservation group wrote to the highways authority pointing out that if the land was no longer required by the Highways Agency, the Crichel Down Rules applied to the arrangements for its disposal. In March 1999, following a report by the Highways Agency, a letter was sent on behalf of the minister stating that the sale of the land to the county council, at full open market value, had been approved. The minister accepted that the sale could proceed as an exception, under r 14(2), to the requirement of the rules that surplus land must first be offered back to the previous owner. The applicant sought judicial review of that decision.
Held: The application was dismissed. When the decision letter and the Highways Agency’s report were read as a whole, they did not lead to a conclusion that the decision to dispose of the land to the county council was taken because it was convenient to do so; the decision was not taken in bad faith. A decision would only be irrational or Wednesbury unreasonable if it were intrinsically perverse and defied comprehension. The Crichel Down r 14(2) exception applied in very exceptional cases and where there were strong and urgent public interest reasons for the land to be disposed of as soon as practicable. Except in cases where the decision “simply defies comprehension”, the questions of whether a case is very exceptional, and has strong and urgent public interest reasons for disposing of land other than to the former owner, are matters of judgment for the decision taker with which a court ought not to interfere. The minster’s decision was not irrational or Wednesbury unreasonable. The exception could be made out on the facts of the park-and-ride scheme, the inquiry and the grant of planning permission.
The following cases are referred to in this report.
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223; [1947] 2 All ER 680; (1947) 45 LGR 635, CA
R v North and East Devon Health Authority, ex parte Coughlan [2000] 2 WLR 622; [1999] Lloyd’s Rep Med 306
This was an application by the applicant, Mrs Louise Wheeler, for the judicial review of a decision of the respondent, the Secretary of State for the Environment, Transport and the Regions, under the Crichel Down Rules.
Stephen Cragg (instructed by Earthrights, of Takeley) appeared for the applicant; John Litton (instructed by the Treasury Solicitor) appeared for the Secretary of State for the Environment, Transport and the Regions.
Giving judgment, Forbes J said: In these proceedings, the applicant, Mrs Wheeler, seeks relief by way of judicial review of the decision of the Secretary of State for the Environment, Transport and the Regions (the Secretary of State), contained in his letter of 24 March 1999, to the effect that the land to the north of Garnier Road, Winchester (known as Bar End, and hereafter referred to as “the land in question”), should be disposed of to Hampshire County Council by way of an exemption under the Crichel Down Rules*, pursuant to r 14(2) of those rules.
* Editor’s note: DoE Circular October 1992: Disposal of Surplus Government Land: Obligation to offer land back to former owners or their successors — the “Crichel Down rules”
The land in question forms part of what was the A33 Winchester bypass. The land is now, and was at all material times, owned by the Highways Agency, which is an agency of the Department of the Environment, Transport and the Regions. Following the public inquiry into the proposals for the construction of the M3 in the vicinity of Winchester, which inquiry was held in 1987-1988, the Secretary of State gave an undertaking in 1990 (the 1990 undertaking) that the land in question would be restored to chalk grassland.
In due course, the M3 Motorway, Bar End to Compton Section Side Roads Order 1990 was made, which stopped up the Winchester bypass, including that part that forms the land in question. At some time during 1994-1995, the land was duly restored to chalk grassland, thus fulfilling the Secretary of State’s 1990 undertaking that, it was accepted, did not include an undertaking to retain the land in question as chalk grassland.
Since the land was restored to chalk grassland, it has been used by the public for the enjoyment of informal recreational purposes and as a haven for wildlife. The general nature of the land in question and its appearance now is well demonstrated by the photographs that are included in the court bundle.
Hampshire County Council (the council) are the relevant highways authority. The council decided that they wished to develop the land in question as a park-and-ride car park, intended to help ease the traffic congestion in Winchester. The appropriate planning permissions were duly sought, and the applications were called in by the Secretary of State for his decision. A public local inquiry into those planning applications was heard before a duly-appointed inspector (the inspector) during September to November 1997. Because of the Secretary of State’s 1990 undertaking, the inspector felt unable to make a final recommendation, although he was otherwise of the view that the applications should receive planning permission. He expressed himself thus, at para 10.1 of his report:
My interim conclusion, setting aside the implications of the undertaking regarding the former bypass, was that the proposals should receive planning permission. Having now considered those implications I consider that, on balance, they add to the arguments against the proposal, but not so strongly as to be conclusive. In the final analysis the determination of these applications depends upon the weight to be attached to the undertaking, and I am aware of no national or local guidance which might help in assigning such a weight. In view of the unusual circumstances of this case, the fact that it hinges to some degree upon the interpretation of a fairly recent [Secretary of State’s] decision, and the difficulty of interpreting the status and intentions of that decision, I do not consider that it would be appropriate for me to make a recommendation as to the final outcome of these applications.
On 21 October 1998 the Secretary of State granted planning permission for the proposed development. In his decision letter of that date, the Secretary of State said, inter alia:
6. The Secretary of State agrees with the Inspector’s assessment of the balance between the benefits and disbenefits of the proposal as set out in his interim conclusions. He agrees that the proposals form a key element in the Council’s integrated transport strategy for Winchester and that there are no grounds for concluding that Bushfield or Winnal sites ought to be given priority over Bar End as a location for the next phase of the strategy. He agrees that the alternative schemes considered at the Inquiry were either not feasible, or would cause delay to an extension of the present facilities. While he accepts the Inspector’s view that the development would have an adverse visual impact from some views around the site including from St Catherine’s Hill and would also have some adverse effect on this part of Winchester’s rural setting, he agrees with him that the level of harm is limited. He further accepts that the proposals would not cause significant harm in relation to the protection of ecological land, ecological issues and historic and archeological matters.
In respect of the development plan the Secretary of State agrees with the Inspector that the proposal is contrary to the established and the (then) emerging policies relating to the rural landscape but that the harm to those policy objectives is not great. He agrees that the proposals are generally consistent with structure and local plan policies on recreational areas, traffic and park and ride schemes.
There is no doubt that the proposed development is very controversial and has aroused much local, and some national, hostility. This is amply demonstrated in the various newspaper reports that are copied and contained within the court bundle. It is, however, to be noted that the decision to grant planning consent for the park-and-ride scheme on the land in question has not been the subject of any appeal.
On 16 November 1998 the chairman of the Winchester Meadows Conservation Alliance (WMCA) wrote to the Highways Agency as follows:
This month a new “umbrella” group known as the Winchester Meadows Conservation Alliance (WMCA) was formed by representatives of Winchester’s various community groups. The WMCA has the general objective of preserving the landscape setting of Winchester and, in particular, the restored grassland along the former Winchester bypass. I have been appointed chairman of the WMCA and, as discussed by telephone, I am writing to you in connection with the future of this former bypass.
It is my understanding that the Highways Agency no longer requires this land and that, under the Crichel Down Rules, you will first offer this land to the former owners or their successors. The WMCA wishes to buy this land and maintain it in perpetuity as an open countryside amenity for the people of Winchester.
It would be extremely helpful if you could let me know the names of the original owners or their successors to whom the Highways Agency will offer back this land and when this offer will be made. In addition, if the original owners or their successors choose not to buy back this land, could you register the desire of the WMCA to purchase this land and give us an opportunity to buy it? Presumably to realise the best price, the land would be put on the open market. In such cases, is the property auctioned or do you invite sealed bids? In any case, we would be grateful for a few weeks notice of any sale so that we can arrange release of the necessary funds.
I look forward to your response when you have determined the correct way to proceed with this land disposal. In the meantime, I am encouraged by signs that the local authorities are reconsidering the wisdom of a proposed park and ride development because of the onerous conditions imposed by the Secretary of State and the availability of alternative brownfield sites.
On 20 November 1998 the Highways Agency responded to that letter as follows in the final paragraph:
In the meantime, I can confirm that the Agency is considering very carefully how best to dispose of its surplus land and you may rest assured that we will pay due regard to the Crichel Down Rules. Our consideration must, of course, take into account the representations received from all interested parties, and the various exceptions and reservations governing the offer back procedure.
On 10 March 1999 the Highways Agency had prepared and sent a report to the relevant minister, Lord Whitty, in relation to the land in question. The terms of that report are important and are as follows:
PURPOSE OF SUBMISSION
1. The Minister’s specific approval under Crichel Down Rules is sought to Hampshire County Council (HCC) being given first opportunity to buy, at full open market value an area of surplus land at Bar End, near Winchester, Hants. The Council requires the land for a proposed extension to a Park & Ride facility. In essence the Highways Agency’s land would assist HCC’s Green Travel initiative.
TIMING
2. No specific deadline but there is some urgency as the Council has been given planning permission on appeal for the use and the proposed park and ride is attracting some local controversy.
DISCUSSION
3. The surplus land once formed part of the A33 Winchester Bypass, which was stopped up and reinstated, as grassland, in accordance with an undertaking
4. HCC has made two related planning applications for an extension to its park and ride at Bar End, Winchester. The applications, which involve using the bulk of the surplus land (site edged in blue on the plan) met with strong local opposition. The Secretary of State directed that the applications be referred to him and a local public inquiry was held at the end of 1997. The inquiry Inspector considered evidence relating to the need for the facility and the suitability of the proposed site. He also considered representations in favour of other sites within the general locality, put forward by those opposed to the use of the former Bypass land. He was made aware that the Agency had, in its opinion, fully discharged its undertaking to reinstate the land, although he recognised that local people had assumed that once reinstated, the land would be left undisturbed. In his report, the Inspector concluded that, in the absence of the undertaking to reinstate the former Bypass land, he would have recommended that the planning permission be granted in respect of both applications, subject to certain conditions. However, in view of the past undertaking, he did not feel it appropriate to make formal recommendation as to whether the applications should be approved or refused.
5. Following receipt of the Inspector’s report, the Government Office for the South East (GOSE) looked closely at the Inspector’s findings and at the terms of the undertaking given at the M3 inquiry. GOSE’s letter of 21st October, 1998 (Annex 2), conveying the Secretary of State’s decision to grant outline planning permission, makes clear that the weight given to the undertaking, together with all other relevant factors weighing against the applications, is not such to override the benefits of the proposed development, as summarised in the Inspector’s report. The letter acknowledged that the proposals were generally consistent with structure and local plan policies on recreational areas, traffic and park and ride schemes.
6. Since then the Agency has fielded requests from a number of parties wishing to purchase the surplus land. HCC are keen to be given preferential treatment so that the land is secured for the planned development. Several local community and environmental groups are equally keen that they should be allowed to bid for the land on the open market, in the hope that they might prevent the development. We have also heard from a successor in title to a former owner of part of the land, who seeks first refusal to buy in an attempt to frustrate the development.
7. The battle to save the land from being used for park and ride has attracted local and national press coverage (Annex 3).
8. HCC have now asked that their application to purchase be considered in accordance with Rule 14(2) of the Crichel Down Rules –– the non-statutory rules which govern the disposal of government owned land (Annex 4). Rule 14(2) states that preferential treatment on a sale can be given where, in very exceptional cases, it is decided on specific Ministerial authority that for strong and urgent reasons of public interest the land should be disposed of as soon as practical to a local authority or other body with compulsory purchase powers.
9. The Agency’s view is that HCC’s application meets all the criteria set out in Rule 14(2). This view is supported by legal advice to the effect that the planning permission granted by the Secretary of State constitutes a sufficiently strong and urgent reason of public interest to make this a suitable case for the operation of Rule 14(2) (Annex 5). The proposed use accords with Government policy.
RECOMMENDATION
10. The Minister is asked to approve the sale at full market value to HCC. Because of some local opposition to the scheme it is likely that the Minister’s decision will attract some adverse publicity.
On 24 March 1999 a letter on behalf of Lord Whitty replied as follows:
1. Larry Whitty has seen your submission of 10 March about the disposal of land at Bar End, Winchester.
2. The Minister is content to approve the sale of this land at full market value to Hampshire County Council as suggested. He would, however, like to be kept informed of any adverse publicity which this may provoke.
3. I would be grateful if you would arrange for the Minister to be updated on this matter as necessary. Many thanks.
It is this decision that is the subject-matter of the challenge in these proceedings. It is common ground that the minister’s decision letter of 24 March 1999 does not itself expressly refer to any specific reasons for that decision. However, it is accepted that the effect of the planning inspector’s report was incorporated into the Secretary of State’s decision letter, which was annexed to the Highways Agency’s report of 10 March 1999, and was duly considered, together with the other annexures referred to in that letter, by the minister when making the decision in question.
In paras 38 to 44 of Mr Roger Kidd’s affidavit of 1 November 1999, sworn in these proceedings on behalf of the Secretary of State, the underlying reasons for the minister’s decision are further elaborated as follows. Para 38 states:
At pages 258 to 268 of the bundle, I produce the submission made to Lord Whitty, the Parliamentary Under Secretary of State (Department of the Environment, Transport and the Regions), and his decision authorising the sale of the Land to the Council. The decision is based on the underlying reasons for disposal of the Land, namely that it is required by the Council for the park and ride.
39. Park and ride schemes generally form a part of, and advance, the Government’s integrated transport policy. Relevant extracts from the DETR White Paper issued in relation to this policy, entitled “A New Deal for Transport: Better for Everyone” (July 1998), are at pages 238 to 257 of the Bundle. Government policy is to encourage park and ride facilities to town centres to deal with problems of urban congestion.
40. The Inspector to the park and ride Inquiry found that most of those who attended the Inquiry accepted that urban congestion in the centre of Winchester was a problem and had been a problem for several years. It is a problem that the Inspector found occurs even at relatively quiet times of the year. The Inspector found that it would be difficult to improve the situation by in-town improvements, particularly because of the historical importance of Winchester and therefore the number of conservation areas and listed buildings. The Inspector therefore concluded that “there is a current need for P&R facilities as part of Winchester’s transport strategy”: see paragraph 8.13 at page 46 of the Claimant’s Bundle.
41. The Inquiry considered a number of alternative locations for the Bar End park and ride and the other locations where the Council is proposing to construct further sites, which the objectors argued should be brought forward for construction before the Bar End site. The Inspector found that to give priority to the other sites would delay the Council’s strategy by “at least two or three important years”: see paragraph 8.17 at page 47 of the Claimant’s Bundle. In relation to the alternative locations for the Bar End site, the Inspector found that the objection to the 2 feasible alternatives put forward by the Council was that they would not be available “within a reasonable time”: see paragraph 8.55 at page 56 of the Claimant’s Bundle.
42. The Inspector therefore concluded that there was a need for a park and ride site in Winchester, and that the need was sufficiently urgent to warrant rejecting the objectors’ submissions that the sites in other locations should be given priority or that an alternative site should be found to the Land. The Inspector described the proposal as “a crucial component in the implementation of a strategy whose eventual effect would be to significantly relieve traffic problems in Winchester” (consistent with Government policy on an integrated transport strategy): see paragraph 8.64 at page 59 of the Claimant’s Bundle.
43. The Secretary of State accepted the Inspector’s conclusions. At paragraph 6 of the decision letter (page 36 of the Claimant’s Bundle), the Secretary of State accepted that the proposals “form a key element in the Council’s integrated transport strategy for Winchester”, that there were no grounds for concluding that the other sites should be given priority and that the alternative locations for the Bar End site were either not feasible or would cause delay.
44. The Secretary of State agreed with the Inspector’s assessment of the compatibility of the proposals with planning policy guidelines, and structure and local plan policies. He had regard to PPG 7 concerning the presumption against development affecting AONBs. He decided however that this was a proposal which nonetheless could be justified and where the benefits were sufficient to outweigh the disadvantages to the countryside designation.
Having identified the underlying reasons for the Secretary of State’s decision, on behalf of the applicant, Mr Stephen Cragg referred me to para 8.37 of the inspector’s report, which is in the following terms:
8.37. At the inquiry there was some detailed criticism of the surveys, analysis, and mathematical modelling techniques used in the various studies carried out or commissioned by the Council. Many of these criticisms have some validity and I do not regard the survey totals and projected usage figures as entirely accurate. However, degrees of error are normally accepted in traffic projections of this kind and the implications of the criticisms made are unlikely to significantly affect the global figures. I do not regard any of the traffic projections put forward as being exactly correct, but then I do not believe it matters since all of the important conclusions can be drawn from approximate
It is appropriate to refer also to para 8.41 of the inspector’s report, in which he went on to express the following conclusion:
8.41 I recognise that all predictions as to traffic patterns are to some degree unpredictable, but I find no reason to consider that those in this case will be so inaccurate as to alter my assessment of the aspects I have discussed above. Overall I believe that the impact of the proposals would be beneficial to traffic flows in Winchester in that they would reduce traffic flows in the centre without causing serious problems elsewhere. Even if this assessment is wrong, it will only be two or three years before the Bushfield Site is introduced at which time any traffic problems can be re-assessed.
I now turn to consider the Crichel Down Rules. These rules were developed, as their name suggests, as a result of the well-known Crichel Down case of 1954, which led directly to the Franks Committee on Administrative Tribunals and Inquiries. The current version of the rules is dated 30 October 1992. It is common ground that the rules are non-statutory, but it is accepted by the Secretary of State that they do govern the disposal of the land in question. Thus, it is also accepted that the rules do apply, and should be applied, in relation to this particular case. Rule 5 of the rules provides:
The rules apply to all land if acquired by or under the threat of compulsion.
The first part of r 9 states:
Where a department wishes to dispose of land to which the rules apply, former owners will, as a general rule, be given a first opportunity to repurchase the land previously in their ownership, provided that it has not been materially changed in character since acquisition.
Rule 12 provides:
In these rules, “former owner” may, according to the circumstances, mean former freeholder or former long leaseholder, and his or her successor.
Rule 14 contains:
exceptions to the general obligation to offer back:…
The only exception relied upon in the decision made in this case is r 14(2), which is expressed in the following terms:
Where, in very exceptional cases, it is decided on specific Ministerial authority that for strong and urgent reasons of public interest the land should be disposed of as soon as practicable to a local authority or other body with compulsory purchase powers.
Where it is decided to dispose of property subject to the obligation to offer back to the previous owner, the procedure is set out in r 18 and can be summarised as follows. First, an invitation is sent to the former owner to buy back the property at the department’s valuation. If the address of the former owner is not known, steps to trace him or her are set out in r 19 of the rules. Second, if there is no response to that invitation after two months, or if the former owner declines the invitation, “it will be sold on the open market”.
Mr Cragg emphasised that r 18 is important to the applicant in this case. It is her case that, but for the minister’s decision that the exception under r 14(2) applied to this case, the land would either have been bought by the former owner, or it would have been sold on the open market, thus giving an opportunity to conservation groups, and others minded to preserve the current status of the land, to try to purchase it on the open market at an appropriate valuation.
I now turn to consider the submissions made in this case. As I have already indicated, it is common ground that the rules do apply in this case, and should be applied in relation to the land in question. It is also common ground that the Secretary of State must apply the rules in a rational and reasonable manner. The principal issue in these proceedings is, therefore, whether the Secretary of State’s decision, to apply the exception provided under r 14(2) to the circumstances of this case, was irrational, or Wednesbury unreasonable, and/or was taken in bad faith, and was therefore unreasonable and unlawful.
Although further grounds of challenge were raised in paras 4, 5 and 6 of form 86A, those grounds are no longer pursued in these proceedings: see paras 1.3 to 1.5 of Mr Cragg’s helpful written skeleton submissions*.
* Editor’s note: Not reproduced here
I now turn to remind myself of what is meant by irrationality or Wednesbury unreasonableness, which renders an administrative decision unlawful. There is no dispute between parties as to the relevant principles that are applicable to this case, and that are conveniently stated in the following authorities. In Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at p229, Lord Greene MR stated the principles as follows:
It is true the discretion must be exercised reasonably. Now what does that mean? Lawyers familiar with the phraseology commonly used in relation to the exercise of statutory discretions often use the word “unreasonable” in a rather comprehensive sense. It has frequently been used and is frequently used as a general description of the things that must not be done. For instance, a person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting “unreasonably”. Similarly, there may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority. Warrington LJ in Short v Poole Corporation gave the example of the red-haired teacher, dismissed because she had red hair. That is unreasonable in one sense. In another sense it is taking into consideration extraneous matters. It is so unreasonable that it might almost be described as being done in bad faith; and, in fact, all these things run into one another.
In Wade on Administrative Law (7th ed), when commenting on that passage in Lord Greene’s judgment in Wednesbury, the editors said at pp400-401:
This [referring to the passage in Lord Greene’s judgment] has become the most frequently cited passage (though most commonly cited only by its nickname) in administrative law. It explains how “unreasonableness”, in its classic formulation, covers a multitude of sins. These various errors commonly result from paying too much attention to the mere words of the Act and too little to its general scheme and purpose, and from the fallacy that unrestricted language naturally confers unfettered discretion.
Unreasonableness has thus become a generalised rubric covering not only sheer absurdity or caprice, but merging into illegitimate motives and purposes, a wide category of errors commonly described as “irrelevant considerations”, and mistakes and misunderstandings which can be classed as self-misdirection, or addressing oneself to the wrong question. But the language used in the cases shows that, while the abuse of discretion has this variety of differing legal facets, in practice the courts often treat them as distinct. When several of them will fit the case, the court is often inclined to invoke them all. The one principle that unites them is that powers must be confined within the true scope and policy of the Act.
In De Smith, Woolfe and Jowell on Judicial Review of Administrative Action (5th ed), the relevant principles are succinctly expressed thus, at para 13-019, p559:
Rationality: logic, evidence and reasoning
Although the terms irrationality and unreasonableness are these days often used interchangeably, irrationality is only one facet of unreasonableness. A decision is irrational in the strict sense of that term if it is unreasoned; if it is lacking ostensible logic or comprehensible justification. Instances of irrational decisions include those made in an arbitrary fashion, perhaps “by spinning a coin or consulting an astrologer”. “Absurd” or “perverse” decisions may be presumed to have been decided in that fashion, as may decisions where the given reasons are simply unintelligible. Less extreme examples of the irrational decision include those in which there is an absence of logical connection between the evidence and the ostensible reasons for the decision, where the
Mr Cragg emphasised the wording of r 14(2). He stressed the fact that, in order to come within that rule, the circumstances must be very exceptional, and not just exceptional, and that there must be both strong and urgent reasons of public interest. He submitted that these words clearly confined r 14(2) to cases that were acutely serious. Mr Cragg went so far as to submit that the wording of r 14(2) strongly suggested that circumstances where life or limb were at risk were required before r 14(2) could be satisfied and the usual procedure set out in r 18 dispensed with.
Mr Cragg gave two examples of the type of circumstance that, he argued, would come within the restrictive terms of r 14(2). First, where the land was required to build sea defences as a matter of great urgency to protect public or private property or personal safety. Second, where the land was required for a water-treatment plant to meet an urgent need to protect public health. Mr Cragg emphasised that these were only examples, and were not intended to be an exhaustive list.
Having stressed the stringent and exacting words of r 14(2), Mr Cragg submitted that, however generously those words were interpreted, or their ordinary meaning was extended or stretched, the words simply could not be made to apply to a case where what was involved was the proposed provision of a park-and-ride scheme that would have the effect of reducing traffic movement in Winchester by slightly less than 1%. Furthermore, Mr Cragg submitted, the timetable of the decision-making process demonstrated a lack of real urgency, and fell far short of having the degree of urgency required by r 14(2). In particular, Mr Cragg referred to, and relied upon, the following dates and events:
1. the inspector’s report, dated 16 February 1998;
2. the decision to grant planning permission, dated 21 October 1998;
3. the decision by the minister to apply r 14(2), dated 24 March 1999.
That timetable, Mr Cragg submitted, did not demonstrate the appropriate level of urgency required by the rule.
Accordingly, Mr Cragg submitted that, having regard to the terms of r 14(2), the Secretary of State’s decision of 24 March 1999 was one that no Secretary of State could reasonably have reached, and was thus irrational and unlawful. Furthermore, Mr Cragg argued that the evidence showed that the Secretary of State’s decision was made for reasons that were not legitimate and, in that sense, the decision was taken in bad faith.
In support of the latter submission, Mr Cragg referred, in particular, to the Highways Agency’s report of 10 March 1999, and to the wording of paras 2, 6 and 7, for the terms of which I refer back to the passages quoted above. Mr Cragg argued that the wording of those particular paragraphs provided strong grounds for saying that, in reality, the decision was made to utilise r 14(2) so as to remove the process of disposing of the land in question from the r 18 procedure, to smother the attempts by other interested parties to acquire the land in question and, in that way, to sidestep the controversy and battle involved in saving the land from being used for a park-and-ride facility.
It is convenient to deal with the latter submission first, which submission I have no hesitation in rejecting. I agree with Mr John Litton who, on behalf of the Secretary of State, submitted that, when the Highways Agency’s report of 10 March 1999 and the Secretary of State’s decision of 24 March 1999 are read as a whole, they do not lead to a conclusion that the decision to dispose of the land to the council was taken because it was convenient to do so. I agree that paras 6 and 7 of the report are accurate and fair statements of the facts. The Highways Agency had received requests from various parties that wished to purchase the land, and the opposition to the park-and-ride scheme had attracted local and national press coverage. It was fair to describe the controversy as a battle. In my judgment, it cannot be inferred, from these various accurate statements of factin the Highways Agency’s report, that the Secretary of State’s decision was taken in bad faith for the reasons advanced by Mr Cragg, or at all.
So far as concerns the principal issue in this case, namely whether the Secretary of State’s decision was irrational or Wednesbury unreasonable, Mr Litton argued that for a decision to be intrinsically perverse, it must be one that simply defies comprehension. In support of that submission, he referred additionally to R v North and East Devon Health Authority, ex parte Coughlan [1999] Lloyd’s Rep Med 306 at p323. I accept that particular formula as a helpful and appropriate one for the purposes of this case.
Mr Litton maintained –– correctly, in my view –– that there is nothing in the rules that supports the contention that the words of r 14(2) strongly suggest some circumstances where life or limb will be at risk before the usual procedure can be dispensed with. I agree with Mr Litton that the exception to the obligation under the rules to offer land back to the former owner, which exception is contained in r 14(2), is established when the following conditions are satisfied: first, that it is a very exceptional case; second, that there are strong and urgent public interest reasons for the land to be disposed of as soon as practicable.
In my opinion, the words of r 14(2) simply do not imply that the exception can only be made out where the facts of the particular case suggest that life or limb is at risk, although I do accept that such a risk might be sufficient for a case to be very exceptional, and to constitute a strong and urgent public interest reason. As Mr Litton submitted to me, each case will depend upon its own particular facts.
I accept Mr Litton’s submission that, except in those extremely rare cases where the decision challenged “simply defies comprehension”, the question of whether a case is very exceptional, and there are strong and urgent public interest reasons for disposing of land other than to the former owner, are matters of judgment for the decision taker with which the court ought not lightly to interfere.
In the present case, it is apparent that the minister was aware of the circumstances in which an exception under r 14(2) might be made. He plainly asked himself the correct question, and there was ample evidence upon which he could come to the conclusion that he reached. In my view, there is no proper basis for stigmatising the decision of the minister as irrational or Wednesbury unreasonable.
Furthermore, the fact that an exception under r 14(2) could properly be made in this case is supported by, inter alia, the following undisputed facts. First, planning permission was granted for the proposed park-and-ride scheme on 21 October 1998, following a public inquiry that had lasted from 30 September 1997 to 26 November 1997. Second, the inspector concluded that, in the absence of the undertakings given at the M3 inquiry, he would have recommended that planning permission should be granted. Third, the Secretary of State agreed with and accepted the inspector’s conclusions, in particular that the park-and-ride proposal forms a key element in the council’s integrated transport strategy for Winchester, and that the alternative schemes considered at the park-and-ride inquiry were either not feasible or would cause delay to an extension of the present facilities. Fourth, the planning permission itself is subject to a condition that it shall be commenced within five years from the date of consent, after which it could not be lawfully implemented without being renewed.
I emphasise that these various matters to which I have just referred do not represent an exhaustive list of the facts and matters upon which a perfectly proper judgment can be made to the effect that the conditions required by r 14(2) have been satisfied.
Accordingly, for those reasons, I have come to the clear conclusion that this application must be, and is hereby, dismissed.
Application dismissed.
