Highways — Discretionary power to acquire blighted property in section 246(2A) of Highways Act 1980 — Whether Secretary of State entitled to rely on owner’s foreknowledge of road proposal
In May 1990
the Department of Transport sent the applicants a statement and plan indicating
the preferred route of the proposed Cirencester bypass passing within a close
distance of a property they were contemplating purchasing. In November 1990 the
applicants completed the purchase of the property. Details of the bypass
proposals were published in March 1992. In December 1992, following a request
by the applicants, the Department decided they would not exercise their
discretion to purchase the property under section 246(2A) of the Highways Act
1980. Following an application for judicial review, that decision was quashed
on appeal: see [1995] 2 EGLR 213. The Department reconsidered the decision and
the Secretary of State decided that the applicants’ enjoyment of the property
had been seriously affected by construction or use of the proposed bypass, that
he was entitled to take into account foreknowledge and because he found that
the applicants had foreknowledge of the proposals he declined to exercise his
discretion to acquire the property. Following the grant of leave to challenge the
second decision letter by the Court of Appeal, the applicants made their
application for judicial review contending that the Secretary of State was not
entitled to rely on foreknowledge.
Secretary of State’s decision because he has always maintained there was
sufficient foreknowledge. He was entitled to take into account, as a matter of
law, the principle of foreknowledge irrespective of the price owners might pay
for blighted property. Whether the applicants had foreknowledge was a matter
for the Secretary of State to decide. On the material before him his decision
that there was foreknowledge was neither irrational nor perverse.
The following
case is referred to in this report.
R v Secretary of State for the Home Department, ex parte
Brind [1991] 1 AC 696
This was the
hearing of an application by Col and Mrs Owen for judicial review, following
leave granted by the Court of Appeal, of a decision of the respondent,
Secretary of State for Transport, refusing to exercise his discretionary power
to acquire the applicants’ property under section 246(2A) of the Highways Act
1980.
The first
appellant appeared in person; David Elvin (instructed by the Treasury
Solicitor) represented the respondent.
Giving
judgment, Popplewell J
said: The applicants seek to challenge the decision of the respondent dated
December 28 1994 refusing to purchase the applicants’ house under section
246(2A) of the Highways Act 1980.
Parties
The applicants
are husband and wife and are the owners of Ashgrove, The Whiteways,
Cirencester, Gloucester. Colonel Owen has appeared in person and conducted his
case with great skill. The respondents are the highway authority in whom the
power granted by section 246(2A) of the Highways Act 1980 is vested.
Short
facts and questions to be determined
By reason of
the proposed construction of the A417 Stratton/Cirencester Bypass (the bypass)
affecting the value of the applicants’ house there will be financial hardship
for the applicants should they fail to sell their property. The question which
arises is whether in refusing to purchase Ashgrove the Secretary of State was:
(1) entitled to take into account the question of the applicants’ foreknowledge
that there was a risk that the effect of the bypass might be to affect the
value of property; and (2) whether the conclusion that there was foreknowledge
thus defeating the applicants’ claim can be successfully challenged by way of
judicial review proceedings.
The law
I set out
initially the limits on the power of this court in relation to judicial review
of administrative decisions. The proposition is well known to those practising
in the courts but it is important that the applicants, perhaps unfamiliar with
this aspect of the law, should understand clearly what the court’s powers are.
The matter is
clearly set out in the speech of Lord Lowry in the well known decision of R
v Secretary of State for the Home Department, ex parte Brind [1991] 1 AC
696. At p764 H he says:
The kind of
unreasonableness for which a court can set aside an administrative act or
decision is popularly called ‘Wednesbury unreasonableness’ from the name
of the famous case reported at [1948] 1 KB 223 in which Lord Greene MR spoke,
at p229, of a decision ‘so absurd that no sensible person could ever dream that
it lay within the powers of the authority.’ In Secretary of State for
Education and Science v Tameside Metropolitan Borough Council [1977]
AC 1014, 1026 Lord Denning MR referred to decisions ‘so wrong that no
reasonable person could sensibly take that view.’ In Council of Civil
Service Unions v Minister for the Civil Service [1985] AC 374, 410
Lord Diplock, having used irrationality as a synonym of Wednesbury
unreasonableness, said that ‘it applies to a decision which is so outrageous in
its defiance of logic or of accepted moral standards that no sensible person
who had applied his mind to the question to be decided could have arrived at
it,’ while in Reg v Secretary of State for the Environment, Ex parte
Nottinghamshire Council [1986] AC 240, 247 Lord Scarman, when invited to
examine the detail and consequences of guidance given by the Secretary of
State, said:
‘Such an
examination by a court would be justified only if a prima facie case
were to be shown for holding that the Secretary of State had acted in bad
faith, or for an improper motive, or that the consequences of his guidance were
so absurd that he must have taken leave of his senses.’
These
colourful statements emphasise the legal principle that judicial review of
administrative action is a supervisory and not an appellate jurisdiction. I
recall that in Rex v Nat Bell Liquors Ltd [1922] 2 AC 128, 156
Lord Sumner, admittedly speaking of an attempted challenge to the validity of
court proceedings, said that the superior court’s jurisdiction was one ‘of
supervision, not of review.’
I believe
that the subject is nowhere better discussed than by Sir William Wade in
chapter 12, ‘Abuse of Discretion,’ of his authoritative textbook, Administrative
Law, 6th ed (1988), pp388–462. The author, with the aid of examples
covering more than a century, clearly demonstrates that what we are accustomed
to call Wednesbury unreasonableness is a branch of the abuse, or misuse,
of power: the court’s duty is not to interfere with a discretion which
Parliament has entrusted to a statutory body or an individual but to maintain a
check on excesses in the exercise of discretion. That is why it is not enough
if a judge feels able to say, like a juror or like a dissenting member of the
Cabinet or fellow-councillor, ‘I think that is unreasonable; that is not what I
would have done.’ It also explains the emphatic language which judges have used
in order to drive home the message and the necessity, as judges have seen it,
for the act to be so unreasonable that no reasonable minister etc would have
done it. In that strong, and necessary, emphasis lies the danger. The seductive
voice of counsel will suggest (I am not thinking specifically of the present
case) that, for example, ministers, who are far from irrational and indeed are
reasonable people, may occasionally be guilty of an abuse of power by going too
far. And then the court is in danger of turning its back not only on the
vigorous language but on the principles which it was intended to support. A
less emotive but, subject to one qualification, reliable test is to ask, ‘Could
a decision-maker acting reasonably have reached this decision?’ The
qualification is that the supervising court must bear in mind that it is not
sitting on appeal, but satisfying itself as to whether the decision-maker has
acted within the bounds of his discretion. For that reason it is fallacious for
those seeking to quash administrative acts and decisions to call in aid
decisions of a Court of Appeal reversing a judge’s finding, it may be on a
question of what is reasonable. To say what is reasonable was the judge’s task
in the first place and the duty of the Court of Appeal, after giving due weight
to the judge’s opinion, is to say whether they agree with him. In judicial
review, on the other hand, the task of the High Court is as described above,
and the task of the Court of Appeal, and when necessary, this House is to
decide whether the High Court has correctly exercised its supervisory
jurisdiction.
Of course,
whichever kind of jurisdiction is being exercised on the subject of
reasonableness, there is bound to be a subjective element in the decision.
There is no objective standard in either case which would allow the result to
be foretold with certainty. The first requirement, however, is to ask the right
question.
Section
246(2A) of the Highways Act 1980 reads:
Where the
highway authority propose to carry out works on blighted land for the
construction or improvement of a highway, they may acquire by agreement land
the enjoyment of which will in their opinion be seriously affected by the
carrying out of the works or the use of the highway if the interest of the
vendor is a qualifying interest.’
There is now
no dispute but that the enjoyment of the applicants’ property has been
seriously affected by the construction or use of the proposed bypass.
History
It is
necessary to set out, albeit quite shortly, some of the background to this case
because Colonel Owen relies on the different decisions of the ministry as
constituting irrationality or perversity and also because he relies on some of
the language used by members of the Court of Appeal to which he has been on two
occasions.
In March 1990
the applicants found the premises and, at or about the same time, the
Department of Transport announced the preferred route of the A417
Stratton/Cirencester Bypass. In May 1990 the Department informed the applicants
by letter of the preferred route of the bypass and enclosed a copy of the
preferred route announcement. There was sent to the applicants a map marked M1
showing the line that the preferred route would take. In November 1990 the
applicants completed the purchase of the premises and thereafter spent an
appreciable sum on improvements.
In late 1991
details of the bypass proposals and draft road orders were published. In March
1992 the applicants objected to the proposed road orders for the bypass and in
July 1992 they made application to the Secretary of State requesting his
acquisition of premises pursuant to section 246 (2A).
On December 3
1992 the Department gave the decision of the Secretary of State not to exercise
his power to acquire the premises (the first decision letter). There were two
grounds of refusal, first the Secretary of State did not accept that the
applicants would suffer substantial hardship if they could not move, second,
foreknowledge. In July 1993 the applicants applied for leave to review that
decision and on December 2 1993 Latham J dismissed the application for judicial
review.
On June 30
1994 the Court of Appeal, presided over by Neill LJ quashed the decision* and,
in November 1994 the House of Lords rejected the Secretary of State’s petition
for leave. On December 28 1994, in the light of the Court of Appeal judgment, the
Secretary of State reconsidered the matter (the second decision letter). He
decided that the applicants’ enjoyment of the property had been seriously
affected by construction or use of the proposed Cirencester/ Stratton bypass.
He decided he was entitled to take into account foreknowledge. He further took
the view that there was foreknowledge and therefore, in his discretion,
declined to acquire the property.
*Editor’s
note: Reported at [1995] 2 EGLR 213
On March 22
1995 the applicants sought leave to challenge the second decision letter; leave
was refused by Sedley J. On July 24 1995 the Court of Appeal, presided over by
Butler-Sloss LJ, granted the application for leave and accordingly the matter has
now come back before me to be dealt with on a full hearing.
Second
decision letter
Having altered
his opinion as to whether the enjoyment of the property had been seriously
effected, the Secretary of State turned to the question of discretion and
foreknowledge. It is necessary to set out the whole of the conclusion to which
he came.
The Secretary
of State has already accepted, for the purposes of section 246(2A) there will
be financial hardship should you fail to sell your property. The question of
foreknowledge remains to be considered.
The Secretary
of State has considered very carefully the points made in the Court of Appeal
judgment. He has noted the judgment does not rule out consideration of
foreknowledge when deciding whether or not to use his discretion to offer to
purchase. He has also noted, in particular, the terms of the judgments of Simon
Brown and Henry LJJ on the question of foreknowledge.
The Secretary
of State has therefore considered the following points in the light of his
decision on serious effect:
(i) that
foreknowledge would not have applied if the application had been made by the
former owner; (a point raised by Simon Brown LJ)
(ii) whether
there was sufficient information available or obtainable to identify the main
effects of the road scheme;
(iii) the
knowledge you actually had or could reasonably have obtained at the time of
exchange of contracts to buy ‘Ashgrove’.
The Secretary
of State has considered point (i) but he considers that this does not help your
case: although the previous owner could have made an application for
discretionary purchase, she would not have been in a position where she could
have decided not to proceed with the purchase as she already had title. You had
a reasonable degree of knowledge of the proposal when you exchanged contracts
in October 1990 and at any time between March and October, could have elected
not to go ahead with the purchase.
In respect of
(ii) there is no dispute that the Department had issued a Preferred Route
announcement and that a copy was sent to you before you exchanged contracts. It
is acknowledged that the statement covering the Preferred Route announcement
was not fully detailed but it did state that there would be a viaduct crossing
of the Churn Valley to the north of Baunton and that it would pass below the
Whiteway before swinging south through Hare Bushes and the line of the route
was shown passing close to ‘Ashgrove’ on a map. It also stated that the
preferred route would be developed in detail and that junction layouts would be
finalised and draft Orders published. Consequently the Secretary of State
considers that the statement gave a clear indication of the location of the
route and many of the features of the scheme sufficient to alert you to the
effects, eg disruption of the rural environment.
In respect of
point (iii), given the amount of information in your possession, had you made
further enquiries of the Department of Transport you would have been told, if
it was not already clear, that the bypass was to be a dual carriageway (this
had been stated in the Public Consultation document as well as in the Roads
programme, a published document which is available through most public
libraries). It is accepted that you did not have information sufficient to
identify the land fill site nor did you have detailed proposals for the scheme,
including junctions. However, the Secretary of State considers that it is
reasonable to expect members of the public to anticipate that construction
works will cause an amount of noise, dust, and inconvenience as well as having
a significant effect on a rural environment. In the circumstances, your lack of
information about the land fill site and detailed proposals of the scheme is
not considered by the Secretary of State to be sufficient to warrant taking a
different approach to the question of foreknowledge.
The Secretary
of State notes the statements in section 1 of your first affidavit in the
judicial review proceedings to the effect that you were seeking a bungalow in a
‘quite rural location’ and that the property was in the countryside and on a
magnificent site within the Cotswold Area of Outstanding Natural Beauty. It
seems to the Secretary of State that following the Preferred Route announcement
it must have been reasonably clear that the effects of constructing the bypass
and opening it to traffic would have impacted upon the quite rural location you
were intending to purchase and also on the attractiveness of the site. He also
notes that having received the statement of the Preferred Route from the
Department of Transport you did not seek to make further enquiries, and he
considers this is inconsistent with your declared aim to find a quite rural
location.
In
considering point (iii) the Secretary of State has also considered the question
of foreknowledge in connection with diminution in value and has noted the
letter of 3 February 1993 from Lane Fox to you in which they say they would
have expected that as more details of the preferred route were released, these
would have an increasingly detrimental effect on the value of the property. The
Secretary of State also notes that the Preferred Route announcement stated that
further details would be released. He takes the view that it would not be
unreasonable for you to have expected that the bypass would have had an adverse
effect on the value of your property, a point on which guidance from agents
such as that given by Lane Fox could have been sought.
The Secretary
of State has further noted that you substantially extended and improved your
property after you purchased it in the knowledge of the proposed bypass. He
accepts that the work was completed before the publication of the draft Orders
but, again, takes account of the fact that it was carried out at a time when
you knew of the road proposals as set out above … But he has concluded that
this does not form a sufficient basis for departing from the view already
reached, namely that you purchased with sufficient information to know that it
was likely that you would not obtain the quiet location which you sought.
Having
carefully considered all the evidence, the Secretary of State has concluded
that although you had incomplete knowledge, you had, or could have obtained
based upon what you knew, a sufficient degree of knowledge of the scheme. This
would have allowed you, had you been so inclined, to anticipate the likely
effects upon the value of your property and upon your health and that of your
wife, and to not proceed with the purchase of the property.
The Secretary
of State therefore declines to offer to purchase your property.
The
applicants’ submissions can be summarised shortly.
(1) That the
Secretary of State, having maintained over an appreciable period of time that
the enjoyment of the applicants’ property was not seriously affected, and
having had in the light of the Court of Appeal decision to reverse that
decision, the Secretary of State is now cynically using foreknowledge as a
device to decline to purchase the property.
(2) That
foreknowledge is not a proper element to take into account.
(3) That there
is not in fact foreknowledge.
In support of
those submissions the applicants rely heavily on some observations made during
the course of the judgments in the Court of Appeal.
I therefore
turn to those. On June 30 1994 the Court of Appeal, presided over by Neill LJ,
reversed the decision of Latham J. That was on an inter partes hearing.
The Court of Appeal were concerned substantially with whether the enjoyment of
property would be seriously affected by the carrying out of the works or the
use of the highway. In the result, as I have already indicated, they quashed
the decision and required the Secretary of State to reconsider. However in the
course of the judgments of Simon Brown and Henry LJJ some observations were
made about foreknowledge.
At p26C of the
transcript* Simon Brown LJ said:
*Editor’s
note: Reported at [1995] 2 EGLR 213 at p218
The second,
and apparently, the main basis upon which the department hitherto have been
inclined to exercise any discretion against the appellants is because ‘the
Secretary of State does not safeguard people against the consequences of a purchase
made in the foreknowledge of road scheme’, see para 6 of the decision letter.
Although the guidelines themselves are silent as to foreknowledge, they do not
purport to be exhaustive, and certainly there is reference to this
consideration in the notes to form G1 (that is the
reads:
‘… the
Department will not normally consider purchase of property indirectly affected
by the alignment of a scheme, if information which would have been sufficient
to identify the effects had already been published before the date of purchase
by the owner occupier concerned, and in the case of a mortgagee, before the
date on which the mortgage was entered into. In particular, the Department will
not normally repurchase property previously acquired by it, and subsequently
sold.’
Here, as
Neill LJ has explained, by the time of the appellants’ purchase of this
property, the line of the bypass had been settled and there had been published
in March 1990 a statement following public consultation with regard to it. Did
that statement however include ‘information sufficient to identify the effects’
of the scheme? Some of the effects of the scheme, of course, were indicated.
But, there seems to me, at the very least room for argument and further
consideration as to whether the appellants were really on notice as to the full
effects of the development as it would affect them. The published document did
not, for instance, make it clear that the bypass would be a dual carriageway in
their area, nor did it make mention of the landfill site. And certainly the
case is very far from one where the department is being invited to repurchase
property previously acquired and sold by it as expressly envisaged in the note from
which I have quoted.
No one has
suggested that the latter is of relevance to this case. Simon Brown LJ went on:
It seems to
me, moreover, that the department ought properly to have this thought in mind
too. That, as the judge below accepted, the scheme had in fact no apparent
effect on the value of the property at the time when the appellants themselves
acquired it. Plainly now it has, indeed apparently a very substantial effect. I
can quite understand why the department are not readily prepared to compensate
those who know perfectly well what they are buying, and buy at a price which
reflects the blighting caused by the development. But it seems to me quite
another thing to suggest that the department should be positively advantaged by
the inter-position, as here, of a new purchaser. Let me explain. Had these
appellants not purchased this property, there can be no doubt that the previous
owners could themselves have made application to the department under section
246(2A). And whatever else had been taken into consideration against such an
application in the exercise of the department’s discretion, it could not have
been any element of foreknowledge.
No one could
quarrel with the observation that the previous owners could have made an
application but as Mr Elvin points out that has no relevance to the applicants’
position.
Henry LJ said
at p29(G):
As to the
point raised by Simon Brown LJ as to the affect of foreknowledge of the scheme
as shown by the market value of the property in 1990, the minister, when making
his April 1993 decision, would not then have had before him the evidence from
Lane Fox set out in their letter of July 29 1993, namely that the asking price
for the property when it was sold to the Owens in 1990 was not significantly
affected by ‘the line on the map’.
Henry LJ set
out the contents of the letter and went on:
That, I
presume, was the basis for the trial judge’s finding that in 1990 the price had
not then been blighted by the marking of the blue route on the map and the
choice of the blue route. That, as I say, was not a matter before the minister
in the April decision. But it is a matter he will doubtless wish to address
carefully when he reconsiders this matter.
The Secretary
of State sought leave from the House of Lords for leave to appeal against that
decision which application was refused. Colonel Owen places some reliance on
that refusal. In my judgment, it has none in relation to the issue which I have
to decide. The matter did go back to the Secretary of State for decision and he
reconsidered the matter giving rise to the letter which is the subject of these
proceedings.
When the
matter came before the Court of Appeal on an application by Colonel Owen ex
parte on July 22 1995, Auld LJ with whom the other lord justices agreed
gave the judgment. There were four arguments put forward the first of which is
irrelevant. Auld LJ said at p121D:
The second of
the arguments, the limited published information about the proposals before the
purchase of the property, has to be considered in the context of the third and
fourth arguments going to whether it should have put the Owens as prospective
purchasers on notice that the works would affect the value of the property.
The third
argument, inconsistency, seems to me to disclose an arguable case of
irrationality. Putting aside any suggestion of duplicity, the Secretary of
State’s present stance is not readily explicable as a change of mind. He has
always, and still does, maintain that the Owens’ physical enjoyment of the
property would not be seriously affected by the proposed works. Yet he now
concedes that the prospect of those works will seriously affect their enjoyment
because of the diminution in value that results from them. The only reason why
there should be any diminution in value is because of their physical effects.
What other reason could there be? That being so, it seems to me arguably
illogical for the Secretary of State to maintain, on the one hand, that the
works are not such as seriously to affect the Owens’ physical enjoyment of it,
while at the same time maintaining that what they knew, or could have
discovered or anticipated, at the time of purchase about those works and their
likely effects would have been sufficiently serious to cause them to conclude
that it would affect the value of the property.
As to the
fourth argument, that the Owens’ purchase price reflected an undiminished
value, it seems to me that Sedley J, in referring to the Secretary of State’s
view that they should have anticipated diminution, has not taken account of the
fact accepted by Latham J on the first application for judicial review. That is
that the undiminished value assumed knowledge by a purchaser of the published
proposals of the time. In my view, if such knowledge had no effect on the
market value, it is arguable that it cannot logically be a basis for
attributing to a purchaser an anticipation of a development which would affect
its future value. Anticipation of future value would inevitably affect its then
value. Put another way, the extent to which the Owens should be regarded,
because of their knowledge of the published proposals, as having constructive
notice of the likely future diminution in value must be put against the fact
that public constructive knowledge to like effect did not affect the market
value at that time. Characteristically, Simon Brown LJ put it simply and better
in his judgment on the first application for judicial review:
‘… as the
judge below accepted, the scheme had in fact no apparent effect on the value of
the property at the time when the appellants themselves acquired it. Plainly
now it has, indeed apparently a very substantial effect.’
The argument
on irrationality can be put simply that if the Secretary of State did not consider
that the Owens’ physical enjoyment of the property would not be seriously
affected by the proposed works it is difficult for the Secretary of State at
the same time to maintain that the owners should have appreciated some years
ago that the proposed line of the bypass would in fact affect their enjoyment.
There was
evidence in the documents as to the value. The evidence from Lane Fox, who was
the agent acting on behalf of the vendor, was that there was no diminution in
the value of the property at the time of sale by reason of the proposed bypass.
There is conflicting evidence as to exactly when there would be a diminution in
the value of property, but the fact of diminution does not now seem to be
doubted.
The Secretary
of State has plainly considered the question of valuation. In the first part of
his decision letter he had said:
Notwithstanding
the Secretary of State’s opinion that your enjoyment of the property will not
be seriously affected by physical effects, taking into account the valuation and
medical evidence, the Secretary of State has concluded that your enjoyment of
the property will be seriously affected within the meaning of section 246(2A)
of the Highways Act 1980.
and had gone on
to deal with the letter of February 3 1993 from Lane Fox. It is self evident
that if a bypass is to be built close to a property there is always a risk of
diminution in that property’s value at some time. Precisely when is
unimportant.
I do not
accept the view that there is now any irrationality in the decision of the
Secretary of State in this respect. He has maintained and always maintained
that there was sufficient foreknowledge as to risk on the part of the
applicants. The fact that the Secretary of State at one time mistakenly took
the view that the value of the applicants’ property was not seriously
affected is not inconsistent with a view that there was always a risk of
diminution at some time.
I turn
therefore to consider whether foreknowledge as a matter of law is a matter
which Secretary of State in his discretion is entitled to take into account. It
is the applicants’ contention that what the notes to the application form were
designed to deal with was a case where the applicant had bought the property at
a discounted price. In those
should not be required to spend public money at a profit to the applicants.
But the
converse does not seem to me necessarily to follow; namely if a purchaser has
access to sufficient information, but nevertheless purchases at a price without
a discount, there is an obligation on the Secretary of State to purchase. It
may be a matter he would want to take into account but it will be within his
discretion. I am clearly of the view that in the exercise of his discretion the
Secretary of State is entitled to take into account, as a matter of law, the
principle of foreseeability irrespective of purchase price.
I turn
therefore to the next point which can be phrased in this way. Was there
material before the Secretary of State upon which he could reasonably come to
the conclusion that the applicants either had knowledge or had access to
knowledge so as to have sufficient information of the scheme? It is not for me
to decide that issue: that is for the Secretary of State. I can only interfere
with his conclusion if it is without reason or perverse.
The Secretary
of State has accepted that the detailed proposal for the scheme, including the
junctions, were not available at the material time to the applicants. The
applicants have complained that the line shown on the map M1 was quite
insufficient to identify the proximity of the road. They believe, although
there is no evidence before me, that the road is in fact nearer than the plans
show. In May 1990 Colonel Owen telephoned the South West Regional Office for
confirmation and spoke to a Miss Peters. He received from her only the
preferred route announcement and a small scale map. None of the information
which was published in December 1991, when the draft statutory orders were
issued, was given on the announcement of the preferred route. That is accepted
by the Secretary of State.
On the plan
M1, the proposed road plainly cuts through the end of Baunton at a point close
to the applicants’ property. The announcement following a public consultation,
which was sent to the applicants, together with M1, described the route. The
description of the route makes it clear that the scheme was not insubstantial;
in particular it was to go under the Whiteway which would clearly have
necessitated building a bridge close to the property. There is no evidence that
the applicants took any further steps by way of seeking information from the
department or professional advice before exchanging contracts or completion or
doing substantial improvements. There was a substantial consultation paper
published prior to the applicants’ purchase available to the public though as
the first applicant submitted, they were not readily available to him.
The Secretary
of State accepts that the applicants did not have knowledge of all the
aspects of the road at the date of the purchase since they were not made clear
fully until a later date. It is clear that they knew or ought to have known
that there would be a substantial road scheme passing very close to the
property which they proposed to purchase. The detrimental effects of a road
scheme close to property are well known; they may have disagreeable
consequences for the owners of property either in relation to noise, health, or
diminution in value. The Secretary of State submits that there was enough
information to alert the applicants either to the possible consequences or of
the necessity for making some further reasonable inquiries.
I do not have
to decide whether I would have come to the same decision as the Secretary of
State nor indeed whether I would have acted in the same way as the applicants.
What I have to determine is whether it is possible to say that the conclusion
to which the Secretary of State has come is one which can properly be challenged
under the Wednesbury principles. It is very important to stress that the
courts must refrain from seeking to usurp the functions of the executive. I
have much sympathy for the Owens who have twice successfully been to the Court
of Appeal and may well have been led to believe that victory was within their
grasp. Having successfully fought there and forced the Secretary of State to
change his mind on one aspect no doubt it is extremely distressing to find that
they have lost on foreknowledge. However I must apply the law as it affects
this application. I find no perversity or irrationality in the Secretary of
State’s decision and accordingly I must dismiss this application.
