De Rothschild and Eranda Herds Ltd v Secretary of State for Transport and another

Compulsory purchase — Highways Act 1980 and Acquisition of Land Act 1981 — Appeal from dismissal by Mann J of application by appellant landowners and occupiers to quash compulsory purchase order — Before considering the merits of the appeal the court stated their view of the principles applicable to the determination of a challenge to the validity of a compulsory purchase order — Such a challenge should be based on the well-known grounds stated in Associated Provincial Picture Houses Ltd v Wednesbury Corporation and in Ashbridge Investments Ltd v Minister of Housing and Local Government — The court rejected a submission by the appellants that five special rules bearing on the onus of proof and the need for the acquiring authority to demonstrate the necessity for the acquisition had to be applied by courts considering such a challenge — It was better to avoid any reference to the onus of proof, which was more appropriate to a lis inter partes than to a public inquiry in which not only the cases put forward by the parties but also the public interest had to be taken into account — However, the draconian nature of a compulsory purchase order renders it more vulnerable to a successful challenge on Wednesbury/Ashbridge grounds unless sufficient reasons are adduced affirmatively to justify it on its merits — The Secretary of State must be satisfied that the order is justified on its merits before he can properly confirm it The dispute concerned the proposals of the Bedfordshire County Council for a bypass road to relieve traffic through the town of Leighton Linslade — Appellants had put forward four alternative schemes involving part of their land, which they were prepared to sell at a valuation for the purpose of the bypass — The present appeal turned on the manner in which the Secretary of State in his decision letter had, in supporting the recommendations of his inspector, rejected the appellants’ case — The critical sentence in the letter read ‘From the evidence the Secretary of State does not believe that any of the suggested alternatives has sufficient advantages or benefits which would justify its adoption in place of the scheme as proposed by the County Council’ — This sentence was attacked by the appellants as embodying a test which involved an error of law — They submitted that the question was not whether the appellants’ alternatives had advantages or benefits when compared with the county council’s proposals, but whether the benefits of the latter so outweighed those of the former that there was a compelling or decisive case for compulsory acquisition, any reasonable doubt being resolved in favour of the appellants — The court accepted that if the Secretary of State had decided the matter on the ground that the appellants had not shown that any of their schemes were better than the council’s scheme, his decision would be impeachable on Wednesbury grounds — However, on a fair reading of the letter as a whole the Secretary of State was not making his decision on that ground; he was endorsing the inspector’s conclusion that the council had shown unequivocally that the rate proposed in the order was the best in the public interest — ‘It could not be right to analyse and pick to pieces each sentence of the Secretary of State’s letter as if each sentence were a subsection in a taxing statute’ — Appeal dismissed The following cases are referred to in this report. Ashbridge Investments Ltd v Minister of Housing and Local Government [1965] 1 WLR 1320; [1965] 3 All ER 371; (1965) 63 LGR 400; [1965] EGD 216; 195 EG 205, CA Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223; [1947] 2 All ER 680, (1947) 45 LGR 635, CA Brown v Secretary of State for the Environment (1978) 40 P&CR 285; [1979] JPL 454 Chilton v Telford Development Corporation [1987] 1 WLR 872; [1987] 3 All ER 992; [1987] 1 EGLR 12; (1987) 281 EG 1443, CA Prest v Secretary of State for Wales (1982) 81 LGR 193; [1983] EGD 282; 266 EG 527, [1983] 1 EGLR 17, CA R v Secretary of State for the Environment ex parte Melton Borough Council (1985) 52 P&CR 318 This was an appeal by the applicants, Evelyn de Rothschild and Eranda Herds Ltd, from the dismissal by Mann J (reported in [1988] 1 EGLR 11) of their application to quash the decision of the Secretary of State for Transport to confirm an order for the compulsory purchase of the applicants’ land by the Bedfordshire County Council. Jeremy Sullivan QC and Brian Ash (instructed by Robbins Olivey & Blake Lapthorn, agents for Horwood & James, of Aylesbury) appeared on behalf of the appellants; John Laws (instructed by the Treasury Solicitor) represented the Secretary of State; Charles George (instructed by the solicitors’ department, Bedfordshire County Council) represented the council. Giving judgment, SLADE LJ said: This is an appeal by Mr Evelyn de Rothschild and Eranda Herds Ltd from a judgment of Mann J given on November 12 1987 whereby he dismissed an application by the appellants, who were seeking to quash a compulsory purchase order. The appellants are the owners and occupiers of certain land in Bedfordshire which the Bedfordshire County Council, who are the second respondents to this appeal, have sought to acquire compulsorily for the construction of a southern bypass to the town of Leighton Linslade. For this purpose the county council made a compulsory purchase order relating to part of the appellants’ land, namely the Bedfordshire County Council (Leighton Linslade Southern By-pass) Compulsory Purchase Order (No 2) 1985. The order was made by the council in its capacity as highway authority and in exercise of the powers conferred on it by sections 239, 240, 246 and 250 of the Highways Act 1980 and section 2 of the Acquisition of Land Act 1981. The confirming authority in regard to the order was the Secretary of State for Transport, who is the first respondent to this appeal. While it was not disputed that the order fell within the letter of the20 council’s statutory powers, the appellants objected to it on its merits. Accordingly, pursuant to section 13(2) of the 1981 Act the Secretary of State, before confirming the order, caused a public local inquiry to be held before an inspector appointed for the purpose. Section 13(2) reads as follows: If any objection duly made as aforesaid is not withdrawn, the confirming authority shall, before confirming the order, either cause a public local inquiry to be held or afford to any person by whom any objection has been duly made as aforesaid and not withdrawn an opportunity of appearing before and being heard by a person appointed by the confirming authority for the purpose, and, after considering the objection and the report of the person who held the inquiry or the person appointed as aforesaid, may confirm the order either with or without modifications. The subsection by its terms appears to confer on the Secretary of State a very wide discretion as to whether or not to confirm a compulsory purchase order, and we have heard a good deal of argument on this appeal concerning the proper principles to be applied by him in exercising this function. It is convenient to deal with this aspect of the case at this point. It has been common ground that the exercise of this power of the Secretary of State may be challenged, at least on any of the grounds set out by Lord Denning MR in his judgment in Ashbridge Investments Ltd v Minister of Housing and Local Government [1965] 1 WLR 1320 where he said (at p 1326): The court can only interfere on the ground that the Minister has gone outside the powers of the Act or that any requirement of the Act has not been complied with. Under this section it seems to me that the court can interfere with the Minister’s decision if he has acted on no evidence; or if he has come to a conclusion to which on the evidence he could not reasonably come; or if he has given a wrong interpretation to the words of the statute; or if he has taken into consideration matters which he ought not to have taken into account, or vice versa; or has otherwise gone wrong in law. It is identical with the position when the court has power to interfere with the decision of a lower tribunal which has erred in point of law. These, as Mann J said in his judgment in the present case, are the conventional grounds of challenge and, in particular, the grounds which derive from the decision of this court in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. I will for brevity refer to these grounds as ‘the Wednesbury/Ashbridge grounds’. However, it has to be recognised that the compulsory purchase of land involves a serious invasion of the private proprietary rights of citizens. As Purchas LJ described them in Chilton v Telford Development Corporation [1987] 3 All ER 992 at p997, the powers of compulsory purchase of an acquiring authority are of a draconian nature. The power to dispossess a citizen of his land against his will is clearly not one to be exercised lightly and without good and sufficient cause. On behalf of the appellants, Mr Sullivan and Mr Ash have submitted that there are to be derived from the authorities what they call ‘special rules’, beyond the Wednesbury/Ashbridge grounds, which are applicable whenever the court is considering a challenge to a compulsory purchase order. They summarise these so-called special rules in five propositions as follows (I am quoting from their skeleton argument): (i)  The onus is upon the acquiring authority to justify a compulsory purchase order and upon the Secretary of State to justify his decision to confirm such an order. (ii)  A compulsory purchase order should only be confirmed if it is decisively in the public interest to do so, or if there is a ‘compelling case’ in the public interest. (iii)  Any reasonable doubt as to the justification for a compulsory purchase order is to be resolved in favour of the owner of the affected land. (iv)  If alternative land is available that is equally suitable for the purposes of the acquiring authority but which can be acquired without the use of compulsory purchase powers, the use of such powers cannot be justified. (v)  At the very least it is for the acquiring authority to demonstrate that compulsory acquisition is necessary, and not for the landowner to demonstrate the converse. By way of support for these five propositions, the appellants’ counsel referred to general principles of our constitutional law, including the Magna Carta and Article 1 of the First Protocol to the European Convention of Human Rights. More specifically, they relied on three reported cases. The first was the decision of Forbes J in Brown v Secretary of State for the Environment (1978) 40 P&CR 285. In that case a local authority, with a view to providing a site for gipsies in pursuance of their duty under section 6 of the Caravan Sites Act 1968, made a compulsory purchase order in respect of land owned by the applicants. The applicants objected to the order and an inquiry was held. The inspector found that there were other sites available to the local authority, including one owned by them. He went so far as to say that the applicants’ site was probably the worst. Nevertheless, the Secretary of State confirmed the order. In his decision letter he expressly stated that he was solely concerned with the merits or otherwise of the order land and did not think it material to his decision whether or not the local authority would have chosen the applicants’ land if they had considered all the possible locations at the same time. As Forbes J pointed out (at p 291), the Secretary of State disagreed with the inspector’s conclusion: not because he disagrees with the inspector on a value judgment about the suitability of these sites but because he has directed himself that the suitability of these sites is an immaterial matter for consideration in forming his decision. On an application for judicial review, Forbes J considered that the Secretary of State had misdirected himself. He said the letter set out no adequate reasons for the disagreement with the inspector’s conclusions. In a passage relied on by Mr Sullivan he went on to say (at p 291): It must also, it seems to me, be a matter of supreme importance, in considering whether or not to confirm a compulsory purchase order, that not only is there another suitable site available but that that very site happens to be in the ownership of the authority that is seeking to exercise compulsory purchase powers. It seems to me that there is a very long and respectable tradition for the view that an authority that seeks to dispossess a citizen of his land must do so by showing that it is necessary, in order to exercise the powers for the purposes of the Act under which the compulsory purchase order is made, that the acquiring authority should have authorisation to acquire the land in question. If, in fact, the acquiring authority is itself in possession of other suitable land — other land that is wholly suitable for that purpose — then it seems to me that no reasonable Secretary of State faced with that fact could come to the conclusion that it was necessary for the authority to acquire other land compulsorily for precisely the same purpose. Though in this passage Forbes J used words which could be read as indicating that an onus of proof fell on the authority to show that acquisition was ‘necessary’, I do not read his judgment as indicating that he regarded any special principle other than ordinary Wednesbury/Ashbridge principles as applicable, or that he founded his ratio decidendi on any question of onus of proof. At p 292 one finds what seems to me to be the ratio of his judgment. He summarised the grounds for quashing the decision as being: . . . first, that the Secretary of State has wrongly directed himself that the suitability of alternative sites is a matter that is immaterial to his decision, and, secondly, that he has not anywhere considered, so far as I can see, the fact that this acquiring authority seeking compulsory purchase powers had already in its hand land of its own found by the inspector to be more suitable for the purpose of the Act than the applicants’ land. In those circumstances, it seems to me that the Secretary of State ignored that factor, which was a material consideration . . . The Brown decision, therefore, seems to me to illustrate conventional application of Wednesbury/Ashbridge principles, namely, on the grounds that the Secretary of State had failed to take into consideration a matter which he ought to have taken into account. The second of the authorities upon which Mr Sullivan relied in support of his contention that special rules apply where the court is considering a challenge to a compulsory purchase order was the decision of this court in Prest v Secretary of State for Wales [1983] 81 LGR 193. In that case a water authority needed to make a new sewage works on the land owned by the applicants. A compulsory purchase order was made in respect of a site forming part of that land. At a public inquiry the applicants offered to convey to the authority either of two alternative sites at ‘existing use value’ as agricultural land. The inspector recommended that the order be confirmed and the Secretary of State in due course confirmed it. However, the Secretary of State, in writing his decision letter, failed to take into account the cost of acquiring the compulsory purchase order site as against the cost of acquiring the alternative sites offered by the applicants. When the case reached this court, fresh evidence was available showing that it was highly probable that the owners of the land would obtain planning permission for development of the site proposed by the water authority for industrial purposes. This court held that the compulsory purchase order should be set aside. In the course of their judgments, the members of the court made some broad observations which have been strongly relied on by the appellant counsel in the course of their argument. Lord Denning MR (at p 198) said this: 21 To what extent is the Secretary of State entitled to use compulsory powers to acquire the land of a private individual?  It is clear that no Minister or public authority can acquire any land compulsorily except the power to do so be given by Parliament: and Parliament only grants it, or should only grant it, when it is necessary in the public interest. In any case, therefore, where the scales are evenly balanced — for or against compulsory acquisition — the decision — by whomsoever it is made — should come down against compulsory acquisition. I regard it as a principle of our constitutional law that no citizen is to be deprived of his land by any public authority against his will, unless it is expressly authorised by Parliament and the public interest decisively so demands: and then only on the condition that proper compensation is paid: see Attorney-General v De Keyser’s Royal Hotel Ltd [1920] AC 508. If there is any reasonable doubt on the matter, the balance must be resolved in favour of the citizen. Then Lord Denning cited with approval the first of the two passages from the judgment of Forbes J in the Brown case I have already quoted. However, later in his judgment, Lord Denning, in referring to the power of the court to intervene in cases of this nature, specifically referred to the passage from his own judgment in Ashbridge which I have already quoted. Furthermore, he ultimately expressed the two grounds of his decision thus (at p 202) in terms which seem to me to echo the conventional Wednesbury/Ashbridge grounds. He said: In view of the fresh evidence it would be quite unreasonable for the acquiring authority to proceed with the compulsory purchase order. Yet on May 18 1981 they gave notice to treat and have only held their hand pending these proceedings. In the second place, even if the fresh evidence be disregarded, when the Secretary of State wrote the decision letter confirming the compulsory purchase order, he failed to take into account the cost of acquiring the CPO site as against the cost of acquiring the alternative site offered by Sir Brandon. This was a most relevant consideration. In other words, as I read it, Lord Denning’s judgment was ultimately founded on the grounds of unreasonableness and of failure to take into account a material consideration. Watkins LJ, in the course of his judgment in the same case (at p 211), made some general observations, again strongly relied on by Mr Sullivan. He said: In the sphere of compulsory land acquisition, the onus of showing that a compulsory purchase order has been properly confirmed rests squarely on the acquiring authority and, if he seeks to support his own decision, on the Secretary of State. The taking of a person’s land against his will is a serious invasion of his proprietary rights. The use of statutory authority for the destruction of those rights requires to be most carefully scrutinised. The courts must be vigilant to see to it that the authority is not abused. It must not be used unless it is clear that the Secretary of State has allowed those rights to be violated by a decision based upon the right legal principles, adequate evidence and proper consideration of the factor which sways his mind into confirmation of the order sought. As I read his judgment, however, its ratio is to be found in the immediately succeeding paragraph (at p 212), where he said this: I have come to the conclusion that his decision should not be upheld. A vital consideration was not inquired into, in my view. It was, therefore, left out of account in the exercise of the Secretary of State’s discretion. The hope value of parts of the Miskin lands should not have been disregarded as it was, especially seeing that there was evidence of its possible existence. An inquiry into it would not, it seems to me, have delayed the decision by much time, if any. To fail to make that inquiry was a glaring omission going to a fundamental consideration. In other words, the Secretary of State had failed to take into account a material consideration. Fox LJ’s judgment contains a passage, also relied on by the appellants in this case, which seems to me to be to the same effect. He said (at p 216): I can only conclude that, in a case where the Secretary of State decided to confirm the compulsory purchase order primarily on considerations of cost, and where shortly before his decision he was asked to take account of land acquisition costs, he confirmed the order without material as to what the latter costs were. Accordingly, I do not think that he can have given the proper degree of consideration to the overall question of cost. The onus of establishing that a compulsory purchase order has been properly made must be on the acquiring authority. The question of cost was a material issue. Having considered the judgments of this court in Prest and of Forbes J in Brown, I conclude that both of them were merely examples of challenges to the Secretary of State’s decision on conventional Wednesbury/Ashbridge grounds. Though all the judgments in Prest contained observations regarding onus, I, for my part, read them as doing no more than giving a warning that in cases where a compulsory purchase order is under challenge, the draconian nature of the order will itself render it more vulnerable to successful challenge on Wednesbury/Ashbridge grounds unless sufficient reasons are adduced affirmatively to justify it on its merits. In R v Secretary of State for the Environment, ex parte Melton Borough Council (1985) 52 P&CR 318 Forbes J summarised what he understood to be the effect of the Prest decision in a passage upon which Mr Sullivan also relied. He said (at p 326): Throughout that case it is quite plain that the Court of Appeal was deciding that the duty of the Secretary of State to look, if necessary, for other sources of information before coming to his conclusion, arose when he was minded to confirm a compulsory purchase order. The reason for that was, quite simply, that he must satisfy himself that the compulsory purchase order is necessary before he can confirm the order so that a private citizen’s land is compulsorily acquired. I have already stated my own understanding of the Prest decision. I think that the word ‘necessary’ itself carries with it an element of ambiguity and uncertainty and I would prefer to avoid it in this context. It does not appear in section 13(2) of the 1981 Act and Mr Sullivan expressly disclaimed any submission that it should be read into the subsection by a process of implication. In answer to his and Mr Ash’s submissions as to ‘special rules’, I summarise my conclusions thus. First, I do not accept that any special rules beyond the ordinary Wednesbury/Ashbridge rules fall to be applied when the court is considering a challenge to the Secretary of State’s confirmation of a compulsory purchase order. Second, however, the Secretary of State, as Mr Laws on his behalf accepted and submitted, must be satisfied that the compulsory purchase order is justified on its merits before he can properly confirm it. He must not exercise his powers capriciously. Given the obvious importance and value to landowners of their property rights, the abrogation of those rights in the exercise of his discretionary power to confirm a compulsory purchase order would, in the absence of what he perceived to be a sufficient justification on the merits, be a course which surely no reasonable Secretary of State would take. I think that this approach to the matter reconciles the judgments in Prest with the ordinary principles of our law applicable to claims for judicial review. Furthermore, it has the merit of avoiding any reference to onus of proof, which is an expression more appropriate, as Mr Laws pointed out, to a lis inter partes. As Lord Denning observed in Prest itself (at p 200), the Secretary of State’s decision certainly is not a lis inter partes. As he said: It is a public inquiry — at which the acquiring authority and the objectors are present and put forward their cases — but there is an unseen party who is vitally interested and is not represented. It is the public at large. It is the duty of the Secretary of State to have regard to the public interest. In making his decision, there are a multitude of different factors which the Secretary of State has to take into account. To mention only a few: questions of landscape and other amenity, feasibility, cost and delay. To talk of questions of onus of proof when so many competing factors have to be taken into the balance seems to me not only inappropriate but a somewhat difficult concept. While, in response to the invitation of all counsel, I have thought it right to state fully my understanding of the principles which fall to be applied by the court in this class of case, I believe that ultimately, on the particular facts of this appeal, the question which we will have to decide will be quite a short one, depending on the construction of one sentence in the inspector’s letter of decision. I will explain why later in this judgment. Meantime, I revert to the facts. The inquiry was held in April and June 1986 before an inspector. At the inquiry, as the inspector recorded in para 177 of his report, there was no objection in principle to the need for the southern bypass of Leighton Linslade and all the evidence supported the need both to relieve traffic in Leighton Linslade and neighbouring villages and to improve access to the industrial area of the town. The appellants, however, objected to the proposed route for the bypass and the order affecting their own land. They put forward four alternative schemes which they said were better on engineering, agricultural and environmental grounds. All four were on land which they owned and offered to sell to the council at a valuation. By inference they accepted that some of their land would be needed for the making of a new bypass. The question was what land and what scheme were the appropriate ones. The four schemes are to be found summarised in para 70 of the inspector’s report where he referred to them as options 2B, 3B, 4B and 5B. In para 69 of his report he had referred to a submission made on behalf of the appellants that the onus of proof was on the22 acquiring authority to show there were compelling reasons for compulsory purchase of land which belonged to them other than that which they had offered to sell. In para 90 the inspector recorded the acceptance by the council that it was their responsibility to show that the order route was superior to other proposals on the balance of factors involved. The inspector gave a very full and very careful report. Having summarised the parties’ respective submissions, in paras 120 to 175 he set out his findings of fact. Then in the remaining paras he set out his conclusions. In paras 185 to 197 he dealt very fully with the appellants’ four alternative schemes. In para 185 he said that the route across the land owned by the appellants had been considered in considerable depth, since the objectors’ alternative proposals were presented in some detail with the evidence of a number of expert witnesses. He recorded that option 2B was stated to be the preferred option, but in presentation and evidence option 3B was given more prominence. Then, after further observations on these alternative schemes, he stated his ultimate conclusions as to options 2B and 4B in para 191, where he stated his firm conclusion that they should be rejected on grounds of extra cost, on the unsuitability of a proposed grade-separated junction as a permanent junction and on doubts about its design suitability and because of landscape disadvantages. Similarly, in para 193 he rejected option 5B on the grounds of cost; and in paras 194 and 195 he rejected option 3B on the grounds both of extra cost and on the grounds of substantial delay, pointing out that the council’s scheme was one which virtually had universal approval and support. He clearly regarded delay as being a very significant factor. In para 196 he summarised his conclusions in regard to alternative proposals thus: I am of the opinion that there are no factors, including the offer to sell alternative land at Ascott Farm, which individually or together outweigh the disadvantages of extra cost and exceptional delay which would result from the adoption of the objectors’ alternative routes and I believe that the Bedfordshire County Council has shown unequivocally that the order route is the best in the public interest under the circumstances. Mr Sullivan, as I understood him, submitted inter alia that this para 196, when properly read, did not amount to a finding by the inspector that the disadvantages of extra cost and delay positively outweighed the advantages of the appellants’ alternatives. Reading para 196 in conjunction with the earlier paragraphs to which I have referred, I have no hesitation in rejecting this particular submission. I do not think it indicates any misdirection on his part. However, as Mr Sullivan correctly pointed out, it is the Secretary of State’s decision as recorded in his letter and not that of the inspector which is under challenge on this appeal. The inspector in due course submitted his report to the Secretary of State, recommending that the compulsory purchase order, together with certain other orders of the same nature, should be confirmed. By a letter of November 26 1986 the Secretary of State gave his decision to confirm the order. In para 14 he summarised the effect of the inspector’s report as follows: Having considered the four alternative options of Mr de Rothschild and Eranda Herds Ltd the inspector believes that the council’s route and the alternatives are comparable in environmental terms and marginally in the objectors’ favour if there were a railway underbridge. Considering the alignment between the A418 and the railway line on its own, the inspector says the agricultural advantage probably lies with the objectors’ route since it uses pasture rather than arable land, but in engineering terms, there is a little more certainty that the council’s alignment is more soundly based. The inspector does not believe there is much to choose between the locations for the bypass junction on the A418 but says that a grade-separated junction would take more land, cost extra, does not appear to be justified in traffic terms and the proposed design is open to question. For these reasons he does not believe a grade-separated junction should be pursued, and says the junction with the A418 should be a roundabout. The inspector considers, given that the access to the northern part of Mentmore Road is not required, the only advantage of an underbridge for the railway crossing is from a landscaping point of view and while he accepts the proposed embankment and bridge would be more visible he does not consider that, with the proposed landscaping, they would detract unacceptably from the existing landscape. The inspector believes the costs and potential delay outweigh the environmental advantages of an underbridge compared with the proposed overbridge and believes it would be preferable to maintain the published vertical alignment of the bypass between the canal and the A4146. On the assumption that the bypass junction with the A418 is a roundabout, and allowing for differences in estimates, the inspector notes that the railway underbridge and overbridge on the objectors’ alignment could cost extra, in terms of money and delay. The inspector is of the opinion that there are no factors which individually or together outweigh the disadvantages of extra cost and delay which would result from the adoption of the objectors’ alternative route. He believes the county council has shown unequivocally that the order route is the best in the public interest under the circumstances. Mr Sullivan accepted that this was a full and fair summary of the reasons given by the inspector for his recommendation in regard to the route of the proposed bypass. It is, I think, quite clear that the Secretary of State had fully understood and digested the effect of what the inspector had found and recommended in this context. In para 16 the Secretary of State said: The inspector notes that there was no objection in principle to the need for a bypass and all the evidence supports that need. He says the council’s scheme has been carefully worked out and in paying due regard to environmental and agricultural circumstances it achieves a reasonable balance between all the factors involved. The inspector concludes that the objections to the orders cannot be supported and recommends that the orders and bridge scheme should be confirmed, with minor amendments to the Side Roads Order. There then followed in the Secretary of State’s letter a section headed ‘Secretary of State’s decision’, of which the first paragraph, para 17, read as follows: The Secretary of State has carefully considered the report and recommendations of the inspector together with all matters raised by the objectors both at the public inquiries and in writing. He notes that the need for the bypass to relieve traffic in Leighton Linslade and neighbouring villages and to improve access to the industrial area of the town is not in dispute, and that there is a large measure of support from the public both for the bypass and for work to start on it as soon as possible. From the evidence the Secretary of State does not believe that any of the suggested alternatives has sufficient advantages or benefits which would justify its adoption in place of the scheme as proposed by the county council. It is the effect of the last sentence of this paragraph, which I will call ‘the crucial sentence’, upon which ultimately the whole of this appeal turns. The only other paragraph of the Secretary of State’s letter to which I need refer is para 20, which began with the words: Accordingly, the Secretary of State agrees with the inspector’s conclusions and recommendations. He went on to express his decision to confirm the three compulsory purchase orders under consideration. A notice of motion was issued by the appellants on December 29 1986 challenging the Secretary of State’s decision. In its original form the notice was, or may have been, defective for reasons explained at the end of the learned judge’s judgment. However, the judge permitted an amendment of it and, by its amended form, the notice of motion sought an order that the relevant orders and scheme made by the council be quashed on the grounds that the decision of the Secretary of State contained in the letter of November 26 confirming the compulsory purchase order was not ‘within the powers of the said Acts’ in that: In concluding in paragraph 17 of his said letter that: ‘from the evidence the Secretary of State does not believe that any of the suggested alternatives has sufficient advantages or benefits which would justify its adoption in place of the scheme as proposed by the county council’, the first respondent applied a test which is wrong in law. The question was not whether the applicants’ alternative alignment for the proposed road had advantages or benefits when compared with the scheme proposed by the second respondent but whether the advantages or benefits of the latter so outweighed those of the former that there was a ‘compelling’ or ‘decisive’ case for compulsory acquisition of land in the public interest, any reasonable doubt on the matter being resolved in favour of the applicants.’ In a variety of attractive guises this is substantially the point which the appellants’ counsel have urged on us in support of this appeal. For reasons which I have already explained, I do not think that any special rules fall to be applied by us beyond the Wednesbury/Ashbridge rules when the court is considering a challenge to the confirmation by the Secretary of State of a compulsory purchase order. However, I have also already accepted that, given the draconian nature of such an order, no reasonable Secretary of State would be likely to confirm such an order in the absence of what he perceived to be a sufficient justification of his decision on its merits. Now, on the facts of the present case, Mr Sullivan has accepted, as was accepted on behalf of the appellants at the inquiry, that a southern bypass to the town of Leighton Linslade is required in the public interest. He has further accepted that, if such a bypass is to be constructed at all, part of it must inevitably pass over some part of the appellants’ land. If, therefore, the Secretary of State had explicitly said that he considered that the route proposed by the council was23 better than those proposed by the appellants under options 2B, 3B, 4B or 5B. I do not believe that this appeal could have got off the ground, or indeed that it would have been brought. However, in the crucial sentence in para 17 of his decision letter quoted above, the Secretary of State did not say this in terms. He merely said that he did not believe that any of the suggested alternatives had sufficient advantages or benefits which would justify its adoption in place of the schemes proposed by the council. I would accept that, if the ultimate conclusion of the Secretary of State as expressed in his letter, when properly read as a whole, was merely that, after taking all the circumstances into account, the appellants have not shown that any of their schemes were better than the council’s scheme, his decision would be impeachable on Wednesbury grounds. For it seems to me that no reasonable Secretary of State would confirm a compulsory purchase order imposing a purchase on an unwilling landowner if that same landowner was willing to sell to the acquiring authority land which would be seen to serve equally well for the same purpose after all relevant considerations, including of course cost and delay, have been taken into account. This is essentially the way in which Mr Sullivan has invited us to read the crucial sentence in the Secretary of State’s letter. This is why earlier in this judgment I have described the issue on this appeal as ultimately depending on a short question of construction. However, I, for my part, cannot accept Mr Sullivan’s construction of this sentence. If the crucial sentence in para 17 were wrenched out of its context and read in isolation, I suppose it might be understood as indicating the Secretary of State’s view that the onus was on the appellants to show that their alternative schemes, or any of them, had positive advantages over the routes proposed in the order and that the appellants had failed to discharge this onus. However, in my judgment, the crucial sentence cannot properly be read in isolation and out of its context; and, when read in its context, it does not bear this meaning. In para 17 of his letter the Secretary of State was clearly echoing and endorsing in abbreviated form the report and recommendations of the inspector which he had already fully and fairly summarised in para 14. In particular there can be no doubt that in the crucial sentence the Secretary of State was echoing and endorsing, at the very least, the inspector’s conclusion that ‘there are no factors which individually or together outweigh the disadvantages of extra cost and exceptional delay which would result from the adoption of the objectors’ alternative route’. At the very least, therefore, the Secretary of State was saying that the suggested alternatives were no better than the county council’s route. He quite clearly had in mind the factors of delay and expense which had weighed so heavily with the inspector. However, the submission is that the Secretary of State by his letter was not going so far as to endorse or accept the inspector’s conclusion that the council had affirmatively shown that the order route was the best route, simply because, in the crucial sentence in para 17, he did not expressly echo the words of para 196 of the inspector’s report stating what the council had ‘unequivocally’ shown. In my judgment, it could not be right to analyse and pick to pieces each sentence of the Secretary of State’s letter as if each sentence were a subsection in a taxing statute. To accept the appellants’ submission would, in my judgment, involve an altogether too analytical — indeed I would say perverse — construction of the language by which the Secretary of State expressed himself, when his letter is read as a whole. In para 14 of his letter he had fully and fairly summarised the inspector’s conclusions, including his crucial final conclusion that the council had shown ‘unequivocally’ that the order route was the best in the public interest. In the last sentence of para 16, which led in to para 17, he had referred to the inspector’s conclusion that the objection to the order could not be supported. On a fair reading of the letter as a whole, it is, in my opinion, clear that the Secretary of State was intending to endorse the whole of the inspector’s conclusions. And, indeed, in para 20 he stated without qualification that he agreed with the inspector’s conclusions. Mr Sullivan submitted that para 20 of the decision letter was of no assistance to the Secretary of State’s argument, essentially on the grounds that the inspector himself had proceeded under an error of law as regards the burden of proof, similar to that which he had attributed to the Secretary of State. I have already stated in my view that the inspector did not misdirect himself in any respect. Some reliance was placed on the phrase used by Lord Denning in Prest (at p 198 of the report) that no citizen is to be deprived of his land by any public authority against his will unless the public interest ‘decisively so demands’. As I read the inspector’s report and the Secretary of State’s decision, both of them considered that the public interest did decisively so demand. The bypass was needed. Some land of the appellants had to be acquired for the purpose. They both took the view that the council had shown unequivocally that the order route was better in the public interest than any of the alternative routes over other land of the appellants which the appellants had proposed. For the reasons which I have stated, the alleged error of law on the part of the Secretary of State has not, in my judgment, been substantiated and I agree with the learned judge that there are no grounds for challenging his decision. I would accordingly dismiss this appeal. Agreeing, CROOM-JOHNSON LJ said: I have prepared a judgment which I was intending to give, but the matters in it have so comprehensively been covered by Slade LJ in his judgment that there is no purpose in my going over the same ground again. I would like to add only one very short matter and it is this. In the suggestion that in what is a special rule in compulsory purchase order cases there has to be some form of discharge of an onus of proof, I entirely agree that the form of the inquiry and the form of the decision which has to be taken by the Secretary of State is hardly appropriate for the discharge of a burden of proof in such a form. At the end what the minister has to do is to investigate all the facts, the arguments and so forth and ultimately perform a balancing exercise. At the end he has to balance things against each other which are not at all compatible; they are not like each other and cannot be the subject of direct comparison. In various cases, though not necessarily in this one, he may have to balance, for example, the effect on traffic flow, the requirement of the road in particular form and in a particular place, the question whether it is arable or pasture land which is being taken in the course of the compulsory purchase order, the effect on amenity and the environment and, of course, very importantly, the question of cost and the question of the time factor which has to be regarded in the carrying out of the work. In the end he comes out with what must be a value judgment that to confirm the order is justified in the public interest, and in my view it is not right to turn this value judgment into a legal formula. The law was very succinctly stated by Watkins LJ in the Prest case at p 211: The use of statutory authority for the destruction of those rights requires to be most carefully scrutinised. The courts must be vigilant to see to it that that authority is not abused. It must not be used unless it is clear that the Secretary of State has allowed those rights to be violated by a decision based upon the right legal principles, adequate evidence and proper consideration of the factor which sways his mind into confirmation of the order sought. It is true that that passage follows immediately upon another passage in which Watkins LJ dealt with the seriousness of taking a man’s land against his will; but that was the context in which the later passage came, and in my view there is no such special rule as has been urged upon us by Mr Sullivan and Mr Ash in compulsory purchase order cases. I would like to add that I entirely agree also with the construction which has been put upon the Secretary of State’s letter by Slade LJ and I would agree that the appeal should be dismissed. RALPH GIBSON LJ also agreed that the appeal should be dismissed for the reasons given by Slade LJ in his judgment and did not add anything further. The appeal was dismissed; the first respondent’s costs to be paid by the appellants; no order for costs in favour of the second respondent. Leave to appeal to the House of Lords was refused.