Evelyn 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 — Application to quash compulsory purchase provisions — Complaint by applicants in regard to the route proposed by the county council for a bypass road to relieve traffic through the town of Leighton Linslade — Proposed route would cross applicants’ land — Applicants 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 — These schemes had been rejected by the county council and the inspector at the public inquiry — The Secretary of State in his decision letter said that he ‘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 was submitted by the applicants that this showed an erroneous approach in regard to the question of onus — The onus was on the acquiring authority to justify the order depriving the applicants of their land — Held that the applicants’ submission was misconceived, being a criticism of the Secretary of State’s wording by way of an exercise in semantics — The Secretary of State, although expressing his view in a negative manner, was in substance approving the inspector’s conclusion that the route proposed by the council was the best solution in the public interest — The recognised grounds of challenge were those mentioned in Ashbridge Investments Ltd v Minister of Housing and Local Government and Associated Provincial Picture Houses Ltd v Wednesbury Corporation, and these were not in issue here — A technical amendment in the notice of motion was allowed to conform with section 23 of the Acquisition of Land Act 1981 — Application 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 Gordondale Investments Ltd v Secretary of State for the Environment (1971) 23 P&CR 334; 70 LGR 158; [1972] EGD 72; 221 EG 625, CA Hanily v Minister of Local Government and Planning [1951] 2 KB 917; [1951] 2 All ER 749; (1951) 49 LGR 769; 2 P&CR 161, CA Prest v Secretary of State for Wales (1982) 81 LGR 193; [1983] EGD 282; 266 EG 527, CA This was an application under section 23 of the Acquisition of Land Act 1981 with a view to quashing the authorisation for the compulsory purchase of land owned and occupied by the applicants contained in the Bedfordshire County Council (Leighton Linslade Southern Bypass) CPO (No 2) 1985. The applicants were Evelyn de Rothschild and Eranda Herds Ltd. The first respondent was the Secretary of State for Transport and the second respondents were Bedfordshire County Council. Jeremy Sullivan QC and B Ash (instructed by Horwood & James, of Aylesbury, Bucks) appeared on behalf of the applicants; John Laws (instructed by the Treasury Solicitor) represented the Secretary of State; C George (instructed by the county secretary and solicitor, Bedfordshire County Council) represented the council. Giving judgment, MANN J said: In this case Mr Jeremy Sullivan QC on behalf of Mr Evelyn de Rothschild and Eranda Herds Ltd seeks to quash the authorisation of the compulsory purchase of land owned and occupied by the applicants conferred by the Bedfordshire County Council (Leighton Linslade Southern Bypass) CPO (No 2) 1985. The order was made by the county council in its capacity as a highway authority and in the exercise of powers conferred by sections 239, 240, 246 and 250 of the Highways Act 1980. The confirming authority in regard to that order was the Secretary of State for Transport (see Act of 1980, sections 247(1), (2) and 329(1); also the Acquisition of Land Act 1981, section 2(2)). Objections to this confirmation were made by (among others) the applicants and accordingly a public local inquiry was held by an inspector appointed for the purpose (see Act of 1981, section 13(2)). After considering the inspector’s report the Secretary of State on November 26 1986 wrote that he had decided to confirm the order. The present application purports to be made under section 23 of the Act of 1981. The significance of ‘purports’ will appear. The compulsory purchase order (together with a side roads order and a bridge order) would enable the county council to construct a much-needed southern bypass to the town of Leighton Linslade, which lies on the heavily trafficked Thame-Stevenage corridor. The applicants objected to the route of the bypass as proposed by the county council in so far as it crossed their land at Ascott Farm. The applicants put forward four alternative schemes which they argued were superior on engineering, agricultural and environmental grounds. All four were upon land owned by the applicants which the applicants offered to sell at valuation. The inspector in his report dated July 5 1986 was not attracted by the applicants’ case. At para 196 he wrote: 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 route 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. This passage was faithfully summarised in the decision letter at para 14 as follows: 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. It is at para 17 of the decision letter that the issue arises upon which the parties debate. It is in these terms: 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 sufficient12 advantages or benefits which would justify its adoption in place of the scheme as proposed by the County Council. Mr Sullivan submits that in those last words is to be found a wrongdoing by the Secretary of State in that he has placed on the applicants the onus of showing that their alternatives (or any of them) had advantages over the promoted route whereas the onus is ever on the acquiring authority to show that its route had advantages which were so decisive as to warrant confirmation of the compulsory purchase. Mr Sullivan referred me to two authorities. The first in time was the decision of Forbes J in Brown v Secretary of State for the Environment (1980) 40 P&CR 285. At p 291 the learned judge said: 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. The second authority was the decision of the Court of Appeal in Prest v Secretary of State for Wales (1982) 81 LGR 193. At p 198 Lord Denning MR said: 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. This principle was well applied by Forbes J in Brown v Secretary of State for the Environment (1978) 40 P&CR 285, where there were alternative sites available to the local authority, including one owned by them. Watkins LJ said at p 211: 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 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. Fox LJ 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. One of the elements in the total cost was land acquisition cost. I am not satisfied that the Secretary of State had adequate material to judge the latter cost when he made his decision. I was also referred to the departmental circular (Department of the Environment 6/85) which gives guidance on compulsory purchase and which in para 7 advised that proposals should not be made ‘unless there is a compelling case in the public interest’. In the light of the authorities and (for what it is worth) of the circular, Mr Sullivan submits that the Secretary of State’s approach in para 17 flaws the decision because of the error as to onus. That the onus was upon the acquiring authority was, he submitted, a legal principle which had here been transgressed. Mr Laws for the Secretary of State (whose submissions were adopted by Mr George for the county council) denied that there was any such principle. The power to confirm or not to confirm was in its exercise to be judged as is any other exercise of a discretionary power and is subject to no special rule. I was referred to Ashbridge Investments Ltd v Minister of Housing and Local Government [1965] 1 WLR 1320 where, in regard to a challenge to a compulsory purchase order’s confirmation, Lord Denning MR said at p 1326F: 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 decision of a lower tribunal which has erred in point of law. Here are to be found the conventional grounds of challenge and in particular the grounds which derive from Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. I do not regard the Prest case or the Brown case as being other than examples of challenges on those grounds. In the Prest case there was a failure to take into account a relevant factor, that is to say the cost of acquiring the subject land. Thus, Lord Denning MR at p 202: . . . 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. It would probably have made a crucial difference because, even at that date in 1978, there was a potential of development for industrial use which would have given a considerable ‘hope’ value to the CPO site. The Secretary of State ought to have had regard to this point — in the public interest — even though it was not canvassed by the parties at the inquiry. In any event he ought to have considered it — after receiving the letter of October 20 1978 — and asked for evidence of values before coming to his decisions. If he had considered it, the only reasonable conclusion would be that the compulsory purchase order would not have been confirmed. The Brown case is an example of what now would be regarded as perversity, for at p 291 I find in the passage I have already recited the words ‘no reasonable Secretary of State faced with that fact could come to the conclusion’. In the instant case there is no perversity nor is there any suggestion of disregard of a relevant consideration. The inspector concluded in para 196 of his report that the order route was the best in the public interest and at para 20 of the decision letter the Secretary of State expressed his agreement with that (among other) conclusion. The use of the negative in para 17 whereas the positive could readily have been employed is not in my judgment a vitiating factor. Once the true and only grounds of challenge are identified the usage seems to me to be criticisable only by way of an exercise in semantics (see Gordondale Investments Ltd v Secretary of State for the Environment (1971) 23 P&CR 334 at p 340). For the reasons given I dismiss this application. However, I must return to my observation that the application purports to be made under section 23 of the Act of 1981. The notice of motion is headed as follows: IN THE MATTER OF THE HIGHWAYS ACT 1980 THE ACQUISITION OF LAND ACT 1981 . . . BEDFORDSHIRE COUNTY COUNCIL (LEIGHTON LINSLADE SOUTHERN BYPASS) COMPULSORY PURCHASE NUMBER TWO ORDER 1985 . . . The body reads: TAKE NOTICE that the High Court of Justice, Queen’s Bench Division at the Royal Courts of Justice, Strand, London WC2A 2LL will be moved at the expiration of 35 days from the service upon you of this Notice or so soon thereafter as Counsel may be heard by Counsel on behalf of the above named Applicants for orders that: 1. The decision of the First Respondent contained in a letter dated the 26th November, 1986, confirming the above-mentioned orders and scheme made by the Second Respondent be quashed. The intention is I think plain, but Mr Laws and Mr George submitted that there was here a defect in that section 23 (which alone is the source of the court’s jurisdiction) does not permit of a challenge to a ‘decision’. The complaint could readily be met by moving the words ‘The decision of the First Respondent contained in a letter dated November 26 1986, confirming’ to the grounds of the application so that they would read ‘The decision of the First Respondent contained in a letter dated November 26 1986 is not within the powers of the Act in that . . .’ and then as in the original. Mr Laws (at least initially) and Mr George argued that there was no power to allow an amendment now in that so to do would transgress the rule that an application under section 23 must be made within six weeks from the date on which notice of confirmation is published (section 23(4)(b)). Prior to the expiration of the period it is accepted that there is power to amend (see RSC Ord 20, r 5 and r 7). Does the lapse of time make any difference?  In this case I think not. It was, as I have said, plain what the applicants were seeking: they were raising the point that the authorisation was not empowered to be granted by the Act. This they did, albeit infelicitously, within the six-week period. In that circumstance I have jurisdiction to allow the amendment (see Hanily v Minister of Local Government and Planning [1951] 2 KB 917) and in order that the notice of motion should be in proper form I allow the amendment. 13 I should add that although the attack on the order was in general terms it was narrowed during the hearing and in response to an undertaking by the county council to so much of the order as directly affects the land of the applicants. The application was dismissed with costs incurred by the Secretary of State only.