R (on the application of Bedford Land Investments Ltd) v Secretary of State for Transport

Compulsory purchase order – Objection – Inquiry – Claimant objecting to compulsory purchase and side roads orders affecting its land – Local authority withdrawing orders before defendant secretary of state held inquiry – Defendant refusing claimant application for costs order in respect of costs incurred preparing for inquiry – Claimant applying for judicial review – Whether statutory scheme providing for award of costs when inquiry not actually convened  The interested party local authority wished to construct a bypass within their area and made a side roads order (SRO) and a compulsory purchase order (CPO) providing, among other things, for the compulsory acquisition of rights over land belonging to the claimant to enable it to construct a junction as part of the new highways scheme. The claimant objected to both orders which were sent to the defendant secretary of state for confirmation. The defendant announced that an inquiry would be held into the confirmation of the orders. However, prior to the inquiry but after the claimant had incurred substantial costs in preparing to resist the compulsory acquisition of its land, the interested party withdrew the orders and the inquiry was cancelled. The claimant applied for judicial review of the defendant’s decision to refuse its application for an order that the interested party pay its abortive costs. The interested party had acknowledged that they would consider making an ex gratia payment but never did so. The claimant accepted that section 250(5) of the Local Government Act 1972, as applied by section 5 of the Acquisition of Land Act 1981, could on its face of be interpreted as meaning that the power to award costs only arose when an inquiry was actually held. However, it contended that, the relevant provisions were also capable of meaning that the power to award costs in favour of a party to a CPO inquiry existed whether or not an inquiry was convened and that meaning was to be preferred. Since the relevant provisions applied when an inquiry was caused to be held, the starting point for considering a costs claim was that the provision was engaged when the inquiry was caused to be held not when it was actually held. An inquiry was not confined to the oral exchange before an inspector. It included a process of written exchange of statements of case and evidence. The reference in section 250(5) of the 1972 Act to parties at the inquiry need not, as a matter of plain English, connote physical presence but could mean the parties to an inquiry which had been caused to be held. Held: The application was dismissed (1) Section 250(5) of the 1972 Act gave the secretary of state a discretionary power to make orders as to the costs of the parties at the inquiry. It was not a power which arose when the inquiry was caused to be held. As set out in section 250, an inquiry was opened, evidence heard and then closed. The preceding steps, as the rules made clear, were part of the process leading up to the inquiry but were not part of the inquiry itself. That meant that the phrase in section 250(5) “at the inquiry” meant physical presence or representation at a convened public inquiry. That was consistent with the statutory background, context and language in both the Local Government Act 1972 and the Acquisition of Land Act 1981. To hold otherwise would distort the ordinary use of the English language. (2) The statutory scheme under both the 1972 Act and the 1981 Act made it clear that an inquiry was to be held. The policy approach had been to enable successful objectors to claim their costs at inquiry but not before. The costs regime which applied to CPO inquiries was not one where costs followed the event. Once an acquiring authority had withdrawn a CPO there was no deprivation of property and no issues of compensation arose. The fact that there had been no deprivation of property meant that article 1 of protocol 1 of the European Convention on Human Rights was not engaged. Per curiam: It was with considerable regret, but without hesitation, that the court dismissed the claim. That was the consequence of the statutory scheme in force at the relevant time. It was reassuring to note that, as a result of the statutory amendments to section 5 of the Acquisition of Land Act 1981, parties were no longer placed in the unfortunate position as that in which the claimant had found itself. Richard Turney (instructed by Wragge Lawrence Graham & Co LLP) appeared for the claimant; The defendant did not appear and was not represented; Stephen Sauvain QC (instructed by Davitt Jones Bould) appeared for the interested party. Eileen O’Grady, barrister Click here to read transcript: Bedford v Secretary of State for Transport