Bushell v Secretary of State for the Environment

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLord Diplock,Viscount Dilhorne,Lord Edmund-Davies,Lord Fraser of Tullybelton,Lord Lane
Judgment Date07 Feb 1980
Judgment citation (vLex)[1980] UKHL J0207-1

[1980] UKHL J0207-1

House of Lords

Lord Diplock

Viscount Dilhorne

Lord Edmund-Davies

Lord Fraser of Tullybelton

Lord Lane

Bushell and Another
(Respondents)
and
Secretary of State for the Environment
(Appellant)
Lord Diplock

My Lords,

1

This appeal arises out of a local inquiry which lasted a hundred days into two proposed schemes made by the Secretary of State for the Environment ("the Minister") under section 11 of the Highways Act 1959, for the provision of two approximately 15-mile lengths of special road (i.e. motor-way) through rural areas to the south and south-east of Birmingham. I shall refer to these as "M42 Bromsgrove" and "M40 Warwick". They were intended to form an integral part of the national network of motorways when it is eventually completed and as part of that network catering for traffic between the north-west and south-east of the country and between the north-east and south-west.

2

The procedure to be followed by the Minister in making schemes under section 11 of the Act is to be found in Part II of the First Schedule. It is not necessary to set it out in detail; it suffices to say that paragraph 9 provides for the lodging of objections by persons appearing to the Minister to be affected by the proposed scheme and goes on to provide that if any such objection is not withdrawn "the Minister shall cause a local inquiry to be held". There is a discretion in the Minister to dispense with an inquiry if he is satisfied that circumstances exist that make it unnecessary; but that does not apply to the instant case. The local inquiry was held.

3

The Act itself says nothing more than this about the scope of the inquiry or the procedure to be followed at or after it, save that paragraph 10 provides:

"After considering any objections to the proposed scheme which are not withdrawn, and, where a local inquiry is held, the report of the person who held the inquiry, the Minister may make or confirm the scheme either without modification or subject to such modifications as he thinks fit."

4

So before reaching his decision the Minister must consider the objections, so far as not withdrawn, and the report of the inspector who held the local inquiry, before he makes up his mind whether to exercise his administrative discretion in favour of making the scheme either in its original form or with modifications or not making it at all; and section 12 of the Tribunals and Inquiries Act 1971 requires him to give reasons for his decision. At the time of the inquiry in the instant case no rules regulating the procedure to be followed at the inquiry had been made under section 11 of the latter Act. The Highways (Inquiries Procedure) Rules 1976 did not come into force until long after the inquiry in the instant case had closed. The Minister had, however, announced his willingness at local inquiries into proposed schemes for motorways to comply with those rules that were already applicable in case of compulsory acquisition of land by Ministers—The Compulsory Purchase by Ministers (Inquiries Procedure) Rules 1967. These are in substantially the same terms as the subsequent Highways Procedure Rules of 1976, but with one difference to which I shall be referring later.

5

My Lords, before I come to the specific complaints as to the procedure followed at the local inquiry and thereafter before the Minister's decision, which have been held by a majority of the Court of Appeal to justify quashing the Minister's decisions on the ground that the objectors were denied natural justice, I think that it is useful to give some general consideration to the scope and purpose of a local inquiry into a scheme for a motorway which the Minister himself proposes to make under section 11 of the Highways Act 1959, and also to the functions of the inspector by whom such an inquiry is held and of the Minister after the inspector's report has been received by him and before he has made his decision.

6

The provision and improvement of a national system of routes for through traffic for which a Government Department and not a local authority should be the highway authority has formed a part of national transport policy since the passing of the Trunk Roads Act in 1936. As part of this national network, or superimposed upon it, there have been constructed by stages during the course of the last thirty years special roads familiarly known as motorways which were first authorised by the Special Roads Act 1949. The construction of motorways is a lengthy and expensive process and it has been the policy of successive Governments, which would in any event have been dictated by necessity, to construct the network by stages. The order in which the various portions of the network are to be constructed thus becomes as much a matter of Government transport policy as the total extent and configuration of the motorway network itself. It also has the consequence that schemes for the provision of special roads which the Minister proposes to make under section 11 of the Highways Act 1959, deal with comparatively short stretches in a particular locality of what, when the other stretches are completed, will be integral parts of the national network. It follows, therefore, that there will be a whole series of schemes relating to successive stretches of the national network of motorways each of which may be the subject of separate local inquiries under Schedule 1, paragraph 9, to the Act.

7

A scheme made by the Minister under section 11 does no more than authorise the construction of the stretch of motorway to which it relates. It does not follow that the construction of that stretch will begin immediately or within any fixed time limit or, indeed, at all. Section 286 provides for its revocation or amendment by a subsequent scheme which may be made at any time either before or after construction has begun. Before construction can start however it will be necessary to make compulsory purchase orders in respect of the lands required for the motorway and its approach roads and these in turn are likely to be the subject of further local inquiries. So from the publication of the draft scheme to the actual construction of the stretch of motorway which is authorised the process is necessarily a long one in the course of which circumstances may alter and even government policy may change.

8

Where it is proposed that land should be acquired by a Government Department or local authority and works constructed on it for the benefit of the public either as a whole or in a particular locality, the holding of a public inquiry before the acquisition of the land and the construction of the works are authorised has formed a familiar part of the administrative process ever since authorisation by ministerial order of compulsory acquisition of land for public purposes began to be used to replace parliamentary authorisation by Private Bill procedure in the nineteenth century. The essential characteristics of a "local inquiry", an expression which when appearing in a statute has by now acquired a special meaning as a term of legal art, are that it is held in public in the locality in which the works that are the subject of the proposed scheme are situated by a person appointed by the Minister upon whom the statute has conferred the power in his administrative discretion to decide whether to confirm the scheme. The subject matter of the inquiry is the objections to the proposed scheme that have been received by the Minister from local authorities and from private persons in the vicinity of the proposed stretch of motorway whose interests may be adversely effected, and in consequence of which he is required by Schedule 1, paragraph 9. to hold the inquiry. The purpose of the inquiry is to provide the Minister with as much information about those objections as will ensure that in reaching his decision he will have weighed the harm to local interests and private persons who may be adversely affected by the scheme against the public benefit which the scheme is likely to achieve and will not have failed to take into consideration any matters which he ought to have taken into consideration.

9

Where rules regulating the procedure to be followed at a local inquiry held pursuant to a particular statutory provision have been made by the Lord Chancellor under section 11 of the Tribunals and Inquiries Act 1971, the Minister and the inspector appointed to hold the inquiry must observe those rules; but no such rules were applicable in the instant case—they had not yet been made. The Highways Act 1959 being itself silent as to the procedure to be followed at the inquiry, that procedure, within such limits as are necessarily imposed by its qualifying for the description "local inquiry", must necessarily be left to the discretion of the Minister or the inspector appointed by him to hold the inquiry on his behalf, or partly to one and partly to the other. In exercising that discretion, as in exercising any other administrative function, they owe a constitutional duty to perform it fairly and honestly and to the best of their ability, as Lord Greene M.R. pointed out in his neglected but luminous analysis of the quasi-judicial and administrative functions of a Minister as confirming authority of a compulsory purchase order made by a local authority which is to be found in B. Johnson & Co. (Builders) Ltd. v. Minister of Health [1947] 2 All E.R. 395 at pp.399, 400. That judgment contains a salutary warning against applying to procedures involved in the making of administrative decisions, concepts that are appropriate to the conduct of ordinary civil litigation between private parties. So rather than use such phrases as "natural justice" which may suggest that the prototype is only to be found in procedures followed by English courts of law, I prefer to put it that in the absence of any rules made under the Tribunals and Inquiries Act...

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