Nicholson & Another v Secretary Of State For Environment & Ors [1996] EWHC Admin 393 (20 December 1996)

Friday, 20th December 1996

MR JUSTICE SCOTT BAKER: The applicants move to quash a number of decisions of 12 October 1995 of the Secretary of State for the Environment and the Secretary of State for Transport arising out of the proposed construction of Stage II of the Avon Ring Road. The Secretary of State for the Environment is the first respondent; the Secretary of State for Transport is the second respondent. The third respondent is the Avon County Council, but it has taken no part in the proceedings before me.

There were, in the notice of motion, seven decisions that the applicants sought to quash, six now remain because that relating to Section 22 of the Commons Act 1899 is no longer pursued. The six remaining are as follows :

(i) C.P.O. by second respondent (paragraph 2 Notice of Motion)
(ii) Side Roads Order by second respondent (paragraph 2 Notice of Motion)
(iii) Exchange Land Certificate under section 19(1)(a) of the Acquisition of Land Act 1981 relating to common land (paragraph 1A Notice of Motion)
(iv) Certificate, under paragraph 6(1)(a) of Schedule 3 to the Acquisition of Land Act 1981 relating to common land in the C.P.O, by first respondent (paragraph 1C Notice of Motion)
(v) Exchange Land Certificate relating to open space in the C.P.O, under section 19(1)(a) of Acquisition of Land Act 1981. (paragraph 1D Notice of Motion)
(vi) Certificate under paragraph 6(1)(a) of Schedule 3 to the Acquisition of Land Act 1981 relating to one open space plot in the C.P.O. (paragraph 1E Notice of Motion)

The applicants seek to quash the decision on all six matters and contend that all the decisions are interdependent so that if one fails all fail. The respondents refute this. At the heart of the application lies the compulsory purchase order (item (i) above) which is the authority to purchase the many areas of land required for this stage of the Avon Ring Road. The County Council want to construct Stage II of the Avon Ring Road east of Bristol that is from the B 4465 Shortwood Northern link, running as a dual carriageway generally south-westerly for some 2 kilometres along the route of the former Gloucester and Bath railway line to a proposed roundabout junction near Siston Hill, and thence south for about a further 1 kilometre across Siston Common, bordering a residential estate, to an existing roundabout junction on the A 420 at Warmley, which marks the beginning of stage III of the Ring road, completed in 1993. On completion, Stage II of the Ring Road would be designated the A 4174, forming part of the existing Avon Ring Road, and equally of the Primary Route Network. A helpful plan is provided at B.64

Following a public inquiry held by an inspector, Mr.D.M.Woodford CBE, the various Orders and Certificates that I have mentioned were confirmed and granted by the first and second respondents.

Mr.Timothy Corner on behalf of the applicants takes, essentially, three points.

1. The second respondent erred in law in confirming the C.P.O. and Side Roads Order because of his treatment of the issue of induced traffic.
2. The first respondent's decision to grant Exchange Land Certificate under Section 19 of the Acquisition of Land Act 1981 (the 1981 Act) was unlawful.
3. There were inadequacies in the notices of (i) the C.P.O, (ii) the Public Inquiry and (iii) the Exchange Land Certificate which rendered the various Orders and Certificates invalid.

I shall take the points in turn.

1. Induced Traffic

Evidence as to the economic evaluation of the proposed scheme formed an integral part of the case for the third respondent at the enquiry. An economic evaluation was put forward by the third respondent to the inspector. It was the third respondent's case that using the COBA 9 evaluation, the scheme would have a Net Present Value of between £1.8M and £2.4M, giving a Benefit/Cost ratio of between 1.28 and 1.38, that is a distinct positive economic value.

COBA is a computer programme prepared by the Department of Transport to assess the benefits of road building schemes. It is used for trunk roads, and assessments which are compatible with COBA have to be produced for local authority schemes if the authority wishes to receive a government grant. Such a grant is being sought for the Avon Ring Road. COBA uses traffic predictions to assess the time savings and accident savings from building a road scheme. It also assesses any change in the vehicle operating cost, although this is often marginal. The savings tend to dominate the benefits. The savings from the scheme are converted into money values using standard national rates. The total for each year is added together, but with the benefits in future years discounted at the rate of 8% per year. The purpose of discounting is to reflect (i) uncertainty in the future and (ii) acceleration of future benefits to the present. The life of the scheme is assumed to be 30 years. The result of this exercise is to come up with a figure for "present value of benefits". The cost of constructing the scheme is deducted from this leaving a Net Present Value. Inevitably the calculation is a somewhat imprecise exercise, but it does create a yardstick against which road planners are able to measure any environmental damage or benefits. It is also regarded as an important factor in the assessment of grants by Central Government. In his affidavit Mr.Buchan, an independent transport planning consultant, says that the Net Present Value is the key to justifying any road scheme. The inspector said he considered the economic assessment in this case satisfactory whilst noting the doubts expressed by some objectors to the COBA 9 system.

The third respondent's economic evaluation did not take account of the effect the new road might have in itself generating traffic. Such traffic is known as "induced traffic". In May 1994 the Standing Advisory Committee on Trunk Roads Assessment ("SACTRA") submitted a report to the government on trunk roads and the generation of traffic. Although the government received the report in May 1994, it did not publish it until 19 December 1994 when it did so with new guidance (Circular 1/95) for the assessment of trunk road schemes. The dates are of some importance. The public inquiry was held between 11 October 1994 and 4 November 1994 and the inspector submitted his report to the first two respondents in February 1995. In the meantime, of course, the SACTRA report had been published. The decisions complained of were not made by the first and second respondents until October 1995.

The SACTRA report concluded that induced traffic can and does occur, probably quite extensively, although the size and significance is likely to vary widely in different circumstances, and that much more emphasis needed to be placed on the strategic assessment of trunk roads within a corridor or regional or urban context. It said it recognised its recommendations would require the most radical changes in the traffic and economic appraisal of trunk roads since the development of COBA in the early 1970's. It did not think that continuing to appraise solely at the scheme level using the fixed demand approach was either intellectually or, in practical terms, acceptable.

In a press release accompanying publication of the SACTRA report the government said :

"SACTRA found no conclusive evidence on how different types of behaviour (changes in destination, changes in timings, new journeys etc) contributed to extra traffic. But on the basis of the evidence and the probabilities their view is that there is likely to be a significant proportion of schemes where there is a real possibility of extra traffic.

The Department accepts these conclusions. Its road scheme methodology already acknowledges the point. Although the report is consistent with our long standing view that new schemes do not generate a significant number of trips which are entirely new, the overall amount of traffic in the network may in some cases rise by more than is usually allowed for under current appraisal methods. Revised guidance is being issued to the Highways Agency. For national road schemes in preparation, the likely significance of induced traffic will be assessed in every case and, as appropriate, the best currently available methods will be used to take account of induced traffic effects in scheme appraisal."

It then concluded :

"The Department believes it can be very difficult to do the more elaborate traffic and economic analysis in a way that provides useful results. Further research and other work will be undertaken."

The applicants' solicitors wrote to the Department of Transport about the SACTRA report who responded on 11 July 1995 saying it was policy to apply the SACTRA approach to all trunk road schemes at the Planning Stages, up to the start of works. Should the work call into question a scheme's justification, the scheme proposals and its inclusion in the Road Programme would be reversed. The letter went on :

" For schemes which are post-inquiry, but within the statutory processes, the Secretaries of State for Transport and the Environment will consider the potential for induced traffic in coming to a decision on orders for schemes whose inquiries have closed. In the light of this, where there is new evidence or matters of fact that are material to the decision, they will invite further representations from the parties. They will consider re-opening the inquiry as necessary in the light of any representations received. Otherwise they will consider the issue of induced traffic alongside the Inspector's report in reaching their decision."

Two months earlier, in May 1995, the second respondent had issued Local Authority Circular 2/95 which said in a section headed "Major Road Schemes" that although the report was focused on trunk roads, it was logical for the findings and recommendations to be applied to local roads. Local Authorities would therefore be expected to take account of the Department of Transport guidance in assessing their major schemes. There is no doubt therefore that the government accepted the application of the findings of the SACTRA report to roads such as Stage II of the Avon Ring Road.

Under the circumstances we call upon you to refuse the Orders before you. If you are not minded to do so, then we say it is expedient for you to weigh the matter by way of public inquiry, and we ask you to re-open an inquiry to hear it."

On 12 October the second respondent issued his decisions, probably without sight of the first applicant's letter of the previous day. The letter of 11 October was acknowledged on 20 October, the writer saying that having confirmed the orders on the 12 October the second respondent had no further jurisdiction and was unable to comment further.

In his decision letter the second respondent referred to SCRAPPIT's letter of the 27 September and said at paragraph 109

"The Secretary of State has considered the correspondence from "SCRAPPIT." Whilst he notes that the group contest the Council's Traffic and Economic Evaluation for the scheme he his satisfied that this would not have undermined the Inspector's conclusion that a need for the proposed Stage II scheme has been clearly established. There is nothing raised in this correspondence which causes him to disagree with the Inspector's recommendation that the Orders should be confirmed."

The Inspector had said in the conclusion to his report at paragraph 37.1

"The need for the proposed Stage II of the Avon Ring Road is clearly set out in the County Council's main evidence: I note in particular the extensive public consultation process undertaken, which included local authorities, emergency services, public utilities, Government Departments and many other organisations and individuals. I further note the County Council's adoption of the approved route, inclusion of the proposed Stage II scheme in the County Structure Plan, in the TPP submissions, and in its Transport Plan for Avon; it also figures in the Kingswood Local Plan, and is supported by Siston Parish Council. It would enable the developments planned at Emersons Green and its associated residential, business, and science parks to be fully implemented. The existing traffic pressure on unsuitable - mainly residential - roads in Kingswood, Mangotsfield, Siston Common and Warmley is serious and detrimental, and would be relieved by the proposed scheme. Planning permission for the construction of Stage II has been secured following normal statutory procedures. Taken altogether, these facts and processes show that the detailed requirements for the proposed scheme have been thoroughly examined, both before and during these Public Inquiries, and I consider the need for the proposed Stage II of the Avon Ring Road has been convincingly established."

He added in the next paragraph that many of the objectors supported the proposed scheme in principle whilst taking issue with various of its specific applications. A little later he said that the major investment already made would not be fully realised without the completion of Stage II.

The applicant's case is advanced as follows. In the light of circulars 1/95 and 2/95 and the correspondence, the effect of induced traffic on the economic appraisal of Stage II of the Ring Road was a highly material consideration which the second respondent had to take into consideration before reaching his decision. Furthermore, the applicants had a legitimate expectation that the second respondent would take the effect of induced traffic into account, having regard to the second respondent's published policy to which I have referred above. This policy clearly applied not just to trunk roads but to roads of this nature. SACTRA, says Mr.Corner, was a highly important report on a highly important issue. The second respondent should have invited further representations or reopened the inquiry or at least have considered doing so. Mr.Corner did not suggest that induced traffic was the only material consideration for the second respondent or that only schemes with a positive N.P.V. were acceptable. But economic assessment was a crucial element in the overall assessment and that which had been advanced by the third respondent was now shown to have been flawed. In the circumstances the Secretary of State had acted perversely and irrationally. He had disregarded his own policy. He should at the very least have waited for the full MTRU report or have said that if he did not receive it within a given time he would issue his decision.

Mr.Corner relied on R v Secretary of State for the Home Department ex p Ruddock [1987] 1 WLR 1482 in support of his contention that in the light of the correspondence his clients had a legitimate expectation that the approach mentioned there under would be applied. He also referred to Gransden v Secretary of State for the Environment 54 P and CR 86 where Woolf J, as he then was, said at P 94 :

" The fact that a body has to have regard to the policy does not mean that it needs necessarily to follow the policy. However, if it is going to depart from the policy, it must give clear reasons for not doing so in order that the recipient of its decision will know why the decision is being made as an exception to the policy and the grounds upon which the decision is taken."

Mr.Corner went on to argue that the second respondent in reaching his decision had left out of account a material consideration - namely that, as set out in SCRAPPIT's letter of 27 September 1995, the scheme had a negative N.P.V. and had costs greater than the benefits. However, I do not think such a conclusion is justified. Paragraph 68 of the decision letter makes specific reference to the SCRAPPIT letter and its mention of the "extreme negative economics of the scheme."

Next Mr.Corner argued it was fundamental to the Inspector's conclusion that there was a need for Stage II, that the economic appraisal was positive. There was no rational basis on which second respondent could be satisfied the Inspector's conclusion as to need would not have been undermined by SCRAPPIT's letter. It was proceeding on the groundless assumption of what the Inspector might have thought if he had had SCRAPPIT's letter in front of him.

Finally Mr.Corner referred to the Highways (Inquiries Procedure) Rules 1976 and the Compulsory Purchase by Non Ministerial Acquiring Authorities (Inquiries Procedure) Rules 1990 . There is an obligation on the second respondent, he says, to give reasons for his decisions. The submission by SCRAPPIT was a material consideration on a matter of fundamental importance to the outcome of the inquiry. The decision is unintelligible in that it is unclear whether the second respondent accepted or rejected the contention that the scheme would have a negative N.P.V, and if he rejected it why he did so. He refers to the observation of Lord Bridge in Save Britains Heritage v Secretary of State [1991] 1 WLR 153 at 166H that reasons should be: " proper, intelligible and adequate."

The main thrust of the argument of Mr.Holgate who appeared for the first and second respondents was that induced traffic, although it did not rear its head until after the inspector had reported to the Secretary of State, was but a small factor in relation to the decision whether or not to confirm the C.P.O. and the Side Roads Order. True, this was a new point that came late on to the scene but the COBA analysis was only one element of the justification for the scheme. There were many other factors to which much greater importance was attached by the inspector, especially the need for the scheme, which he set out in the conclusion to his report. The Secretary of State did take into account SCRAPPIT's letter of 27 September 1995 and in truth it made no difference. The scheme had to go ahead.

It is, in my judgment, important to read carefully both the whole of the inspector's report and the whole of the decision letter in order to see the induced traffic point in perspective. The following points emerge. First, the scheme was needed to fill a gap in the Ring Road between the M.32 and the A.4. The Ring Road is part of the Primary Road Network and crucially important to the Structure Plan in general and to the development of Emerson's Green in particular. Second, the scheme is in the Local Plan and has planning permission. There are heavy traffic flows on unsuitable roads in residential areas adjoining the scheme which would be greatly relieved by the scheme. The scheme would enable environmental improvements to go ahead. Third, when complete the Ring Road would improve access from southern Bristol to motorways, reduce traffic in residential and shopping areas, improve road safety and provide a series of bypasses. Fourth it would create a better environment for Siston Common. Fifth, the benefits of Stages I,III and IV cannot be fully realised without the implementation of Stage II. Sixth the strategy of the Local Plan is to locate development on the edge of the urban area, including Emerson' Green. This is heavily dependant on Stage II of the Ring Road. Seventh, there is strong support for Stage II coming from many quarters including, in some instances, objectors to specific aspects of it.

The decision letter, like the inspector's report, goes into matters in some detail. It notes the post inquiries correspondence (which includes the SCRAPPIT letter of 27 September, to which detailed reference is made) and says the Secretary of State is satisfied that the matters raised would not have been sufficient to alter the weight given to the Inspector's conclusions.

Mr.Holgate was able therefore to make the following forceful submissions.

2. The Exchange Land Certificate

The issue here is whether for the purposes of Section 19 of the 1981 Act plots 89A,B,C and D should have been treated as exchange land for open space being acquired under the C.P.O. The applicants contend they were already open space.

Section 19(1) of the Act provides:

"In so far as a compulsory purchase order authorises the purchase of any land forming part of a common, open space ......the order shall be subject to special parliamentary procedure unless the Secretary of State is satisfied :-
(a) that there has been or will be given in exchange for such land, other land, not being less in area and being equally advantageous to the persons, if any, entitled to rights of common or other rights, and to the public, and that the land given in exchange has been or will be vested in the persons in whom the land purchase was vested, and subject to the like rights, trusts and incidents as attached to the land purchased......"

Section 19(4) provides that:

"open space" means " any land...... used for the purposes of public recreation....."

The Inspector said at paragraph 6.6 of his report :

"The Exchange Public Open Space Land is exactly equal in area to the Order Land - i.e. 2.45 hectares - and part is very similar in character to the Order Land; the rest borders the Common and existing Public Open Space, and would enhance it."

It is helpful to look at the plan at B.56. Plots 89A,B,C, and D are part of the exchange land. They are coloured green. Plot 89 is coloured blue and threads its way more or less through the middle of those plots. It is not exchange land, but is land that is being used as a cycle path. The remainder of the exchange land is some distance away in the Siston Common area. It is plot 41. It too is coloured green. This plot covers the majority, by area, of the exchange land. The land coloured orange is what is being acquired as open space.

The question is whether plots 89A,B,C and D are capable of falling within section 19 as exchange land. Mr.Corner for the applicants argues not, because they already have the characteristics of open space as defined by Section 19(4), in that the public already has access to them for the purpose of public recreation. The plots in question run along the dismantled railway line (Mangotsfield Branch).

The cycleway (plot 89) is constructed on land which was acquired by the third respondent from the British Railways Property Board for the purpose of the construction of the scheme and its associated works. Following agreement in principle for the purchase of the land, permission was given to Sustrans, a charity specialising in the construction of footpaths and cycleways, to construct a cycleway between the site of Mangotsfield Station and Coxgrove Hill, pending construction of the scheme. The permission was given on the understanding that the length affected by the scheme would later be rerouted as part of the scheme. The third respondent thought it would be unreasonable not to allow the use of this land for a cycleway pending construction of the scheme. The use of the cycleway is permissive and permission for the public to use it may be withdrawn at any time. The evidence is undisputed that the public were in fact using plots 89A,B,C,and D.

Neither of the applicants raised the point about exchange land at the inquiry. This was done by Mr.C.J.Hutt of the British Cycling Campaign.

The Inspector rejected his argument saying at paragraph 40.11 of his report that he considered a permanent public right of way status to be clearly more advantageous to the users than permissive informal rights. He accepted the third respondent's case that: "the Mangotsfield Branch Exchange Land is not currently available for public use by right; its present informal use would be regularised under the proposed scheme and various significant improvements - e.g. re-surfacing and other works - would be put in place."

The first applicant, notwithstanding that he had not raised the matter at the public inquiry, took up the question of plots 89A to D with the first and second respondents in a letter of 27 September 1995. But the Secretary of State agreed with the inspector.

Mr.Holgate argues that the applicants in their evidence are seeking to raise and argue factual details about the extent of public access to the exchange land. But I think the position is clear enough for present purposes. True the cycle path running along plot 89 is not itself part of the exchange land, but plots 89A to D which border it do form part of the exchange land. It is clear that the public has de facto access to plots 89A to D, albeit the precise extent to which it is exercised is unclear.

Mr.Corner relies on R v Doncaster M.B.C. ex p Brain 85 L.G.R. 233. That was a case that concerned the meaning of "open space" in the context of Section 123 (2A) of the Local Government Act 1972 . Doncaster Council owned 190 acres of common. It had been used for public recreation since at least 1860. The best known use for part of it was as a racecourse. The Council wanted to let a small piece of the common to a golf club to build a new clubhouse. Section 123 (2A) said they could not dispose of any land consisting or forming part of an open space unless they gave special notice in advance of their intention to do so in order that any objections might be considered. The definition of open space was the same as in the present case, the relevant words being " land used for the purposes of public recreation" McCullough J. held that the use by the public did not have to be as of right provided it was lawful.

"What quality of user "for purposes of public recreation" is required before the land is "open space" for the purpose of S.123 (2A) of the Local Government Act 1972, as amended ? Mr.Whybrow contends that it must be as of right i.e. that use under a bare licence will not suffice. He suggests that any other construction would be absurd and inconvenient. I do not agree. Section 123 (2A) appears to have been enacted to protect the interests of those lawfully using open spaces. A bare licensee has no interest in land, but so long as his license exists he has something which he can enjoy. It can only be brought to an end on giving him reasonable notice. In many cases such notice need only be very short, but it is possible to envisage circumstances in which a significant period would be required. When a licence has been given, there is no hardship or absurdity in a council having to choose between postponing their disposal of the land until such notice has been given and expired and, alternatively, advertising the intended disposal in the way required."

Whilst it is true that both the Doncaster case and the present case were concerned with the same definition of "open space", McCullough J. was not considering what constituted exchange land. He was considering whether notice ought to have been given under Section 123(2A) of the Local Government Act 1972. In any event what McCullough J. said was obiter because he decided the case on the basis that the public's use of the land was not only lawful but as of right. Here the court is concerned with Section 19 of the 1981 Act and what is a fair swap. The fact that the public has access or some public rights of way does not, argues Mr.Holgate, prevent the land being exchanged. It is a question of fact and degree.

The third respondent could terminate the licence at any time and, on Mr.Corner's argument, the land would immediately qualify as exchange land.

A further point is that the wording of Section 19 does not rule out as exchange land land which already falls within the definition of open space. The critical words in Section 19 seem to me to be "not less in area and equally advantageous".

I find the decision of Hutchinson J. in Greenwich L.B.C. v Secretary of State for the Environment ,etc [1994] JPL 607 (better known as the Oxleas Wood case) helpful with regard to Section 19. He accepted the submission (see p.628) that consideration of equal advantage to the public necessarily involves balancing the advantages of one parcel of land against those of another, but only those features which bore on the use or enjoyment which the public derived from it.

Limited rights that may be terminated at any moment do not equate with the permanent rights of enjoyment to be given in respect of the order land in the present case. The Minister was in my judgment entitled to grant an exchange land certificate and
48. I am unable to detect any error of law.

and the Secretary of State's certificate, quickly removed. My conclusion is that the fact there is already permissive use of the exchange land that will become use as of right does not prevent it from being exchange land within the meaning of Section 19.

By his amended notice of motion Mr. Corner attacks three notices as being inadequate. The first is the notice of the making of the C.P.O. This is at A 293 and is required to be given by section 11 of the 1981 Act . The second is the notice of public inquiry into the C.P.O. This is quite separate and is required to be given under the Compulsory Purchase By Non-Ministerial Acquiring Authorities (Inquiries Procedure) Rules 1990. It is at A 294. The third is the notice of intention to grant the exchange land certificate under Section 19 (2) of the 1981 Act . It is at B 123.

Mr Holgate rightly points out that the three notices were issued separately under different statutory provisions and must be considered separately.The relevant provisions are:

(1). C.P.O. Notice

Section 11 of the 1981 Act provides:

"(1) The acquiring authority shall..... publish a notice in the prescribed form in one or more local newspapers, circulating in the locality in which the land comprised in the order is situated.
(2) The notice shall........
(b) describe the land......
(c) name a place within the locality where a copy of the order and of the map referred to therein may be inspected and
(d) specify the time......within which, and the manner in which, objections to the order shall be made."

(2) Public Inquiry .

Paragraph 11 (7) of the Rules provides:

" A notice of inquiry ..... shall contain a clear statement of the date, time and place of the inquiry, and of the powers under which the order has been made, together with a sufficient description of the land to identify approximately its location without reference to the map referred to in the order."

(3).Exchange Land Certificate

Section 19(2) provides:

" Where it is proposed to give a certificate under this section, the Secretary of State shall direct the acquiring authority to give public notice of his intention to do so, and..... the Secretary of State may ....... give the certificate."

Section 19(2A) provides that the certificate shall be given in such form and manner as the Secretary of State may direct. However, he had given no such directions by the material date.

Mr.Corner's main point, which he says applies in all three instances is that the land in question was insufficiently identified for members of the public to realise that it was the Bristol to Bath railway path that was affected. he relies on Wilson v Secretary of State for the Environment [1973] 1 WLR 1083 in support of the proposition that a notice has to be in such terms as are fairly and reasonably necessary to enable members of the public in the area of land affected to appreciate they are interested and to make representation as they think fit. He refers in particular to Browne J. at 1093E where he said in relation to the notice in that case:

"That notice, I think would clearly convey to anybody who read it that the Secretary of State intended to give a certificate in respect of some land and was inviting objections. The only question, I think, is : What land ? I accept that if someone read the whole notice carefully he would realise that it might well refer to this land, and that if he took the trouble to go and look at the plan at the Council Offices he would see that it did refer to this land, but in my judgment the man on the Midland Red omnibus cannot reasonably be expected to read the whole of every public notice which appears in the local papers. In these two issues of the newspapers which are before me there are a large number of notices covering a large part of two pages in each newspaper. The heading, therefore, I think is of paramount importance, even though there is no statutory requirement and no requirement under any regulation that any particular form of heading must be used."

Browne J. went on to say at 1092E that you have to look at the notice through the eyes of an imaginary member of the public familiar with the area, neither on the one hand a trained lawyer or a councillor or a local government officer nor, on the other, someone unusually stupid or careless.

Mr.Corner's main point is that what the notices did not tell the reader was that the land involved was the Bristol and Bath Railway path and the Avon Cycleway. Instead, there is reference to "dismantled railway," a term used in ordinance survey maps for areas of land other than the subject of these proceedings. The first applicant raised this in correspondence with the first and second respondents from July 1995 onwards. Mr.Holgate points out that no complaint about public notification was made at the inquiry. Had the point been taken the Inspector could have considered it and, if necessary, adjourned for further public notification. The Secretary of State considered the complaint in his decision letter and concluded that the effect on the path had been adequately advertised. Interestingly, the applicants do not allege that they have been misled by the notice. I have seen no evidence that anyone, allegedly misled by not appreciating the effect of the C.P.O, or the exchange land certificate, would have raised a substantive issue not raised by someone else.

The public notices followed the descriptions in the CPO itself. They also referred to the Ring Road, the locality, local roads and junctions, O.S. field numbers and a dismantled railway. There was no legal requirement to make specific reference to a cycle path on the affected land. Anyone looking at the notice would see reference to where the C.P.O. and map could be inspected.

There is, I think, considerable force in Mr.Holgate's further point that the complaint should be seen in the context of the considerable consultation that had already taken place in preparing the statutory development plans, considering the choice of route and obtaining planning permission. Finally, notices were placed at or near the path as described by Mr.Iles in his affidavit.

The first applicant exhibited a number of letters in support of his contention that other members of the public have been misled by the notices. These were , as I have already observed, all post the inquiry. Furthermore, they were all addressed to the first applicant, Mr.Nicholson, rather than the Secretary of State. There appears to be a difference of judicial view between Forbes J. in Wilson and Willis J. in Meechan v Secretary of State for the Environment 1974 232 E.G.201 whether an objector can claim prejudice through lack of support from others who were misled by or did not see the notices. Unless I conclude that one or more of the notices in this case was inadequate this is not a disagreement into which I need embark.

I now turn to the three notices individually.

Section 11 C.P.O. Notice .

This required notification of all the plots in the C.P.O. The obligation was to notify the C.P.O. project as a whole. The Bristol to Bath Railway path was but a part of it. The first applicant exhibited a number of maps to his affidavit of 17 October 1996 to illustrate his argument that the reference to dismantled railway in the notice was misleading and that there is "no way in which even an informed member of the public would have been able to identify the location of the plots." I disagree. Taking into account all that had gone before, in my judgment a local resident would who knew the area would have no difficulty in identifying the land concerned. At the very least he would be put on notice to go and look at the order and accompanying map in one of the places specified. I am satisfied that the reference to "dismantled railway" would not have misled the ordinary member of the public conversant with the locality. There is no breach of the section.

The Public Inquiry Notice

It is important to go back to what is required by paragraph 11 (7) of the Inquiry Rules. the purpose of the notice is to tell the reader about the inquiry, when and where it is to take place. The description of the land has to identify approximately where it is, without reference to the map referred to in the order. As Mr.Holgate says, the public are being put on notice that there is something of concern to them. There will have been earlier notices, not of course of the inquiry but of matters preceding it such as the C.P.O. The public inquiry notice is concerned with the whole of the order land.

Mr.Corner says that although the term "public open space" is used, it is insufficient to identify the land because there is a great deal of open land in the area that is used by the public for a variety of recreational uses. Also he says "The Siston Common land" is an expression that will further mislead those trying to identify the land in question. I note that schedules 4,5 and 6 in the notice all refer to common land as opposed to open space land in schedule 1 and 2. As Mr.Holgate points out, one is entitled to assume that before the reader gets to the schedule he will have read the last paragraph before schedule 1, which seems to me to explain what the notice is all about.

I am satisfied that there was a sufficient description of the land for the purposes of notice of a public inquiry.

The Exchange Land Notice. Section 19(2)

67. This notice relates only to the open space exchange land and not the whole route. All that section 19(2) says is that the Secretary of State must give notice of his intention to issue a certificate. It does not specify the degree of detail. It is not as specific as Section 11.

Mr.Corner's argument is that the reference to Siston Common is misleading. However, paragraph 1 clearly refers to an "open space" and not a common as such and it specifically refers to the first and second schedules. The third schedule lists the exchange plots and some 80% of the exchange land adjoins Siston Common(see plot 41 on Plan B.56). Also, as Mr.Holgate points out, plot 56, one of the plots to be acquired, adjoins Siston Common. Plots A to D are of course further north. In any event the reader is referred in paragraph 6 of the notice to a map which identifies all the land in question.

I am completely satisfied that the notice meets the requirements of Section 19(2).

Mr.Holgate drew my attention to Section 24 of the 1981 Act pointing out that Section 24(2)(a) provides for the quashing of CPO's that are made ultra vires. Section 24(2)(b) on the other hand covers situations such as those alleged in the present case e.g. failure to deal with procedural requirements such as publication of press notices. In such a case the applicant must show that his interests have been substantially prejudiced by any relevant requirement not having been complied with. Even then the court has a discretion. I am unable to detect any such prejudice on the part of the applicants in this case. At best it would be along the lines envisaged by Forbes J. in Wilson that others who might have objected did not do so. I cannot regard that as amounting to substantial prejudice in this case.

There has been considerable debate before me about the consequential effect of quashing particular orders or certificates. Because I have concluded that the applicants fail on each of their three main points, namely induced traffic, the exchange land certificate and the notices, it follows that all the orders and certificates remain undisturbed. These conclusions make detailed examination of the arguments on "linkage", as Mr.Holgate has called it, unnecessary. Accordingly I deal with the position in summary only.

Mr.Corner argues that if he succeeds on Ground 1 then not only does the C.P.O. and the Side Roads Order go but so too do all the certificates; that is decisions (iii),(iv),(v) and (vi) as mentioned at the beginning of this judgment. They are, as he put it, parasitic on the C.P.O. Mr.Holgate says that if Ground 1 succeeds only the C.P.O. and the Side Road Order should be quashed.

If Mr.Corner succeeds on Ground 2 it is common ground that only the exchange land certificate is quashed. (decision (v))

Ground 3 contains three complaints. Mr.Corner again argues that if he establishes that either the Section 11 Notice or the Public Inquiry Notice was inadequate, because they affect the C.P.O, not only does the C.P.O. go but so do the four certificates as they are parasitic. In other words the position is the same as if he succeeds on Ground 1 . As with Ground 1, Mr.Holgate accepts that the C.P.O. and Side Roads Order would go but argues the certificates would not be affected. If Mr.Corner establishes that the Section 19(2) Notice was inadequate it is common ground that only the exchange land certificate goes (decision (v)).

I am told there is no authority upon whether if the C.P.O. is quashed the certificates come down with it. I can see no reason why the certificates should have to be reconsidered just because the C.P.O. is quashed. In particular, the error leading to the quashing of the C.P.O. may be something that occurs at a late stage in the compulsory purchase process. In my judgment the C.P.O. and the certificate procedure is intended to be operated in parallel. I do not consider that the words "a compulsory purchase order authorises" in Section 19(1) of the 1981 Act refer only to a confirmed C.P.O. as contended for by the applicants. In my view they also include a C.P.O. made by the local authority.

In short I accept Mr.Holgate's argument that if, contrary to my finding, the C.P.O. is quashed the certificates remain.

Despite Mr.Corner's able and persuasive arguments, I am not satisfied that the second respondent erred in law in confirming the C.P.O. and the Side Roads Order . Nor am I satisfied that the first respondent's decision to grant a certificate under Section 19(1)(a) of the 1981 Act was unlawful. Further, I am not satisfied that any of the public notices was inadequate. The applicants claim therefore fails.

England and Wales High Court (Administrative Court) Decisions

NICHOLSON AND AND THE SECRETARY OF STATE FOR ENVIRONMENT AND OTHERS, R v. [1996] EWHC Admin 393 (20th December, 1996)

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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Nicholson & Another v Secretary Of State For Environment & Ors [1996] EWHC Admin 393 (20 December 1996) URL: http://www.bailii.org/ew/cases/EWHC/Admin/1996/393.html Cite as: [1996] EWHC Admin 393