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PARLIAMENTARY COMMISSIONER FOR ADMINISTRATION EX PARTE MAURICE AND AUDREY BALCHIN, R v. [1996] EWHC Admin 152 (25th October, 1996)
IN
THE HIGH COURT OF JUSTICE
CO-2323/95
QUEEN'S
BENCH DIVISION
(CROWN
OFFICE LIST)
Royal
Courts of Justice
The
Strand
Friday,
25th October 1996
B
e f o r e:
MR
JUSTICE SEDLEY
-
- - - - -
R
E G I N A
-v-
THE
PARLIAMENTARY COMMISSIONER FOR ADMINISTRATION
EX
PARTE MAURICE AND AUDREY BALCHIN
-
- - - - -
Handed-down
Transcript of Smith Bernal Reporting Limited,
180
Fleet Street, London EC4A 2HD
Tel:
0171 831 3183
Official
Shorthand Writers to the Court)
-
- - - - -
MR
C GEORGE QC and MR B PAYTON
(Instructed by Kenneth Beavis, Chelmsford, Essex CM1 1SS) appeared on behalf of
the Applicant.
MR
D ELVIN
(Instructed by the Treasury Solicitor, London SW1H 9JS) appeared on behalf of
the Respondent.
-
- - - - -
J
U D G M E N T
(As
approved by the Court)
(Crown
Copyright)
-
- - - - -
Friday,
25th October 1996
J
U D G M E N T
The
issue
1. Mr
and Mrs Balchin ask in these proceedings for the quashing of an adverse
decision of the Parliamentary Commissioner for Administration (the
Parliamentary Ombudsman) on their complaint of maladministration, and for its
remission for proper consideration. Their complaint has been that the
Secretary of State for Transport was guilty of maladministration in confirming
Road Orders without seeking an assurance from Norfolk County Council that the
Balchins would be given adequate compensation for the effect of the road on
their home. The essence of the critique of the Commissioner's report advanced
before me by Mr Charles George QC is that it has failed to engage with a key
issue revealed by the investigation and capable of founding a finding of
maladministration, has posed the wrong question in coming to a conclusion as to
whether there was maladministration, and has reached a conclusion which is
unsustainable in the face of the facts found by the Commissioner himself.
2. Since,
for reasons to which I will come, everything turns upon the content of the
Commissioner's report, it is appropriate to set it out in full. To do so will
also relieve me of the need to set out the history, apart from one or two
further particulars, for the history is admirably summarised in the report.
'Parliamentary
Commissioner Act 1967
Report
by the Parliamentary Commissioner for Administration to
Mr
Michael Lord MP
of
the results of his investigation into a complaint made by
Mr
and Mrs Balchin
[address]
formerly
of
'Swans
Harbour'
Beech
Road
Wroxham
Norfolk
through
3. Kenneth
Beavis, Solicitors
[address]
1. Mr
and Mrs Balchin complained through their solicitors of maladministration by the
Secretary of State for Transport when confirming road orders in respect of the
A1151 Wroxham/Hoveton By-pass without seeking assurance from Norfolk County
Council that Mr and Mrs Balchin would be given adequate compensation for the
effect of the road on their home.
2. My
investigation began in March 1994 after I had received comments from the
Permanent Secretary of the Department of Transport (DOT). I have not put into
this report every detail investigated by my officers, but I am satisfied that
no matter of significance has been overlooked. The Norfolk County Council (the
council) are outside my jurisdiction. I refer to them in this report only to
put in context the actions of DOT which are the subject of my investigation.
Background
3. Under
the Town and Country Planning Act 1990 properties which are required, or parts
of which are required, for road schemes are said to be statutorily blighted and
the highway authority is empowered to purchase the property. Further powers of
purchase are contained in section 246(2) of the Highways Act 1980, whereby a
highway authority may purchase by agreement land the enjoyment of which
is
(my emphasis) seriously affected by the carrying out of works by the authority
for the construction or improvement of a highway or by the use of a built
highway. That section was extended by section 62(2) of the Planning and
Compensation Act 1991 which came into force on 25 September 1991. The new
powers (section 246(2A) of the Highways Act 1980) enable the highway authority
to alleviate hardship by acquiring by agreement property the enjoyment of which
will
(my emphasis) in their opinion be seriously affected by the carrying out of
works or use of the highway.
4. Under
Part 1 of the Land Compensation Act 1973 a person can claim compensation for
the depreciation in the value of his property caused by public works such as
work on highways Claims are only considered from the first claim day, which is
one year after the first opening of the highway to public traffic.
5. In
England and Wales County Councils are responsible for local roads outside the
Metropolitan areas and they alone have the power to propose, give planning
consent for and build new public sector roads which are not trunk roads.
Compulsory purchase orders and side road orders for a local authority road
scheme are submitted to the Secretary of State for Transport for confirmation.
The Secretary of State can order a Public Local Inquiry into the confirmation
of such orders. The inquiry is heard by an Inspector, appointed via the
Planning Inspectorate, an executive agency of the Department of the
Environment. The Secretary of State has a duty to consider the Inspector's
recommendations but he may confirm, modify or refuse to confirm orders as he
thinks fit. The Secretary of State's decision letter is prepared and issued by
DOT's Local Authority Orders Section (LAOS) based in Newcastle.
6. Details
of compensation arising in consequence of the confirmation of the Orders are
for negotiation between the acquiring authority and those with an interest in
the land. They are not matters in which the Secretary of State has any
authority. Decision letters always include standard text to that effect.
Investigation
7. 1984-1989
In 1984 Mr Balchin purchased a property in Wroxham which he later converted
into his private residence called 'Swans Harbour'. Solicitors searches at the
time of purchase did not reveal any road proposals which might affect the
property. Mr Balchin was in business as a builder and loans to his company
were secured by a legal charge on his home.
8. In
July 1986 the council adopted a preferred route for a by-pass to the east of
Wroxham (the Eastern Route). Mr and Mrs Balchin's immediate neighbour's
property was required for the by-pass and was purchased by the council in March
1987. On 27th April 1987 estate agents acting for Mr and Mrs Balchin asked the
council to purchase 'Swans Harbour' which they said was severely blighted by
the by-pass. On 21 May the council declined to purchase the property as, they
said, no part of the property was needed for the by-pas. Mr Balchin pressed
his case with the council emphasizing that the unsaleability of his property
would seriously undermine his business. His case was considered by the
council's Planning and Transportation Committee on 17 December. A detailed
report prepared by council officials for that meeting recognised that the
by-pass when built would completely alter the character of the house and reduce
its value. The council however, declined to purchase the property on the basis
that Mr and Mrs Balchin had no statutory right to insist on the property being
acquired.
9. 1990
In February 1990 the council submitted a Compulsory Purchase Order for the
by-pass to the Secretary of State for Transport. On 23 March Mr Balchin wrote
to DOT protesting against the scheme. He said that his house, which had been
valued at £400,000, had overnight become unsaleable and that his bankers
would no longer extend him credit. He said that the by-pass would be within a
few feet of his house, would be six metres high and would extend along the full
length of his garden. On 26 March solicitors then acting for him submitted
formal objections to DOT. They pressed the case for purchase by the council,
claiming that the property would be directly affected by the land take and
saying that Mr and Mrs Balchin had recently had an offer of £375,000 for
the property withdrawn when the prospective purchasers were made aware of the
by-pass proposals. Mr Balchin's bank as at that time seeking repayments which
he could not meet because he was unable to sell his property and the solicitors
asked the council to reconsider their decision on hardship grounds. The
Planning and Transportation Committee of the council considered the matter on
21 June but again declined to purchase the property. In a letter of 6
September to Mr and Mrs Balchin's then Member, who had taken up the matter, the
council said that to acquire the property would set a precedent which would
have enormous capital and revenue consequences for the council.
10. Meanwhile
on 3 August DOT had written to the Planning Inspectorate (paragraph 5) asking
them to arrange for an Inspector to hold a Public Local Inquiry. A pre-inquiry
meeting was held on 9 October when the Inspector explained that while he could
draw attention to any matter he wished in his inquiry report the only
recommendations he as empowered to make were either to confirm, or not to
confirm, with modification, any or all of the Orders.
11. The
Inquiry was held between 30 October and 28 November. Mr Balchin again
contended that the council should be directed to acquire 'Swans Harbour' as
part of the scheme; the council reiterated that no part of the property was
required. They said that the embankment for the by-pass would be 10 metres
from the actual house and would at that point by 3.8 metres high, and that they
would be prepared to offer any necessary compensation under the Land
Compensation Act (paragraph 4) in due course when the effects of the by-pass
could be established.
12.
1991
The Inspector sent his report on the Inquiry to the Planning Inspectorate on
27 February 1991. In his conclusions he reported that in his view the by-pas
would have a 'somewhat overpowering effect on Swans Harbour even when
landscaping measures had taken their full effect, and particularly during the
construction phase'. He reported that the council, who had declined to
purchase the property, considered the problem as predominantly a matter for
compensation. He said 'In all fairness, if the [council will] not purchase the
property then, if the decision is made in favour of the Eastern Route, adequate
compensation agreements should be agreed urgently, not least in the light of Mr
Balchin's stated financial situation.' In advocating confirmation of the
Eastern Route he drew attention to the adverse effect that route would have on
the owners of 'Swans Harbour' (and the owners of another property nearby) and
expressed the his hope that their plight would be looked on sympathetically by
the council. The Chief Executive of the Planning Inspectorate in a letter to
me emphasised that the Inspector did not conclude that the adverse effect on
'Swans Harbour' was such, in the overall context, that the Order should not be
confirmed and explained that by mentioning the point in the report, the
Inspector merely alerted the Secretary of State to the need to consider it. On
14 March the Planning Inspectorate sent the Inspector's report to DOT.
13. 1992
For reasons unconnected with this complaint the Inspector's report was not
considered by DOT until 23 March 1992. On 20 May a case officer in LAOS
(paragraph 5) prepared a detailed submission and recommended that the Orders be
confirmed. On 3 June the decision letter was issued to the council, the
Secretary of State agreed with the Inspector's conclusions, accepted his
recommendations and confirmed the scheme and Orders. The decision letter said
that the Inspector had called for (i) sympathetic consideration by the council
of the plight of the owners of 'Swans Harbour' (and the owners of another
property nearby), (ii) a footbridge over the by-pas and (iii) a tarmac road
surface to reduce noise. It said that those matters were not for the Secretary
of State's consideration, but added that he was 'confident that your council
will give those matters early consideration'. The decision letter included the
standard text saying matters of compensation were for negotiation with the
council and not the Secretary of State (paragraph 6).
14. The
case officer in LAOS told my officers that where an independent Inspector makes
comments about compensation the Secretary of State must distance himself from
those comments. He said that the expression of confidence in the decision
letter that the council would give early consideration to certain matters was
as far as the Secretary of State could go to ask the council to look at Mr and
Mrs Balchin's plight sympathetically. He said that the general assumption
would be that the council would act reasonably but that they had not consulted
the council to obtain their views on the compensation issue.
15. Meanwhile
on 1 May Mr Balchin had written to his MEP detailing his acute financial
difficulties flowing from the reduction in equity in 'Swans Harbour' which had
caused the bank to require him to repay a business overdraft, and from meeting
legal costs. On 14 May the MEP wrote to the Secretary of State enclosing Mr
Balchin's letter. An initial draft reply was prepared by the DOT which led the
Minister for Roads and Traffic (the Minister) to comment that the situation
seemed 'very tough' and to ask how the department could 'ensure that the
council helps'. As a result another draft was produced and a background note
emphasized that the question of compensation was strictly a matter between Mr
Balchin and the council. It also said that Mr Balchin might be entitled to
claim under Part 1 of the Land Compensation Act 1973 (paragraph 4) but that
such claims were not normally made until 12 months after the date on which the
new road was opened. The Minister replied on 2 July enclosing a copy of the
decision letter and the Inspector's report. He explained that as none of the
property was directly the subject of compulsory purchase the Secretary of State
was not empowered to consider Mr Balchin's dilemma when making the decision.
He said that in view of the Inspector's comments about the property and his
hope that Mr Balchin's plight would be viewed sympathetically by the council
the Secretary of State had also drawn attention to the situation and expressed
his confidence that the council would give the matter early consideration. He
said that Mr Balchin would need to pursue the question of compensation with the
council and that he might at the very least be able to claim under Part 1 of
the Land Compensation Act 1973. He went on to say that given the somewhat
exceptional circumstances 'one might hope that [the council] would treat his
situation with the utmost sympathy, not to mention urgency'. He copied the
correspondence to the Chief Executive of the council.
16. On
16 July the Chief Executive wrote to the Minister saying that there are legal
obligations on the council to consider the acquisition of 'blighted' property
but that it did not have a legal duty to buy houses on a sympathy' basis. He
considered the request to the council to consider sympathetically the impact on
'Swans Harbour' to be misleading and out of place in a decision letter. He
added that compensation under the Land Compensation Act would not come into
play for, at best, four years and that the reference to urgency in the
Minister's letter of 2 July (paragraph 15) was somewhat misleading. He said,
however, that the Inspector's report and the decision letter would be reported
to the council's Highways Sub-Committee in September when the position of
'Swans Harbour' (and other property) would be reconsidered. The letter was
copied to the MEP who on 21 July wrote to the Minister seeking advice on how he
could best help Mr Balchin.
17. On
14 August the Minister replied briefly to the Chief Executive expressing
interest in the outcome of the council's September meeting and on 20 August he
replied to the MEP saying that there was nothing which the department or any
government agency could do to help or advise Mr Balchin at that stage.
Meanwhile the Minister asked for further advice on Mr Balchin's possible
eligibility for compensation under the Land Compensation Act. LAOS advised
that under Part 1 of that Act it was open to the council to buy Mr and Mrs
Balchin's property if its enjoyment was seriously affected by construction
noise or use of the road. They went on to say, however, that the matter as
very much one for the local authority and although they were in favour of that
course of action they could not foist it on the council. (LAOS has since
agreed with my officers that the powers described were actually those in
section 246(2A) of the Highways Act and that reference to the Land Compensation
Act was incorrect). They also advised (correctly) on compensation for
depreciation under the Land Compensation Act (paragraph 4). On 24 September
DOT sent copies of booklets explaining land compensation to the MEP for
information. LAOS told my officers that they did not see it as appropriate to
tell the MEP about discretionary purchase powers under section 246(2A) of the
Highways Act. That, they said, would have been 'overstepping the mark' and
could have led to false expectations on Mr and Mrs Balchin's part.
18. The
Council's Planning and Transportation Committee considered particular points in
the Inspector's report on 1 October when they agreed that the question of
compensation for 'Swans Harbour' (and the property nearby) would be dealt with
under the timescale dictated by the Land Compensation Act in relation to the
physical factors evident after the scheme had been in operation for one year.
On the same date the Chief Executive conveyed that decision to the Minister,
saying that in effect the council did not accept any change in the previous
decisions that it had taken as to the acquisition of the properties. After
receipt of that letter, DOT officials said in a background note to the Minister
that they could have no quarrel with the legal, or financial, basis of the
council's decision and that the council's desire not to set a dangerous
precedent for the future was also perfectly understandable.
19. On
14 December Mr Balchin's bank wrote to the council asking whether consideration
had been given to acquiring 'Swans Harbour' under section 62 of the Planning
and Compensation Act 1992 (that is 246(2A) of the Highways Act 1980). In a
reply of 18 December a council officer said that, as far as he was aware, that
had not been considered but that in view of their refusal to make an advance
payment of compensation to Mr Balchin, the council's agreement to exercise
their powers to make such an acquisition would be most unlikely.
20. 1993
Mr and Mrs Balchin moved to Broome leaving 'Swans Harbour' empty. On 18
February solicitors acting for them wrote to the then Secretary of State for
Transport at his constituency address in Norfolk asking him to do all he could
to alleviate the problem. In his role as a constituency MP he made enquiries
of the council who advised him of the decision of 1 October 1992 (paragraph
18). On 5 May he replied to the solicitors, referring to the Inspector's
statement that the adverse effects of the by-pas were not a matter for the
Secretary of State and to the council's decision not acquire the property, and
saying that otherwise there was nothing he could add to the Minister's letter
of 2 July 1992. On 27 May the Secretary of State referred the matter to the
present Member who wrote to Mr and Mrs Balchin's building society and pressed
the matter with the Chief Executive of the council and with the leaders of each
political group on the council.
21. 1994
On 13 January the Member referred the complaint to me. Mr Balchin had
meanwhile obtained an opinion from Counsel that the Secretary of State had been
maladministrative in confirming the Order in the face of the Inspector's advice
without first seeking an assurance that realistic compensation would be
available. On 9 February I agreed to an investigation. In his comments to me
the Permanent ~Secretary of DOT said that it was the department's view that the
Secretary of State had acted properly and within his authority on the mater.
He explained the discretionary purchase powers available to highway authorities
under section 62 of the Planning and Compensation Act 1991 and said that on 1
October 1992 the council had decided not to exercise that discretion in this
case.
Findings
22. No
part of Mr and Mrs Balchin's land was required for the by-pass scheme and the
council were not under any legal obligation to buy the property. The Inspector
clearly had sympathy for the plight of Mr and Mrs Balchin and in the
conclusions to his report urged the council to agree compensation urgently. In
view of the timescale of claims made under the Land Compensation Act, that was
a somewhat misleading statement to make. The Chief Executive of the Planning
Inspectorate, however, has said that those comments merely alerted the
Secretary of State to the need to consider the matter, and I note that the
Inspector made no mention of the issue of compensation in his recommendations,
which he correctly limited to confirmation of the Orders. While, therefore,
the Inspector might have chosen his words a little more carefully, I have found
no evidence of maladministration.
23. In
his decision letter the Secretary of State accepted the recommendations of the
Inspector and confirmed the Orders. That was within his power to do as he
thought fit. He was not required, in my view, to follow the Inspector's advice
and was therefore under no obligation to seek assurances from the council
before reaching his decision to confirm the Orders. Moreover, the issue of
compensation arising from the confirmation of Orders is not a matter for the
Secretary of State and I am not persuaded that his decision to confirm the
Orders should or could have been made conditional on any such settlement. I
see nothing maladministrative in the Secretary of State's decision.
24. In
view of the Secretary of State's lack of responsibility for compensation
issues, he might well have avoided any comment on Mr and Mrs Balchin's plight
in the decision letter. However, he was clearly sympathetic to their situation
and chose his words carefully to avoid giving any indication that the council
should actually purchase the property. In addition I note that his call for
early consideration of the matter, while possibly misleading in respect of
compensation matters, referred to a number of issues in addition to 'Swans
Harbour' (paragraph 13). I see no reason therefore to criticise the department
for those comments.
25. Having
issued the decision letter the Secretary of State's jurisdiction was at an end.
However, while the department continued to express their sympathy with Mr and
Mrs Balchin's case, they did not raise the possibility of the council
purchasing the property under the discretionary powers contained in section
246(2A) of the Highways Act (paragraph 3) which came into force on 25 September
1991. When my officers asked why the department did not rise that, officials
said that to have done so would have been overstepping the mark. In view of
the content of the Minister's letter of 2 July (paragraph 15) (copied to the
council) I find that unconvincing, particularly as there is no evidence that
LAOS, apart from the incorrect reference to the possibility of purchase under
the Land Compensation Act (paragraph 17) ever actually considered the
possibility of discretionary purchase. I do not however question their view
that, had LAOS done so, the council, as indicated in their reply to the bank
(paragraph 19) would have refused such a purchase. It is somewhat
unsatisfactory, however, that the only body which demonstrated a clear
understanding of the appropriate legislation in this case as the bank.
26.
There is no doubt that Mr and Mrs Balchin's house has been severely blighted by
the council's by-pass scheme but, through no fault of their own, they will be
unable to get any redress until the road has been open for one year. However
there is no evidence that is due to a failure by the department to meet their
legal obligations. It is not for me to consider the actions of the council. A
great deal of sympathy has been expressed for Mr and Mrs Balchin.
Unfortunately such sympathy and a willingness to press their case, may have led
to Balchins to have false hopes that a positive outcome could be achieved.
There is, however, no recommendation that I can make to change their situation.
Conclusion
27. I
have not found the complaint against DOT to be made out. Matters of
compensation arising from a road scheme are for the highway authority, in this
case the council, which is outside my jurisdiction.
21
December 1994
W K Reid
4. Parliamentary
Commissioner
for Administration
5. I
have highlighted in bold type those passages to which particular attention
needs to be directed in order to consider Mr George's critique. It is also
relevant to set out two paragraphs of the letter of 16th July 1992 from the
chief executive of Norfolk County Council to the Minister for Roads and Traffic
at the Department of Transport, to which the Commissioner refers in paragraph
16 of his decision:
'Principally,
there are legal obligations on the County Council to consider the acquisition
of "Blighted" property i.e. those directly affected and which have land which
is taken for the scheme. Even then it has to so significantly affect the use
of enjoyment of the property. The Norfolk County Council has accepted that
argument in respect of one or two properties but Swan's Harbour is not touched
physically by the scheme. To concede this particular case and therefore
undermine that legal principle will add to the costs, not only of this scheme,
but of all road improvements/construction schemes - not least the trunk road
network run by your own Ministry! A line has to be drawn somewhere and
Parliament has determined that line to be very tight to the "direct input"
concept: I suspect any other line would be impossible to set in legislative
form and even more impossible to fund from the public purse.
6. Having
said that, I therefore consider the request that the County Council
".....consider sympathetically....." the impact on Swan's Harbour and Cooper
Beech Cottage to be misleading and out of place in such a decision letter. The
County Council does not have legal duties to buy up houses on a "sympathy"
basis even it if may have the power. |I do not wish to sound harsh or
bureaucratic but local government is frequently told to act within its powers
and to curtail unnecessary expenditure and it has, as a corporate legal body,
to act within those powers. Like Government we face legal challenge in the
Courts, or challenge from our internal or external auditors if we do not.'
7. Nobody
disputes that Mr and Mrs Balchin have been innocent victims of the road scheme.
For reasons to which the Commissioner refers in paragraphs 8 and 9 of his
report, Mr Balchin has been ruined. To the irony that it was only the
severance of their property in 1984 from a larger parcel which
was
purchased for the road scheme that left the Balchins without compensation there
has now been added the final blow: the road scheme has been abandoned with the
revocation by Norfolk County Council of planning consent for it.
8. The
Parliamentary Commissioner for Administration
9. The
powers and functions of the Commissioner are established by the Parliamentary
Commissioner Act 1967. They are subject to the supervisory jurisdiction of
this court, notwithstanding that the Commissioner, who occupies a unique
constitutional place, is answerable to Parliament (
R
v Parliamentary Commissioner for Administration ex parte Dyer
[1994] 1 WLR 621 DC). His functions are essentially those described in section
5(1) of the 1967 Act:
'Subject
to the provisions of this section, the Commissioner may investigate any action
taken by or on behalf of a government department or other authority to which
this Act applies, being action taken in the exercise of administrative
functions of that department or authority, in any case where
(a) a
written complaint is duly made to a member of the House of Commons by a member
of the public who claims to have sustained injustice in consequence of
maladministration in connection with the action so taken; and
(b)
the complaint is referred to the Commissioner, with the consent of the person
who made it, by a member of that House with a request to conduct an
investigation thereon.'
By
section 5(5):
'In
determining whether to initiate, continue or discontinue an investigation under
this Act, the Commissioner shall, subject to the foregoing provisions of this
section, act in accordance with his own discretion; and any question whether a
complaint is duly made under this Act shall be determined by the Commissioner.'
10. Between
the two sub-sections are set out various exclusions not material to the present
case.
11. The
Commissioner is required by section 10 to report back to the MP through whom
the complaint has come and to the material department or authority. In
addition, by 10(3):
'If,
after conducting an investigation under this Act, it appears to the
Commissioner that injustice has been caused to the person aggrieved in
consequence of maladministration and that the injustice has not been, or will
not be, remedied he may, if he thinks fit, lay before each House of Parliament
a special report upon the case.'
12. The
provision added to section 12 (the interpretation section) by sub-section (3) -
'it is hereby declared that nothing in this Act authorises or requires the
Commissioner to question the merits of a decision taken without
maladministration by a Government department or other authority in the exercise
of a discretion vested in that department or authority' - is a recital of the
obvious, explained by the footnote in de Smith (op cit infra, citing in turn
the Crossman Diaries) that it was inserted at the insistence of the Treasury.
13. The
meaning of maladministration, both in this Act and in the Local Government Act
1974 (which set up the parallel Local Commissioner) has been considered by the
Court of Appeal in
R
v Local Commissioner for Administration for the North and East area of England,
ex parte Bradford Metropolitan City Council
[1979]
QB 287. Both the Court of Appeal (Sir David Cairns dubitante) and the
textbooks on public law have drawn upon the 'Crossman catalogue' offered to
Parliament during the passage of the 1967 Act by the then Lord President of the
Council. It is accordingly accepted that maladministration includes bias,
neglect, inattention, delay, incompetence, inaptitude
[1],
perversity, turpitude and arbitrariness in reaching a decision or exercising a
discretion, but that it has nothing to do with the intrinsic merits of the
decision itself: see
R
v Commissioner for Local Administration ex parte Eastleigh Borough Council
[1988] QB 853, 863.
14. Mr
George and Mr Elvin, whose collective experience in this field is considerable,
did not differ from my proposition in argument that so far as a court of
judicial review is concerned the question is not how maladministration should
be defined but only whether the Commissioner's decision is within the range of
meaning which the English language and the statutory purpose together make
possible. For the rest, the question whether any given set of facts amounts to
maladministration - or by parity of reasoning, to injustice - is for the
Commissioner alone.
15. Less
judicial attention has been devoted so far to the meaning of 'injustice' in the
legislation, but de Smith, Woolf and Jowell,
Judicial
Review of Administrative Action
(5th edition) write at paragraph 1-102:
''Injustice'
has been widely interpreted so as to cover not merely injury redressible in a
court of law, but also 'the sense of outrage aroused by unfair or incompetent
administration, even where the complainant has suffered no actual loss''
(citing Mr R H S Crossman, speaking as Leader of the House of Commons).
16. It
follows that the defence familiar in legal proceedings, that because the
outcome would have been the same in any event there has been no redressible
wrong, does not run in an investigation by the Commissioner.
17. In
addition, the Commissioner is an investigative officer, not an adjudicative
tribunal. As the Divisional Court held in
ex
parte Dyer
(ante), section 5(5) of the 1967 Act gives him a wide area of choice as to the
manner in which he investigates. But this discretion, too, will be constrained
by the limits set by public law.
18. The
Planning Framework
19. There
are powers of compensation for depreciation caused by the use of public works
under the Land Compensation Act 1973, Part I, but it is common ground that
they were of no assistance in the present case since claims are deferred until
a year after the highway is first opened to traffic.
20. The
relevant provisions, which are more extensive than those summarised in
paragraph 3 of the Commissioner's decision, are to be found in section 246 of
the Highways Act 1980 as amended by (inter alia) section 62 of the Planning and
Compensation Act 1991:
'Acquisition
of land for mitigating adverse effects of constructing or improving highway.
246(1)
Subject to sub-section (3) below, a highway authority may acquire land for the
purpose of mitigating any adverse effect which the existence or use of a
highway constructed or improved by them, or proposed to be constructed or
improved by them, has or will have on the surroundings of the highway.
(2)
Subject to sub-section (3) below, a highway authority may acquire by
agreement (but not compulsorily)
(a) land
the enjoyment of which is seriously affected by the carrying out of works by
the authority for the construction or improvement of a highway;
(b) land
the enjoyment of which is seriously affected by the use of a highway which the
authority have constructed or improved, if the interest of the vendor is a
qualifying interest.
(2A)
Where the highway authority propose to carry out works on blighted land for
the construction or improvement of a highway, they may acquire by agreement
land the enjoyment of which will in their opinion be seriously affected by the
carrying out of the works or the use of the highway if the interest of the
vendor is a qualifying interest. '
21. A
significant depreciation of value comes within the expression 'seriously
affected' in section 246(2A) (
R
v Secretary of State for Transport, ex parte Owen
[1995] 2 EGLR 213, CA).
22. The
definitions of 'qualifying interest' and 'blighted land' which follow apply, it
is agreed, to the Balchins and to Swan's Harbour respectively. It was
sub-section (2A) which was added and came into effect between the Inspector's
report and the Secretary of State's confirmation of his recommendation. The
new provision was accompanied by a circular, 15/91, from the Department of the
Environment, which in an annex on the 1991 Act said:
'Authorities
will wish to consider exercising their discretionary powers to acquire property
seriously affected - or likely to become seriously affected - wherever this is
warranted to alleviate associated hardship.'
23. The
Department of Transport itself in January 1992 issued a press notice drawing
attention to the enacted power and signalling central government's own
intention to use it to alleviate hardship caused by trunk road schemes.
24. The
challenge to the Commissioner
25. Mr
George formulates his challenge under three heads.
(1) By
limiting himself to the question whether the Department of Transport had met
its legal obligations the Commissioner artificially limited and so misconstrued
the meaning of maladministration.
(2) The
Commissioner's conclusion that there was no maladministration in the Secretary
of State's failure to link his decision on confirmation to the county council's
attitude to compensating the Balchins was based upon a misapprehension of the
Secretary of State's lawful power.
(3) Upon
the evidence and findings set out in the report the Commissioner could not
properly reach any conclusion other than that the Balchins had sustained
injustice in consequence of maladministration.
26. The
first and third of these challenges, in my judgment, cannot succeed. It is not
in my view a fair reading of the decision to take the second sentence of
paragraph 26 ('However there is no evidence that [the want of redress] is due
to a failure by the Department to meet their legal obligations') and treat it
as exhaustive of the tests applied by the Commissioner. The whole of his
findings, from paragraph 22 onward, have to be taken together, and these
include a consideration of far more than the legal obligations of the
Department. In particular they include the question, to which I shall come
separately, of the possible linking of confirmation by the Secretary of State
to a decision by the county council on compensation, which raised both legal
and extra-legal issues.
27. Nor
do I consider that the challenge to the tenability of the conclusions in the
light of the evidence and findings can succeed. Mr George does not have to
demonstrate, as respondents sometimes suggest is the case, a decision so
bizarre that its author must be regarded as temporarily unhinged. What the not
very apposite term 'irrationality' generally means in this branch of the law is
a decision which does not add up - in which, in other words, there is a error
of reasoning which robs the decision of logic. The present decision is not in
this class. The facts set out in the Commissioner's report are logically
capable of sustaining his findings and hence his conclusion. The real issue is
thus Mr George's second one, to which I now turn.
28. The
Commissioner's decision
29. Mr
George's argument depends upon passages which I have highlighted in paragraphs
9, 18, 19, 23 and 25 of the Commissioner's report. In brief, the Commissioner
has concluded
that
the Department of Transport should not be found to have caused injustice by
maladministration in overlooking section 246(2A) as a means of mitigating the
effect on the Balchins of confirming the road order because the county council
would have refused to operate the provision in any event.
30. I
accept Mr Elvin's submission that it would have been - or more accurately that
the Commissioner was entitled to accept the Department's view that it would
have been - an unacceptable use of the Secretary of State's powers to make his
confirmation conditional on the county council's deciding to exercise its
discretionary power of purchase in a particular way, whether the condition was
explicit or only hinted at. But Mr George points to other possibilities open
to but not considered by the Department. Of those which do not involve some
element of conditionality, the most straightforward was to draw the county
council's attention in clear terms to its new power under s.246(2A) and to the
Department of the Environment's advice about the use of the power.
31. This
the Commissioner in paragraph 25 implicitly accepts. He also rejects the
Department's excuse that it judged such advice to be inappropriate. He finds
the truth to be that the existence of the power was simply overlooked. But he
then notes what happened when the Balchins' bank did exactly what the
Department had failed to do and drew Norfolk's attention to its new power: the
county council treated rejection as a foregone conclusion in the light of its
earlier refusal to exercise a related but different power. This, the
Commissioner infers, would have been the inevitable outcome had the Department
drawn the county council's attention to the new power.
32. This
is not an inference which, speaking for myself, I find convincing. Although
the Commissioner has no jurisdiction in relation to local government, Norfolk's
response was on the face of it highly questionable. Although the county
council was duly served it has understandably taken no part in these
proceedings, and I hesitate to criticise it in its absence; but the
intransigence of its stance towards the Balchins will have been as apparent to
the Commissioner as it is to this court. In 1990, when it first declined to
acquire Swan's Harbour, the Planning and Transportation Committee must have
been considering the power contained in s.246(1). When at the end of 1992 the
Balchins' bank finally drew the council's attention to its new s.246(2A) power,
the council appears to have given no consideration to its exercise; instead it
seems to have treated the question as having been effectively foreclosed by its
decision not to purchase in 1990. Yet the question in 1992 revolved around a
new power which the council had never entertained; and the decision in 1990,
assuming it now had any bearing (which I doubt) had been based upon a reason
which, if it were admissible, would justify all public bodies in refusing ever
to exercise a discretion to make a payment for fear that other applicants would
want to be similarly treated - a textbook example of a fettered discretion. In
any case the Inspector had singled out Swan's Harbour as one of two properties
facing a 'particularly adverse effect' from the planned road.
33. Further,
the Department of Transport is not a high street bank, and the effect of a
reminder from it of the council's legal functions (for every power implies a
duty to consider its exercise) and of the DoE's advisory circular is hardly to
be put on a par with an inquiry from a concerned creditor. It would in my view
have been open to the Commissioner to conclude that Norfolk's 'No' was in the
circumstances not an acceptable answer and that the Department of Transport,
had it given any attention to S.246(A) and to Norfolk's attitude to it in the
Balchins' case, might well have been able at least to prompt the council to
give proper consideration to the exercise of its new power - with what result,
of course, nobody could now say.
34. The
Commissioner has chosen not to go down this road. He has regarded it as
blocked by Norfolk's negative stance and has consequently not reached the
question, which would have been at large before him, whether the Department's
omission amounted to maladministration and, if so, whether the Balchins had
suffered injustice in consequence. Is his decision based on a reviewable error?
35. If
there is such an error, I accept Mr George's submission that it does not have
to be classified as one of law or of fact (the latter too being reviewable if
crucial to the decision: see
R
v London Residuary Body, ex parte ILEA
(3rd July 1987, transcript pp.3 - 6, DC)) and that the relevant test here is
whether a consideration has been omitted which, had account been taken of it,
might have caused the decision-maker to reach a different conclusion (see
Bolton
Metropolitan Borough Council v Secretary of State for the Environment
(1991) 61 P&CR 343, 353, per Glidewell LJ). To this must of course be
added the condition that the consideration is one to which the law requires the
decision-maker to have regard. In the present case the latter condition is met
by the simple fact that the consideration which I have posed is squarely
presented by the very facts established by the Commissioner's own thorough
investigation. As an investigator he is not limited to the strict terms of
the issue posed by the complaint.
36. The
question then is whether he has overlooked this aspect of the case. If he has
not done so, the fact that his view of its significance differs from mine (as I
do not conceal that it does) is of no legal consequence and his decision will
be unimpeachable.
37. I
return therefore to the crucial finding in paragraph 25:
'There
is no evidence that [the Department] ..... ever actually considered the
possibility of a discretionary purchase. I do not however question [the
officials'] view
that
had [the Department]done so, the council, in their reply to the bank .......
would have refused such a purchase.'
38. The
reasoning starts from the fallback submission of the Department that even if
they had thought about s.246(2A) and - by implication - drawn it to Norfolk's
attention, Norfolk would have persisted in its negative attitude. This, the
Commissioner says, 'I do not question', meaning that he either adopts this view
or at least is not prepared to differ from it.
39. Whether
the Commissioner's conclusion ('I have not found the complaint against the
Department of Transport to be made out') reflects a finding that there was
therefore no maladministration or no injustice, one cannot know - although it
is likely to be the latter, given his findings of fact. But one does know from
paragraph 26 that he has consciously omitted, in reaching his conclusion, to
evaluate the role and impact of Norfolk County Council's stance:
'It
is not for me to consider the actions of the council'.
40. I
have hesitated long before concluding that, notwithstanding the very wide area
of judgment and discretion given to the Commissioner by the Act, he has been
led by a scrupulous regard for his jurisdictional remit, excluding as it does
local government, into a failure to consider the relevant fact of Norfolk's
attitude - not with a view to deciding whether it was unlawful or even (to use
his own neologism) maladminstrative but in order to decide, as his own findings
made it necessary for him to do, whether the Department of Transport ought in
response to have drawn the council's attention to its new power to acquire
blighted property and perhaps also to its obligation to consider exercising it.
In other words, once Norfolk's apparent disregard of its obligations was
established by him, the Commissioner could not properly avoid the question
whether correct advice with the imprimatur of central government might have
made a difference.
41. Whether
the Department's undoubted failure to tender such advice amounted to
maladministration and whether, if it did, it caused injustice to the Balchins
remains entirely a question for the Commissioner. My decision is limited to
holding that in declining to consider the ostensible propriety of Norfolk
County Council's negative attitude to its compensatory powers and its
amenability to correction by the Department, the Commissioner omitted a
potentially decisive element from his consideration of whether the Department
of Transport had caused injustice to the Balchins by maladministration in its
dealings with the county council.
42. Counsel
agreed at the conclusion of argument that this judgment should be handed down
in writing, including any proposed consequential orders, with liberty to apply
within 14 days if different orders are sought.
43. I
do not consider that certiorari is necessary if the Commissioner will undertake
to reconsider his decision in the light of this judgment. If, however, it is
considered that he is functus officio, certiorari must go, with the result that
the complaint will remain to be entertained; mandamus will then be unnecessary.
44. I
would allow the applicants their costs and (if they have legal aid) a legal aid
taxation.
45. The
Commissioner may, if he seeks it, have leave to appeal.
46. MR
JUSTICE SEDLEY: For reasons which have been set out in writing, communicated to
the parties and which are now available for the Press and the public, this
application for judicial review succeeds.
47.
Mr Payton, you are here for the Applicant?
MR
PAYTON: My Lord, yes.
48. MR
JUSTICE SEDLEY: The Respondent is not represented today.
49. MR
PAYTON: What I am about to tell your Lordship I left in the form a message for
my learned friend, Mr Elvin, last evening. He has not been able to speak to me
direct and I gather that he is otherwise engaged today, but I do not think
there is a great problem. I have left with the learned Associate a copy of a
letter written by the Treasury Solicitor and it relates to the last paragraph
of page 24 of your Lordship's judgment.
50. MR
JUSTICE SEDLEY: Let me just read out the communication for the record. The
Treasury Solicitor writes to those instructing you that the Parliamentary
Commissioner has written to her as follows:
"'In
reply to the question of whether the Parliamentary Commissioner would be
willing to reconsider his decision, the Parliamentary Commissioner remains
functus
officio
in relation to the complaint of maladministration against the Secretary of
State originally put to him and the new material sent by Mr And Mrs Balchin's
solicitors not only post-dates his report, but also raises nothing material to
their complaint against the Secretary of State'."
51.
That is dated 26th March 1996. It is old history.
52. MR
PAYTON: My Lord, that arose because of matters that came up after the
investigation but, without trespassing on matters of privilege, I can tell your
Lordship that Mr Michael Lord, MP, did invite the Ombudsman to reconsider.
53. MR
JUSTICE SEDLEY: Mr Payton, I am sorry. I thought you were going tell me that
Mr Elvin had communicated to you that he was content with one outcome rather
than another today. He obviously has not done so. I am certainly not going to
traverse this ground in his absence.
54.
The idea of handing down judgments like this is, in principle, to avoid
unnecessary costs of attendance. The only purpose of attendance today in this
case would have been for Mr Elvin, who is the only person not here, to tell me
whether his client would consent to reconsider the case or whether, being
functus
officio
,
he considers that he has no power to do so without an Order of
certiorari.
55. MR
PAYTON: I can do no more, my Lord, than to anticipate that the point may arise.
56. MR
JUSTICE SEDLEY: If the Commissioner considers that he is able to undertake to
reconsider, are you content with the undertaking? Do you press for
certiorari
in those circumstances?
57. MR
PAYTON: No, my Lord, subject to seeing the terms.
58. MR
JUSTICE SEDLEY: In that case it seems to me that the proper course is for me to
say that
certiorari
will go unless within 14 days the Commissioner, on consideration, feels it
appropriate to offer an undertaking to reconsider the case.
59. MR
PAYTON: My Lord, that is most helpful.
60. MR
JUSTICE SEDLEY: If such an undertaking is communicated to this court and to
those instructing you, providing it satisfactory to them, then I shall make no
Order.
61. MR
PAYTON: We shall lodge your note of concern.
MR
JUSTICE SEDLEY: Otherwise
certiorari
will have to go because there is no alternative. As far as costs are
concerned ----
62. MR
PAYTON: I do not apply. Your Lordship has given leave to appeal if requested?
63. MR
JUSTICE SEDLEY: Yes, very well. In that case the Commissioner must also,
within the same 14 days, communicate to the Crown Office whether he does seek
leave to appeal. If he does, the outcome is already provided for.
64. MR
PAYTON: I am grateful to your Lordship.
- - - - - -
[ ] 1Sic:
see Hansard, 18th October 1966; commentators have repeatedly substituted the
word 'ineptitude'.
© 1996 Crown Copyright
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