Bushell v Secretary of State for the Environment [1980] UKHL 1

House of Lords

Between

BushellAppellant

Secretary of State for the EnvironmentRespondent

Before

Lord Diplock Viscount Dilhorne

Lord Edmund-Davies

Lord Fraser of Tullybelton

Lord Lane

LORD DIPLOCK VISCOUNT DILHORNE

My Lords,

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

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to the Minister to be affected by the proposed scheme and goes on to provide that if any such objection is not withdrawn " the Minister shall cause a local inquiry to " be held ".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

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

" After considering any objections to the proposed scheme which " are not withdrawn, and, where a local inquiry is held, the report " of the person who held the inquiry, the Minister may make or " confirm the scheme either without modification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

So before reaching his decision the Minister must consider the objections, so far as not withdrawn, and the report of the inspector who held the local inquiry, before he makes up his mind whether to exercise his administrative discretion in favour of making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

My Lords,

before I come to the specific complaints as to the procedure followed at the local inquiry and thereafter before the Minister's decision, which have been held by a majority of the Court of Appeal to justify quashing the Minister's decisions on the ground that the objectors were

denied natural justice, I think that it is useful to give some general consideration to the scope and purpose of a local inquiry into a scheme for a motorway which the Minister himself proposes to make under section 11 of the Highways Act 1959, and also to the functions of the inspector by whom such an inquiry is held and of the Minister after the inspector's report has been received by him and before he has made his decision.

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

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

Where it is proposed that land should be acquired by a Government Department or local authority and works constructed on it for the benefit of the public either as a whole or in a particular locality, the holding of a public inquiry before the acquisition of the land and the construction of the works are authorised has formed a familiar part of the administrative process ever since authorisation by ministerial order of compulsory acquisition of land for public purposes began to be used to replace parliamentary authorisation by Private Bill procedure in the nineteenth century. The essential characteristics of a " local inquiry ", an expression which when appearing in a statute has by now acquired a special meaning as a term of legal art, are that it is held in public in the locality in which the works that are the subject of the proposed scheme are situated by a person appointed by the Minister upon whom the statute has conferred the power in his administrative discretion to decide whether to confirm the scheme. The subject matter of the inquiry is the objections to the proposed scheme that have been received by the Minister from local authorities and from private persons in the vicinity of the proposed stretch of motorway whose interests may be adversely effected, and in consequence of which he is required by Schedule 1. paragraph 9. to hold the inquiry. The purpose of the inquiry is to provide the Minister with as much information about those objections as will ensure that in reaching his decision he will have weighed the harm to local interests and private persons

who may be adversely affected by the scheme against the public benefit which the scheme is likely to achieve and will not have failed to take into consideration any matters which he ought to have taken into consideration.

Where rules regulating the procedure to be followed at a local inquiry held pursuant to a particular statutory provision have been made by the Lord Chancellor under section 11 of the Tribunals and Inquiries Act 1971. the Minister and the inspector appointed to hold the inquiry must observe those rules; but no such rules were applicable in the instant case—they had not yet been made. The Highways Act 1959 being itself silent as to the procedure to be followed at the inquiry, that procedure, within such limits as are necessarily imposed by its qualifying for the description " local " inquiry ", must necessarily be left to the discretion of the Minister or the inspector appointed by him to hold the inquiry on his behalf, or partly to one and partly to the other. In exercising that discretion, as in exercising any other administrative function, they owe a constitutional duty to perform it fairly and honestly and to the best of their ability, as Lord Greene M.R. pointed out in his neglected but luminous analysis of the quasi-judicial and administrative functions of a Minister as confirming authority of a compulsory purchase order made by a local authority which is to be found in B. Johnson & Co. (Builders) Ltd. v. Minister of Health [1947] 2 All E.R. 395 at pp.399, 400. That judgment contains a salutary warning against applying to procedures involved in the making of administrative decisions, concepts that are appropriate to the conduct of ordinary civil litigation between private parties. So rather than use such phrases as " natural justice " which may suggest that the prototype is only to be found in procedures followed by English courts of law, I prefer to put it that in the absence of any rules made under the Tribunals and Inquiries Act 1971. the only requirement of the Highways Act 1959, as to the procedure to be followed at a local inquiry held pursuant to Schedule 1, paragraph 9. is that it must be fair to all those who have an interest in the decision that will follow it whether they have been represented at the inquiry or not. What is a fair procedure to be adopted at a particular inquiry will depend upon the nature of its subject matter.

What is fair procedure is to be judged not in the light of constitutional fictions as to the relationship between the Minister and the other servants of the Crown who serve in the Government Department of which he is the head, but in the light of the practical realities as to the way in which administrative decisions involving forming judgments based on technical considerations are reached. To treat the Minister in his decision-making capacity as someone separate and distinct from the Department of Government of which he is the political head and for whose actions he alone in constitutional theory is accountable to Parliament, is to ignore not only practical realities but also Parliament's intention. Ministers come and go; departments, though their names may change from time to time, remain. Discretion in making administrative decisions is conferred upon a Minister not as an individual but as the holder of an office in which he will have available to him in arriving at his decision the collective knowledge, experience and expertise of all those who serve the Crown in the department of which, for the time being, he is the political head. The collective knowledge, technical as well as factual, of the civil servants in the Department and their collective expertise is to be treated as the Minister's own knowledge, his own expertise. It is they who in reality will have prepared the draft scheme for his approval; it is they who will in the first instance consider the objections to the scheme and the report of the inspector by whom any local inquiry has been held and it is they who will give to the Minister the benefit of their combined experience, technical knowledge and expert opinion on all matters raised in the objections and the report. This is an integral part of the decision-making process itself; it is not to be equiparated with the Minister receiving evidence, expert opinion or advice from sources outside the Department after the local inquiry has been closed.

The content of a draft scheme under section 11 of the Highways Act 1959 for a stretch of motorway to be made by the Minister is purely factual. It describes the proposed route of the motorway and its connecting roads by reference to a deposited plan. It discloses no reasons why the Department considers that it is in the public interest that the construction of this particular stretch of motorway should be authorised at this particular time upon the particular line shown in the deposited plan. If the Minister is to give proper consideration to objections to the scheme by persons in the vicinity of the proposed stretch of motorway, as he is required to do by Schedule 1, paragraph 10, fairness requires that the objectors should have an opportunity of communicating to the Minister the reasons for their objections to the scheme and the facts on which they are based. The Highways Act 1959 requires that the form in which that opportunity is to be afforded to them is at a local inquiry. Fairness, as it seems to me, also requires that the objectors should be given sufficient information about the reasons relied on by the Department as justifying the draft scheme, to enable them to challenge the accuracy of any facts and the validity of any arguments upon which the Departmental reasons are based.

A draft scheme is likely to attract supporters as well as objectors; to modify the scheme so as to meet an individual objection for instance as to the line of the motorway or any connecting roads, may have the result of transferring the adverse effect of the scheme from the objecting property- owner to someone else who had no reason to object to the draft scheme as originally published. Fairness would suggest that supporters of the scheme should also be heard and would require that before a decision is made to modify a draft scheme those adversely affected by the modification should be given an opportunity of stating their reasons for objecting to it.

In the instance case the public inquiries into the two schemes which were for two adjoining stretches of the national motorway network were held together. There were 170 objections to the schemes which had not been withdrawn when the combined inquiry began. There were about a hundred different parties who took part in it and made representations to the inspector orally or in writing in objection to or in support of the schemes. Many of these called witnesses in support of their representations. The hearing of the inquiry by the inspector took a hundred working days between June 1973 and January 1974. He made his report to the Minister on 12 June 1975.

It is evident that an inquiry of this kind and magnitude is quite unlike any civil litigation and that the inspector conducting it must have a wide discretion as to the procedure to be followed in order to achieve its objectives. These are to enable him to ascertain the facts that are relevant to each of the objections, to understand the arguments for and against them and, if he feels qualified to do so, to weigh their respective merits, so that he may provide the Minister with a fair, accurate and adequate report on these matters.

Proceedings at a local inquiry at which many parties wish to make representations without incurring the expense of legal representation, and cannot attend the inquiry throughout its length ought to be as informal as is consistent with achieving those objectives. To "over-judicialise" the inquiry by insisting on observance of the procedures of a court of justice which professional lawyers alone are competent to operate effectively in the interests of their clients would not be fair. It would, in my view, be quite fallacious to suppose that at an inquiry of this kind the only fair way of ascertaining matters of fact and expert opinion is by the oral testimony of witnesses who are subjected to cross-examination on behalf of parties who disagree with what they have said. Such procedure is peculiar to litigation conducted in courts that follow the common law system of procedure; it plays no part in the procedure of courts of justice under legal systems based upon the civil law, including the majority of our fellow Member States of the European Communities; even in our own Admiralty Court it is not availed of for the purpose of ascertaining expert opinion on

questions of navigation—the judge acquires information about this by private inquiry from assessors who are not subject to cross-examination by the parties. So refusal by an inspector to allow a party to cross-examine orally at a local inquiry a person who has made statements of facts or has expressed expert opinions is not per se unfair.

Whether fairness requires an inspector to permit a person who has made statements on matters of fact or opinion, whether expert or otherwise, to be cross-examined by a party to the inquiry who wishes to dispute a particular statement, must depend on all the circumstances. In the instant case, the question arises in connection with expert opinion upon a technical matter. Here the relevant circumstances in considering whether fairness requires that cross-examination should be allowed include the nature of the topic upon which the opinion is expressed, the qualifications of the maker of the statement to deal with that topic, the forensic competence of the proposed cross-examiner, and, most important, the inspector's own views as to whether the likelihood that cross-examination will enable him to make a report which will be more useful to the Minister in reaching his decision than it otherwise would, is sufficient to justify any expense and inconvenience to other parties to the inquiry which would be caused by any resulting prolongation of it.

The circumstances in which the question of cross-examination arose in the instant case were the following. Before the inquiry opened each objector had received a document containing a statement of the Minister's reasons for proposing the draft scheme. It was itself a long and detailed document, and was accompanied by an even longer and more detailed one called Strategic Studies Information, which gave an account of various traffic studies that had been undertaken between 1964 and 1973 in the area to be served by M42 Bromsgrove and M40 Warwick, the methodology used for those studies and the conclusions reached. The second paragraph of the Minister's statement of reasons said: " The Government's policy to build these new motorways " (s.c. for which the two schemes provided) " will not be open to debate at " the forthcoming inquiries; the Secretary of State is answerable to Parliament " for this policy ".

" Policy " as descriptive of departmental decisions to pursue a particular course of conduct is a protean word and much confusion in the instant case has, in my view, been caused by a failure to define the sense in which it can properly be used to describe a topic which is unsuitable to be the subject of an investigation as to its merits at an inquiry at which only persons with local interests affected by the scheme are entitled to be represented. A decision to construct a nationwide network of motorways is clearly one of Government policy in the widest sense of the term. Any proposal to alter it is appropriate to be the subject of debate in Parliament, not of separate investigations in each of scores of local inquiries before individual inspectors up and down the country upon whatever material happens to be presented to them at the particular inquiry over which they preside. So much the respondents readily concede.

At the other extreme the selection of the exact line to be followed through a particular locality by a motorway designed to carry traffic between the destinations that it is intended to serve would not be described as involving Government policy in the ordinary sense of that term. It affects particular local interests only and normally does not affect the interests of any wider section of the public, unless a suggested variation of the line would involve exorbitant expenditure of money raised by taxation. It is an appropriate subject for full investigation at a local inquiry and is one on which the inspector by whom the investigation is to be conducted can form a judgment on which to base a recommendation which deserves to carry weight with the Minister in reaching a final decision as to the line the motorway should follow.

Between the black and white of these two extremes, however, there is what my noble and learned friend, Lord Lane, in the course of the hearing described as a " grey area ". Because of the time that must elapse between

the preparation of any scheme and the completion of the stretch of motorway that it authorises, the Department, in deciding in what order new stretches of the national network ought to be constructed, has adopted a uniform practice throughout the country of making a major factor in its decision the likelihood that there will be a traffic need for that particular stretch of motorway in fifteen years from the date when the scheme was prepared. This is known as the " design year " of the scheme. Priorities as between one stretch of motorway and another have got to be determined somehow. Semasiologists may argue whether the adoption by the Department of a uniform practice for doing this is most appropriately described as Government policy or as something else. But the propriety of adopting it is clearly a matter fit to be debated in a wider forum and with the assistance of a wider range of relevant material than any investigation at an individual local inquiry is likely to provide; and in that sense at least, which is the relevant sense for present purposes, its adoption forms part of Government policy.

The " need " for a new road to carry traffic between given destinations is an imprecise concept. If it is to be used as an important factor in comparing one situation with another for the purpose of determining priorities, there must be uniform criteria by which that need in each locality is to be measured. The test of future needs in the design year which the Department has adopted is: whether, if the new stretch of motorway is not constructed, there will be undue congestion of traffic on existing roads, either in the locality or forming other parts of the national network of motorways, for which the new stretch of motorway would provide an alternative route. To apply this test of need to a design year fifteen years ahead involves, among other things, estimating(1) the amount of traffic that the existing roads in the locality are capable of bearing without becoming so congested as to involve unacceptable delays; and

(2) the amount of traffic that in the absence of the new stretch of motorway would in the design year be using those existing roads which the motorway is intended to relieve.

The methods used by the Department for arriving at these estimates are very complicated. So far as I am capable of understanding them as one who is by now (I hope) a reasonably well-informed layman, it is obvious to me that no one who is not an expert in this esoteric subject could form a useful judgment as to their merits. The methods used are kept under periodical review by the Department's own experts as a result of which they are revised from time to time. They are described in published documents. One which it will be necessary to mention dealt with the capacity of rural roads; but that which is most relevant to the respondent's complaint about refusal to permit cross-examination in the instant case has been referred to as the Red Book. It was published in 1968 under the title " Traffic Prediction "for Rural Roads" and described the method that had been used for predicting the growth of traffic up to the design year on the roads which the M42 Bromsgrove and M40 Warwick were intended to relieve. Important features of the method set out in the Red Book for predicting traffic that will be using the roads in a particular locality are the assumptions(1) that in general traffic on rural roads throughout the country will grow at the same rate in all areas, except where exceptional changes can be foreseen as likely to take place in a particular locality; and

(2) that the annual rate of growth will fall off as vehicle ownership in the country approaches saturation point, and that the best way of predicting what the growth will have been up to a particular design year is by assuming that it can be graphically represented by a curve that is asymptotic (i.e. broadly "S" shaped) and whose shape where it represents future years can be extrapolated (i.e. predicted) from the shape of the curve which represents the observed annual increase in vehicle registrations over past years. It was recognised that predictions as applied to individual roads could only be very approximate and were subject to margins of error as high as 10% to 20%.

The decisions to make these two assumptions for the purpose of calculating and comparing what traffic needs will be in all localities throughout the country in which it is proposed to construct future stretches of the national network of motorway, might not, in a general context, be most naturally

described as being government policy; but if a decision to determine priorities in the construction of future stretches of the national network of motorways by reference to their respective traffic needs in a design year fifteen years ahead can properly be described as government policy, as I think it can, the definition of " traffic needs " to be used for the purposes of applying the policy, viz. traffic needs as assessed by methods described in the Red Book and the departmental publication on the capacity of rural roads may well be regarded as an essential element in the policy. But whether the uniform adoption of particular methods of assessment is described as policy or methodology, the merits of the methods adopted are, in my view, clearly not appropriate for investigation at individual local inquiries by an inspector whose consideration of the matter is necessarily limited by the material which happens to be presented to him at the particular inquiry which he is holding. It would be a rash inspector who based on that kind of material a positive recommendation to the Minister that the method of predicting traffic needs throughout the country should be changed and it would be an unwise Minister who acted in reliance on it.

At the local inquiry into the M42 Bromsgrove and the M40 Warwick, objectors including the respondents, whose property would be affected by the scheme, and the M42 Action Committee, a "pressure group" which supported them primarily upon environmental grounds, had studied in advance the Minister's reasons for the schemes, the Strategic Studies Information and the Red Book. They came to the inquiry prepared to criticise the methods used to predict the traffic needs in the design year on local roads in the localities of the M42 Bromsgrove and M40 Warwick and to call evidence of witnesses with professional qualifications to testify to their unreliability. The circumstances in which the inspector was induced to give an early ruling as to what evidence he would admit and what cross- examination he would allow are recounted in the speech of my noble and learned friends. In the result—and when one is considering natural justice it is the result that matters—the objectors were allowed to voice their criticisms of the methods used to predict traffic needs for the purposes of the two schemes and to call such expert evidence as they wanted to in support of their criticisms. What they were not allowed to do was to cross-examine the Department's representatives upon the reliability and statistical validity of the methods of traffic prediction described in the Red Book and applied by the Department for the purpose of calculating and comparing traffic needs in all localities throughout the country. This is the only matter in relation to the conduct of the inquiry by the inspector of which complaint is made.

Was this unfair to the objectors? For the reasons I have already given and in full agreement with the minority judgment of Templeman L.J. in the Court of Appeal, I do not think it was. I think that the inspector was right in saying that the use of the concept of traffic needs in the design year assessed by a particular method as the yardstick by which to determine the order in which particular stretches of the national network of motorways should be constructed, was government policy in the relevant sense of being a topic unsuitable for investigation by individual inspectors upon whatever material happens to be presented to them at local inquiries held throughout the country.

In June 1975 the inspector sent his report to the Minister. He recommended that both schemes should be made as drafted but subject to a considerable number of relatively minor modifications; and he duly reported to the Minister the criticisms of the Red Book method of forecasting traffic growth that he had received. As regards traffic needs in the design year, the inspector came to the conclusion that he ought to be guided by the Department's forecasts while at the same time recognising the wide margin of error to which they were admitted to be subject. He added:

"It may well be that more " up-to-date and authoritative forecasts will have become available by the time " you consider this report; if so, you will, I trust, be in a position to assess " my conclusions in the light of this later information."

The inspector's prophecy had been borne out by the time the Minister made his decision on 5 August 1976. In August 1974, new standards for assessing the capacity of rural roads were adopted and published by the Department. Experience had shown that as a result of improvements in motor vehicles and road construction modern roads were capable of carrying more traffic than they had been credited with under the previous system by which capacity was estimated. In 1975, the method described in the Red Book for predicting traffic growth on rural roads was abandoned by the Department and replaced by a revised method. It is not necessary to describe the changes except to say that they resulted in predictions of slower growth than the Red Book method. The respondents claim that it was a denial of natural justice to them on the Minister's part not to re-open the local inquiry so as to give to objectors an opportunity of criticising these revised methods of assessment, cross-examining the Department's representatives about them and advancing arguments as to the strength they added to the objectors' case.

As a further ground for re-opening the inquiry, the respondents also relied upon the fact that in 1974 actual traffic counts were made on roads in the areas affected by M42 Bromsgrove and M40 Warwick which could be compared with figures that had been predicted for that year at the inquiry by extrapolation from actual counts that had been made in 1968. The actual numbers were substantially less than those that had been predicted. This is not at all surprising when it is borne in mind that 1974 was the oil crisis year and I need say no more about it.

My Lords,

in the analysis by Lord Greene M.R. in B. Johnson & Co. v. Minister of Health (supra) of the common case in which a Minister's functions are to confirm, modify or reject a scheme prepared and promoted by a local authority, it is pointed out that the Minister's ultimate decision is a purely administrative one. It is only at one stage in the course of arriving at his decision that there is imposed on his administrative character, a character loosely described as being quasi judicial; and that is: when he is considering the respective representations of the promoting authority and of the objectors made at the local inquiry and the report of the inspector upon them. In doing this he must act fairly as between the promoting authority and the objectors; after the inquiry has closed he must not hear one side without letting the other know; he must not accept from third parties fresh evidence which supports one side's case without giving the other side an opportunity to answer it. But when he comes to reach his decision, what he does bears little resemblance to adjudicating on a lis between the parties represented at the inquiry. Upon the substantive matter, viz. whether the order should be confirmed or not, there is a third party who was not represented at the inquiry, the general public as a whole whose interests it is the Minister's duty to treat as paramount. No one could reasonably suggest that as part of the decision-making process after receipt of the report the Minister ought not to consult with the officials of his department and obtain from them the best informed advice he can to enable him to form a balanced judgment on the strength of the objections and merits of the scheme in the interests of the public as a whole, or that he was bound to communicate the departmental advice that he received to the promoting authority and the objectors.

If the analogy of a lis inter partes be a false analogy even where the scheme which is the subject of the local inquiry is not a departmental scheme but one of which a public authority other than the Minister is the originator, the analogy is even farther from reflecting the essentially administrative nature of the Minister's functions when having considered in the light of the advice of his Department the objections which have been the subject of a local inquiry and the report of the inspector, he makes his decision in a case where the scheme is one that has been prepared by his own Department itself and which it is for him in his capacity as head of that Department to decide whether it is in the general public interest that it should be made or not. Once he has reached his decision he must be prepared to disclose his reasons for it, because the Tribunals and Inquiries.

Act 1971 so requires; but he is, in my view, under no obligation to disclose to objectors and give them an opportunity of commenting on advice, expert or otherwise, which he receives from his Department in the course of making up his mind. If he thinks that to do so will be helpful to him in reaching the right decision in the public interest he may, of course, do so; but if he does not think it will be helpful—and this is for him to decide—failure to do so cannot in my view be treated as a denial of natural justice to the objectors.

In the instant case the respondents were in fact aware of the advice the Minister had received from his Department upon two matters after the local inquiry had closed and before he made his decision. That advice was disclosed in the two publicly available documents that I have mentioned, which announced revisions in the methods to be used by the Department, including the Minister as its head, in estimating the capacity of rural roads to carry traffic and the predictions of traffic growth on rural roads. Both of these changes in government policy as to the yardstick by which the traffic need for one stretch of the national network of motorways is to be compared with the traffic need for another, were relevant to the Minister's decision in August 1976 whether to authorise the schemes for the construction of M42 Bromsgrove and M40 Warwick then or to let them lapse. So the Department did their sums again, applying the revised methods of estimation and prediction. The results of these fresh calculations are stated by the Minister in those paragraphs of the letter giving the reasons for his decision, which are cited by Templeman L.J. in his judgment. It suffices for my purpose to say that; having regard to the later design year that had become appropriate in view of the lapse of time since 1972 when the schemes were first prepared, the Minister was of opinion that the traffic needs for the M42 Bromsgrove and for the M40 Warwick disclosed by using the revised methods of estimation and prediction did not differ so materially from those estimates of traffic needs arrived at by the unrevised methods on which the Department had relied in its evidence at the local inquiry, as to affect the Minister's decision to accept the inspector's recommendation that the schemes should be made, despite the fact that it was the latter that were the departmental estimates which the inspector had before him when he made his recommendations.

My Lords,

what the respondents really wanted to do in seeking the re-opening of the local inquiry was to hold up authorisation of the construction of M42 Bromsgrove and M40 Warwick until the revised methods adopted by the Department for estimating the comparative traffic needs for stretches of the national network of motorways which have not yet been constructed had been the subject of investigation at the re-opened inquiry. For reasons that I have already elaborated, a local inquiry does not provide a suitable forum in which to debate what is in the relevant sense a matter of government policy. So the Minister was in my view fully justified in refusing to re-open the local inquiry and in refusing to defer his decision whether or not to make the schemes until after this had been done and he had received a further report from the inspector. So the second ground on which the respondents claim they have suffered a denial of natural justice in my view also fails.

The schemes were, in my view, validly made by the Minister on 5 August 1976 and I would allow the appeal.

I would not, however, part from this case without remarking that the making of a scheme under section 11 of the Highways Act 1959 is by no means the end of the matter. More than three years have passed since the schemes were made in the instant case; the next step, the procedure for making compulsory purchase orders in respect of land needed for the construction of the motorways, has not yet been put in hand. The pendency of the present litigation would have prevented this even if the Minister had wanted to start construction by now. In the meantime even since the Minister's decision, there have been further revisions in the method of

estimating traffic need in future years. These have now been adopted by the Minister on the recommendation of an expert departmental committee, appointed for this purpose. In making his administrative decision whether and when to proceed with the actual construction of M42 Bromsgrove or M40 Warwick, pursuant to the authorisation granted by the schemes, the Minister will take into consideration traffic needs as assessed by whatever is the method that it is then the policy of the Department to adopt as the most reliable available. But schemes authorising the construction of motorways and decisions to act on such authorisations cannot be held up indefinitely because the current methods of estimating and predicting future traffic needs are imperfect and are likely to be improved as further experience is gained. Comparative traffic needs must be measured by the best yardstick available at the time of the decision and it is in the nature of the problem with which the Minister is confronted that this may not be the same at the times when each of the successive decisions are taken: viz. to publish the draft scheme, to make the scheme and to proceed with the construction of the stretch of motorway authorised by the scheme.

That is why in the last letter from the Department to the objectors that was put in evidence in the instant case and was dated after the Minister's decision had been made, it was said:

" If your Committee wishes to make further representations, such " representations can always be considered by the Secretary of State " as part of the continuous consideration of any of the Department's " proposals."

Viscount Dilhorne

My Lords,

Section 11 of the Highways Act 1959 gives the Minister of Transport power to make a scheme authorising the provision of a special road if the road is to be provided by him. If the special road is to be provided by a local highway authority, the scheme authorising it is made by the local highway authority and confirmed by the Minister.

Any scheme for such a road, whether proposed by the Minister or submitted to him by a local highway authority, must be published in accordance with the requirements of paragraph 1 of the 1st Schedule to the Act. If any objection to the proposed scheme is received by the Minister within the stipulated period and is not withdrawn, the Minister must cause a local inquiry to be held though in certain circumstances he may dispense with that if he is satisfied that the holding of an inquiry is unnecessary (1st Sched: para: 9). Then, after considering any objections which are not withdrawn, and when a local inquiry is held, the report of the person who held the inquiry, the Minister may make or confirm the scheme either without modification or subject to such modifications as he thinks fit (1st Sched: para: 10).

Two schemes were published in accordance with the statutory requirements for the provision under section 11 of two stretches of motorway, one 18.5 miles in length to form the Bromsgrove Section of the proposed M.42, and the other about 13.2 miles in length to form the Warwick Section of the proposed M.40. 900 objections were lodged and, as 170 of them were not withdrawn, the Secretary of State caused a local inquiry to be held. When it has been decided that the construction of a particular motorway is desirable, schemes are published in relation to different stretches of the motorway with the consequence that there may be a number of local inquiries in respect of each motorway. Then, if a scheme is made or confirmed, there may be more local inquiries if objection is taken to the acquisition of the land required. It is a lengthy process.

The Franks Committee in 1957 in their report on Administrative Tribunals and Enquiries (Cmd. 218) recommended that before a local inquiry was opened, particulars of the case for the proposal should be given in the form of a written statement and that the views of the Minister responsible should be given in the form of a policy statement as fairness required that those whose individual rights and interests were likely to be adversely affected by the action proposed, should know in good time the case they had to meet.

In accordance with this recommendation the Department produced and sent to objectors a lengthy ' Statement of Case ' for their proposals. It was accompanied by a 'Statement of Policy by the Secretary of State for the 'Environment'.

The introductory paragraphs of the Statement of Case read as follows: —

" 1.1 It is the Government's policy as part of a strategic Trunk " Road Network to be completed by the early 1980's, to build new " motorways to provide relief to the M.1/M.6 and Trunk Roads in " the Oxford-Birmingham corridor, and for the M.5 and Trunk Roads " in the Birmingham-Nottingham corridor. The M.42 Bromsgrove " Section and the M.40 Warwick Section are integral parts of these " new motorways (Policy Statement appended).

" 1.2 The Government's policy to build these new motorways will " not be open to debate at the forthcoming inquiries; the Secretary of " State is answerable to Parliament for this policy. But objectors will " be free to argue, if they so wish, that the M.42 Bromsgrove Section " and M.40 Warwick Section should not be built upon the line at " present proposed by the Secretary of State in his draft published " schemes and that the Umberslade interchange should be differently " located.

" 1.3 This Statement of Case will, therefore, explain the background " against which the Secretary of State reached his policy to build the " motorways and the need which they are intended to serve. It will be " explained how the published lines of the M.42 Bromsgrove Section " and the M.40 Warwick Section and the published location of the " Umberslade Interchange were selected."

The Policy Statement also stated that it was the Government's policy to build these motorways and that the Bromsgrove and Warwick sections were integral parts of them. It repeated that the Secretary of State's general policy of providing the strategic network would not be open to debate at the inquiries into the proposals for the Bromsgrove and Warwick Sections.

The Franks Committee recognised that broad policy was something for which a Minister was answerable to Parliament alone and had no wish to suggest that the statement of policy should be automatically open to debate at a local inquiry. They said that a Minister should be free, when issuing a statement of policy, to direct in writing that the whole or certain parts of it were not open to discussion at the inquiry. " This power ", they said. " would avoid useless discussion of policy in the wrong forum, but the " manner of its exercise would itself be open to criticism in the right " forum—Parliament." (Para: 288).

The Highways Act 1959 contains no provision requiring those appearing at a local inquiry to observe and to comply with such directions as a Minister might give as to the matters which might be discussed thereat. If in the present case the directions of the Secretary of State had been observed, then at the inquiry there would have been no consideration of the need for these motorways of which the Bromsgrove and Warwick Sections were integral parts. All that could have been considered was the line these Sections should take. This was, we were told, the first inquiry at which the need for the proposed motorways was challenged and debated.

It came about in this way. The report of the inspector shows that directly the inquiry was opened on the 12th June 1972, it was submitted that the view was not tenable that debate on the need for these motorways could be excluded from the inquiry, and the inspector's ruling on the following three questions was sought: -

" 1. Would evidence that this motorway (i.e. M.42) is not necessary " be admitted?

" 2. If so, would the Inspector be willing to listen to such evidence " and report it to the Secretary of State?

" 3. If answers to both the above questions were in the affirmative, " would the Secretary of State be prepared to take such a report into " consideration? "

In giving his ruling the inspector said it was entirely for him to decide any question of relevancy but that in deciding as to relevancy, he would not be restrictive and would admit any evidence or submission which was aimed at rebutting the Department's case on the question of the need for the motorway; nevertheless he would not allow the inquiry to be made into an inquiry into the Government's general transport policy as such matters were for Parliament to decide and could not usefully be discussed at a local public inquiry. In answer to the three questions on which he was asked to rule, he said he would admit evidence which appeared to him to be relevant and report to the Secretary of State on all evidence given at the inquiry and that the third question was a matter for the Secretary of State.

Subsequently he amplified his ruling and said that he would not necessarily prevent an objector from giving evidence which was irrelevant but that he would not require the Department to deal with such evidence ' nor would ' he allow the Department's witnesses to be cross-examined on the matters ' raised '.

By agreement paragraph 1.2 of the Statement of Case and the last paragraph of the Statement of Policy were deleted with the result that the restriction which the Secretary of State had sought to impose on the matters which might be discussed at the inquiry was treated as inoperative.

After the inspector had dealt with a number of other submissions, witnesses were called to explain the Department's case. It used to be exceptional for a Department to do this (See Franks Committee's Report, para: 314) and then only the evidence and submissions of the objectors were heard at the inquiry. That Committee saw no reason why the factual basis for a departmental view should not be explained and its validity tested in cross-examination. Their proposals were, they said, designed to broaden the scope of the inquiry sufficiently to give individual objectors reasonable opportunities for testing the case against them and the evidence for that case (ibid: para: 316). As I have said the Committee thought that the Minister should have power to direct that policy should not be discussed at an inquiry but as a policy usually has a factual basis, the line between what the Committee thought should be done and what a Minister should be able to direct should not be done, is indefinite.

One consequence of the implementation of the recommendation that a Department should call evidence in support of its case is that the procedure at an inquiry now more closely resembles that of a trial than it did. A trial ends with a decision in favour of one party. An inquiry does not. There is no lis between a Minister and his Department on the one hand and the objectors on the other. An inquiry is followed by the inspector reporting to the Minister on the evidence given at the inquiry and his conclusions thereon and recommendations. The Minister then has to decide and in reaching his decision he may have regard to policy considerations not discussed at the inquiry. If there was a lis between the Minister putting forward a scheme or proposal and the objectors, then indeed the Minister would be judge in his own cause.

Brought about as it is by the lodging of objections, the primary purpose of a local inquiry must be ' to ensure that the interests of the citizens ' closely affected should be protected by the grant to them of a statutory ' right to be heard in support of their objections, and to ensure that thereby ' the Minister should be better informed of the facts of the case' (Franks Committee's Report, para: 269). If objectors are given a full opportunity of being heard in support of their objections, I find it difficult to see that a complaint of unfairness or an allegation of a denial of natural justice in the conduct of the inquiry can be well founded.

The witnesses called for the Department at this inquiry dealt with a wide variety of matters, including traffic studies that had been made, traffic predictions for the future and the testing of alternatives to the motorways proposed. Owing to the time it takes to provide a new motorway it is necessary to forecast traffic flows 15 years ahead, at the end of what is called the 15 year design period.

These witnesses fully explained the Department's case and the grounds on which it was proposed that these motorways should be made. The Department thought that without these motorways all the roads considered, the A.34, A.41, A.423 M.5, M.1. and M.6 would 'carry flows substantially 'in excess of twice the design capacity in 1990' and that with them the flows would not exceed twice the design capacity except in two urban lengths.

In making their traffic forecasts, the Department had applied the methods prescribed in a booklet published by them in 1968 called ' Traffic Prediction ' for Rural Areas ' (hereafter referred to as ' the Red Book ') and they accepted that in the light of knowledge gained since its publication, it would be proper to reduce all their traffic forecasts based on these methods by 8 per cent in 1974 and by 7 per cent in 1990. These methods were used not only for determining whether there was need for a particular motorway but also in determining the priority of proposed motorways.

The inspector after hearing all the evidence called and submissions made at this inquiry which started on the 12th June 1972 and ended on the 29th January 1974 after over 100 sittings, concluded that the justification of the Department's proposals was ultimately dependent on the traffic forecasts. He said that it was an unavoidable difficulty that forecasts so far ahead as the design year (1990) must be uncertain to a greater or less degree and that the Department's forecasts depended on traffic surveys and the projection of traffic flows from these surveys forward to 1968 C the base 'year'), 1974 (the then present year) and 1990 (the design year) and finally on a computer assignment of the traffic identified to the various roads in the network.

All these processes, were, he said, criticised by objectors.

In this appeal we are concerned only with one of them, the projection of traffic flows calculated as prescribed by the Red Book. Considerable expert evidence was called by objectors to establish that more reliable forecasts could be made by the use of different and more sophisticated methods and it was contended that if these methods were used, the need for these motorways in 1990 was not established. In accordance with his ruling the inspector allowed this evidence to be given but he did not allow cross-examination of the Department's witnesses on the methods prescribed by the Red Book or as to these other methods. He thought that he ought to be generally guided by the Department's forecasts but said that he should guard against crediting them with a precision they could not in fact possess and that this applied especially to predictions for 1990. He also said: —

" It may well be that more up-to-date and authoritative forecasts will " have become available by the time you consider this report; if so. " you will, I trust, be in a position to assess my conclusions in the " light of this later information."

He concluded that there was a need for these motorways.

It is against this background that the allegation that the refusal to permit the cross-examination of civil servants as to the validity of the methods prescribed in the Red Book and as to the more sophisticated methods put forward on behalf of the objectors falls to be considered.

It is clear that the objectors at this inquiry had every opportunity of putting forward their case. An inspector at an inquiry has a wide discretion as to its conduct. He may, in my view, properly disallow a particular line of cross-examination if it is not likely to serve any useful purpose. An admission or expression of view in the course of cross-examination at a trial may well affect the result, but the views of Departmental witnesses as to the comparative merits of different methods of forecasting traffic elicited in the course of cross-examination are not likely to affect the ultimate outcome.

In the lengthy and detailed report of the inspector the evidence of the expert witnesses called by objectors was faithfully recorded. It was there for the Secretary of State to see and to consider, no doubt in the light of advice he received from the civil servants in his Department. I cannot think that the expression of views at the inquiry by civil servants as to methods of forecasting traffic would have assisted him or have served any useful purpose.

In my opinion the inspector was fully entitled in the exercise of his discretion to refuse to allow that cross-examination and only if one treats proceedings at an inquiry as a trial—which they are not—can any ground be found for saying that in disallowing this cross-examination, there was a denial of natural justice or unfairness. In my opinion there was not.

After the inquiry had closed on the 29th January 1974 and before the inspector had made his report to the Secretary of State, the Department published two technical memoranda; the first, published on the 12th August 1974 on ' Design Flows for Motorways and Rural All-Purpose Roads' and the second, published in February 1975 on 'Standard Forecasts of Vehicles ' and Traffic '.

The first of these revised the Design Flow Standards, its first paragraph stating: —

" Observation, traffic counts and speed/flow studies have shown that " modern roads are capable of safely carrying higher numbers of vehicles " than the flow levels for which they are currently designed."

The second of these provided a new basis for forecasting future traffic and superseded the forecasts based on the Red Book. Slower growth of traffic was predicted.

A census taken in August 1974 of traffic on the relevant roads showed that it was less than anticipated in that year.

It was consequently claimed that the Department's case at the inquiry was invalidated. After the first of these memoranda was published the re-opening of the inquiry was sought. This was not agreed to. On the 12th June 1975 the inspector reported and on the 25th May 1976 a letter was written on behalf of the Department to the Chairman of the Midland Motorway Action Committee which contained the following paragraph:

" As I explained in my letter of 15 January, before he decides about " the motorway schemes, the Secretary of State will take into account all " the relevant information available to him. This will include any new " information which has a bearing on the proposals considered at the " Public Inquiries and if the consideration of such new information leads " the Secretary of State to disagree with the Inspector's recommendations " about the schemes, there will be an opportunity, in accordance with " the usual practice, for the objectors to comment on the information."

On the 18th August 1976 a further letter was written on behalf of the Department to the Chairman of that Committee. Its final paragraph stated: —

" If your Committee wishes to make further representations, such " representations can always be considered by the Secretary of State as " part of the continuous consideration of any of the Department's " proposals."

On the 19th August 1976 the Secretary of State gave his decision. He agreed generally with the inspector's recommendations. In the decision letter he said that the Department's traffic evidence at the inquiries had been re-examined in the light of developments since they concluded, that the Department's evidence at the inquiries as to road capacities was in line with the new standards, and that re-examination of their traffic forecasts on the new basis strengthened the traffic elements of the case for the new motorways. Paragraph 112 of the letter stated that: —

" The general changes relating to design flow standards and traffic " forecasts which have taken place since the Inquiries have been fully " taken into account by the Secretary of State who is satisfied that these " do not materially affect the evidence on which the Inspector made his " recommendations. He is convinced that the schemes are needed and " should be constructed as soon as funds and other road programme " priorities permit."

It is now said that failure to re-open the inquiry was a denial of natural justice. I cannot regard this contention as well founded. If it had been re-opened, objectors would, it is true, have been able to comment on the new standards and their effect in relation to the proposed motorways and on the disparity between the actual and anticipated traffic in 1974. But without any re-opening of the inquiry they could make such comments on these matters as they desired to the Secretary of State and they would have been considered by him. In the circumstances I cannot see that there was any denial of justice or unfairness to objectors by the refusal to re-open the inquiry.

My Lords,

the history of this lengthy and expensive litigation shows in my opinion the desirability of Ministers having power, for the exercise of which they would be responsible to Parliament, to limit the matters which may be discussed at a local inquiry. If the need for a particular motorway can be discussed at every inquiry held in consequence of objections to a scheme to construct a part of it, the time it takes to deal with these matters is bound to be extended. If the need for a motorway is to be debated at one inquiry, I find it difficult to see any reason why it cannot be considered at others. As was said in the Report on the Review of Highway Inquiry Procedures 1978 (Cmd: 7133)

". . . local inquiries are unsuitable for examining technical issues, such " as methods of trunk road assessment, which have a national impact. " But technical matters must not be immune from rigorous examination " by an independent body. The Leitch Committee has already made " recommendations on these subjects. The new Standing Advisory " Committee, to be chaired by Sir George Leitch, which is being set up " by the Secretary of State for Transport, will have a continuing " responsibility to monitor developments in methods of technical " assessment."

How much time was spent at this inquiry in examination of technical issues I do not know but with such issues being monitored by a Standing Advisory Committee, the case for not permitting them to be debated at a local public inquiry appears to me strong.

For the reasons I have stated I would allow this appeal.

Lord Edmund-Davies

My Lords,

On November 3. 1972 the appellant published draft Schemes under section 11 of the Highways Act 1959 for the construction of two sections of motorway. His Statement of Policy was in the following terms:

" It is the Government's policy:

" 1. As part of a strategic Trunk Road Network to be completed " by the early 1980's to build new motorways to provide relief to the " M1/M6 and Trunk Roads in the Oxford-Birmingham corridor and " for the M5 and Trunk Roads in the Birmingham-Nottingham " corridor. The M42 Bromsgrove section and the M40 Warwick " section are integral parts of these motorways.

" 2. To construct the motorways to standards which will permit " them to absorb the increasing traffic loads expected in the next " 20 years so that traffic will flow freely and without interruption from " congestion.

" 3. To construct the motorways to standards which will minimise " the risk of accident or injury.

" 4. To construct the motorways on routes which will secure the " maximum economic benefit for the Nation and the communities " through which they pass, whilst taking account of the need to preserve " property and amenity."

In its original form, the Statement of Policy ended in this way:

" The Secretary of State's general policy of providing the strategic " network will not be open to debate at the forthcoming inquiries " into the proposals for the M42 (Bromsgrove Section) and for the M40 " (Warwick Section), nor will such related questions of policy as the " diversion of goods in transit from the roads to the railways or " restricting the growth of road transport."

If the proposed M42 route were adopted, it would divide into four sections the farm-land of the respondent John Bushell at Alvechurch and would also affect leasehold property owned by the respondent Terence James Brunt. They lodged objections to the Schemes and joined with others in forming the " M42 Action Committee ", which in its turn became a member of the Midland Motorways Action Committee. By the time the local inquiry set up by the appellant opened on June 12, 1973 there were 170 objectors.

At the outset, objection was taken by learned counsel for the M42 Action Committee to the following paragraphs in the appellant's Statement of Case:

" 1.2. The Government's policy to build these new motorways will " not be open to debate at the forthcoming inquiries: the Secretary of " State is answerable to Parliament for this policy. But objectors will " be free to argue, if they so wish, that the M42 Bromsgrove Section " and M40 Warwick Section should not be built upon the line at " present proposed by the Secretary of State in his draft published " schemes

" 1.3. This Statement of Case will, therefore, explain the background " against which the Secretary of State reached his policy to build the " motorways and the need which they are intended to serve. It will " be explained how the published lines of the M42 Bromsgrove Section " and the M40 Warwick Section were selected ".

Counsel for the objectors stated that he wished to call evidence that there was no need for the M42 Scheme and also wished to cross-examine the Department's witnesses on that topic, and submitted that the prohibition

contained in the Statement of Case was unsupported by the provisions of the 1959 Act. He therefore sought the inspector's ruling on the following questions:

" 1. Would evidence that motorway M42 is not necessary be " admitted?

" 2. If so, would the Inspector be willing to listen to such evidence " and report it to the Secretary of State?

" 3. If answers to both the above questions were in the affirmative, " would the Secretary of State be prepared to take such a report into " consideration? "

The Inspector's ruling must be quoted verbatim -. " f. RULING

" i. In giving my ruling I stated that Counsel for the Department " had confirmed my understanding that it was entirely for me. as " Inspector, to decide any question of relevancy. I said that, in " applying my decision as to what was relevant, I would not seek to " be restrictive and that, in particular I would admit any evidence " or submission which was aimed at rebutting the Department's case on " the question of the need for the motorway. Nevertheless I could not " allow the Inquiry to be made into an inquiry into the Government's " general transport policy; such matters were for Parliament to decide " and they could not properly or usefully be discussed at a Local " Public Inquiry.

" ii. I gave answers as follows to the three questions put by " Mr. Marnham:

" 1. I would admit evidence that appeared to me to be relevant " on the above criteria.

" 2. I would report to the Secretary of State on all evidence given " at the Inquiry.

" 3. This would be a matter for the Secretary of State.

" iii. Subsequently during the inquiry, on a number of occasions, I " amplified my ruling by explaining that I would not necessarily prevent " an objector from giving evidence which was irrelevant on the criteria " of i. above but that, nevertheless, I would not require the Department " to deal with such evidence (ie rebut or cross-examine it) nor would " I allow the Department's witnesses to be cross-examined on the " matters raised. My conduct of the Inquiry was guided by my ruling " as amplified.

" g. As a result of my ruling it was suggested by Mr. Norris (CPRE " Worcs Branch) that paragraph 1.2 should be deleted from the " Department's Statement of Case (Doc D6); no objection to this was " raised by Counsel for the Department and, by common agreement. " the deletion was effected. The similar last paragraph of the " Statement of Policy of the Secretary of State annexed to the Statement " of Case was not at this time specifically deleted, but it was accepted " by the Department in a circular letter dated 31 August 1973 (Copy " in bundle Doc D50) that, as a consequence of the agreed deletion of " paragraph 1.2, it should be disregarded."

It should be added that the inspector's ruling was expressed to extend to the hearing of M40 objections as well as those relating to M42.

The ruling rendered this inquiry unique of its kind, and that fact may go a long way towards explaining the unexpected difficulty by which the inspector found himself confronted and to which, as I hold, he fell foul. For. seemingly unlike all previous inquiries, it followed from his ruling that a cardinal question in this particular inquiry was whether there existed a need for the contested sections of the new motorways. That topic constantly recurred during the 100 working days it lasted, and when the inspector's

report ultimately emerged in June 1975 the very first of his "General " Conclusions on the Proposals " was introduced in this way:

" 623. Need for the proposals.

" a. On the evidence which I have heard and, in particular, on " the basis of the traffic forecasts given in evidence by the Department, " I conclude that there is a need for trunk road schemes to provide " relief to the M1/M6 and trunk roads in the Oxford/Birmingham " corridor and to M5 and roads in the SW/Birmingham corridor." (Emphasis added).

That the appellant in his turn attached no less importance to the issue of need emerged with clarity from his Decision letter of August 19 1976 as to which I respectfully adopt the pungent comments of Shaw L.J. below.

The key witness for the Department in this respect was Mr. J. A. Brooks, a traffic engineer who very favourably impressed the inspector. A proof of his evidence was produced to the Court of Appeal, and three comments may fairly be made about it:(1) It recognised the fundamental importance of establishing the need for the proposed schemes.

(2) It accepted that need depended to a great extent upon traffic projections, thus foreshadowing the view of the Leitch Committee (Report of the Advisory Committee on Trunk Road Assessment 1977, paragraph 19.1) that "Traffic forecasts are " of central importance in the decision to build roads ".

(3) For Mr. Brooks the proper starting-point for such projections was the Ministry of Transport's " Advisory Manual on Traffic Prediction for Rural Roads ", issued in 1968 and commonly known as " The Red Book ". Lord Denning M.R. was, with respect, clearly right in observing that, with certain modifications which the Department accepted, " The Red Book was the sheet-anchor of the " Department at the Inquiry ". The data contained in it provided the basis of the traffic forecasts given on behalf of the Department, and the forecasts themselves were arrived at by applying the extrapolatory methods advocated in the Red Book.

The respondents sought to challenge those methods at the outset by cross-examination. They wanted an opportunity to demonstrate out of the mouths of the Department witnesses themselves that the Red Book methodology was neither accurate nor reliable. But the Department resisted their application to do so, submitting that the procedures adopted in the Red Book were " Government policy " and so within the inspector's classification of " irrelevant matter". Most regrettably, the inspector upheld that submission and ruled that no such cross-examination could be permitted.

The Department has since sought to support that ruling in a variety of ways. Sir Douglas Frank Q.C. said in the course of his unreported judgment:

" Mr. Woolf [for the Department] argued that a scheme under " section 11 relates only to the prescription of a route or, as it is " commonly called ' the line ', and that the question of the need for " it strictly does not arise at the inquiry, and he remarked that this was " the first case where the [Department] had given evidence of need. " He contended that the Red Book provided no more than a statistical " basis on which evidence was given, and that because of the ' boundary " ' conditions ' it was based on or incorporated matters of policy of " the [Secretary of State]. Further, there was no reason to think that " the engineer who based his evidence on the Red Book could give " evidence on it; indeed, it was self-evident that he could not. The " Department is entitled to have its own criteria for deciding need; it " is not in the capacity of a party, and he referred to Franklin v. " Minister of Town and Country Planning [19481 A.C. 87 and " T. A. Miller Ltd. v. Minister of Housing and Local Government " [1948] 1 W.L.R. 992".

What happened later in the Court of Appeal may be gathered from the following passage in the judgment of Lord Denning M.R., who commented thus on the inspector's ruling:

" This attitude was supported by Mr. Schiemann before us. He said " that the traffic forecasts were Government policy in themselves; or " alternatively that it was Government policy that they should be " accepted; and on this account cross-examination should not be allowed. " They came, he said, within the description of policy within the Report " of Lord Franks' Committee, at paragraph 318: ' The evidence to be " ' required of such witnesses should ... be confined to factual matters, " ' as opposed to policy matters, and the inspector should ensure that " ' this distinction is observed '".

Before your Lordships, however, Mr. Rippon Q.C.. for the Department, manifested difficulty in maintaining that the Red Book could itself be regarded as embodying Government policy. His difficulty was understandable, and indeed Sir Douglas Frank had rejected the submission outright, saying, ". . . [the Red Book] was prepared by ... the Ministry of Transport for " the guidance of engineers in the design of rural roads and accordingly does " not purport to be a document containing Government policy; on the " contrary, it is no more than a technical guide ". Rightly agreeing, as I think, with the learned trial judge on this point. Lord Denning. M.R. said of the Red Book:

" I do not regard these traffic forecasts as Government policy " at all. They are the predictions by the Department's experts about the " future. They are just as much matters of fact as the evidence of a medical " man as to the prognosis of a disease "

. Templeman, L.J. took the opposite view, but I have found it difficult to deduce his reasons for doing so. He largely restricted himself to asserting that, ". . . the Inspector gave full " weight to the criticisms which had been voiced, he was fully aware of the " dangers and difficulties and unpredictability of national and local predictions " of traffic extending over a period of 15 years, and in this difficult field he " made recommendations which were open to him to make ". But for my part I respectfully regard this as an unwarranted assumption to make in respect of evidence not subjected to the customary form of challenge.

My Lords,

for the present I defer considering whether the outcome of the inquiry would, or might have been, different had cross-examination been allowed. The topic now under consideration relates solely to the propriety of its refusal. I have natural diffidence in differing from your Lordships in regarding that refusal as clearly wrong, but such is my considered view. It is beyond doubt that the inspector could—and should—disallow questions relating to the merits of Government policy. But matters of policy are matters which involve the exercise of political judgment, and matters of fact and expertise do not become " policy " merely because a Department of Government relies on them. And, as the Franks Committee had put it in 1957, " We see no reason why the factual basis for a departmental view " should not be explained and its validity tested in cross-examination". (Report of the Committee on Administrative Tribunals and Enquiries, paragraph 316).

Then, if the Red Book is not " Government policy ", on what basis can the cross-examination of departmental witnesses relying on its methodology, be properly refused? Sir Douglas Frank Q.C. surprisingly asserted(a) that its authors " were the only persons competent to answer questions on it". and

(b) that " it seems to me necessarily to follow that the Inspector was " entitled to disallow cross-examination on it of a person who had nothing " to do with its preparation ". But expert witnesses frequently quote and rely upon the publications of others and are regularly cross-examined upon the works so relied upon even though they played no part in their preparation. Nor, my Lords, is it right to assume, as was suggested in the course of the inquiry and as some of your Lordships appear to accept, that Mr. Brooks, the highly qualified and experienced traffic engineer, would have been incompetent to deal in cross-examination with questions directed to establishing the unreliability of the Red Book methodology upon which he

himself heavily relied, albeit not without some emendations. Indeed, in paragraph 567 of his Report the inspector described the witness as " thoroughly competent".

Pausing there, I conclude that the grounds hitherto considered for refusing cross-examination are unacceptable. But it is the case that, in an inquiry such as that with which this House is presently concerned, some special rule prevails which renders regular a procedure which in other circumstances would undoubtedly have been condemned as irregular? The general law may, I think, be summarised in this way:

In holding an administrative inquiry (such as that presently being considered), the inspector was performing quasi-judicial duties;

He must therefore discharge them in accordance with the rules of natural justice;

Natural justice requires that objectors (no less than Departmental representatives) be allowed to cross-examine witnesses called for the other side on all relevant matters, be they matters of fact or matters of expert opinion.

In the exercise of jurisdiction outside the field of criminal law, the only restrictions on cross-examination are those general and well- defined exclusionary rules which govern the admissibility of relevant evidence (as to which reference may conveniently be had to Cross on Evidence, 5th Ed., 17); beyond those restrictions there is no discretion on the civil side to exclude cross-examination on relevant matters.

There is ample authority for the view that, as Professor H. W. R. Wade Q.C. puts it (Administrative Law, 4th Ed., 1977, p. 418):

". . . it is once " again quite clear that the principles of natural justice apply to administrative " acts generally "

. And there is a massive body of accepted decisions establishing that natural justice requires that a party be given an opportunity of challenging by cross-examination witnesses called by another party on relevant issues; see, for example, Marriott v. Minister of Health ((1935) 52 T.L.R. 63, per Swift J. at 67—compulsory purchase orders inquiry); Errington v. Minister of Health [1935] 1 K.B. 249, per Maugham L.J. at 272—clearance order); Reg. v. Deputy Industrial Injuries Commissioner ([1965] 1 Q-B. 456, per Diplock L.J. at 488A and 490 EG); and Wednesbury Corporation v. Ministry of Housing and Local Government (No. 2) ( [1966] 2 Q.B. 275, per Diplock L.J. at 302G-303A—local government inquiry).

Then is there any reason why those general rules should have been departed from in the present case? We have already seen that the parameters of the inquiry, as agreed to by the Department representatives, embraced need as a topic relevant to be canvassed and reported upon. We have already considered the unacceptable submission that the Red Book was " Government policy". And, while I am alive to the inconvenience of different inspectors arriving at different conclusions regarding different sections of a proposed trunk road, the risk of that happening cannot, in my judgment, have any bearing upon the question whether justice was done at this particular inquiry, which I have already explained was. in an important respect, unique of its kind.

There remains to be considered the wholly novel suggestion, which has found favour with your Lordships, that there is a " grey area "—existing, as I understand, somewhere between Government policy (which admittedly may not be subjected to cross-examination) and the exact " line " of a section of a motorway (which may be)—and that in relation to topics falling within the " grey area" cross-examination is a matter of discretion. I find that suggestion to be too nebulous to be grasped. Furthermore, why such an area should exist has not been demonstrated—certainly not to my satisfaction -nor have its boundaries been defined, unlike those existing restrictions on cross-examination to which I have already referred. And I confess to abhorrence of the notion that any such area exists. For the present case

demonstrates that its adoption is capable of resulting in an individual citizen denied justice nevertheless finding himself with no remedy to right the wrong done to him.

My Lords,

it is for the foregoing reasons that I find myself driven to the conclusion that the refusal in the instant case to permit cross-examination on what, by common agreement, was evidence of cardinal importance, was indefensible and unfair and, as such, a denial of natural justice. But, even so, can it be said that no prejudice to the respondents resulted? It was urged for the appellants that, by allowing objectors to call witnesses to attack the Red Book methodology and including their proofs among the papers submitted to the Secretary of State by the inspector when he reported, the inspector had, in effect, put the objectors in as good a position as if he had indeed permitted cross-examination on the Red Book. But that cannot be so. The inspector was no mere messenger charged simply to convey to the Minister the views of those appearing before him. His duty was to make recommendations, and these he arrived at by treating as " irrelevant" material evidence for the objectors and by intimating to the Department's counsel that they need not cross-examine upon it. That evidence therefore manifestly played no part in the formation of the inspector's conclusions.

That the objectors were in truth prejudiced is, in my judgment, clear. Professor Wade has warned (ibid., p. 454) that, "... in principle it is vital " that the procedure and the merits should be kept strictly apart, since " otherwise the merits may be prejudged unfairly ", and Lord Wright said in General Medical Council v. Spackman [1943] A.C. 627 at 644 that—

" If the principles of natural justice are violated in respect of any " decision it is, indeed, immaterial whether the same decision would have " been arrived at in the absence of the departure from the essential " principles of justice. The decision must be declared to be no decision ".

Again, in Annamunthodo v. Oilfields Workers' Trade Union

[1961] AC 945

Lord Denning, delivering the judgment of their Lordships, said (at p. 956):

" If a domestic tribunal fails to act in accordance with natural justice, " the person affected by their decision can always seek redress in the " courts. It is a prejudice to any man to be denied justice. He will " not, of course, be entitled to damages if he suffered none. But he " can always ask for the decision against him to be set aside ".

The Highways Act 1959 expressly provided that the court may quash a scheme or order if it is satisfied that the interests of an applicant have been substantially prejudiced. In Miller v. Weymouth & Melcombe Regis Corporation (1974) 27 P & C.R. 468 Kerr. J. rightly said (at p.476):

" If there is a possibility that the applicants' interests may have been " prejudiced, as in the line of cases in which Ministers received evidence " from improper sources or applicants were deprived of an opportunity " to make representations, then the court will in general readily accept " that they have satisfied this requirement because they can show that " they have lost a chance ".

My Lords,

I consider that such test has here been abundantly satisfied, for the most effective " representations " can and often are made in the process of cross-examination. The affidavit of the respondent Mr. Bushell, produced before the Court of Appeal, described in some detail the lines of cross-examination which would have been followed but for the inspector's ruling. It is true that, as already indicated, he nevertheless permitted the objectors to call witnesses supporting such cross-examination, even though he said it was " irrelevant ". That evidence was later repeated to the Leitch Committee. It is not necessary to examine its report in detail, but it contained substantial criticisms of Red Book methodology, and, to take one example, declared in paragraph 28.2:

"... The Department's current methods, because they are based on " extrapolatory techniques, are generally insensitive to future policy " changes. It is therefore preferable to adopt a 'causal' model .".

Had the inspector not ruled as he did, I hold that there was a very real possibility that cross-examination of the Department witnesses on the lines projected might have created serious doubts in his mind regarding their traffic forecasts and therefore as to whether need for the motorways had been established. And those doubts, particularly when combined with certain important environmental factors which clearly troubled the inspector (see. for example, paragraph 623C of his report) could well have led him to different conclusions and findings. As matters turned out, however, I consider that the objectors were denied what Lord Russell of Killowen described in Fairmount Investments Ltd. v. Secretary of State for the Environment [1976] 1 W.L.R. 1255, at 1266A as " a fair crack of the whip". On that ground alone, I am for upholding the majority view of the Court of Appeal in favour of quashing the Minister's decision accepting (albeit with modifications) the inspector's recommendation in favour of the two draft schemes.

Such being the conclusion to which I am driven, I do not propose to adjudicate upon the further complaints of the respondents regarding post- inquiry events. Certainly no consideration by the Minister of further material could cure the fatal flaws in the Report. I accept that the Minister's ultimate decision was a purely administrative act. But that fact does not render his decision unassailable where, as here, it was preceded by and based upon a substantial injustice. I would therefore dismiss this appeal.

Lord Fraser of Tullybelton

My Lords,

I have had the advantage of reading in draft the speeches prepared by my noble and learned friends. Lord Diplock, Viscount Dilhorne and Lord Lane. I agree with them and I cannot usefully add to their reasoning.

I would allow the appeal.

Lord Lane

My Lords,

On November 3rd 1972 the Secretary of State for the Environment published draft schemes under the provisions of the Highways Act 1959 in respect of two sections of motorway to the south of Birmingham. One concerned 18-5 miles of the M42 (the Bromsgrove section), the other was 13-2 miles of the M40 (the Warwick section). There were originally 900 objectors. The Secretary of State therefore caused a local inquiry to be held as paragraph 9 of the 1st Schedule to the Act requires. By this time the number of objectors had been reduced to 170.

The inquiry lasted 100 working days between June 1973 and the end of January 1974. The inspector was faced with a huge volume of evidence. It took 18 months—until June 1975—for him to produce his report. The Secretary of State required another 14 months to consider the matter. On August 6th 1976 he made orders authorising the construction of the two stretches of motorway.

By paragraph 2 of the 2nd Schedule to the Act " If a person aggrieved " by a scheme or order to which this Schedule applies desires to question the " validity thereof, or of any provision contained therein, on the ground " that . . any requirement of this Act or of regulations made thereunder " has not been complied with ... he may, within six weeks from the date " on which the notice ... is first published, make an application for the " purpose to the High Court."

The respondents to the present appeal, who were amongst the many objectors to the Bromsgrove section scheme, both of them likely to be adversely affected by the proposed road, duly made application to the High Court. The case was tried on December 9th 1977 by Sir Douglas

Frank QC sitting as an additional judge of the Queen's Bench Division. He dismissed the claim. The objectors appealed successfully to the Court of Appeal who on July 30th 1979 by a majority (Denning M.R. and Shaw L.J.; Templeman L.J. dissenting) quashed the orders of the Secretary of State but indicated that any further inquiry should be confined to an examination of whether the volume of traffic in 10 or 15 years' time would be such as to make the new road necessary. The Secretary of State now appeals from the decision of the Court of Appeal.

There are two main issues. First it is said that the inspector, by making certain rulings as to the conduct of the inquiry, in effect deprived the objectors of the opportunity of a fair hearing. Secondly it is said that after the conclusion of the inquiry there emerged a body of evidence casting doubt on the basis upon which the alleged need for the new roads had been calculated, that the Secretary of State should therefore have reopened the inquiry and given the objectors the opportunity of renewing their submissions in the light of the new evidence.

The powers of the court to consider an objector's application are contained in paragraph 3 of the 2nd Schedule to the Act as follows: " 3. On any such application as aforesaid the court . . .

" (b) if satisfied that the scheme or order, or any provision contained " therein, is not within the powers of this Act or that the interests of " the applicant have been substantially prejudiced by failure to comply " with any such requirement as aforesaid, may quash the scheme or " order or any provision contained therein, either generally or in so " far as it affects any property of the applicant."

At the outset of the inquiry, application was made by counsel for a body of objectors that the inspector should allow the question of need to be canvassed. Counsel sought a ruling on three questions:

Would evidence that the motorway is not necessary be admitted?

If so, would the inspector be willing to listen to such evidence and report it to the Secretary of State.

If answers to both questions were in the affirmative, would the Secretary of State be prepared to take such a report into consideration?

The Department's " Statement of Case", paragraph 1.2 as originally presented read as follows:

" The Government's policy to build these new motorways will not " be open to debate at the forthcoming inquiries: the Secretary of " State is answerable to Parliament for this policy. But objectors will " be free to argue, if they so wish, that the [roads] should not be built " upon the line at present proposed by the Secretary of State in his " draft published scheme . . .

The inspector ruled that it was entirely for him as inspector to decide any question of relevancy. He would not seek to be restrictive; he would admit any evidence or submission which was aimed at rebutting the Department's case on the question of need for the motorway. Nevertheless he would not allow the inquiry to be made into an inquiry into the Government's general transport policy; such matters were for Parliament to decide and they could not properly or usefully be discussed at a local public inquiry: in answer to counsel's specific questions he said:

He would admit evidence that appeared to him to be relevant on the above criteria;

He would report to the Secretary of State on all evidence given at the inquiry;

Whether the Secretary of State would be prepared to take such a report into consideration was a matter for the Secretary of State himself.

In the light of that ruling, counsel for the Department agreed that paragraph 1.2 of the Department's case should be deleted.

The inspector in his report made this addendum to his ruling at the inquiry:

" Subsequently during the inquiry, on a number of occasions, I " amplified my ruling by explaining that I would not necessarily " prevent an objector from giving evidence which was irrelevant on " the criteria ... but that, nevertheless, I would not require the " Department to deal with such evidence (i.e. rebut or cross-examine " it) nor would I allow the Department's witnesses to be cross-examined " on the matters raised."

The objectors submit that by depriving them of the opportunity of cross-examining the Department's witnesses as to how they came to the conclusion that the motorway was necessary, the inspector in short did not accord them a fair hearing.

There can be no doubt that the obligation to hold an inquiry comprises the requirement that the inquiry should be fair. If the inquiry is not fair then there has been a " failure to comply " within the terms of paragraph 3 of the 2nd Schedule to the Act. If that failure has resulted in the objectors' interests being substantially prejudiced, then the court may quash the order. What happened was that witnesses from the Department, in particular a Mr. Brooks, gave evidence in support of the contention that by 1990 (the then "target year") existing roads would be unable to cope with the then volume of traffic. Their calculations were based upon a document entitled " Traffic Predictions for Rural Roads " which has for convenience been called the Red Book. The forecasts in the Red Book were founded on surveys made before and during 1968 projected forward to 1974 by a process of extrapolation and thence to 1990. These calculations involved the use of " standard growth factors ". All these matters were explained by Mr. Brooks in his written proof of evidence.

It was the contention of the objectors that the methods of prophesying future traffic levels propounded in the Red Book were unreliable; that to apply a rigid growth factor took no account of the many other factors which would inevitably affect the number of cars on the roads in the future. A number of experts gave evidence on the objectors' behalf to this effect. The inspector, however, true to his initial ruling, did not allow anyone to cross-examine Mr. Brooks on the reliability of the Red Book methods of prediction.

The inspector's report contains more than 450 pages, and deals in detail with the contentions advanced by the objectors and their witnesses. In deciding whether the objectors have been treated unfairly, it is perhaps instructive to set out one paragraph of the report (at p. 125):

" Mr. MacKernan's objection amounted essentially to an attack upon " virtually every phase of the technical procedures (network testing, " traffic forecasting, cost/benefit analysis and route selection) employed " by the Department in framing and presenting its proposals. In the " paragraphs which follow I endeavour to summarise the salient " criticisms made, but it is not possible to deal here with the detailed " arguments used nor the multitude of detailed criticisms; these are to " be found in the proofs and other documents accompanying this report."

It is clear that all the material was before the Secretary of State and his staff. The only things missing were the replies which Mr. Brooks might have made to questions put to him by the objectors and their representatives. I find it difficult to see how in the circumstances the inability to cross-examine can be described as unfair. There are some occasions when cross-examination may be vital, for example when at trial a witness's accuracy of recollection or observation is in question. But this was not a trial, nor was the witness's accuracy being challenged. It was a local inquiry convened because there had been objections to proposals in respect of one stretch of a proposed motorway. The obligation on the Secretary of State under paragraph 10 of the 1st Schedule to the Act was simply to consider any objections which

were not withdrawn and to consider the report of the person holding the inquiry before coming to his conclusion about the scheme. To say, as the objectors do, that because cross-examination would have been allowed at a trial it was wrong to disallow it here is to misunderstand the nature of the inquiry. The refusal of cross-examination did not ipso facto result in unfairness. If cross-examination had been permitted, the result would have been, as is apparent from the extract from the report I have quoted, an even lengthier hearing without any appreciable advantage. Mr. Brooks, it is clear from his written evidence and from the report, would have conceded that the Red Book left much to be desired and that the task of forecasting traffic volume 10 or 15 years ahead was (to say the least) formidable. In the end he would clearly have maintained that the Red Book (subject to their various qualifications to that document which had been conceded) was the best guide available at the time. The two opposing points of view. Department's on one side and objectors' on the other, would have remained as they were, and as they were presented by the inspector in his report.

The decision not to allow this cross-examination was certainly within the discretion of the inspector and he was right to rule as he did. It was not unfair. Certainly there was no question of the interests of the objectors being substantially prejudiced, and consequently so far as this ground is concerned no reason for the court to consider the desirability of quashing

the scheme.

Lord Gifford advanced another parallel argument before this House, although it had not been in the forefront of his contentions before the Court of Appeal and did not appear in the statement of the respondent's case.

A

The inspector, he submitted, was under a duty not merely to report but also to recommend. By treating the question of need for the motorway as irrelevant he excluded from his mind considerations which might have resulted in a recommendation favourable to the objectors. This is said to be a breach of the rules of natural justice and consequently a failure to comply with the provisions of the Act requiring the intervention of the court. I disagree. It would have been inappropriate for the inspector to have made recommendations as to the need for the motorway as a whole. He properly fulfilled his duties by presenting all the material evidence to the Minister in his report.

One can test the matter in a practical way. If every inspector at every local inquiry is to determine the question of need and make recommendations accordingly one will along the course of a proposed motorway, as local inquiry follows local inquiry, get a series of decisions, doubtless differing from one another, as to the need for the motorway. The effect, apart from the appalling waste of time and money, would be that the Secretary of State would have to make up his mind on the evidence available to him rather than on the various recommendations. That end can better be achieved by the method adopted here.

In short, the question of need is a matter of policy or so akin to a matter of policy that it was not for the inspector to make any recommendation. Just as his ruling on cross-examination was in the circumstances correct, so was his decision on this aspect.

I now turn to the second limb of the objectors' case, namely that the Secretary of State should have re-opened the inquiry to give to the objectors the opportunity of dealing with new figures and matters which emerged after the close of the inquiry and before the Secretary of State made known his decision.

Three material events took place between the close of the inquiry and the publication of the Minister's decision.

First, on August 12th 1974, there came from the Department a circular setting out changes in design standards for inter-urban roads which the Secretary of State proposed should in the future be adopted. By virtue of

improvements in the design of vehicles and the skill of drivers and other similar developments it had been discovered that the capacity of existing roads had been greatly increased.

Secondly, the predictions of traffic volume which were used at the inquiry were subsequently replaced by fresh ones.

Thirdly, there were in 1974 carried out a number of traffic censuses. Thus it was possible to compare the predictions about 1974 traffic volume made at the inquiry with what had actually happened in 1974. The actual 1974 traffic, on at least a number of the important roads was a great deal less than had been predicted.

As to the first two events, it is clear from paragraphs 11 to 15 of his decision letter that these fresh factors had been taken into account before the decision was made. The results of the traffic censuses in 1974, even assuming them to be typical, could scarcely warrant re-opening the inquiry.

Paragraph 112 of the decision letter puts the matter thus:-

" The Secretary of State has noted that much of the objection to the " proposals relates to the fundamental question of whether the new " motorways are needed. In support of the view that they are not. " objectors have indicated that they consider the Department's traffic " evidence was incorrect and unreliable and that there is insufficient " traffic to justify the schemes. A great deal of traffic evidence was " adduced and debated at the Inquiries as reported by the Inspector. " The general changes relating to design flow standards and traffic " forecasts which have taken place since the Inquiries have been fully " taken into account by the Secretary of State who is satisfied that these " do not materially affect the evidence on which the Inspector made his " recommendations. He is convinced the schemes are needed and should " be constructed as soon as funds and other road programme priorities " permit."

The Minister has to balance his duties to the public in general against the interests of the objectors. There may be circumstances in which the emergence of fresh evidence would as a matter of justice demand the re-opening of an inquiry, circumstances in which no reasonable Minister would fail to re-open it. There is no doubt in my mind that this is very far from being such a case.

I would allow the appeal.

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