House of Commons Hansard Debates for 3 Jul 1995

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to discuss it. He felt unable at that stage to alter his report or its findings. Mr. and Mrs. Balchin are currently seeking leave to challenge the ombudsman's decision in the courts.

I remain convinced that maladministration has occurred. Both the inspector who conducted the public inquiry and the Secretary of State recognised and accepted that unacceptable harm would be caused to the Balchins' property by the construction of the bypass. Those are more than adequate grounds to refuse to confirm the order for the bypass until the necessary arrangements had been put in place. These are administrative measures, and they were mishandled. What can be more maladministrative than that? What is the purpose of a public inquiry, an inspector's report and the Secretary of State's scrutiny if it is not to ensure that mistakes--and this is a huge mistake--do not happen?

If it is not maladministration in the sense that I have described it, as I believe it is, then it is maladministration as clearly defined for the ombudsman Select Committee by the Minister of State, Treasury, when he appeared before the Committee on 2 November 1994, and by Sir Patrick Brown, on behalf of the Department of Transport, giving evidence to the same Committee on 1 March 1995.

Again for the record, I want to quote directly from the minutes of evidence taken before the ombudsman Select Committee on 1 March 1995. In questioning Sir Patrick Brown, I quoted the Minister of State, Treasury as having said, when he appeared before us in November 1994:

"failure to mitigate the effects of strict adherence to the letter of law, where this produces manifestly inequitable treatment, that will now be an example of maladministration".

I asked Sir Patrick Brown to confirm that, and he said:

"Yes, Mr. Nelson was speaking for the government".

I then said:

"What we are really saying is that, even where everything has been done precisely by the law of the land, and is defensible in that sense, where that produces clearly distress and problems, then maladministration may well be shown to have occurred".

Sir Patrick Brown replied:

"That is the current arrangement for dealing with cases of this sort."

There we have it. If this is not maladministration in one form, it is maladministration in another. I trust that, before too long, that will be conceded.

Although Mr. and Mrs. Balchin's case is the worst that I have seen, they are not alone in their difficulty. A Lieutenant Colonel David Owen has recently taken on the Department of Transport because of the proposed Cirencester bypass, which is planned to run 150 m from his home. He was refused compensation, but the Court of Appeal found that he was entitled to be bought out, because his home had lost value as a result of the road. The Appeal Court judges described the existing guidelines on compensation as "a shambles". Colonel Owen's home was 150 m away from the bypass; Mr. and Mrs. Balchin's is 32 m. It seems likely, as a result of that case, that new guidelines will be drawn up, but Mr. and Mrs. Balchin cannot wait for that. In recent weeks, I have had meetings with the Secretary of State to plead the Balchins' case yet again. He listened sympathetically, but insisted that the Government were unable to help.

This sort of inhuman treatment, dealt out to innocent citizens by the authorities, whoever they may be, might be understandable in some lawless banana republic, but

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surely not in this country in 1995. I have already said that I do not hold the Minister present tonight responsible for what has happened in the past, but I will hold him responsible, with others, for what happens in future. His Department cannot simply wash its hands of this case. Tonight, I want to hear not Pontius Pilate platitudes from the Minister but proposals for a sensible solution. At first sight, it may seem that the Government are not to blame, or at least not wholly to blame, for what has occurred, but no one can deny that the Government were involved in the procedures that caused the problem, or that the Department of Transport, in the power it had not to sanction the bypass, was a crucial link in the chain of events that did the damage.

In a chain, one link is as important as the whole chain. When the link is as important as the Government's power in this matter, it becomes absolutely crucial. I believe that those of us who are so very concerned about the case are entitled, both morally and legally, to say that the Government have a considerable responsibility for what has happened.

In the time that Mr. and Mrs. Balchin have been suffering, the Government have introduced citizens charters of all sorts, and we continually talk about proper consultation and people's rights. If all the new initiatives are to mean anything, to me, to Mr. and Mrs. Balchin or to anyone else in this country, something must be done about the case.

What is absolutely clear in all the evidence--and it has never been denied by the Government--is that it was acknowledged that harm would be done to Mr. and Mrs. Balchin and their property. It was also acknowledged that someone had to look after them. The Department of Transport, which had the power to ensure that that was done before allowing the bypass proposals to proceed, singularly failed to take the steps that could have turned a pious hope into a fair and reassuring reality.

The Balchins' plight is desperate. They have no money, and their health is suffering. A solution must be found, and found quickly. 9.56 pm

The Minister for Transport in London (Mr. Steve Norris): I congratulate my hon. Friend the Member for Suffolk, Central (Mr. Lord) on his assiduity in pursuing this case on behalf of his constituents, Mr. and Mrs. Balchin. I know that my right hon. Friend the Parliamentary Secretary to the Treasury, the right hon. Member for Mid-Norfolk (Mr. Ryder)--who cannot speak in the House--is also concerned about the case. I see that my hon. Friend the Member for Great Yarmouth (Mr. Carttiss) is here, and I know that he is concerned, too.

It is a difficult case, and, on the facts outlined by my hon. Friend the Member for Suffolk, Central, any reasonable person would have a great deal of sympathy with Mr. and Mrs. Balchin. It might be helpful if I outline how the Department views the facts of the case, and where they lead.

My hon. Friend has been a good friend for the past 12 or 13 years in this House, but perhaps I could tell him that, in his enthusiasm to prosecute the case on behalf of his constituents, he should not be drawn into an

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examination of the Owen case. I have studied that case and been involved in it for some time, and I can assure my hon. Friend that the basis for that case is very different from the facts that have been adduced in my hon. Friend's case.

My hon. Friend must recognise that the most important point of all is that there is a difference between a national road scheme, which is promoted by the Department, and a local highway authority scheme, where the county council is the highway authority. As my hon. Friend pointed out, the Wroxham-Hoveton bypass is being promoted by Norfolk, in its role as the local highway authority. In February 1990, it submitted a statutory bridge scheme and orders for confirmation by the Secretary of State for Transport. Because of the number of objections to the proposals, my right hon. Friend convened local public inquiries into the bridge scheme and orders, which opened in October of that year. The inspector submitted his report on the inquiries, for consideration by the Secretary of State, in March of the following year.

In his report--and I do not think that there is any difference between my hon. Friend and me on this--the inspector drew attention to the especially adverse effect the bypass would have on Mr. and Mrs. Balchin's property, called Swan's Harbour, and on the neighbouring property Copper Beech Cottage, owned by a Mr. Evans. Although neither property was required for the bypass, in the words of the inspector it would, in the case of the Balchins' property,

"have a somewhat overpowering effect".

In recommending confirmation of the bridge scheme and orders, the inspector therefore expressed the hope that the plight of the owners of Swan's Harbour and Copper Beech Cottage would be looked on sympathetically by the county council. Those sentiments were reflected in the letter of my right hon. Friend the Secretary of State for Transport, confirming the bridge scheme and orders issued in June 1992, in which he expressed his confidence that the county council would give the matter early consideration.

That letter also pointed out--this really is important, and I am sure that, when he considers the point, my hon. Friend the Member for Suffolk, Central will recognise its strength--that matters of compensation arising as a consequence from the confirmation of orders were for negotiation with the acquiring authority and not with the Secretary of State--

It being Ten o'clock, the motion for the Adjournment of the House lapsed, without Question put.

Motion made, and Question proposed, That this House do now adjourn.-- [Dr. Liam Fox.]

Mr. Norris: Following the issue of the Secretary of State's decision letter, an application to quash the bridge scheme and orders was made in the High Court in August 1992 by a group calling itself the Alternative Bypass Group. Although that challenge subsequently proved unsuccessful, the delay caused in the implementation of the scheme resulted in the expiry of the county council's planning permission for the project, and planning permission for the bypass is therefore being re-sought by the county council.

As my hon. Friend the Member for Suffolk, Central has said, in the interim he lodged on behalf of Mr. and Mrs. Balchin a complaint with the Parliamentary

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Commissioner for Administration, based on counsel's advice that the Secretary of State should have assured that adequate compensation would be payable to the Balchins before confirming the bridge schemes and orders. In his report of December 1994, the commissioner found the complaint to be not made out, and that matters of compensation arising from a road scheme were for the highway authority and outside his jurisdiction. It is there, I submit to my hon. Friend, that the Secretary of State's quasi-judicial involvement in the scheme ends. As my hon. Friend the Member for Suffolk, Central is aware from the correspondence that he and I have had, I fully sympathise with the predicament in which the Balchins find themselves. However, as the ombudsman made clear, matters of compensation arising from a local highway authority road scheme lie outside the jurisdiction of Ministers.

Indeed, at the specific request of my right hon. Friend the Secretary of State, I looked carefully at the issue of compensation. I have concluded, after careful examination, that there are no powers whatever available to my right hon. Friend to provide compensation in this case or to secure the provision of compensation by the local authority.

When Parliament gives the power of decision over a matter to the local authority, responsibility and accountability lie with that local authority. There is no general power which allows central Government simply to override a decision by a local authority. With respect to my hon. Friend, he knows that that way would lie chaos. Indeed, in the absence of any proper power, it would be quite improper, and probably counter-productive for a Minister to attempt in some way to exercise pressure on a local authority on the way in which it exercises its power.

Mr. Lord: I know that my hon. Friend is answering the points that I have made in great detail. In such circumstances, what frequently happens is that the Secretary of State says that he will not grant permission for a particular development until the parties concerned have got together and satisfied him that questions of compensation--or whatever has to be ironed out--will be ironed out. The parties go away, sort things out, agree the compensation, and then the Secretary of State says, "Okay, now you can go ahead." This case was an example of the Secretary of State saying that something must be done, yet not taking the practical steps to ensure that it was done.

Mr. Norris: No, I am sorry: on that point, and with the greatest respect, my hon. Friend is simply wrong. In this case, my hon. Friend's complaint to the ombudsman was that the Secretary of State ought to have sought a resolution of the issue of compensation before he confirmed the orders.

The Secretary of State submitted that in this case, he simply did not have the power to refuse to make the order until the matter had been resolved, because that resolution was in the hands of the local highway authority. That does not imply that he welcomed the local authority's decision, as I shall explain, but it makes it clear that he does not have the power to refuse to make the order.

With the greatest respect, I say to my hon. Friend that he can make the point as many times as he likes. He can imply that Ministers have the right to sweep their arms,

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to sweep away the rights of local authorities and to impose their interests in the matter, but he knows that that is simply not the case, and I am rather grateful for that fact.

Mr. Lord: I know that Adjournment debates are not normally prolonged, but I must ask my hon. Friend a question. What, then, is the point of the Secretary of State's scrutiny of these matters? I am sure that I can produce for my hon. Friend, not tonight but on a future occasion, numerous examples in which the Secretary of State has not been satisfied that matters have been properly organised, and has therefore simply held back permission until such time as they have been organised.

Mr. Norris: My hon. Friend is right to say that we do not have the time, or, I suspect, the legal advice, to be able to debate this point at any length. I make it clear, however, to my hon. Friend--I am sure he knows this--that, in the exercise of his quasi-judicial function in terms of confirmation of an order sought by a local authority, the Secretary of State has to satisfy himself that the powers that the local authority seeks are properly sought; that they are within the vires of the authority; that the orders have been correctly made; that the procedures have been correctly followed; and that the local authority has acquired thereby the right to take the steps that it seeks in the order.

The Secretary of State is not thereby given the right to determine that he does not like the proposal put forward by the local authority, that he will sweep away the right of the local authority, conveyed by Parliament, to exercise discretion, and that he will substitute his own discretion.

A Minister might find the matter as frustrating as my hon. Friend does, but my hon. Friend will appreciate that it is not enough to be frustrated in these matters. One must be clear where the legal remedies lie. I offer my hon. Friend some thoughts that need not stop me attempting to explain as far as I can, on the basis of the correspondence available to me, the specific position that has now been reached in the Balchin case. I believe that I may have something useful to offer my hon. Friend.

The problems in this case, and the problems of the others affected by the planned bypass, stem from Norfolk county council's decision not to use advance discretionary purchase powers, which are given to all highway authorities by section 62 of the Planning and Compensation Act 1991, which inserted section 246(2A) in the Highways Act 1980. The county council has adduced in correspondence a number of factors as underlying the decision not to use advance discretionary purchase powers.

The council considered, for example, that the depreciation of Swan's Harbour owed more to the general decline in property prices than to the existence of the bypass proposals. I note that my hon. Friend smiles. I observe only that that may be a plausible assessment of part of the reason for the reduction in value of the property. There is, after all, no doubt that the property will have suffered from the recession, as did others. My hon. Friend may, however, conclude that that is not the whole story.

It also appears that the council did not operate a discretionary scheme to implement section 246(2A). The council referred to general tightness of funds as one of the reasons why it had decided not to operate such a scheme. It concluded that the right way in which to deal with the situation faced by the Balchins was not to acquire

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their property, but to compensate them for the loss of its value due to the road one year after the new road was opened, using the powers of the Land Compensation Act 1973--assuming, of course, that they were still eligible claimants at that time.

It is not for me to override the judgment of the council. Any redress that remains for the Balchins will be for the courts, or, if there is any question of maladministration, the local government ombudsman, to decide, rather than the parliamentary commissioner. In recent years, the courts-- through mechanisms which include judicial review--have not been slow to defend the interests of citizens who may have suffered from decisions of public authorities which may lack satisfactory justification. It is not for me to obtain legal advice in this case, but there may be a question about whether the decision not to operate a discretionary scheme for which statutory provision has been made by Parliament can be justified. I emphasise that those matters are ultimately to be considered by lawyers.

Certainly, if this case had occurred in relation to a national roads scheme promoted by the Department, I--as the Minister charged by the Secretary of State with dealing with cases of discretionary purchase--would have looked carefully at the option of advance purchase. Mr. Balchin had, after all, no foreknowledge of the scheme before he purchased the property, which falls within the

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distance limits defined by the Department's discretionary scheme. We would also have considered hardship, and the need to realise the proper value of the property under our scheme.

The valuation would have been based on what the value of the property would have been in the absence only of the road scheme at the appropriate time. It cannot be appropriate for the acquiring authority--Norfolk county council in this case--to compensate the Balchins for the general decline in property values, which the council observed may have been just as significant as the road in this case.

I hope that my hon. Friend will read this debate carefully, because I believe that I have offered him an avenue which he may care to examine, which offers a realistic prospect of pursuing the case on behalf of his constituents. I hope that he will also gather that I have a great deal of personal sympathy for the Balchins. My hon. Friend graphically described their plight, and I know how strongly he feels about the case.

I hope my hon. Friend understands that no Member of this House--certainly not my right hon. Friend the Secretary of State nor I--would wish to stand by and see an injustice occur were it within our power to correct it. I have offered my hon. Friend the best advice possible in the circumstances, and I hope that he will find my remarks helpful in taking the case forward.

Question put and agreed to.

Adjourned accordingly at twelve minutes past Ten o'clock.

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