Bushell v Secretary of State for the Environment

Factual and Procedural Background

The Appellant, the Secretary of State for the Environment, published two draft motorway schemes—“M42 Bromsgrove” and “M40 Warwick”—each covering roughly fifteen miles south of The City of Birmingham. After publication in 1972, approximately 900 objections were received; 170 remained outstanding when a statutory local inquiry opened in June 1973. The inquiry, presided over by an appointed inspector, lasted 100 working days and concluded in January 1974. The inspector delivered a detailed report in June 1975 recommending that both schemes be approved with minor modifications.

On 5 August 1976 the Appellant accepted the recommendations and formally made the schemes. The Respondents—two landowners whose property would be affected—applied to the High Court to quash the schemes, alleging procedural unfairness. The trial judge dismissed the claim, but a majority of the Court of Appeal allowed it and set the schemes aside. The Appellant appealed to the House of Lords, resulting in the present decision.

Legal Issues Presented

1. Whether the inspector’s refusal to permit cross-examination of departmental witnesses on traffic-forecasting methodology at the local inquiry denied the Respondents natural justice and rendered the inquiry procedurally unfair.
2. Whether the Appellant’s decision not to re-open the inquiry after new traffic-capacity standards and forecasting techniques were published constituted a further denial of natural justice.

Arguments of the Parties

Respondents’ Arguments

• The inability to cross-examine departmental experts on the “Red Book” traffic-forecasting methods prevented a fair testing of the evidence supporting the alleged need for the motorways.
• Post-inquiry changes to road-capacity standards and traffic-growth forecasts, together with 1974 traffic counts, materially undermined the factual basis of the schemes; fairness required that the inquiry be re-opened so objectors could comment.
• Because the inspector treated need as a matter of “policy,” relevant evidence was excluded from his consideration, tainting the report relied on by the Appellant.

Appellant’s Arguments

• The inspector had a wide discretion over inquiry procedure and could properly limit cross-examination to keep the process informal and efficient; objectors were nevertheless allowed to present their own expert evidence.
• The choice of forecasting methodology and the assessment of national traffic need were elements of governmental policy, unsuitable for adjudication at individual local inquiries.
• The Department’s revised standards and forecasts were considered internally; they did not alter the substance of the case such that re-opening the inquiry was necessary.
• No substantial prejudice to the Respondents was shown; therefore the High Court had no basis to quash the schemes under the statutory review provisions.

Table of Precedents Cited

Court's Reasoning and Analysis

A majority comprising Judge Diplock, Judge Dilhorne, Judge Fraser and Judge Lane found that the inquiry complied with the statutory requirement of fairness:

• The Highways Act 1959 prescribes no detailed procedure; absent formal rules, the essential test is whether the process was fair to all interested persons.
• Local inquiries serve to inform administrative discretion, not to adjudicate a contest; over-judicialisation would deter public participation and prolong proceedings.
• Traffic-forecast methodology, used uniformly nationwide, was treated as part of governmental policy for setting construction priorities. Topics of national policy are inappropriate for resolution piecemeal at multiple local inquiries.
• The inspector allowed objectors to file extensive evidence challenging the forecasts; refusal of cross-examination did not deprive them of the chance to present their case.
• Post-inquiry revisions to design-flow standards and forecasting techniques were policy updates assessed internally by the Department. The Appellant compared new data with earlier forecasts and concluded that the schemes remained justified; no rule required consultation with objectors on internal advice.
• Because the Respondents failed to show substantial prejudice, paragraph 3 of Schedule 2 afforded no basis to quash the schemes.

Judge Edmund-Davies dissented. He regarded the prohibition on cross-examination as a “denial of natural justice,” stressing that the need for the motorways was the inquiry’s “cardinal question” and that objectors were denied an effective opportunity to test the Department’s evidence.

Holding and Implications

Appeal allowed. The schemes for the M42 Bromsgrove and M40 Warwick sections were held to be validly made, and the order of the Court of Appeal quashing them was set aside.

Implications: The decision clarifies that, in United Kingdom local inquiries, the requirements of natural justice are context-specific. Cross-examination is not an automatic right; inspectors may restrict it where matters relate to national policy or where written representations suffice. Ministers need not re-open inquiries merely because departmental methodologies evolve, provided objectors had a fair initial hearing. The judgment therefore affords administrative decision-makers a wide procedural discretion while reaffirming that their processes must remain fair overall.