Bushell v Secretary of State for the Environment

Where legislation requires a local inquiry but prescribes no procedure, the minister and inspector have a wide discretion constrained by a duty of fairness. Fairness depends on the inquiry’s subject and does not require the procedures of civil litigation. There is no general right to cross-examine witnesses. Its necessity depends principally on whether it is likely to improve the inspector’s report sufficiently to justify the expense, inconvenience and delay.

National transport policy and uniform technical methods used to assess comparative traffic needs are ordinarily unsuitable for determination at separate local inquiries. After an inquiry, a minister may use the collective knowledge and advice of the department without treating that advice as undisclosed external evidence. Reopening is unnecessary where revised departmental information has been considered, has no material effect, and objectors remain able to make representations.

Bushell v Secretary of State for the Environment concerned two proposed motorway schemes made under section 11 of the Highways Act 1959. A local inquiry lasting 100 working days followed numerous objections. The inspector allowed objectors to present expert criticism of the Department’s traffic-forecasting methods but refused cross-examination of departmental witnesses about the reliability of those methods.

After the inquiry, the Department adopted revised road-capacity standards and traffic forecasts. The Secretary of State considered the revised material without reopening the inquiry and made the schemes. Sir Douglas Frank QC, sitting as an additional judge of the Queen’s Bench Division, dismissed the objectors’ challenge. The Court of Appeal, by a majority comprising Lord Denning MR and Shaw LJ, Templeman LJ dissenting, quashed the schemes. The central issues before the House were whether refusal of cross-examination made the inquiry unfair and whether fairness required the inquiry to be reopened following the revised technical information.

1. Disposition. The House allowed the Secretary of State’s appeal by a majority of four to one. Lord Diplock delivered the principal reasoning. Viscount Dilhorne and Lord Lane reached the same conclusions, and Lord Fraser agreed with their speeches. The inquiry was fair, reopening was unnecessary, and the schemes had been validly made.
2. The standard of fairness. Per Lord Diplock, the absence of applicable procedural rules made under section 11 of the Tribunals and Inquiries Act 1971 left the conduct of the inquiry to the Minister and inspector, subject to their constitutional duty to act fairly. The inquiry’s public and administrative character governed what fairness required. The procedures of ordinary civil litigation could not simply be transferred to a large, informal local inquiry. This approach was consistent with B. Johnson & Co. (Builders) Ltd. v Minister of Health [1947] 2 All E.R. 395.
3. Cross-examination. Per Lord Diplock, refusal of cross-examination was not unfair in itself. Relevant considerations included the subject of the proposed questioning, the witness’s qualifications, the proposed cross-examiner’s forensic competence, and whether the likely improvement to the inspector’s report justified the resulting cost, inconvenience and delay. Viscount Dilhorne and Lord Lane likewise held that the objectors had fully presented their expert criticisms and that cross-examination would have produced no appreciable advantage.
4. Policy and technical methodology. Per Lord Diplock, the national motorway programme and the ordering of construction priorities were matters of government policy. The uniform methods used to measure comparative traffic needs were an essential element of, or closely associated with, that policy. Their general merits were unsuitable for resolution by individual inspectors on the material presented at separate local inquiries. By contrast, the precise route through a locality was an appropriate subject for full local examination. The inspector therefore acted within his discretion in preventing cross-examination on the national traffic-forecasting methodology.
5. Post-inquiry advice and reopening. Per Lord Diplock, the collective knowledge and expertise of departmental civil servants formed part of the Minister’s own decision-making resources. Internal departmental advice received after an inquiry was not equivalent to fresh evidence from an outside source and did not have to be disclosed for comment. The majority held that the revised capacity standards, forecasts and traffic figures did not require reopening. They had been considered, did not materially undermine the inspector’s recommendations, and objectors remained free to submit further representations.
6. Dissent. Lord Edmund-Davies would have dismissed the appeal. In his view, the accepted issue of need depended centrally on technical traffic forecasts rather than government policy. Natural justice therefore required cross-examination on that relevant expert material. He considered that the refusal denied the objectors a real opportunity to affect the inspector’s conclusions and caused substantial prejudice.

1. House of Lords: Allowed the Secretary of State’s appeal by a majority of four to one. The House held that the inquiry was fair, that reopening was unnecessary, and that the motorway schemes were validly made.
2. Court of Appeal: By a majority comprising Lord Denning MR and Shaw LJ, Templeman LJ dissenting, allowed the objectors’ appeal and quashed the schemes. It indicated that any further inquiry should be confined to whether future traffic volume made the roads necessary.
3. High Court, Queen’s Bench Division: Sir Douglas Frank QC, sitting as an additional judge, dismissed the objectors’ challenge to the schemes.