HC Deb 13 December 1974 vol 883 cc1079-90

4.0 p.m.

Mr. Bryan Gould (Southampton, Test)

In 1971 Southampton City Council, as it then was, put forward a proposal for an urban motorway which would have bisected the city. That proposal would also have required the acquisition and destruction of about 700 houses, to say nothing of many hundreds more houses which would have been blighted by the motorway and the impact the scheme would have had on the community as a whole. In response to the proposal a number of residents' associations were formed. They eventually formed themselves into a federation with the precise object of opposing the city councils proposal.

The public inquiry, which was eventually held in 1972, spent more than half its time in hearing objections put forward by the federation. It was therefore a major objector at the inquiry. It was successful in two quite separate respects. First, long before the inspector's report was published the city council withdrew its proposal in the face of local opposition. Secondly, when the inspector's report was finally published—a matter of only a month or so ago—the inspector upheld the objection and recommended that the proposal should not be proceeded with.

In the course of making its objection the federation incurred costs of over £900. I have two comments to make on that. First, the figure is not a true reflection of the cost of mounting such an objection, because in this case many of the people who helped with the preparation and presentation of the objection—the economists, architects and lawyers, for example —were sympathetic to the objection and gave their services either free or at a much reduced fee. Secondly, although £900 is a considerable amount for the federation it is a mere fleabite compared to what the local authority had to spend on the public inquiry. I am sure that my right hon. Friend will need no elaboration of this point since he will know how expensive expert witnesses and leading counsel can be in these matters.

The federation, having incurred these costs and succeeded in its objection, naturally applied for an award of costs to be made in its favour. However, it was met by the Government's present policy—a policy which dates back to the 1960s. The Government rely basically on a report by the Council on Tribunals, which was published as Cmnd. 2471. The council was specifically asked to look at the problem. The report began by making a distinction which most people would accept. It distinguished, on the one hand, between planning applications and appeals where the applicant himself initiates the proposal and, on the other, a significant category of compulsory purchase orders and analogous cases, where the authority itself initiates the proposal.

The council recommended that in the first case there should, except in exceptional circumstances, be no award of costs to objectors. In the second case, however, it recommended that successful objectors should be awarded costs. In both cases the Council on Tribunals recommended that third-party objectors should not be awarded costs. This recommendation was taken up by the Government, who issued Circular 73/65 to local authorities in which they made a distinction between third party objectors on the one hand and what they called qualified objectors on the other—qualified objectors being people who own, lease or occupy property which is the subject of a compulsory purchase order.

The result of the circular is that while the Minister for the time being has statutory power under Section 250(5) of the 1972 Local Government Act to award costs in appropriate cases, in effect, third-party objectors will not as a general rule be awarded such costs.

The extraordinary thing for the federation in the Southampton case was that when it made its application it was told that it was a third-party objector and was therefore excluded by the Government's circular from the possibility of being awarded costs. I say that it was extraordinary, because by applying that distinction in such a rigid way, the Government and the local authorities are ignoring, if not obstructing, the realities of the situation.

Here we have a group of people, the majority of whom, perhaps, were qualified objectors, in that their properties were threatened, who formed themselves into an association for the purpose of fighting the proposal. It happens that they formed themselves into an association with people who were affected in other ways, some of whom had statutory rights under, for example, the Land Compensation Act 1973.

They banded together because they could see at least two separate advantages in doing so, not just for themselves but for the local authority, the inspector who held the inquiry, and everyone concerned. The first advantage was that by bringing a representative action the members of the association were able to avoid a multiplicity of objections. Instead of individual objectors having to chase up their own solicitors, instruct their own counsel, get their own expert witnesses, and so on, they were able to avoid that time, trouble and expense by bringing just the one unified objection.

The second advantage, which has particular relevance to the Southampton case but also has much wider relevance, is that by bringing the objection in that way the objectors were able to simplify matters for the inspector. He was able to look at the proposal as a whole and was not troubled with a disjointed series of fragmented objections relating to individual properties. He was able to ask, "What is the effect of this motorway proposal on the community—on the qualified objectors?

Those are two substantial advantages. The difficulty is that they will be thrown away in this case and in others if people who follow this commonsense course are to be penalised in terms of costs.

The policy being applied here ignores two fairly recent developments. First, I do not believe that the Council on Tribunals in 1964, or the Government when they issued their circular in 1965, had in mind the position of action groups and amenity associations which did not fit into the categories described in the circular. The second point is that the catalogue of qualified objectors may be deficient, because statutory changes are introduced all the time. I refer particularly to the Land Compensation Act 1973, which gives householders statutory rights in respect of their property when it is blighted by planning proposals.

The Government could adopt one of two ways of solving the problem. They could say that an association of the type I am describing is, in effect, acting as an agent for qualified objectors, in the same way as a solicitor or some other professional person would act as an agent at an inquiry. I understand that that is the solution which the Welsh Office— which, in respect of Wales, has responsibilities similar to those of my right hon. Friend's Department in respect of England—was prevailed upon to accept in relation to a similar issue in Wales last year, after a protracted correspondence.

But the second possible solution is preferable. It is that the special position and special advantages of action groups of the type I have described should be recognised by widening the category of qualified objectors. At the very least, it must be recognised that they are not third parties. They must be regarded at the least as sui generis. I should have thought that the circular could well be amended either to enlarge the category of qualified objectors or to make special provision for that type of objective.

I know that there are arguments advanced against that sort of proposal. It is said that it would be unfair for the local authority to be at risk for the costs of its adversaries when the adversaries are not at risk in the same way. That is an argument which also applies to qualified objectors. It does not prevail against qualified objectors and it ignores the great disparity in resources between the local authority and the individual objector, whether associated with others or not. It also obscures the fact that the local authority is spending ratepayers' money when it appears at public inquiries. It may therefore be found that the objectors are contributing as ratepayers to the costs of the local authority.

The second major argument is that to extend the award of costs to such bodies would be to encourage busybodies. I hope that I have said sufficient to assure the House and my right hon. Friend that the action group of which I speak in particular, and action groups in general, are not busybodies. I urge my right hon. Friend to consider that unless something is done we shall lose the substantial advantages of the type of representative action that I have described. Unless that change is made the moral is clear for individual objectors—namely, to go ahead by themselves and instruct their own counsel, obtain their own witnesses and make their individual objection. All that can be done at great cost to the local authority.

If one thing is clear it is that if objectors follow that course they will in most cases be entitled to an award of costs as individuals. There also seems to be a general point at issue, namely, that there is little point in establishing elaborate machinery for public inquiries if, at the same time, through the policy on costs, a substantial financial barrier is to be erected. We know that at public inquiries a quasi-judicial procedure is followed. The proceedings are adversary in nature. That means that a premium is placed on professional expertise in presenting the case and on the sort of expert witness who can be obtained to support it.

As I have already said, a disparity in financial resources means that unless some action is taken on costs in the way that I have suggested the individual or the private objector will be placed at a tremendous disadvantage.

There is one fundamental reform which we can consider in that context. Legal aid is not at present available for tribunals or inquiries. They are two methods of proceeding which affect the ordinary citizen much more frequently than the courts of law. Legal aid should be extended to such forms of proceeding. I recognise that that is not at this moment a matter for my right hon. Friend and that it involves a considerable rethinking of the whole legal aid scheme. I urge my right hon. Friend to take a much more limited step. Bearing in mind his name, he will understand more about these matters than anyone else in the House. He will appreciate that planning legislation is a post-war development. He will realise that between the end of the war and 1964 nothing was done about objectors' costs. The present position was established in 1964.

Very few areas of proceeding are expanding more rapidly and more substantially than planning matters. Therefore, it would be appropriate for the Department to review its policy from time to time and to take into account developments such as the emergence of action groups of the kind which raised this matter with me from Southampton. I urge my right boo. Friend not only to make it possible for an award of costs to be made in the precise case of which I speak but to issue a new circular or to at least update the present one so that other groups in exactly the same position will be able in future to derive some comfort from it.

4.14 p.m.

The Minister for Planning and Local Government (Mr. John Silkin)

I should like to start by expressing my admiration for the fair and lucid way in which my hon. Friend the Member for Southampton, Test (Mr. Gould) has put forward the case for his constituents and gave us a valuable insight into a much wider point. I hope that the House will forgive me if I start by dealing with that wider point and by describing a little of the basis of the award of costs in inquiries of this sort.

Present Government policy, which dates back to 1965, provides that qualified objectors—that is owners, lessees or occupiers of land who are successful following a local inquiry in defending their own property from the threat of a compulsory purchase order, or an analogous proposal—are normally awarded their costs against the local authority or Government Department initiating the order or proposal.

Prior to 1965, costs were awarded only in cases in which there had been the grossest misuse of an inquiry by unreasonable, vexatious or frivolous behaviour. The more generous policy was introduced in the light of two reports: the Franks Report on Administrative Tribunals and Inquiries in 1957 and the 1964 Report of the Council on Tribunals on the Award of Costs at Statutory Inquiries. Both these reports dealt primarily with inquiries into compulsory purchase and analogous orders, and inquiries into planning appeals, since these were considered to be the most important in consequence and frequency, and made up the bulk of Inquiries held by or on behalf of a Minister ". They recommended that the power to award costs should be used more widely in England and Wales.

Both the Franks Committee and the Council on Tribunals recommended that successful objectors should get their costs on the grounds that, whatever the reason for the Minister's refusal to confirm a CPO, the refusal showed that the proposed interference with the rights of private ownership was not justified in that particular case. Therefore, in the Council on Tribunals' view, there would be an injustice if an individual who successfully defended his property did not also get his costs. This argument was accepted by the then Government, and a circular was sent out in December 1965 which stated that successful qualified objectors —qualified in the way I stated—to CPOs should normally be reimbursed their reasonable costs. This is the policy that has been endorsed by successive Governments. Unsuccessful objectors, however, are awarded costs only in exceptional circumstances, where there has been "unreasonable behaviour" on the part of the initiating authority.

The Council on Tribunals did not, however, go so far as to say that costs should follow the event, as they normally do in courts of law. They were concerned not to deter interested people from lodging a "bona fide" appeal or objection by making them liable for the authority's costs should the appeal or objection be unsuccessful. If we followed the court procedure, then where an objector's case was not accepted it would follow that that person would be liable for the costs.

The position of third party objectors— that is, people who have no direct interest in the land which is the subject of the local inquiry and who are therefore not legally entitled to appear, but do so at the discretion of the inspector—was considered also by the Council on Tribunals at some length. Here again, it was considered undesirable to inhibit third parties from putting forward objections by making them liable to pay costs when their case was unreasonable. So does it not follow, in logic, that they should not be entitled to receive costs when the eventual decision favours them or the party they have been supporting—even where another party has behaved unreasonably? The Council on Tribunals considered it, and concluded that, as a general principle, third parties should neither be eligible to receive costs nor be liable to pay them.

It was, however, considered that in very exceptional circumstances, when a third party was put to extra expense, say because an inquiry was adjourned, through the fault of another party, he might be eligible for an award in respect of those extra costs against the party at fault. Similarly, a third party could be liable for costs if an adjournment of an inquiry was made necesary through his fault. These recommendations were also accepted, and they remain the basis of the present policy for third party costs.

That is the general position. I turn to the Southampton, Portswood Link Motorway, CPO, with which my hon. Friend is particularly concerned and on which he eloquently stated the views of his constituents. The position is that the proposed Portswood Link was to be a local authority special road for which Southampton City Council was the highway authority. In April 1972 the city council submitted for the Secretary of State's confirmation schemes for stages I and II of the Portswood Link, and section 13 and CPOs for stage I. There were a substantial number of objections to both the city council's and the Department's proposals which concerned the motorway strategy for the vicinity, and concurrent public inquiries into all the proposals were held from 14th June to 27th July 1972.

The inspector recommended that the scheme and orders for the Portswood Link should not be confirmed. Although he considered that the council had made a good case for the road, he had some doubts about whether a second motorway was needed through the city as Southampton council had suggested. He also thought that much more should be known about the policies and proposals likely to be approved in the structure plan before such a significant road project was approved. However, before his report was published or the Secretary of State's decision issued, the town clerk informed the Department that on Wednesday, 12th September 1973, the Southampton City Council passed the following resolution: That the proposal of the City Council to construct the Portswood Link Motorway be abandoned …' The council subsequently wrote to interests scheduled in the CPO on 29th November 1973, notifying them of the decision. Accordingly, the Department then wrote to objectors to the council's schemes and orders on 18th December 1973 advising them that the Secretary of State would take no further action on the council's proposals, which were regarded as having been withdrawn by reason of the resolution.

Because the city council abandoned its road proposals after a local inquiry had been held, but before a decision had been taken by the Secretary of State, it was considered right to treat all the qualified objectors as successful for the purpose of costs, in the same way as if the proposals had been formally rejected by the Secretary of State. Accordingly, these objectors will be reimbursed their reasonable costs by the Southampton council.

My hon. Friend has argued that bodies like the Southampton Federation of Residents and Allied Associations are within the spirit of the Council on Tribunals' recommendations and are effectively qualified objectors. But the federation, as such, was a third party, since it did not have a direct interest in the land proposed for compulsory purchase.

I appreciate that the federation, too, might be considered to have been successful in its objections to the council's proposals. But in accordance with the policy I have described it is not eligible for reimbursement of its costs. In the same way, it would not have been awarded its costs if the compulsory purchase order had not been abandoned by the council but had been rejected by the Secretary of State.

I realise that some members of the federation may be qualified objectors in their own right—that is, as owners, lessees or occupiers of land included in the CPO who chose to have their opposition to Southampton's proposals put by the spokesman for the federation—and, accordingly, those individuals will be entitled to reimbursement of the costs which they themselves incurred in pursuing their objections to the council's proposals. The solicitors for the federation have been advised accordingly.

But to award the federation all its costs in this case because it represented a number of qualified objectors as well as people who had no direct interest in the land selected for compulsory purchase would put it in a more favourable position than other residents' associations and third party groups who may object to development proposals.

I appreciate the force of my hon. Friend's argument that it is sometimes better for all concerned if objectors to an inquiry can get together to present a joint case. This can clearly help the objectors on the one hand, while on the other it makes the inquiry procedure more efficient.

Perhaps the conclusion to be drawn from the Southampton case is that those whose land is directly affected and who wish to object jointly should limit the membership of their association accordingly. In such a case it may well be possible, in appropriate circumstances, for the award of costs to be considered collectively. In this way the rules on the award of costs can be complied with. Where they are already members of a larger association they should make sure that their contributions are separately identifiable.

Generally, I appreciate the contribution which third parties, such as residents' associations and amenity societies, can make to inquiry proceedings. They help to ensure that a proposal is thoroughly examined. During the last year or two a number of such bodies have made representations that they should be financially assisted in some way. But I think I should make it clear that it is not essential for objectors to go to great expense to obtain an effective hearing. My hon. Friend talked about the expertise necessary for such hearings. The inspectors holding inquiries are concerned to see that anyone who wishes to speak may do so if he has something relevant to say, and that he gets a fair hearing.

While it is reasonable that objectors should be given the opportunity of expressing their views about development affecting the community to which they belong, it is also reasonable that, as their own legal rights or interests are not at stake, they should meet the expense of employing experts to present their case—if they consider this desirable. As I tried to point out, it is not always so.

There has to be a balance between the rights of those affected by development proposals to put forward their views, and the cost to the community in terms of money, time, and professional expertise. In the planning area, Mr. George Dobry, QC, is at present carrying out a review of the development control system on behalf of the Secretaries of State for the Environment and Wales, and he will no doubt have regard to the role of third parties in planning appeals and at inquiries, and the use of orders for costs. Mr. Dobry's final report is expected early next year. It will be interesting to read his comments.

In the meantime, I end as I started, by thanking my hon. Friend for raising a matter which is of considerable importance and which has a much wider impact than that in his own constituency. For that, as well as for the clear, courteous and reasonable way in which he has put his propositions, I am sure the House will be grateful.

Mr. Douglas Jay (Battersea, North)

Before my right hon. Friend sits down, may I put one question to him? What is to happen in a case such as that of the London motorways, when at the time of the public inquiry there is no precise knowledge of which individuals' property may be compulsorily purchased, but when the general strategy is under discussion? In those circumstances it is not possible for people immediately affected to get together. It surely has to be done generally. On my right hon. Friend's argument, as I understand it, there would be no possibility of any reimbursement of costs.

Mr. Silkin

This is a slightly hypothetical question because it very much depends on which area is affected and which group of people may feel themselves to be affected. This is part of a wider planning aspect at which Mr. Dobry is looking. I rather hinted, I hope, that it would be at least interesting to see those comments. I cannot promise what the result will be. We are aware of the position even though at the moment I do not think it would be proper for me to comment.

Question put and agreed to.

Adjourned accordingly at twenty-nine minutes past Four o'clock.