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Home > Publications > Selected cases — Parliamentary > Selected Cases and Summaries of Completed Investigations - November 1997 - April 1998 > C.708/94
Summary of Selected Cases
DEPARTMENT OF THE ENVIRONMENT, TRANSPORT AND THE REGIONS
Failure to remedy the consequences of the misalignment of a motorway
Matters considered:
Mr X complained on behalf of a local society about mishandling by the Department of Transport (DOT) of the acquisition of land as a replacement for common land used to construct motorway B. In particular he complained that land DOT had purchased and intended to use for common land in exchange for that used for motorway B had over a period of 20 years never been registered as such; that that registration had been delayed when DOT discovered that the position of the motorway, which opened in 1974, did not correspond with that on the compulsory purchase order (CPO) and they proposed to remedy that with a new CPO; and that the exchange land had been encroached on by a neighbouring landowner, denying public access, and that that problem remained unresolved. He complained also about inadequate notice given in 1992 for exhibitions to publicise plans for widening the motorway, and about an erroneous reference to an EC Directive in Ministerial correspondence.
Summary of case
DOT took possession of the land needed for motorway B in 1971. Motorway B opened in 1974. Work to effect the exchange of the common land for land DOT had acquired under the CPO for motorway B proceeded slowly; and in 1983 Treasury Solicitor's Property Division discovered that there were significant discrepancies between the land acquired under the CPO and the land that was actually used for motorway B. In effect, motorway B was found to be occupying common land not provided for in the CPO. No action was taken until 1989, when DOT decided on what appeared at the time to be a good remedy, which was to regularise the extra land taken for the original motorway B by including it in a CPO to be made under proposals to widen the motorway, and subsequently to draw up a new exchange certificate. In November 1993 they notified Mr X of the discrepancies and their planned remedy, and in February 1994 notified the then Member. Motorway B widening proposals were delayed; and DOT took no further action to regularise the original motorway B land-take and complete the transfer of the exchange land.
Meantime from around 1987/1988 onwards a small area of the exchange land itself had been subject to alleged repeated encroachments by a neighbouring landowner. DOT tried various methods to stop the reported encroachment; and on instructions from Treasury Solicitor's Litigation Division (TS(LD)), on behalf of the Highways Agency (HA), which had assumed responsibility for trunk and motorway road building, counsel issued legal proceedings in December 1994. No further action was taken until 1997, when the present Minister sought and obtained the new Member's agreement to chair a meeting on 17 December 1997 to mediate between the parties. The Chief Executive of HA also said in late 1997 that the encroachment issue had to be settled (either by negotiation or litigation) before a new CPO to regularise the original land-take for motorway B could be published.
Little notice was given of the exhibitions for motorway B widening proposals; and the Minister's letter of 19 July 1993 to the then Member contained a clerical error which referred to a wrong EC Directive and caused inconvenience to Mr X.
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Findings
I found that HA had not remedied the consequences of the original misalignment of motorway B on land that DOT did not own, nor had they settled the exchange of land; and I criticised them for their determined and persistent inertia in the period 1983 to 1989. By the time DOT decided in 1989 to act, encroachments had been reported to have taken place on the exchange land. The problems caused by those reported encroachments had to be resolved before DOT could regularise the excess land-take for motorway B and transfer the exchange land. Despite DOT's policy decision in 1989 to regularise the position, it was only in November 1993 and February 1994 that Mr X and the then Member respectively were told of the plan; but all impetus was then lost as motorway B widening proposals slipped. TS(LD) delayed on one occasion; but that delay was not a significant part of the maladministration as a whole. DOT were frequently tempted to reopen the question of substitute replacement for the land under dispute when they had no power to substitute it; and that added to the delay. The Chief Executive of HA said that if no solution to the problem of encroachment could be found by negotiation within a reasonably short period, HA intended to proceed to litigation without further delay. If HA were able to recover the encroached land, they would be able to transfer the whole package of exchange land as originally intended. If they were unable to recover the land, they would have to acquire a complete new package of land for transfer.
DOT did not deal effectively with the encroachment issue. Their failings had caused injustice, but not to a significant degree, to those whom Mr X represents, although there continues to be some minor disadvantage to members of the public because the key current problem – the issue of encroachment – has until now been left unresolved.
I commented that the timing of public consultation should take proper account of the public's need for reasonable notice and noted that a clerical error had been made in correspondence with Mr X. The Chief Executive acknowledged that the timing of announcements about public consultation, was critical to the success of such consultation, and said that HA would in future give as much notice as reasonably possible.
Remedy
The Chief Executive offered his apologies for the failings I have identified. The Treasury Solicitor also apologised for his department's delay. I consider those apologies, which I pass on to Mr X, and the Chief Executive's declared intention to resolve the long outstanding issues to be as satisfactory an outcome to a fully justified complaint as it is now feasible to achieve.
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