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DEPARTMENT OF THE ENVIRONMENT, TRANSPORT AND THE REGIONS

Case No. C.708/94

Failure to remedy the consequences of the misalignment of a motorway

4.1 Mr X complained on behalf of a local Society (the 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 the land used by the motorway 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 the discrepancy with a new CPO; and that the exchange land had been encroached on by a neighbouring landowner, denying public access, and that the 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.

4.2 My investigation began in September 1994 after my predecessor had obtained comments from the Chief Executive of the Highways Agency (HA) and the Deputy Treasury Solicitor. I have not put into this report every detail investigated by my staff; but I am satisfied that no matter of significance has been overlooked. An annex gives the meaning of the abbreviations used in the report.

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Statutory and administrative background

4.3 Common land exists where the owners of two or more neighbouring properties have ancient rights of access to the land in question. Such owners are known as commoners. Right of access to common land for the public is provided by the Law of Property Act 1925, section 193. When an authority wishes to buy common land and use it for purposes inconsistent with the commoners' rights, they must first buy the freehold and then extinguish those rights, either through voluntary releases or under a CPO. The CPO also provides for other land to be given in exchange for the land taken. In 1970, when the construction of motorway B was in prospect, the Acquisition of Land (Authorisation Procedure) Act 1946 required exchange land given to be not less in area than the common land acquired for road schemes and, in the opinion of the responsible Minister, to be equally advantageous to commoners and public alike.

4.4 Under section 31 of the Highways Act 1980, where a way over any land has been enjoyed by the public as of right and without interruption for a full period of 20 years, it is deemed to have been dedicated as a highway unless there is sufficient evidence that there was no intention during that period to dedicate it. Under the Limitation Act 1980 Crown land that has been encroached upon without the owner's consent may be recovered from adverse possession for a period of up to 30 years.

4.5 In 1970 the Ministry of Transport, later DOT, were responsible for the motorway building programme. Two DOT management teams have been concerned with this case, the South East Construction Programme Division (which was known by other titles in earlier years) and the Motorway Widening Unit (MWU). Since April 1994, HA, one of DOT's executive agencies, have been responsible for many of the matters described in this report. For ease of reference I refer to DOT throughout this report unless a reference to MWU or HA is called for. Three parts of the Treasury Solicitor's Department (TS) have been concerned with this case; Property Division (PD – since April 1993 the Government Property Lawyers), Litigation Division (LD), and Transport Advisory Branch (TAB), DOT's legal advisers. DOT became part of the new Department of the Environment, Transport and the Regions in June 1997.

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Jurisdiction

4.6 Local authorities are not within my jurisdiction. I refer to the actions of the two local authorities concerned in these events, that is, County Council C and Borough Council D, only to set in context the actions of DOT and TS.

Investigation

4.7 The relevant section of motorway B (which opened to traffic in June 1974) was constructed across environmentally sensitive heathland forming part of common land, ownership of which was vested in County Council C. DOT acquired some 27 acres of the common land to build motorway B, and extinguished commoners' rights over it by a CPO dated 3 November 1970. DOT bought, on 4 August 1970 by agreement, two plots of land approximately 132,800 sq yards (around 27.4 acres) in area, including plot 77, which I call the exchange land, from Mrs A (then owner of property adjoining the common land). DOT intended to register the exchange land as common land and convey it to County Council C.

4.8 Mrs A intended to retain a long, narrow parcel of land (subsequently known as the 'ransom strip') 10 feet wide between the north western boundary of the exchange land and the public road. The conveyance to DOT contained a reference to a summer house, but no references to other buildings on the land transferred or to the ransom strip. However, Mrs A's title to the ransom strip was recorded in the Land Registry's relevant title number. DOT regarded the exchange land as common land and allowed public access from the time they took ownership. DOT told the Commissioner's staff that they had fenced in two old derelict farm buildings, former animal pens and associated paddock (the old buildings) soon after acquiring the land. The site of the old buildings adjoined Mrs A's property.

4.9 On 21 October 1970 the Minister for Housing and Local Government certified, by means of an exchange land certificate (the certificate), that the exchange land was equally advantageous and not less in area than the common land being taken. The certificate provided for a six week period to allow objections to be raised in the High Court by any aggrieved person; but no objections were received by the High Court. A CPO dated 3 November 1970 authorised the Minister of Transport to acquire the common land, and ordered that the exchange land would itself become common land and be vested in County Council C when the common land it replaced became vested in the Minister.

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4.10 1971-1977: DOT on 26 March 1971 entered the common land acquired to build motorway B. They told TS(PD) on 10 September 1971 that they would instruct them 'to arrange the Transfer [of the land to County Council C] during the next three weeks'; TS(PD) reminded DOT on 5 February 1974, three years later, that no action had been taken. DOT replied on 11 February, saying that the District Valuer's negotiations with County Council C about 'the purchase of the common land have not yet formally commenced'. TS(PD) replied on 13 February saying that since land exchange was involved they did not understand the reference to 'the purchase of the common land' and asked for clarification. On 28 June 1977, after motorway B had opened to traffic, County Council C reminded DOT that, although they (County Council C) were managing the land as part of the common land, the transfer had still not been carried out. DOT replied on 14 July 1977 and attributed the failure to make the transfer to a delay in negotiations, the nature of which was not specified, between the district and county valuers. In 1976 Mrs A sold the adjoining property and surrounding land to the present owners, company Y.

4.11 1979: After various negotiations between the district valuer, the county valuer and DOT, the district valuer made his report to DOT on 24 July 1979. That enabled DOT, on 25 July, to instruct TS(PD) to draw up draft documents for the transfer of the exchange land.

4.12 1980-82: Discussions about the land to be transferred took place in early 1980 between County Council C, DOT and TS(PD). Queries about the technicalities of transfer and the need to identify clearly the land involved slowed the transfer process. On 20 May 1981 TS(PD) asked DOT to provide copies of the relevant plan of the motorway crossing the common land. By 6 August 1981 TS(PD) had acquired from County Council C copies of the commons registration map and pointed out to DOT that County Council C's record showed that DOT had taken more land for motorway B than they (DOT) had recorded on their own plans, which showed that a narrower strip had been taken; and asked DOT to check whether their plans needed to be widened. (That was the first indication that motorway B might have been constructed partly on land which DOT did not own.) Correspondence between DOT, County Council C and TS(PD) followed.

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4.13 1983: On 23 September 1983 TS(PD) asked DOT for copies of the CPO and the certificate as the TS(PD) file on the CPO was missing. On 4 October, DOT sent TS(PD) a copy of the CPO. They said they were unable to locate the exchange land certificate and provided 'a copy of the notice of the giving of the certificate by the Minister...'. (That document was, the Commissioner's officers were later told by HA, the certificate itself.) In a landmark minute, TS(PD) told DOT on 23 December that there were significant discrepancies between the CPO plans and later plans showing the actual line of motorway B. TS(PD) said that a supplementary CPO, a fresh exchange certificate and notice might be needed to rectify the anomaly, and suggested that DOT should seek advice from their own legal advisers TS(TAB) on the issue.

4.14 1984-1986: DOT told TS(PD) on 5 April 1984 that they were still unable to find the certificate and said that discrepancies in the plans 'can be accounted for by the licences required at the time of the motorway construction and the various works to be carried out under the provisions of the Side Roads Order which were not incorporated in the CPO plan'. They added that DOT was taking title to those additional areas (that is the extra land thought to constitute the discrepancy on which part of motorway B had been built), and that no other form of supplementary CPO was required to include the additional area of land. On 12 April 1984 TS(PD) repeated their firm view that the original CPO was inadequate and that legal advice was needed, and asked for a duplicate of the certificate. On 8 May 1984, TS(PD) told County Council C of the discrepancies between the CPO plan and the land that County Council C intended to transfer to DOT; and that a supplementary CPO could be required. They added – prophetically – that some considerable time might pass before the transactions could be completed. TS(PD) sent DOT reminders on 3 September and 18 December 1984, 4 January and 19 December 1985, and 29 October 1986. On 3 November 1986, DOT replied on an interim basis to TS(PD)'s minute of 23 December 1983 – almost three years later – querying the need to produce the certificate. TS(PD) replied on 14 November saying that the certificate and the discrepancies in the line of motorway B needed further consideration; and that the compulsory acquisition of common land had to accord strictly with the statutory procedure.

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4.15 1987: On 30 January 1987 the Chairman of a local Common Preservation Committee (the Committee) asked DOT for the exact acreage, location and ownership of exchange land given for motorway B and ancillary road works. On 12 February DOT sent the Committee two plans showing the exchange land, and said that they were in the process of transferring title of the exchange land to County Council C and that the legal process took a long time, but the public were able to use the exchange land. On 26 March the Committee drew DOT's attention to 'two small well established unlawful enclosures along the boundary [of the exchange land]. There is also direct access from the [adjoining] property to the exchange land. On the West is a Cottage which appears to have direct access on to the exchange land as well.' The Committee also asked DOT when they would transfer ownership of the exchange land to County Council C. DOT told the Committee to refer what they called the unlawful enclosure and the direct access from the properties to County Council C, and said they hoped to complete the transfer of the exchange land by the end of 1987.

4.16 Meanwhile on 3 February DOT had written to TS(PD) to query the need for them to see the lost certificate, citing other transfers of common land that were said to have taken place without the corresponding certificate having been necessary. A further search for the certificate and the relevant numbered file failed to find either. On 21 April TS(PD) repeated for the fourth time to DOT their view that a supplementary CPO and a fresh exchange certificate were needed since the original did not authorise acquisition of the balance of the land that DOT needed to acquire from County Council C; and so was legal advice. DOT said they were reluctant to proceed to a supplementary CPO and certificate at that late stage, particularly as the certificate had by then been lost for a considerable time. They envisaged difficulties in promoting a separate supplementary CPO and exchange certificate so many years after motorway B had opened to traffic, and took no action. TS(PD) sent a number of reminders to DOT; but DOT did not reply until 4 May 1989, two years later (see paragraph 4.19).

4.17 1988: On 14 March 1988 County Council C alerted TS(PD) to what they saw as a serious encroachment on the exchange land by company Y, and asked for immediate steps to be taken to end it. TS(PD) told DOT of the alleged encroachment on 17 March. On 27 April and 20 May TS(PD) told County Council C they had reminded DOT of the need to avoid further delay in dealing with the CPO and with the encroachment issue. County Council C wrote to DOT on 2 August and again asked about progress in dealing with the encroachment issue. On 2 September TS(PD) reminded DOT that as legal owners of the land DOT were responsible for evicting those responsible for the reported encroachment. On 8 September DOT wrote to company Y's agent seeking an end to the alleged encroachment and setting eviction procedures in train; and on 26 October DOT officers visited the site and were shown a stable block and fenced paddock on the exchange land which, they were told, were to be replaced by a new stable on company Y's (undisputed) land. DOT reported progress to County Council C on 4 November, and wrote again to company Y's agent on 11 November demanding that the encroachment cease.

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4.18 1989: On 23 January 1989 solicitors (solicitors E) acting for company Y told DOT that the old buildings had been on the site for many years and had been used by the previous owner. They also said that the plan attached to the 1970 conveyance to DOT was wrong as it included the old buildings in the exchange land. They said company Y would like to resolve the matter of ownership amicably, and suggested a site meeting. DOT replied on 20 February that the disputed area had been purchased to provide replacement common land and that it was not possible for DOT to sell the land, as to do so to would be an abuse of the Secretary of State's powers. Solicitors E replied on 13 April continuing to dispute the ownership of the land and occupation of the old buildings.

4.19 On 4 May DOT replied to TS(PD)'s many letters about regularising the original CPO. DOT proposed to include the necessary changes in a CPO which they would in any case require for a new scheme to widen motorway B, and meantime, subject to TS(PD)'s and County Council C's agreement, to complete the acquisition of the land included in the original CPO. Further exchange land could then be provided at a later date. On 2 June DOT sought TS(PD)'s advice on the encroachment. Changes of personnel within TS(PD) caused a delay of several months, despite reminders from DOT. Meanwhile, County Council C had received more enquiries about registration of the exchange land and about the number and extent of encroachments which the continuing uncertainty of the status of the exchange land were said to have encouraged, and had continued to press DOT and TS(PD) to settle the exchange of land, including a fresh CPO if necessary, and for resolution of the encroachment issue.

4.20 1990: On 23 January 1990 DOT's legal advisers, TS(TAB), confirmed that the CPO needed for the motorway B widening could be used to acquire the land not included in the original CPO. County Council C asked DOT on 15 February to consider excluding the disputed land and buildings (paragraph 4.18) from the exchange land. In accordance with legal advice, DOT wrote to solicitors E, copying to County Council C, on 15 May saying that they considered the Secretary of State had good title to the disputed land on the basis of the Land Register; and that the land could not legally be omitted from the exchange land transferred to County Council C under the terms of the original CPO, as such action would be an abuse of the authority to acquire the land given by the CPO. Accordingly DOT sought removal of structures on the disputed area of exchange land and re-erection of the fence along the proper boundary. On 9 July the Committee complained to DOT that new stables had been built on the exchange land and that the presence of a stallion on the land was a danger to horse-riders using the common land. On 24 July DOT wrote to a new firm of solicitors for company Y (solicitors F), seeking removal of structures from the exchange land and alerting them to the danger posed to horse-riders. On 15 August solicitors F told DOT that the land in question was of great importance to the security of company Y's adjoining property; they still wished to resolve the matter of ownership amicably and wanted to purchase the land in question or swap it for other land. On 3 October DOT, prompted by TS(PD), again searched in vain for the supposedly missing certificate.

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4.21   Meanwhile, on 12 September, County Council C had again urged DOT to end the reported encroachments. On 15 October DOT arranged for plans to be prepared showing their extent. On 29 October DOT consultants provided photographs and a plan of the reported encroachment including the stables. On 13 September DOT had proposed to County Council C their preferred option to resolve the motorway B land discrepancy (paragraph 4.19). On 16 October County Council C told DOT that, since widening motorway B required additional exchange land, they would consider accepting other more suitable exchange land for both the widening and original schemes as an alternative to the original exchange land. While maintaining their readiness to initiate legal proceedings for trespass, DOT told solicitors F of County Council C's proposal on 14 November and without commitment asked what land their clients could identify as suitable for transfer to County Council C. On 4 December solicitors F replied welcoming the proposal. Those exchanges led to suspension of further action on the encroachment issue.
 
4.22   1991-1992: DOT wrote to County Council C on 6 February 1991 rejecting their suggestion that the original exchange land should be revisited in connection with the motorway B widening. They wrote to solicitors F on 13 February to put on record their claim of ownership of all the exchange land. In their reply of 20 February solicitors F reminded DOT that company Y owned the ransom strip. Prompted by County Council C DOT instructed new consultants to prepare fresh plans of the discrepancies between motorway B as built and the CPO. These were delivered on 7 June.
 
4.23   On 16 September a representative of the Committee telephoned DOT to complain that company Y had erected a steel security fence (which HA said later was 1.7 metres high and which I call the security fence to distinguish it from other fences built elsewhere on or near the exchange land) and security gates on the ransom strip, making access to the exchange land difficult; and that users of the exchange land were suffering intimidation from estate employees and dogs. County Council C also wrote to DOT on the same day to express their concern about the erection of the security fence. (Later, on 17 January 1992, company Y applied to Borough Council D for planning permission for the security fence and Borough Council D gave retrospective permission on 11 March 1992, noting that an unlocked access gate remained in the fence. DOT were not consulted.)
 
4.24   On 21 October 1991, the Committee wrote to the Secretary of State for Transport protesting at plans to widen motorway B where it crossed the common land, and noting the inordinate time taken to hand over the original exchange land for public use. In a reply to the then Member for the constituency, who had also forwarded the letter, the Minister for Roads and Traffic explained DOT's procedures for determining whether motorway B should be widened and expressed regret for the delay in handing over the exchange land and dealing with the encroachment issue.
 
4.25   On 27 November County Council C told DOT that the new stables (paragraph 4.20) had been removed from the exchange land. They expressed concern that the security fence detracted from the exchange land and said again that they were, in principle, willing to consider an alternative to the original exchange land. They said that solicitors F had made specific proposals for swapping the part of the exchange land which had been the subject of the reported encroachment for another plot. They left DOT to consider whether to insist on the removal of the old buildings, but asked DOT to take proceedings for trespass on the exchange land. DOT sought advice from TS(LD) on 29 November on the advisability of taking proceedings against company Y while at the same time seeking a negotiated settlement. DOT also asked TS(LD) whether the erection of the security fence reduced the value of the exchange land.

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4.26   Almost six months passed before TS(LD) instructed counsel on 12 May 1992 to advise on the trespass issue and initiate proceedings; they apologised to DOT for the delay. The case papers were then mislaid in counsel's office, and the matter was not followed up by TS(LD), so that it was not until 14 September that counsel replied. He advised that proceedings were appropriate, a view TS(LD) conveyed to DOT on 21 September.
 
4.27   On 22 June a County Council C officer had told DOT that a swap 'is still possible for which I have obtained Committee approval, but I require the normal public consultation processes to be undertaken before finally accepting it'. County Council C also asked DOT to press TS(LD) to deal more quickly with the case. On 22 September, in an internal minute, DOT summarised the position in anticipation of a planned motorway B widening consultation exercise. They said that the substitution of a second plot for the plot of land which they considered had been encroached on had been agreed by County Council C, but County Council C had asked for that proposal to be included in the consultation exercise. They had suspended taking legal proceedings to end the reported encroachment. On 9 November, County Council C told DOT that the company Y had purchased further land and wished to swap it for the exchange land. County Council C were also critical of DOT delays, saying that they still had not received any indication from DOT whether the security fence on the ransom strip reduced the value of the exchange land. On 16 November, County Council C told solicitors F that they did not regard the further land purchased and offered for the exchange land as sufficiently suitable for the purpose; they considered that the specific proposal made earlier (paragraph 4.25) was still a possibility. On 27 November DOT asked the district valuer for his opinion on whether the security fence affected the value of the exchange land; the district valuer told DOT on 31 March 1993 that the presence of the security fence along the ransom strip made no difference to that value.

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4.28   Meantime, DOT Ministers had selected 18 November as the date on which to issue a press notice and consultation brochure and to announce the dates and locations of a public exhibition about proposals to widen motorway B. MWU in DOT Headquarters (paragraph 4.5) sent the brochure, which included a reference to European Community Directive 85/337 (the EC Directive), to the then Member on 16 November and held a preview meeting on 18 November to brief Members of Parliament, Members of the European Parliament, and local councillors. They also carried out a public consultation exercise, in the form of the exhibition (held for two days in three separate locations between 23 and 28 November), and issued an environmental statement, which was made available for inspection locally from 18 November 1992 to 29 January 1993. The first of the exhibitions, held on 23 and 24 November in a nearby town, was first announced in two local newspapers on Thursday 19 November and 20 November respectively. DOT's contractor hand-delivered 1,430 copies of the brochure between 17 and 20 November to properties located within 100 yards of motorway B or considered by DOT to be those most affected by the proposals. Despite the short notice, the exhibitions were attended by some 1,100 people. The proposals referred to acquiring new land for the widening proposals and replacing the common land so acquired, but made no reference to the land that was or should have been acquired and the exchange land which replaced or should have replaced it when motorway B was first built. However, during the public consultation exercise DOT were criticised for their continuing inability to transfer and register the exchange land identified before the construction of the motorway. In assessing the outcome of the exhibitions, MWU considered that there had been little interest in the effect of the new proposals on the common land, other than from members of the Committee, whom they had agreed to meet.
 
4.29   1993 The Committee convened a public meeting in the local town on 6 January 1993; and there was another nearby on 11 January. Both were attended by representatives of the Society and MWU. On 22 January Mr X wrote to MWU about the Society's many concerns, already put orally. These included irregularities and uncertainties about the original exchange land arrangements and additional land that might be needed to widen motorway B; inadequate notice of the public exhibitions; and failure to complete the exchange of land for that taken from the common land for the original motorway B.
 
4.30   After a series of telephone calls, the Committee wrote to DOT on 27 January to query the status of the exchange land and ask whether widening of motorway B could proceed before the original exchange of land had taken place. On 2 February Mr X wrote to the then Member. Among other things, the society complained about the failure to settle over 22 years the original exchange of land and urged that that problem and the provision of the additional exchange land required for the motorway B widening should be resolved before Parliamentary approval was sought for the widening scheme itself. They asserted that the public's rights of access had been denied because of the failure to complete the exchange. MWU replied to Mr X's letter of 22 January on 15 February. They set out the planning process for the motorway widening scheme, including the consideration of the exchange land. As to the public exhibitions, they said that public meetings had been held to redress any inconvenience to individuals who felt they had not received adequate notice of the exhibitions. They undertook to investigate the legal situation regarding the exchange land provided for the original construction of motorway B and to tell the Society about any action it was decided to take. On 28 February Mr X expressed to the then Member dissatisfaction with the adequacy of MWU's replies to questions about the exchange land and the widening proposals.

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4.31   Meanwhile, on 8 February, DOT had decided to seek a supplementary CPO to rectify the anomaly of the land not formally acquired when the motorway was first built, separate from the CPO to acquire additional areas of common land for motorway widening, and to take proceedings against company Y to regain the land on which they were considered to have encroached and thus to offer to County Council C the land originally acquired as exchange land. Later minutes said that DOT had conducted a further check on the 1970 CPO (paragraph 4.7) and a recent topographical survey had confirmed that the area designated in the CPO and was covered by the motorway as it crossed the common land did not coincide. They could give no clear reason why the motorway had not been built in accordance with the CPO, though they speculated that the motorway might have been designed and built to a local grid system that differed from the Ordnance Survey grid on which the CPO plans were based: nor could they give any obvious explanation for the time taken to regularise the matter. DOT's consultants had established 'that the motorway occupies 3,827 sq yards less land outside the CPO than that which was in the CPO but is unused for motorway construction'.
 
4.32   On 5 March DOT told TS(LD) that their consultants had concluded from a recent visit to the exchange land that no encroachment was taking place and that there was no case for litigation. On 29 March TS(LD) queried the basis for DOT's view that no encroachment had taken place; DOT replied on 31 March to confirm the consultants' view that there had been no encroachment. However, in June 1993 a DOT official queried that view and gave instructions that the question should be re-examined. There is no record to suggest that this instruction was followed, the next reference to encroachment occurring in a letter from Mr X to the Minister on 1 November 1993 (paragraph 4.36).
 
4.33   Meanwhile on 10 March, the then Member had referred Mr X's letter of 28 February (paragraph 4.30) to the Parliamentary Under Secretary of State, and on 15 March the then Member for another constituency referred to the Minister a complaint from one of his constituents about DOT's handling of the exchange land issue.

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4.34   On 5 April, DOT told the Committee in reply to their letter of 27 January (paragraph 4.30) that the legal procedures to acquire the common land were not yet complete, although DOT did own the exchange land, and that there was no barrier to DOT proceeding with the road widening before the exchange was completed. The Minister replied on 16 April to the then Member's letter of 10 March saying that the exchange land had been acquired and the procedures for registering it as common land needed to be completed but, since this involved detailed legal procedures, the matter was taking longer to resolve than had been hoped. A background note to the draft noted 'in confidence', the problem of the discrepancies in the land taken. Mr X was dissatisfied with the reply. The then Member wrote again to the Minister on 16 May on his behalf. In his reply of 19 July the Minister repeated that DOT had acquired the land to be given in exchange for the common land needed for motorway B originally, but that it had not been registered as common land. DOT had found, in starting land acquisition procedures, that the actual position of motorway B did not correspond exactly with that shown in the CPO, although a smaller area had been used for its construction than was included in the CPO. Those discrepancies had delayed the registration of the exchange land and the purchase of the common land. He expressed regret for the delay and said that DOT were investigating how to remedy the situation as quickly as possible. The letter misquoted the year in the European Community Environmental Assessment Directive as '83/337/EEC' instead of '85/337/EEC'.
 
4.35   Meanwhile, an internal DOT minute of 14 July had noted that there had been no other case where the discrepancy was so big and where action was needed to regularise the legal position; motorway B as built was about seven yards offline and the additional land taken amounted to nearly 20% of the total land provided for in the CPO and used for construction. A meeting between MWU officials, administrators, TAB, TS(LD) and County Council C held on 3 August again concluded that a fresh CPO was needed to acquire the additional land initially taken for the motorway and that the existing exchange land – not an alternative – had to be given to replace the land originally taken for motorway B and a new exchange certificate would be required.

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4.36   On 1 November, Mr X complained to the then Member about, amongst other things, the misquoting of the directive number in the Minister's letter of 19 July (paragraph 4.34); encroachment on the exchange land; and delay in registering the exchange land. He asked the then Member to seek a full examination by my predecessor of the administrative shortcomings of DOT. That letter crossed in the post with a DOT letter of 2 November to Mr X, which was copied to the then Member, the then Member for the other constituency, the Committee and County Council C. DOT's letter said that discrepancies between the actual position of motorway B and that shown on the CPO were the cause of the delay in the acquisition of the common land and the registration of the exchange land as common land (for which they apologised); a new CPO to rectify the problem would be published; the original exchange land was to be offered despite DOT having used a smaller area of the common land than planned; a new exchange certificate would be applied for; and users had had access to the exchange land since 1970, even though it had not been registered as common land. On 12 November the Committee asked DOT why it had taken 23 years to discover the discrepancy, and raised the question of access to the exchange land. Mr X told the Member on 17 November that DOT's letter had added to the Society's concerns, and questioned the restrictions on using the exchange land. He again complained of DOT's failure to correct the reference to the EC Directive and to apologise for their error.
 
4.37   On 14 December solicitors F asked the then Member to assist company Y in efforts to acquire part of the exchange land from DOT as they were concerned about the security of the property. They set out company Y's case for claiming ownership of the old buildings, saying that company Y had resisted DOT's claim to the old buildings and fenced paddock area since 1988; that the document effecting the transfer of the land from Mrs A to DOT in 1970 showed the boundary incorrectly; and that the land occupied by the stables and paddock belonged to company Y. On 17 December, the then Member wrote to the Secretary of State seeking his intervention on company Y's behalf.

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4.38   1994 In early January 1994 DOT rediscovered the original exchange certificate in their files, and noted that the original CPO did not include the ransom strip. On 21 January, DOT told the Committee that the regularising CPO would be published in the spring of 1994, and that before then DOT would tidy the exchange land and clear overgrown grass. On access to the exchange land, they explained that planning consent had been granted for the fence which had been erected on the ransom strip, and that access to the exchange land had been maintained throughout. On 14 March County Council C told DOT that company Y had gained access through a gate from their property into the exchange land and asked DOT to fence it off. They asked DOT to arrange for the demolition of the old buildings on the land; and for vehicular access to the exchange land over the ransom strip, and through the security fence.
 
4.39   Meanwhile on 22 February the Minister had told the then Member that the area the ownership of which was claimed by company Y had been sold to DOT in 1970, and that he could not agree to sell the exchange land; and he explained the legal and technical background to its acquisition and DOT's intention to complete its transfer to County Council C. He also said that a draft regularising CPO would be published during the spring of 1994.
 
4.40    On 18 July, the then Member again wrote to the Minister asking him to consider company Y's case, which they based on the need for security for buying the exchange land and exchanging it for better land, as there seemed to be nobody – other than DOT – who did not agree that this would be the right thing to do. On 20 July solicitors F again urged on the then Member the case for a swap of land; reminded him that access to the exchange land was greatly restricted by company Y's ransom strip (on which the company had erected the security fence) and said that all local interests favoured a swap. In August DOT carried out a review of the road building programme and gave a reduced priority to widening the relevant section of motorway B. This meant that the proposal would be implemented over a longer time than originally envisaged, thus making it more likely that the regularising CPO would be separated from any CPO to deal with the proposals for widening.
 
4.41   On 17 August, DOT asked the district valuer to seek estimates for demolishing the old buildings. An internal DOT memorandum of 5 September noted company Y's continuing desire to obtain the exchange land. On 15 September the district valuer told DOT that 'a new 6ft high steel security fence' had at some point since 7 June been erected along the boundary between the exchange land and company Y's estate. It also completely enclosed the old buildings, encircling the Department's earlier post and rail fence, and afforded no visible means of access whatever to the old buildings. DOT spoke about this development to solicitors F, who said that DOT's plan of the [1970] conveyance was wrong; their clients had no intention of removing the fence; they had had uninterrupted access [to the exchange land] since 1976; and took great exception to anyone trying to gain access. On 20 September, DOT's consultant engineers confirmed their view on the basis of the recent maps that the fenced area was part of the exchange land in DOT's ownership. At a conference with DOT and TS(LD) on 29 September counsel pointed out that the period of 30 years required to establish adverse possession against the Crown (paragraph 4.4) had not expired. Subsequently TS(LD), on DOT's behalf, instructed counsel to take legal proceedings to remove the apparent new encroachment and make sure that company Y henceforth respected DOT's ownership of the exchange land. A summons against company Y for possession of the exchange land on which there appeared to have been encroachment was issued by the local County Court on 16 December; but no further action has been taken (see paragraph 4.47).

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4.42   On 1 December, the Minister met Mr X and a representative of the Committee. Both the latter favoured a swap of the exchange land for a new alternative area of exchange land (the alternative land) now being offered by company Y. The Minister explained that the only way to resolve the discrepancies would be through a regularising CPO and an associated land exchange certificate, which would have to be issued by the Secretary of State for the Environment. Both the CPO and the certificate would be open to public comments and objections. He agreed that DOT would consider the alternative land but gave no undertaking as to the outcome. He said that DOT could not allow encroachment on land held by DOT for public use, and that legal action was necessary to confirm DOT ownership and remove the encroachment.

Comments of the Chief Executive of HA and the Deputy Treasury Solicitor
 
4.43    In his comments on the complaint the Chief Executive of HA accepted that the registration of the exchange land had been badly delayed and apologised for that; in practice, he said, no-one had been materially disadvantaged by the delay. The then Member and the Society had been told of proposals to regularise the situation. He did not accept that encroachment on to the exchange land was still a problem (but see paragraph 4.41 above). He accepted that the appearance of the security fence on the ransom strip might act as a deterrent to prospective users of the common land, but there was no action HA were able to take. While regretting that the society felt that the local community was given inadequate notice of the consultation exercise for the motorway B widening, he believed that the totality of its publicity was sufficient. He apologised for the mistake in the EC Directive reference and for the inconvenience caused.
 
4.44   The Deputy Treasury Solicitor, commenting particularly on the encroachment issue, acknowledged delays in providing advice between 29 November 1991 and 12 May 1992 by TS(LD) (paragraph 4.26), and a further delay when counsel lost the papers. He apologised for those delays. However, they did not, he suggested, appear to have affected the encroachment directly, because at that stage the encroachment had ceased (in March 1993 – paragraph 4.32) without proceedings being necessary.

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Oral evidence from Mr X
 
4.45   Mr X told my staff that at the public meeting on 6 January 1993 DOT advisers had little knowledge of the common land or of its environmental value as a national nature reserve. At the meeting, DOT had attributed the delay in registering the exchange land as common land to 'legal problems', but would not elaborate. The Society were very concerned at the erection of the security fence along the ransom strip, and now wanted DOT to acquire the alternative land, which they believed was preferable to the exchange land; the Society did not support DOT's action against company Y. Mr X believed that members of the Society and others had suffered injustice from inadequate consultation due to the short notice of the exhibition; misalignment of the motorway, which deprived users of the common of land to which they should have had access; an unsuitable choice of exchange land; and difficult access to the exchange land caused by the security fence along the ransom strip. Mr X had been annoyed to have wasted much time and effort in a fruitless search for the EC Directive which the Minister's letter had misquoted to the then Member.
 
Oral evidence from DOT
 
4.46   DOT officials told my staff that, while slight shifts in road alignments were not unusual, neither they nor their contractors could satisfactorily explain the seven yard misalignment of this part of motorway B though they believed that the problem had arisen in the light of the less advanced technical expertise in mapping and surveying in the 1960s. The use of the mercator projection and a lack of triangulation reference points had meant that it was not unusual for slight shifts in road alignments to occur. In the early 1970s the technical standards for mapping had been reviewed. The new standards, together with the availability of new techniques, such as satellite mapping, meant that it was now possible to survey more accurately and identify past problems. They could not account for the delays in DOT's response to TS(PD) during the 1980s. They did not know why the vendor had wished to retain the ransom strip, nor why DOT had agreed to purchase the exchange land with the ransom strip which meant that those approaching the common land from the road on the north west of the land could only gain access to it by technically trespassing on the ransom strip. They confirmed that DOT could not swap the exchange land, as it was held as future common land, which DOT had no power to dispose of in the way in which company Y, and now the Society, would like. The exhibitions held in November 1992 had been the formal start of an information and consultation process lasting almost three months, and were only a relatively minor part of the whole process. The brochure, press notice and public meetings were other important components of the process. Consultation could not have begun until officials' proposals had been approved by the Minister; and in the case of the motorway B widening, this was just before the press notice had been issued. The wrong reference for the EC Directive had been a simple clerical error during the preparation of the final letter that a telephone call to the Minister's office would have resolved.

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Later developments
 
4.47   The Chief Executive has recently told me that the crucial effect of the encroachment on part of the exchange land which HA considered to have taken place from 1988 was to threaten not only the status of that part as exchange land but also the status of the whole of the exchange land identified in the original CPO. Until the fate of the land encroached on had been determined (either through negotiation or litigation) and the consequences for the whole of the exchange land were known, HA could not proceed with a regularising CPO to remedy the deficiencies of the original CPO. As the exchange land had been in use and freely accessible for over 21 years, it had become de facto public open space. This meant that if HA were unable to fulfil their obligations by providing the entire exchange land package – in order to comply with the terms of the original CPO and the related exchange land certificate – the land would automatically retain its status as public open space. It could not in those circumstances be used for exchange land purposes in any fresh CPO but it could be used as exchange land if HA were able to provide all of the exchange land in the original CPO, including the land they considered had been encroached on (that is, the original motorway B CPO requirements would take precedence over the de facto public open space status).
 
4.48   Towards the end of 1996 HA contacted the then Member, and he agreed to chair a meeting of the interested parties to discuss a possible solution to the dispute about the ownership of the strip of land on which the encroachment was considered to have taken place. Arrangements for the meeting had been all but completed when the General Election intervened and the meeting had had to be postponed.
 
Findings
 
4.49    My investigation has revealed a sorry tale of maladministration dating back to 1970 – more than a quarter of a century – and the passage of time has obscured the reasons for the earliest failures, which were misaligning motorway B and not completing the exchange land transaction with reasonable dispatch. In addition, with two parts of DOT and three branches of TS involved at various times and sometimes simultaneously, responsibility and leadership became unclear. More important, however, than recounting the detailed history is learning the lesson of that history, and my major finding of maladministration is that DOT failed to identify the problem of misalignment, and to act to resolve it and complete the exchange of land at an early enough stage. Those failures merit my strong criticism. As a consequence, what should have been a relatively straightforward process became problematical when in 1987 company Y first appeared to have encroached on the exchange land with the complicated legal consequences the Chief Executive has recently described (paragraph 4.47).

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Failure to register the exchange land as common land
 
4.50   The CPO of 3 November 1970 authorising the Minister to acquire land from the common land for the construction of motorway B defined the area of common land to be acquired. DOT bought the exchange land – deemed equivalent in environmental value and larger in size than the area acquired under the CPO – with the intention of transferring it to County Council C in order to meet their legal obligations and preserve the extent of the common land and its enjoyment by commoners and public. In 1970, the Minister certified the exchange land to be equally advantageous and not less in area than the land to be used for the road building. I have seen no evidence to doubt that DOT handled the procedure correctly (paragraph 4.9). However, thereafter, the lamentable inaction and delay that characterised the period between 1970 and 1979, when DOT at last instructed TS(PD) to draw up documents for the exchange land (paragraphs 4.10 and 4.11) set the pattern for this case. There followed another four years of leisurely correspondence until the fact of the misalignment of the motorway was fully recognised in 1983 (paragraph 4.13). I criticise DOT for their delays in the period 1970-1983. From then on, the issues of regularising the problem of the misalignment of motorway B and completing the exchange land transaction fell to be considered together.
 
Misalignment of the motorway
 
4.51   TS(PD) were the first to draw the misalignment to DOT's attention – tentatively in 1981, and positively in 1983. It turned out that the completed motorway was misaligned by seven yards, thus taking 20% more land than provided for in the CPO and actually used in the construction of motorway B (paragraphs 4.13, 4.31 and 4.35). The unused land provided for in the CPO and the exchange land to be added to the common land is over 3,800 yards more than the land taken under the CPO and used for motorway B (paragraph 4.31); but that in no way mitigates the fact that part of motorway B was (and remains) built without legal authority on land which DOT did not (and does not) own.

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4.52   DOT's response to TS(PD)'s clear advice that part of motorway B was constructed on land not covered by the CPO was deplorable. They denied the problem, ignored TS(PD)'s advice that the original CPO was inadequate, did not take further legal advice from their own legal advisers as they should have, and then did nothing for six years until 1989 (paragraphs 4.14 to 4.16). A proper response would have been to consider the problem, canvass possible solutions, and bring the matter, in view of its importance, to the attention of senior officials, and to DOT Ministers. TS(PD) did all they could to galvanise their reluctant clients into action, but DOT took no action from 1983 to 1989 to regularise the motorway B land discrepancy and complete the exchange of land. That inaction was accompanied, but not caused, by TS(PD)'s loss of their file (paragraph 4.13) and DOT's confusion over what constituted the exchange certificate (paragraphs 4.13 and 4.14). I criticise DOT's determined and persistent inertia in the face of two sensitive problems during the period 1983 to 1989.
 
Reported encroachment by the owner of adjoining land
 
4.53   Company Y were reported to have encroached seriously on part of the exchange land in 1988 (paragraph 4.17); and the solicitors have consistently asserted company Y's ownership of the old buildings and the disputed land since 1989 (paragraphs 4.18 and 4.37). By 1990 they claimed that company Y had become concerned for the security of the occupants of their property in view of its proximity to the exchange land (paragraph 4.20). From 1988 DOT made half-hearted attempts to end the reported encroachment, but without success; and it was only in November 1991 that DOT sought advice from TS(LD) on the use of legal proceedings to enforce their claimed rights. However, there was a delay of nearly six months before TS(LD) instructed counsel and a further delay of four months, which arose in chambers and which TS(LD) failed to notice and act upon, before counsel replied in September 1992 (paragraph 4.26). The Deputy Treasury Solicitor apologised for that delay (paragraph 4.44). Counsel's advice was that DOT had a strong case. On 17 February 1993 DOT's consulting engineers reported on a visit to the disputed site and said that there was no evidence of past or present encroachment (paragraph 4.32). In their comments of 25 and 26 August 1994 on the complaint, both the Chief Executive and the Deputy Treasury Solicitor said that the reported encroachment on DOT's property was no longer a problem (paragraphs 4.43 and 4.44). That this information had become inaccurate became clear a week later in an internal DOT minute dated 5 September 1994. The error was brought more forcefully to DOT's attention on 15 September 1994 when the district valuer reported that a new steel fence had been erected on the exchange land and incorporated the old buildings into the adjoining property, thus preventing DOT and its agents or contractors from gaining access to them (paragraph 4.41). TS(LD) began proceedings against company Y on 16 December 1994 for repossession of the land – proceedings which were not pursued. I note that adverse possession of land which is Crown land cannot be established for 30 years, ie before the year 2000 at the very earliest in this case (paragraph 4.4). I also note that, at the pace of past events in this case, that is a short period of time.

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4.54   Meanwhile, much activity had taken place after DOT's internal policy decision in 1989 to include the changes to regularise the original motorway B land-take with the motorway B widening scheme then in prospect while in parallel completing the acquisition of the exchange land (paragraph 4.19) but, mainly because of unnecessary delay in dealing with problems arising as a result of the reported encroachment, no effective action was taken until 8 February 1993, when DOT formulated what then appeared to be a convincing strategy (paragraph 4.31) to seek a new CPO, to regularise the motorway land-take, to deal with the encroachment issue by legal proceedings and to abide by the original exchange land; that conclusion was considered and agreed at a meeting with TS(LD) and County Council C on 3 August (paragraph 4.35). In November DOT wrote to Mr X to tell him what was planned; in February 1994 the then Minister told the then Member that a regularising CPO would be published that spring. At last it looked as if DOT had got a grip on the issues that needed resolution – but all impetus was lost when in August the companion motorway B widening proposals slipped, and the benefit of avoiding two potential public inquiries slipped with them. The reality now (paragraph 4.47)) is that, unless entirely new exchange land is to be provided, the publication of a regularising CPO or of an entirely new one cannot take place until the encroachment issue has been settled.
 
4.55   I asked the Chief Executive of HA what realistic plans there now were to remedy the problem, bearing in mind the situation as now described in paragraph 4.47 about the status of the exchange land. In reply, he said that the present Member had agreed to the Minister's request to chair a meeting – scheduled for 17 December 1997 – between HA, County Council C and the solicitors for company Y to determine whether a way forward could be found which avoided the need for litigation. If no solution could be found within a reasonable but fairly short period, HA intended to proceed with litigation without further delay. Subject to a successful outcome, the exchange land would be transferred to County Council C in exchange for the common land legitimately occupied by motorway B. HA would then publish a regularising CPO as quickly as possible in respect of the common land which had been physically taken in 1971 but which had not been included in the original CPO. As a CPO involved statutory procedures open to objection and public inquiry, it was not possible to predict the length of time that would take. However, HA would pursue the matter as quickly as possible. If the 17 December meeting found no way forward, or if there had to be litigation and it failed, HA would then need to publish a regularising CPO which included fresh exchange land for all the common land now used for motorway B. Again, the length of time that would take would depend on statutory procedures; but HA would pursue them as quickly as possible.

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4.56   Mr X told DOT and my staff that the society would prefer DOT to offer County Council C the alternative land in place of the original exchange land (paragraph 4.45). Company Y would also prefer that course. DOT told solicitors E unequivocally, on legal advice on 20 February 1989 and on 15 May 1990 (paragraphs 4.18 and 4.20) that DOT could not sell land which had been purchased to provide replacement land for common land as that would be an abuse of the Secretary of State's powers. Despite that very clear statement of their legal position, DOT unwisely appeared to agree to reopen the issue when approached by County Council C in November 1990 and June 1992 (paragraphs 4.21 and 4.27), which on both occasions led to suspension of action on the alleged encroachment, and caused delay; and when approached by solicitors F in December 1993 (paragraph 4.37) and July 1994 (paragraphs 4.40 and 4.41). That distraction added to the delay.
 
The ransom strip
 
4.57   The original vendor retained title to the ransom strip between the exchange land and the adjoining road (paragraph 4.8). The ransom strip is now owned by company Y and is bordered along its whole length by an imposing security fence, although there are two unlocked access points in the fence, which I understand company Y lock for a day once a year. The effect is that commoners and members of the public face a physical and psychological deterrent when approaching the exchange land from the road, though there is free access from the existing common land behind. But neither the erection of the fence nor its retrospectively given planning permission are in any sense the responsibility of DOT, and there is nothing that they are now able to do about the fence.
 
Notification of local exhibitions
 
4.58   DOT selected dates for the exhibitions of the motorway B widening proposals on 21 October 1992. Exhibitions lasting two days in three separate locations were announced in a press release dated 18 November 1992, and held between 23 and 29 November 1992. The first was held on 23 and 24 November 1992. The notice announcing it appeared in the local press on 19 and 20 November, that is, there was only a weekend between the announcement and the opening of the exhibition. Leaflets were delivered to those living close to the motorway at the time of the announcement; but it does not follow that recipients would have been able to attend at short notice. I note that Ministers decided the dates for the exhibition. That over 1,000 people attended them shows that there was strong public interest in the proposals and supports DOT's view that their publicity was not ineffective. However, I note that DOT's purpose in holding the public exhibition was to invite public comment on its proposals, and that they would therefore have wished to encourage as great an attendance as possible. I put it to the Chief Executive that the decision-making process and the timing of public consultation should take proper account of the public's need for reasonable notice; and that longer notice was highly desirable. In reply, he said that he recognised that the timing of announcements about public consultation was critical to the success of that consultation. HA's aim was to give people as much notice as was reasonably possible. In this case, he believed the public response to the consultation showed the effectiveness of HA's publicity. The Chief Executive said that he would, however, look to see if HA could do better in future.

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Incorrect reference to EC legislation
 
4.59   The Minister's letter of 19 July 1993 to the then Member incorrectly referred to Directive 85/337/EEC as '83/337/EEC' (paragraph 4.34); it had earlier been correctly referenced in the brochure. The Permanent Secretary has, through the Chief Executive of HA, offered his apologies for the clerical error in the Minister's office and the inconvenience caused which I readily pass on to Mr X.
 
Conclusion
 
4.60   I note that in practice there has been public access to the exchange land since 1970; and County Council C have managed the land for the same period. So can the prolonged and substantial maladministration resulting in the failure to deal with the reported encroachment, to regularise the land-take for the original motorway B and to complete the exchange of land which I have detailed be said to have resulted in injustice to those whom Mr X represents? I conclude that it has done so but not to a significant degree, although there has been some continuing minor disadvantage to individual members of the public because the key current problem – the issue of encroachment – has until now been left unresolved.
 
4.61   I have found prolonged and substantial maladministration, for which the Chief Executive apologised. I have also found that TSD had delayed on one occasion, for which the Treasury Solicitor apologised, but that that delay was not a significant part of the maladministration as a whole. 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.
 
11 December 1997

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Short text of this investigation

Last updated: 26 April 2006