The Gazette 1975

RIGHTS OF THE WRONGED

(Reprinted from Law Society Gazette Editorial—

23 April, 1975)

Neither the existence of the Council on Tribunals

°or that of the Parliamentary Commissioner — two

recently created institutions superimposed upon more

traditional protectors of the citizen in this country —

really begin to resolve the problem of redressing the

grievances of those who suffer sérious disadvantage as

result of the unfair exercise of executive discretion.

This is borne out by an incident which is recounted

•n the Annual Report of the Council on Tribunals

(HMSO, 45p) which was published last week. The

incident was widely publicised at the time of the

events in question, but deserves retelling for the sake

its wider implications.

Oxford County Council and Reading County

Borough Council agreed that no development should

b e

permitted on land abutting a main road in an

expanding district on the outskirts of Reading, but

that the land in question, to a depth of 50 feet from

the edge of the existing road should be earmarked for

road-widening purposes. However, the County Council

subsequently gave permission for the building of a

new Supermarket, up to the very edge of the existing

carriageway, so that the land allocated for road-

idening purposes was swallowed up. By the time

this mistake was discovered, the foundations of the

Supermarket were already laid, and if the County

Council had then required the developers to move the

foundations back to the agreed building line, they

Would have had to pay them £50,000 in compensation.

At any rate, the County Council rejected representa-

tions to the effect that the course should nevertheless

b e

followed, from both the Borough Council and local

residents whose properties adjoined the road on the

ppposite side from the Supermarket and whose

•nterest in the matter was of course that this develop-

ment was 50 feet nearer their homes than it ought to

h a

v e been.

The objectors — the Borough Council and the local

sidents —then requested the Secretary of State for

the Environment to make a default order under S. 207

o f

the Town and Country Planning Act 1962, direct-

l y the County Council to remedy their error and to

have the Supermarket foundations moved back to the

Agreed building line. The Minister set up a public

0 c

a l inquiry, on the rather curious ground that —

according to the Annual Report of the Council on

tribunals — 'the views of the two councils were

/reconcilable'. The question was of course which was

bght, and on that there was little to enquire into.

At any rate, the result of the Public Inquiry was wholly

J? the objectors' favour. The Minister indicated to

hem that he accepted the inquiry inspector's recom-

m e

nda t i on in principle, which meant that the Super-

arket would have to be re-sited. However, these

e r

e , he said, one or two points of detail he wished

° consider. Nothing more was heard until, several

° n t h s later, without any further approach to the

132

objectors, and ignoring their approaches to him, the

Minister announced, after he had had extensive

'private consultations' with the County Council, that

the Supermarket would stay where it was.

The Council on Tribunals (like the Parliamentary

Commissioner, who had already gone into the affair)

are critical of the Minister for his failure to allow the

objectors to make further representations once he

had it in mind to reverse his original conclusion and

to reject after all, the recommendation of the public

local inquiry. However, had the Minister given the

objectors the opportunity of making further repre-

sentations, that would not have done them justice in

the circumstances of the case (for reasons we will

return to shortly) if, in the event, he had allowed the

Supermarket development to proceed on its existing

site. At the inquiry, the objectors had — at consider-

able cost to themselves — successfully argued that

the Supermarket should be re-sited, and when the

Parliamentary Commissioner came to review the case,

he concluded that they were entitled to have their

costs reimbursed. The Minister agreed. Since however

they had been successful at the inquiry at which the

costs were incurred, that can hardly be regarded as

much by way of 'redress'.

The building of the Supermarket on a level with the

existing carriageway had not been permitted under the

original planning proposals for the very good reason

that widening of the adjoining main roadway was

essential. It remained essential of course after the

Minister decided that the Supermarket foundations

could stay where they were. And it is at this point

in the saga that the objectors' real grievance arises,

for in the event, as the Parliamentary Commissioner

pointed out very clearly, they not only suffered also

a serious loss of land. For when the land set aside

for road-widening on the Supermarket side was no

longer available, the only alternative was to take part

of the objectors' properties for the purpose. There is

of course nothing unusual in the taking of private

land for roadworks and other public purposes, but

this is justifiable only on the basis that there is no

feasible alternative. In this case, there was no feasible

alternative, at the stage at which the Minister inter-

vened, only because a very feasible alternative had

been eliminated as a result of the County Council's

mistake.

People have to suffer the consequences of other

people's mistakes in all kinds of contexts. There is

no reason why they should be expected to do so, if

the consequences are preventable. Faced with two

alternatives, one bearing heavily on the objectors, the

Minister chose to put the burden on the latter, lest

the County Council should have to bear the cost. The

essential inequity in this is however that the situation

in which such a choice had to be made at all only

arose because of the County Council's mistake, and

was in no way attributable to any action on the part

of the objectors. If we had an effective system of

remedying

serious

disadvantages

individuals