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which are suitable for development. How will this
machinery operate?
The majority report at page 62, paragraph 118, states
that the decision to apply to the Court for an Order
designating an area and to buy lands within such an
area should be an Executive function of the Local
Authority to be performed by the City or County
Manager.
In practice, how will this work? It means that there
will have to be a body of men working under the City
or County Manager rather like planning personnel and
even if such a staff could be found it is likely that
both they and the Managers would be subjected to
pressures from various sources to see that particular
peoples lands were not going to be included in an
area to be designated.
Pressures exerted on local authorities
Anyone with practical experience will know the
pressures that have been exerted on the Planning
Authorities and Planning Committees in relation, for
example, to draft plans and the changing of zoning.
We foresee that not only will there be pressures
brought to bear on the personnel or the drafters of
"designated area schemes" but there will be tremen-
dous efforts made by people (and naturally so) to
try and find out if their lands are going to be included
in any proposed application to the High Court. This
could lead to grave rumours of corruption, if in fact
not corruption.
When the Local Authority has formulated its appli-
cation to apply to the High Court, the owner of the
land will be legally advised that there exists little hope
(if any) of succeeding in having his land excluded but,
nevertheless, as the fortunes of the owner are to be
radically changed he will presumably object in each
case so that the High Court will have a full hearing
in almost every case.
The Majority report sees it as essential that there
should be public confidence in the impartiality of the
High Court and the Majority state that "as Local
Authorities will be making application to it, neither of
the Assessors should be officers or employees of any of
the parties to the Application or have any interest in
the result of the proceedings".
We do not share the confidence of the Majority
that the High Court Judge (whose decision as the
Majority point out will be his alone) by virtue of sitting
with Assessors of technical qualifications will thereby
prevent the prestige of the Court from being adversely
affected.
High Court will become arm of local authority
In our opinion the effect of the proposed procedure
will be to make people feel that the High Court is no
longer a defender of the rights of the individual, and by
allowing the High Court Judge to become an instru-
ment to implement the decision of the County or City
Manager, the High Court will be thereby brought into
disrepute and will be seen to be an arm of the Local
Authority and not as an independent incorruptible
judiciary.
The allegations about decisions in regard to planning
appeals have already brought the Minister for Local
Government and his Officials into sharp controversy.
There have been unsubstantiated allegations of im-
proper activity and indeed of corruption, and the same
is almost bound to follow in the case of decisions of
the High Court.
Our main objection therefore, to the Majority report
(and presuming the proposals are not unconstitutional)
is that it proposes to make the High Court a tool of
the Executive and thereby bring it into disrepute and
any such law will be bad law and bad for the Country
as a whole.
But there is also the serious constitutional objection
which we have referred to earlier and, in this respect,
it is recognised by the Authors of the Majority Report
that the Law they envisage will be such a radical
departure from the present Law that it will be con-
tested as unconstitutional, and, therefore, before sign-
ing, it should be referred by the President to the
Supreme Court for a decision as to whether or not it
will be unconstitutional. It is an unhealthy start to the
life of any Law when its Promoters admit the certainty
of the legislation being challenged by the ordinary
process of an action in the High Court on grounds that
it is unconstitutional.
Open market principle should be determinant factor
in compensation for land acquired compulsorly
less the enhanced value of the serviced land
Apart altogether from what we refer to above, if one
takes the view that the retention of the open market
value principle in the determination of compensation
for land acquired compulsorily is in the interest of the
common good, then one cannot accept the proposals of
the Majority Report. It is not part of our function to
comment here, but it seems clear that if the open
market value principle is held, then, the only way to
secure for the Community the "betterment" element
in serviced (or to be serviced) land is to provide for
some sort of tax or levy. The problem is that this tax
or levy is almost certain to be passed on to the ultimate
purchasers of the houses.
While the proposals of the "Minority Report" would
not involve the High Court in the problems attendant
on the Majority Report, the suggested levy scheme
would probably result in increasing the cost of housing
to individual purchasers and thereby defeat one of the
Committee's terms of reference. The difficulty is that
the Minority Report accept the principle of open mar-
ket value in the determination of compensation for
land acquired compulsorily, and any proposals which
accept this principle will also have to accept that the
only way of securing the element of betterment for the
Community is to impose a levy or tax of some kind.
It is only where one accepts that on an acquisition by
the Local Authority the owner of the property is entitled
to a sum which is less than the full market value of the
property that the element of betterment is effectively
secured to the Community and housing does not be-
come more expensive for the ultimate Purchaser.
We feel t ha r i he Majority Report examined in a
limited manner a scheme which would appear to go a
long way to meeting the Committee's terms of refer-
ence. At page 19, paragraph 38, in the Chapter en-
titled "Legislation and Reports in Britain" the Majority
Report referred to one of the suggestions considered by
the Uthwatt Committee (established in January 1941
under the Chairmanship of Mr. Justice Uthwatt). This
suggestion was that Local Authorities should be given
the right to acquire compulsorily land which had been
or would be improved by Local Authority works at a
price determined by reference to its use value before
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