The Gazette 1975

RIGHTS OF THE WRONGED

(Reprinted from Law Society Gazette Editorial— 23 April, 1975)

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 to individuals

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 a 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- w 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 re 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- m 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 m ° n t h s later, without any further approach to the 132