Love thy
Page 7
If you've noticed an error in this article please click here to report it so we can fix it.
eighbour
Chris Butterfield believes the Transport Tribunal's attitude is softening towards the operator's neighbours.
IX years ago this month, a momentous change took place in operator licensing: a newcomer appeared on the scene. Until then the only people to have the right to present a case (locus standi) before Licensing Authorities had been the applicants themselves and the representatives of local authorities and designated trade organisations. However, from 1 June. 1984, anyone who owned or occupied land in the vicinity of a proposed operating centre could appear as a representor to oppose an application.
At the time, like many readers, I wondered if this would open the floodgates and admit countless aggrieved residents. I also wondered how the new legislation would be interpreted, and in an article that I then wrote for the Law Society's "Gazette" I suggested that any lawyer practising in this little-known field would have to watch carefully to see how the Transport Tribunal approached the new sections of the Transport Act and the accompanying regulations. Six years on, reflecting on developments since then, there seems to have been a steady trend in a direction not particularly welcome to the operators.
At first it seemed that neighbours must tread carefully. The first Transport Tribunal decisions on the new law, numbers V22 and V21, stressed that the formalities must be observed strictly; a representor must write to the LA, with a copy to the applicant, within 21 days of the press advertisement, and only in exceptional circumstances could an LA hear from representors who had not complied. Decision V22 stressed also that a residents' association had no locus standi because it did not own or occupy any land.
So far, so good, you might think. And in decision W4, the Tribunal appeared to endorse the dismissal of a representation from a parish council which did not own or occupy landin the vicinity. This case also held that a representor must not be shown any preference on account of his absence of any right to appeal, So it did appear that the established operator had — as had been stressed in the Parliamentary debates — every reason to assume that he could continue in business, with the only valid representations being well-founded and complying precisely with the procedural requirements.
However, as the years have gone by, the attitude of the Transport Tribunal seems to have hardened towards the operator and softened towards the representor.
The LA has a discretion to waive noncompliance with the procedural formalities, provided there are exceptional circumstances. In case W17 I asked the Transport Tribunal to rule on the validity of some purported objections, and in so doing (upholding my contention that the local authorities in question had no justification for not having observed the regulations) the Tribunal said that the complexity and inconsistency of the law may well lead the LA to conclude that there are exceptional circumstances more readily with a representor than with an objector, even though (you may observe) the press advertisement tells him precisely what to do. In decision X30. the LA had found exceptional circumstances because (a) the representor had put in a valid representation against a previous application, (b) the Traffic Area office had not told him to write a second letter, (c) he had looked in the wrong newspaper and (d) the Deputy LA thought his evidence would be important.
A fair answer in my view to all four of these reasons would have been "So what?", yet the Transport Tribunal dismissed the argument that the representation was wrongly admitted, holding that a reasonable LA could find exceptional circumstances in the light of the above.
In the early days of this legislation many LAs would not allow a disqualified representor to tender his evidence as witness for a valid objector or representor. Now, however, he is quite likely to have his evidence accepted. Decision W16 seems to have been the first in which the Transport Tribunal endorsed this practice, although the roles were reversed, in that the local authority's objections having been rejected, its witnesses were, "quite properly" according to the judgement, called by one of the representors. And in Y12, the appellant district council was approved in calling evidence from a parish council which had no locus standi. Decision 234 saw some potential representors disqualified as living outside the vicinity of the operating centre; yet the Tribunal approved their being called by the objecting district council as witnesses to the environmental unsuitability of the site.
This last decision was one in which the seven would-be representors were actually made parties to the appeal before the Tribunal. The Transport Tribunal rules require the Tribunal to advise representors of an appeal, and of their right to apply to be made a party to it. But this rule refers only to those who have "duly made" representations, and in Z34 the LA had decided that they did not qualify as representors. Rule 16 does allow the Tribunal to make any other person a party to an appeal, but to use such a power to admit those seven would-be representors who had expressly been ruled ineligible by the LA seems a startling exercise of a discretion. After all, it had never been suggested that their status before the LA was anything more than that of witnesses, and to make a witness a party to proceedings is perhaps unprecedented.
There have been other cases (Y12 and Y28, for example) in which valid representors were made parties to an appeal. But perhaps the most stunning was X34, in which the representors were not only allowed to appear, but the operator who lost his appeal had to pay their legal costs. Of course one party is often ordered to pay the other's costs; it happens in every court day after day. But the payer will be the one who causes the other to appear. The one who seeks and gets costs in civil proceedings is saying "I never asked to be brought into these proceedings and I gave the other party the chance to avoid them". When the operator in X34 appealed, he had no way of knowing whether the representors would apply to be made parties to the appeal and had no say in whether they should be allowed to appear in it.
We have gone a long way since that first decision, V22, in which the Transport Tribunal said (speaking of the requirements for making a valid representation): "It is very important that the regulations are strictly complied with. They are in our judgement drawn in a way designed to prevent a public inquiry becoming a kind of general meeting at which any resident, who wishes to have a say is permitted to do so". But now, it seems to me, the aggrieved resident (even one who is ruled not to live in the vicinity) is likely to be afforded every chance to have his say. The applicant should always object if he thinks the representor does not qualify in one way or another. But the above decisions suggest that he could well protest in vain.