Who pays compensation
Page 39
If you've noticed an error in this article please click here to report it so we can fix it.
Ralph Cropper raises another worrying point about the new licensing legislation
THREE WORDS spoken by a Licensing Authority at the recent Fleet Management Conference were astoundingly significant. All he said was "I entirely agree."
They were said by Major-General John Carpenter, the Yorkshire Licensing Authority, in answer to a question, so it is important to see what he agreed to. The full wording of the question was: "The licensing system was designed as a quality system, to control the use of lorries over the highways, in the interests of public safety. Is it not ridiculous to seek to extend this system into an entirely different field, namely property, and for an entirely different purpose, namely the environment?
"The effect is to have the lorry industry subject to two different jurisdictions for the same policy purposes, namely the Licensing Authority on the one hand and the planning authorities on the other. Is this workable or fair?"
Sitting in the front row of the audience were two other Licensing Authorities, Ken Peters and Roy Hutchings of the Eastern and North Western areas respectively. It can fairly be presumed that they, too, were not in disagreement with the statement by Major-General Carpenter.
Perhaps the Licensing Authorities have begun to realise the awkward conflicts that may well arise when two official bodies cover the same territory of governmental control.
Conflicts between the jurisdictions will become supremely important if questions of compensation are at stake. This may well become the issue.
Under the long-established planning system, there are important rights of compensation, so it is necessary to consider the principles upon which town and country planning works. It is the fundamental right of owners of land to continue to use their land in whatever ways it was previously enjoyed. This unchallengeable maxim relates to all plots of land, and is applicable both to the owner and to the occupiers. If anyone is to be deprived of this right, he will be entitled to compensation.
Rights to the use of property are broadly of two categories: Firstly, time-honoured uses, basically those which existed prior to 1954. They are frequently confirmed by securing a Certificate of Established Use. Secondly, additional uses, for which planning consent has to be obtained after going through the established procedures.
In other words, planning controls have been fashioned round the following principles: what you possess and have used, you can continue to use. If you seek additional usages, proper application is required and planning permission obtained.
So we reach the important conclusion. If a planning authority wishes to curtail or rescind any of those rights, it must anticipate that it will be faced with a claim for compensation; if established, this will have to be paid by the planning authority.
These principles and rights may well be flouted in a serious way when the new Regulations for operators' licensing come into effect. The issue is so important that the Department of Transport risks facing some major legal challenges which would certainly be carried to the House of Lords.
The licensing system has hitherto concentrated on safety on the highways. The duties of licensing authorities were principally concerned with the conduct of drivers, roadworthiness of vehicles, and overloading.
The new controls proposed have exceedingly little to do with safety and highways. They are solely concerned with depots. Thus they are essentially a property issue. They cover the use of buildings within the property, types of commodities to be brought or stored there, parking arrangements, numbers and types of vehicles permitted within the depot, and access arrangements.
The planning authorities will have strengthened powers of objection under the amended licensing system. This puts them in a specially privileged position. In effect, they will be seeking to impose controls on property of the same kind as they themselves could establish under their existing powers.
However, by exercising their own planning powers and introducing some restrictions on the present uses of a plot of land, the planning authorities would almost certainly find themselves having to pay out substantial sums in compensation.
If they can get similar or identical controls imposed by the licensing authority by means of the operator's licence, it would appear that they escape any claim for compensation. if their powers enable them to impose property controls, even though this may involve the payment of compensation, why should they be able to obtain the same results without the payment of that compensation?
What a planning authority can do of itself by paying compensation, it should not have any right to do without that compensation. It becomes a backdoor method of imposing a restriction, which has the effect of making some previous grant or established right worthless.
This must be construed as an effort to avoid liability for compensation, — at least that is the legal argument for consideration by the Courts.
Whenever a restriction is placed on a plot of land, it is bound to affect the value of that land. This is demonstrated by the great care which has to be exercised by anyone proposing to purchase or occupy some fresh plot of land; he must check up on the planning situation with the utmost care.
Land-holding is a complicated issue. There are all sorts of degrees of ownership or of interest in plots of land. Leases and tenancies can stretch down to several different payers.
Once a restriction is imposed on a depot, it can be prest. to be attached to that proi for all time. There is nothir the draft regulations to sho% procedure whereby condi once imposed can be variE amended. While this must pen from time to time, onE hardly imagine that the limitations, once attached, be lightly released.
This is bound to have an E on the valuation of the pror possibly immediately, but tainly when a lease comes u review or renewal. A sup landlord may be unaware la imposition of this restrictic such a restriction had directly imposed by the plar authority, he would have joyed his right to prote: eventually to press for consation. Is it likely that he allow this to pass uncontest
It cannot be long before or other landlord will deci challenge the planning autt on the score that its acti( lodging and pursuing an c tion (which he might well cribe as devious and/or dut has deprived him of his rit opportunity for compensati When the amended lice system starts to function, I be desirable for the lice authority to try to ascertai land-holding situation of th pot site. Already some lice authorities are asking liminary questions on this on their present suppleme forms. Many an applicant +A scantily informed of the fu cumstances appertaining t land where he proposed to his vehicles.
The licensing authorit) scarcely be aware of all t mifications of land own' and tenancies of the pror depot site, except after an ir nate perusal of document: much investigation, in \. case applications would b layed for many months.
So this could be anothe nanza for the legal fraterni very heavy costs to the transport industry. It may I tually be found that the de( of the Transport Tribunal i Cash and McCall case of whereby environmental cc erations were ruled out of sideration, may have bee' ceedingly wise and the principle should be mainti in the future.