The Gazette 1974

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 275

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