1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
52
53
54
55
56
57
58
59
60
61
62
63
64
65
66
67
68
69
70
71
72
73
74
75
76
77
78
79
80
81
82
83
84
85
86
87
88
89
90
91
92
93
94
95
96
97
98
99
100
101
102
103
104
105
106
107
108
109
110
111
112
113
114
115
116
117
118
119
120
121
122
123
124
125
126
127
128
129
130
131
132
133
134
135
136
137
138
139
140
141
142
143
144 
The position is now confused and confusing
Page 110
Page 111
Page 112
If you've noticed an error in this article please click here to report it so we can fix it.
• ON PAGES 4 and 5 of the March issue (No 35) of Legal Bulletin there was a factual report of the Transport Tribunal's judgment in the case of Ings Transport Ltd (Appeal 1988 No Z 37). The Tribunal has since issued a corrigendum deleting the words from "Moreover. " to "anyone appearing before him", ie lines 30 to 43 in column 2 of the report on page 4. This corrigendum puts right a mistake in the judgment, which erroneously stated that "an owner or occupier of land within the vicinity of an operating centre does not, when opposing an application for a variation under Sectioin 69D(5) of the Transport Act, 1968, have to show that the adverse environmental effects are capable of prejudicially affecting that land". In fact, the representor is required to do just that by subsection 69D(6).
However, the main body of this judgment appears to be open to more serious criticism, in that it casts doubt on the carefully considered interpretation of the phrase `vicinity of the operating centre" in the earlier judgments 1985 W 17 (Surrey Heath Borough Council v NIT Distribution Ltd) and 1986 X 25 (Surrey County Council and Surrey Heath Borough Council v CC Express Hay and Straw Services).
LA DETERMINED VICINITY Where residents heard noise
The NFT judgment was the first in which the Tribunal addressed the interpretation of this phrase as it appears in Section 69B (2): "Any person who is the owner or occupier of land in the vicinity of any place.., which will be an operating centre... may make representations against the grant of the application..." The Licensing Authority had determined the "vicinity' as extending some 500 yards to the north and south of the proposed operating centre, which was itself nearly half a mile south of Chobham Village. His determination was not argued in detail, but the Tribunal said "he seems to have included within the vicinity properties whose occupants regularly heard noise from the operating centre".
Counsel for the appellants in this case sought to argue that, in deciding what is within the vicinity of the operating centre, the LA should take into account not only adverse environmental effects emanating from the centre itself but also those emanating from the use of the approach roads by authorised vehicles. In this way he endeavoured to bring Chobham High Street and other approach roads within the "vicinity".
The Tribunal accepted counsel's broad contention that it is for each LA to decide in relation to each case what is within the vicinity of the operating centre. They went on to say, however, 'This will be different in different
loL:dliaes. The Licensing Authority may well consider that a relevant factor is whether adverse environmental effects which emerge from that centre are likely to be heard or otherwise felt in this or that position, but in our judgment noise or vibration from authorised vehicles on approach roads to the operating centre are not relevant to the determination of the extent of the vicinity under the Act or Regulations". It is this conclusion which, according to the Ings judgment, should no longer be regarded as sound law.
The Tribunal returned to this point in the Express Hay and Straw appeal. In this case, in which Robin Purchase was briefed by the Treasury Solicitor as amicus curiae, the only approach to the proposed operating centre was along a private road about a quarter of a mile long. A number of people lived along this road, but they did not make representations against the licence application because they were unaware of it; some of them, however, were called as witnesses by the appellants, who were statutory objectors under Section 69B(1), the relevant ground of objection being "any vehicle entenng or leaving the operating centre must pass by or close to residential properties along the private road, causing disturbance (through noise and vibration) to the occupants". However, the residents living beside the private road heard no sound of engines or any other noise from within the operating centre.
Two relevant points emerged from the Express Hay and Straw judgment. First, the appellants argued that the LA was wrong in holding, or appearing to hold, that the houses along the private road could not be 'within the vicinity of the operating centre" because their occupants did not hear any noise from within the operating centre. In agreeing with this contention, the Tribunal said "in determining what lies within the vicinity of an operating centre a Licensing Authority is considering what is physically related to or near to the centre. Whether adverse environmental effects emerging from the centre itself can be heard or felt... is only one of the factors which he may take into account in that determination".
Secondly, the Tribunal considered the relevance of adverse environmental effects arising for the use of approach roads by authorised vehicles. The appellants argued that the LA was wrong in holding that, when considering an objection under Section 69B(1), he could take into account only adverse environmental effects arising within the vicinity of the operating centre. Their counsel's submission was supported by Purchase as amicus curiae, and was accepted by the Tribunal. The arguments adduced in favour of the wider interpretation may be summarised as follows:
a) Section 52 of the Transport Act, 1982 (which inserted sections 69A to 690 into the 1968 Act) provides in subsection (2) that the insertion was being made with a view to preventing or minimising any adverse environmental effects arising for the situation of any operating centres. Accordingly the words "unsuitable on environmental grounds for use as such" in Section 69B( I) had to be interpreted in a way to give effect to this intention.
b) Some of the environmental effects which b) can flow from the situation of an operating centre are noise, fumes and vibration caused by authonsed vehicles on their way to or from the centre.
c) Section 69B(3) enables an LA to refuse a licence application if "the parking of authorised vehicles at or in the vicinity of.. an operating centre... would cause c) adverse effects on environmental conditions in the vicinity of that place". Clearly, therefore, objections and representations under 69B(1) and (2), which may be the basis of such a decision, cannot be limited to activities and movement within the operating centre.
d) Where an objection is under Section 69B( I), and the question of parking is not raised, the word "vicinity" is not found in any part of the Act affecting the LA's decision.
UNDER SECTION 69B( 1 ) Approach roads The Tribunal concluded that an LA, when (and only when) considering objections under Section 698(1), should take into account relevant evidence as to the adverse environmental effects of authorised vehicles using the approach roads to the operating centre: he is not confined to considering the use of such roads only within the "vicinity" as defined for the purpose of subsections 69B(2) or (3). How wide an area he takes into account is for him to decide on the evidence an important element could be the extent to which the adverse effects caused by authorised vehicles are diluted by other adverse environmental effects, including those of all the other vehicles on the roads in question.
It will be seen that nothing in the Express Hay and Straw judgment conflicts with the conclusion in the NFT judgment quoted above, although the later judgment is more extensive and detailed. Indeed, in the course of his submission to the Tribunal in Express Hay and Straw, Mr Purchase stated (according to the writers own notes of the hearing) his complete agreement with the NFT conclusion, adding that "vicinity" should be interpreted to mean "physically related or near to" the operating centre, a definition adopted verbatim by the Tribunal in their X 25 judgment.
Until the Ings Transport judgment in January of this year, therefore, a reasonably consistent and intelligible interpretation of these difficult provisions of the 1968 Act appeared to have been established, on the following lines: a) The phrase "the vicinity of the operating centre" in Sections 69B(2) and (3), and by logical extension 69C(2)(b) and 69D(5), means the area near or physically related to the centre. One of the possible tests for "nearness" is whether noise, vibration, etc, from the centre itself can be heard or felt at the place in question, but this is not the sole criterion.
Valid representations (under Sections 69B(2) and 69D(5), whether against a licence or a variation application, can only be made by someone who owns or occupies land in the vicinity as so defined (and whose use or enjoyment of the land would, or might, be prejudicially affected).
Statutory objections to licence applications, however, under Section 69B(1) can be based on adverse environmental effects caused by authorised vehicles using approach roads beyond the defined "vicinity", provided that those effects can be clearly related to the operating centre and are not excessively "diluted" by unrelated traffic. Although not specifically mentioned in any Tribunal judgment, it can be assumed that the same applies to objections to variation applications, under section 69D(4)(a), since the wording of the two subsections (mutatis mutandis) is identical.
In the Ings Transport case, the Tribunal had to deal for the first time with an objection by a local authority to a proposed variation under subsection 69D(4)(b), which empowers the Authority to object on the ground that "the use in any manner which will be permitted if the application.., is granted of any operating centre... will have adverse effects on environmental conditions in the vicinity of that centre". This provision imports the concept of "vicinity" into the permitted grounds of the statutory objector's objection, unlike subsections 69B(1) and 69D(4)(a) under which, as previously noted, the word "vicinity" does not fall to be considered by the LA in reaching his decision. This new situation has prompted the Tribunal to issue "guidance" in terms which require quotation in full (the March report was curtailed); The passage reads as follows.
"By way of additional guidance to the parties, we draw their attention to Appeal 1986 X 25 at page 13 where this Tribunal said "in determinmg what lies within the vicinity of an operating centre a Licensing Authority is considering what is physically related to or near to the operating centre. Whether adverse environmental effects emerging from the centre itself can be heard or felt at this or that point is only one of the factors which may be taken into account."
PHYSICALLY RELATED EFFECTS
.. Vibration and noise By "physically related" the Tribunal was referring to any adverse effects arising from the use of the operating centre that could be transmitted physically according to the laws of nature including, for example, vibration and noise. IP° It follows from what the Tribunal said in that passage in Appeal 1986 X 25 that an LA can take into account any circumstances that he considers relevant to the determination of whether the property in question is in the vicinity of the operating centre and that the exclusion from that consideration of authorised vehicles on approach roads to be found in the Tribunal's judgment in the comparatively early environmental Appeal 1985 W 17 (Surrey Heath Borough Council v NF7' Distribution Ltd) should no longer be regarded as sound law. The adverse environmental effects that the use of an operating centre has or would be capable of having, may extend further than land physically related to it in the sense indicated above. Such extension may be general or in a particular direction, depending on the nature and the use of the land, including roads.
The extent of the merging of the adverse environmental effects caused by authorised vehicles kept or to be kept at the operating centre with similar effects caused by other vehicles or machinery using those roads or operating on land nearby may be a further factor to be taken into account in deciding whether property is in the vicinity of an operating centre or proposed operating centre. It is a matter for judgment by the LA in the light of the differing circumstances of each application and the objections and representations made against its grant.
Unfortunately, with this judgment the Tribunal appear to have tipped back into the melting pot the relatively tidy pattern which had previously emerged. They seem to have taken the view that the statutory objector's freedom to reach out beyond the previously defined vicinity" must be preserved at all costs,
whether objecting to a variation or to a licence application. The determination of "vicinity" can now, they say, be related to the adverse environmental effects of authorised vehicles on approach roads, even if the land concerned is not directly or physically related to the operating centre this guidance throws overboard the careful and detailed arguments of the two earlier judgments (which are consistent with one another) and the conclusions so laboriously reached with the assistance of counsel acting as amicus curiae.
The judgment clearly accepts that the meaning given to the phrase "vicinity of the operating centre" must be the same in each of the five places where it occurs in these sections of the Act: but it then goes on to modify the uniform and consistent interpretation worked out for the other four subsections (69B(2) and (3), 69C(2)(b) and 69D(5)) in order to deal with the fifth occurrence in 69D(4)(b).
It would surely have been preferable to have maintained the previously established interpretation of the phrase, even though this would result in the grounds on which a statutory objector can rely in contesting an application to vary the use of an operating centre under Section 69D(4)(b) being more limited than those available in objecting to a fresh licence application under 69B(1) or an application for a new operating centre under 69D(4)(a). Indeed, there is no prima fade reason to suppose that this distinction was not deliberately intended by the legislature in settling the wording of 59D(4)(b), otherwise, the wording of 69G(3)(c) might have been used (effects on environmental conditions in the locality").
The Tribunal should quickly clarify what is now a confused and confusing situation.