Examination of Witnesses (Questions 20-39)
Wednesday 12 May 2004
MR PAUL THOMPSON of BIRCHAM DYSON BELL appeared as
Agent.
20. CHAIRMAN: I think that would be helpful,
yes.
21. MR THOMPSON: As you know, the current
position is that promoters of Private Bills are required to make
a statement of compatibility with the Human Rights Act. The relevant
Minister is then required to report on this and the Joint Committee
may itself, quite separately, consider the position.
22. The promoters' statement, from the Council's
Head of Legal Services, will be found in the Explanatory Memorandum
in the usual terms and the relevant Minister (in this case in
the ODPM), Phil Hope, duly approved this on 12 January, having
regard to the background information that is supplied to the department
for this purpose.
23. At the beginning of February the Joint Committee
wrote to Ipswich Council (this is recorded in its second progress
report) querying what consideration had been given by the Council
to residents' rights to respect for their private lives. The
Committee was here referring to the right under Article 8 of the
Convention which states that everyone has the right to respect
for his private and family life, his home and his correspondence.
That particular Convention right is probably best known for the
safeguards which it provides in relation to privacy, correspondence
and personal privacy. However, also, in accordance with developing
case law under the Convention, it does provide some protection
in other areas, including protection against excessive environmental
impacts, such as noise nuisance in certain circumstances. So
that was the issue that was being raised by the Joint Committee.
24. We wrote back to the committee, explaining,
amongst other things, that there were only about 25 individual
dwellings on the streets affected (these are flats above shops,
pubs and offices on the streets concerned) and that the streets
are already busy town centre streets, that no particular private
vehicular rights are being interfered with and that case law indicates
it is only substantial noise pollution which would trigger Article
8 rights. The Committee then reported - and I am now referring
to its fourth report - that these were indeed significant factors
but that it found it difficult to accept, simply upon the basis
of this correspondence, that the establishment of a market would
not have a significant effect on the amount of noise and nuisance
in an area; that Article 8 was therefore, in its view, engaged
in that sense but that the interference was likely to be justifiable
under Article 8(2) which provides a derogation for interference
by a public authority acting in the public interest.
25. So, in a nutshell, what the Committee was
saying to us in this exchange of correspondence was that we had
made some good points but there was an issue which it felt we
had not addressed but, had we done so, they felt we would have
been able to answer it - the point being that possibly Article
8 is engaged and there is a potential impact on local residences,
but that in all probability it is proportionate, if, as indeed
is the case in this Bill (and the basis on which it can be a Private
Bill), there is a public interest case for the legislation.
26. We can indeed answer the public interest
case, but can I just say that whilst appreciating the natural
caution in the Committee's report we have taken the view that
the market will not have a significant noise and nuisance impact;
it is already in existence and this is a busy town centre.
27. Summarising the position in terms of the
Article 8 impacts, there are four points which I would like to
highlight and which representatives of the Council can elaborate
upon. The first is that in practice there will not be any truly
significant additional impacts in terms of noise and nuisance;
it is an existing town centre with a market there, we are just
extending it to these additional town centre streets. Such additional
impacts, if any, as do occur, are not different from others arising
by virtue of lawful activities and the ordinary conduct of business
in what is a busy town centre.
28. Thirdly, under the Bill, the Council would
retain the power to designate the streets in question as market
streets and it can, therefore, regulate the position to avoid
any excessive disturbance. It is just, if you like, another power
that the local authority will have and which theoretically could
be exercised in an abusive way but which, in practice, will not
be. In any event, the Council is under a duty to be Convention
compliant.
29. For the reasons which I have highlighted
earlier, there is a real public interest basis for this change
in the law - that being because it is necessary and desirable
to expand the market to safeguard and enhance its existence it
needs to expand to ensure its continued viability. This is in
the interests of the economic well-being of the existing market
and town centre, and it is in the interests of all those with
rights and interests in the market, including the existing market
traders.
30. So what we say is that, in summary, there
is good cause to expand the market and to change the law for this
purpose in the public interest and for the benefit of the local
community, and that any impact which this has is certainly proportionate
to that public interest. For those reasons we believe and feel
that it can be concluded with confidence that there is not a human
rights problem arising, and I think that is the basis upon which
the Joint Committee left it - the supposition was that that is
how it was to be.
31. I was now going to turn to the text of the
Bill but this might be a convenient moment to pause, if there
are particular questions, to invite Mr Chippendale and Mr Turner
to pick up on those.
32. CHAIRMAN: If I may start, first of
all, by saying that I certainly acknowledge that street markets,
covered markets and farmers' markets, really make a very valuable
contribution to choice in shopping and, indeed, to the vitality
of town centres. You have certainly started to make that case.
I wonder whether there is anything further that your colleagues
would like to add to that because that, in terms of the expansion
of the market, is crucial for us to know.
33. MR THOMPSON: Can I invite them to
say so in their own words. Perhaps they can also pick up on the
public consultation that preceded the promotion of this Bill and
which did demonstrate a degree of public support.
34. MR TURNER: If I can start by dealing
with the consultation. Before the Council decided to embark upon
the process of promoting this Bill a very significant consultation
exercise was carried out involving press articles, newspaper advertisements
and we actually wrote to every premises, be it domestic or business,
that was in the area delineated on the plan. The result we got
was fairly strong support. There were a number of individual
issues raised which the Council believes it can address, but there
was good support for the proposal.
35. MR CHIPPENDALE: Just to add to that,
for sometime we have had a good working relationship with the
market traders who have been operating the market now for a couple
of years, but they would not have been attendees of the market
for much longer as the market at the Civic Centre site was declining.
They were very keen to relocate; the site identified in the Local
Plan was not deliverable, unfortunately, because the development
that would support that was not taking place and it was, in fact,
the market traders working with us that identified the Cornhill
as a site, submitted a planning application for that, and were
successful in securing that as a nucleus for an expanding market.
So we do see it as not only very important to Ipswich but very
important that the location is on and round Cornhill.
36. SIR JOHN BUTTERFILL: If I may, Chairman,
on that subject and on the public consultation. Do I understand
that in fact you wrote to all of the traders and residents within
the designated roads and made it clear to them what was proposed?
I am thinking particularly here of Princes Street and Queen Street
where I think there are probably more residential properties but,
also, to a lesser extent in Butter Market and in Lloyds Avenue?
37. MR TURNER: We did everything we possibly
could to try and identify them. I cannot categorically state
that one was not missed but we did everything possible to do that
and we did make it clear; we sent a copy of the plan you have
before you showing where the market would be held.
38. SIR JOHN BUTTERFILL: You did. Did
any of them object? Were there any objectors amongst them?
39. MR TURNER: There were some concerns
that were raised which I can talk to you about, if you would like.
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