Human rights act and planning law
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18 November 2013
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6 November 2013
Planning lawyers are ready to enjoy a boom in work when the Human Rights Act comes into force this October.
A rush of third party litigation is expected, based on the right to protection of property and the right to a fair trial enshrined in the act. "The feeling among the bar and in the High Court is that the Human Rights Act will give rise to a huge amount of proceedings," says Tim Hellier, a planning partner at Berwin Leighton.
Not all will succeed, but it will be a new area for the courts and for lawyers. The number of Crown Office courts has doubled to 12 to get through a backlog of judicial reviews in preparation for the onslaught. The prospect is also influencing the advice lawyers are giving to their developer clients.
One view is that current time limits for third party planning appeals will be extended. Any complaint that is made under the Human Rights Act can be made within 12 months, which raises an incompatibility issue with English planning law - third parties have only six weeks to appeal against a decision by the Secretary of State or three months under the judicial review provision, a limit which is often reduced to six weeks by judges.
Roger Sherlock of Nabarro Nathanson suggests that three months may become the standard allowance, as waiting any longer would give rise to unfair uncertainty for developers. "Naturally we have advised our clients not to assume that after six weeks it is absolutely safe to start building," he says.
As October draws closer, developers are being warned that they could find a successful application being re-examined. But David Cox, a senior solicitor at Denton Wilde Sapte, says: "It seems to me that what we have got at the moment in terms of time limits are set by rules and I cannot see any reason for abandoning those."
Uncertainty also surrounds the possibility of a new third party right of appeal against the decisions of local planning authorities. A committee of MPs recently called for the introduction of such a right, but Cox says that it is unlikely to happen soon. Not only would it horrify developers, but it would impede the Government's aim to reduce the number of planning appeals. "A new right would not be attractive politically," he says.
The issue of compensation is more likely to surface quickly under the act. Old decisions cannot be overturned, but the court could find that human rights were breached in the past. European cases suggest that awards will not be great (£10,000 to £15,000), but who will pick up the bill - the Government, local authorities or developers? It is something of a grey area.
Planning agreements with local authorities, whereby developers pay for measures to alleviate the impact of their application, are likely to play an important role. Developers will need to be more proactive.
Local authorities and the Government will also be more cautious about the decision making process. Not all local planning committees allow the public (or developers) to address them when making a decision. Those who do not will lay themselves open to accusations that they are breaching the right to a fair hearing.
But although the planning system will be open to additional scrutiny from October, the face of development in the UK is unlikely to change in the long term.
After all, if the Human Rights Act adds an extra six months to an application, a developer might just go elsewhere, an outcome the Government will want to discourage.