Plan for future
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29 May 2014
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Margaret Casely-Hayford, a planning partner at Denton Wilde Sapte who represented a developer in one of the cases, likens the scene to "one of those wonderful paintings you see of a 19th century courtroom, with barristers falling off the edge of the benches" and instructing solicitors "perched" on the benches behind. But where does the Alconbury decision leave the planning process?
Lawyers had argued in five test cases, known collectively as the Alconbury cases, that the existing system breached the right to a "fair and public hearing by an independent and impartial tribunal", which is enshrined in Article 6(1) of the European Convention on Human Rights.
It was a view that was dramatically upheld by the High Court at the end of last year, when local residents challenged successfully the right of the Secretary of State for the Environment John Prescott to determine an appeal against a refusal of planning permission for a warehouse development at an airfield in Alconbury, Cambridgeshire. The site belongs to the Ministry of Defence (MOD), which stands to make a fortune out of the deal.
Under planning law, the minister can be both policy-maker and decision-taker, having the last word on individual cases. The High Court had ruled that the minister had not acted unlawfully, but nonetheless was forced to act within a system that did not comply with the convention.
It was an outcome that threatened the premise upon which the current planning system is built. According to Malcolm Grant, the professor of land economy at Cambridge University, it marked "a complete reversal of the post-war settlement, when we put our faith in elected politicians and incorruptible civil servants".
Lord Justice Tuckey and Mr Justice Harrison recorded their own displeasure at playing such a pivotal role in planning history. In their judgment, they observed that they were "not pleased" to have reached a conclusion that "will obviously have far-reaching conclusions". Such was the importance of the case that it leapfrogged the Court of Appeal and was heard in the House of Lords for four days in February.
Last week, however, the Law Lords gave the planning process the all-clear. Planning lawyers are now working their way through the 80-page judgment, which the Law Lords spent nine weeks deliberating over.
Not surprisingly, their views are mixed - but many are unimpressed. Kevin Leigh, a planning specialist at 6 Pump Court, who represented a landowner and a developer in two of the test cases, believes that the outcome bears "the hallmark of political expediency".
"This was a real opportunity - the first and the best ever - to reform a system that everybody, with the exception of the Government, believes is in need of more than just a tinkering," he says.
By contrast, Chris Williams, a planning partner at CMS Cameron McKenna, welcomes the news. "The system's worked pretty well for the last 50 years," he says. "There isn't a need for the additional safeguard that the challengers are claiming is required, in terms of the separation of the functions of policy-maker and decision-maker."
Of course, there is plenty for the human rights commentators to absorb as well. The Home Secretary Jack Straw recently described Alconbury as a key case in the evolution of a new rights-based culture.
According to Michael Smyth, a Clifford Chance partner and author of Business and the Human Rights Act, he "must be sleeping more easily in his bed". Smyth reckons that the challenge was important, but hardly surprising. "Anyone standing back and looking at the legislation in the planning field from World War II onwards can see that it's resolutely political," he states. "By definition, it limits or impairs one's right to the enjoyment of property, and so it was always likely to engage parts of the convention."
Now, though, he believes that the Law Lords have tackled the human rights point "head-on" and found nothing inherently wrong with the dual role of the Secretary of State.
"Nobody's really won, nobody's happy and nobody's defeated," declares David Scorey, a barrister specialising in human rights at Essex Court Chambers. "On the other hand, the system has been vouchsafed and found to be inherently compliant with the Human Rights Act." However, he points out that the Law Lords considered that the Secretary of State might, on a case-by-case basis, contravene the act, but that it would depend on a judicial review "in each and every case".
One lawyer reckons that the legal costs in the divisional court were as much as £100,000 a day and put his developer-client's costs at "very close to six figures".
While legal commentators speculate as to the significance of the challenge, there have been more pressing commercial concerns for the property industry. Many developers put work on hold pending the outcome of the action, and according to Williams at Camerons, a number of major projects stalled midstream pending the outcome. "At least we now have some confidence about what the ground rules are," he adds.
The negative economic impact of uncertainty in the system is all too obvious. Swedish furniture giant Ikea recently pulled out of the scheme to redevelop the Alconbury site. Fortunately for the local economy, it plans to build its £40m distribution centre nearby at Hampton.
Solicitor David Barney of David Barney & Co represented the Nene Valley Residents Association and Huntsnaps, another local residents group, in the Alconbury case. He lives locally and is concerned about the potential impact of a massive development at the 1,022-acre airbase. He points out that the A14 between Huntingdon and Cambridge is already struggling to deal with the volume of traffic. At peak times the road is regularly reduced to "one big car park", he reports.
Planning inspectors take decisions in the vast majority of cases, but the Secretary of State decides upon the remaining - and generally more controversial - ones. They come to the minister upon the appeal to approve compulsory purchase orders, or because the minister has "called in" the matter. According to the Law Lords, of the 500,000 planning applications every year, only about 130 are called in; and of the 13,000 appeals, only 100 are recovered.
In Alconbury, the Secretary of State recovered the matter on appeal. "What we were really concerned about was whether the minister or some relatively junior civil servant was going to decide the appeal," Barney says. "Especially when we believe that the MOD is going to make an awful lot of money if planning permission is granted."
Leigh at 6 Pump Court represented Holdings & Barnes, a motor salvage company which planned to use land in Canvey Island in Essex for car auctions and storing damaged vehicles. It was one of the cases considered by the Law Lords and it was John Prescott who called in the matter. Leigh says that the decision by the Secretary of State to call in a matter relating to "a scrappy storage yard on Canvey Island", but not in relation to "a huge commercial and industrial development" in Alconbury was "absolutely astonishing".
According to the barrister, "a cynic might say" that the environment secretary could argue that he did not call in the case "even though its outcome would affect the MOD's finances". He believes that it is an illustration of the problem of the dual role of the Secretary of State. "It's what makes the whole thing so invidious," he says. "If you're in the right area and get on with the local politicians, you're okay."
Last July, the Scottish Court of Session came to a similar conclusion to that of the High Court four months earlier. In County Properties v Scottish Ministers, Lord Macfadyen ruled that the Scottish executive was in breach of Article 6(1) in calling in, at the request of Historic Scotland, a planning application by developers to demolish two listed buildings in Glasgow. It was also considered by the Law Lords alongside the Alconbury cases.
The Scottish case marked a break with a ruling of the European Court of Human Rights (ECHR) in Bryan v UK Government, in which the Strasbourg judges ruled that there was no problem with independence or impartiality, as the powers of judicial review in the High Court were sufficient to comply with the convention. It was the Government's line that was argued last year. Leigh dismisses Bryan as a "myopic view of planning law".
It was an argument that was played down in the House of Lords by the Government's legal team. According to Leigh, the new Government line emphasised the "political incorrectness" of the challenge as opposed to the earlier legal argument. "To put it crudely," he says, "their argument was that we were going to bring down democracy and government in a decision that would affect all planning systems across Europe." He adds that this is an argument that does not "bear intellectual scrutiny".
Last week's decision leaves a system intact which, some would say, desperately needs reform. Casely-Hayford at Dentons believes that last week's judgment in the Lords amounts to an assessment that the present process is "fair enough". But she adds: "I think that 'fair enough' isn't sufficiently fair. We have a fantastic system, but there are a few glitches that just need to be looked at." She believes that Alconbury was an opportunity to do just that.
Many predicted that a successful challenge would have resulted in a new Town and Country Planning Act. The most likely remedy would have been the creation of an independent planning inspectorate.
According to Casely-Hayford, just one glitch causes delay, which bedevils the present system. "The Secretary of State can actually kill a scheme through a delay, and there's nothing you can do," she says. "It would have been useful for that to have been sorted out." A success in the House of Lords might have meant an end to the Government's role in the determination of fraught schemes, such as Heathrow Airport's Terminal 5.
The human rights argument could have also left third party objectors with a right of appeal against developers other than the limited right under judicial review. "It's definitely a lacuna that needs to be plugged," says Casely-Hayford.
Much of the press coverage over the case queried what human rights have to do with planning applications in the first place: the argument goes that such challenges elevate arguments between neighbours to human rights abuses.
Williams at Camerons believes that it is possible to be too human rights compliant. He adds that, following last year's introduction of the Human Rights Act, "pretty much everyone" challenging any planning decision alleges somewhere in the process that there has been a breach of their rights. Unsurprisingly, though, Leigh does not see it that way. "You either pay lip service to human rights or you do it for real," he declares. n
Alconbury: the lawyers
Margaret Casely-Hayford, Denton Wilde Sapte
For the Secretary of State: Jonathan Sumption QC, Brick Court Chambers; David Elvin QC and James Maurici, 4 Breams Buildings; Philip Sales, 11 King's Bench Walk (Eldred Tabachnik QC and James Goudie QC).
Alconbury Developments: Keith Lindblom QC, Craig Howell Williams and Hereward Phillpot (instructed by Marrons Solicitors of Leicester), all of 2 Harcourt Buildings (Gerard Ryan QC).
Cambridgeshire County Council: Gregory Jones, 2 Harcourt Buildings (Gerard Ryan QC); David Abrahams, 4 Breams Buildings (instructed by the council).
Holding & Barnes: Stephen Hockman QC, head of 6 Pump Court; Kevin Leigh and Gordon Nardell, also of 6 Pump Court (instructed by Jennings Son & Ash).
Premier Leisure: Kevin Leigh, 6 Pump Court (instructed by Denton Wilde Sapte).
Huntingdon District Council: Martin Kingston QC and Peter Goatley, both of 5 Fountain Court, Birmingham (instructed by the council).
Nene Valley Residents Association and Huntsnaps: Paul Stanley and Tim Eicke, Essex Court Chambers (instructed by David Barney & Co).
Amici curiae: John Howell QC, Blackstone Chambers (at time of hearing was at 4 Breams Buildings) and Rabinder Singh, Matrix Chambers appeared as amici curiae for Legal & General (instructed by the Treasury Solicitor).