Planning lawyers and their clients are facing uncertainty over the future of the planning process. This follows last week’s High Court judgment that the Secretary of State’s role as policy maker and decision taker on certain development proposals is incompatible with the Human Rights Act (HRA).
After hearing four test cases, the Divisional Court found that the UK’s planning system breaches the right to a fair hearing by an independent tribunal in Article 6 of the European Convention on Human Rights (ECHR). The 1990 Town and Country Planning Act, compulsory purchase legislation and the Transport and Works Act must now be audited before a declaration of incompatibility is issued on 20 December.
A government appeal is expected to go straight to the House of Lords, but is unlikely to be accommodated before April next year. The delay could throw the UK’s biggest and most controversial planning applications into limbo. Applications affected are those which have been, or are likely to be, called in or recovered by the Secretary of State for his own decision.
The most high profile of the test cases challenged John Prescott’s right to determine an appeal against a refusal of planning permission for a warehouse development at Alconbury Airfield, owned by the Ministry of Defence.
The developer, a joint venture between the British Airports Authority and ProLogis Developments, applied to the court after third party objectors raised the possibility of challenges to the inquiry process under the HRA.
Morag Thomson of Leicester firm Marrons, the adviser to the developer, says that the result of the judgment leaves clients like her own in a state of paralysis.
She says: “As the law stands now, in accordance with the ruling of the court, there is no mechanism whereby a decision can be made by the Secretary of State on these major schemes. It is the more significant cases, which of course are the more important ones, that are affected.
“Our inquiry is due to reconvene in May, but we don’t know whether it will still go ahead. There are many other cases in the same position. The Government will have to make clear how it intends to deal with these cases during the period when we’re awaiting the House of Lords’ decision.”
Questions are also being asked by planning lawyers that were not directly involved in the cases. Berwin Leighton planning partner Tim Hellier says that a number of his cases are likely to be affected by the decision. But he says: “While we’re waiting for the declaration of incompatibility, it’s difficult to tell clients what the ramifications are. The Secretary of State’s call-in powers will undoubtedly be addressed. It is possible that other sections of the 1990 Town and Country Planning Act will also be looked at.”
SJ Berwin planning partner Patricia Thomas suggests that, as a temporary measure, developers may now have to build an extra period of time into contractual commitments so as to allow for possible challenges under the HRA. She says: “I think we now have a very unhappy period to come before the legislation is amended.”
Lawyers will need to proceed cautiously. Lovells planning partner Michael Gallimore says: “Lawyers involved in the early stages of call-in cases will need to consider carefully whether to continue with those applications, bearing in mind that procedures could change before applications are actually determined by the Secretary of State. The Secretary of State will also have to consider whether to press on with those cases.”
Given the degree of uncertainty created by last week’s judgment, it is no surprise that planning lawyers are unanimous in calling for swift remedial action from the Government. SJ Berwin planning partner Simon Ricketts says: “The Government will have to move very quickly to bring forward new legislation in order to retain the confidence of the development industry, provide clear guidelines for local authorities and satisfy objectors that procedures are not only fair, but are seen to be fair. In the meantime, we’re having to continue with a system that has been labelled as infringing the HRA.”
Last month Ricketts was instructed by pop star Sting and a group of Wiltshire residents campaigning against an increase in RAF activity close to their homes. They argue that the move would breach the Article 6 requirement that human rights issues be settled by an impartial tribunal. The Government’s defeat in the Alconbury case is likely to determine its response to the Sting proceedings.
Other test cases are also likely to follow last week’s judgment. Ricketts says: “Other cases may give rise to further declarations of incompatibility because the current cases are in no way a comprehensive audit of legislation as against the HRA.”
Other cases are likely to consider whether objectors have a right of appeal when local authorities grant planning permission, and the much wider question of crown exemption from planning law.
But attention is already turning to the shape that the UK’s planning system will take as a result of last week’s judgment. During the hearing, Government lawyers proposed strengthening the powers of judges to consider the largest and most controversial planning applications. Another option is the transformation of the planning inspectorate into an independent body, untainted by political control.