The big six

As with just about every other facet of life, the Human Rights Act has found its way into property law. Joanna Goldsworthy looks at the effect on planning applications

Although the first attempt to use the Human Rights Act (HRA) to overturn a planning decision was rejected in 2001, planning has nevertheless been pervaded by human rights law. The application of Article 6 of the European Convention on Human Rights (the right to a fair and public hearing in determination of civil rights and obligations) has continued to be a key focus, but after a series of restrictive interpretations by the courts, planning lawyers are still trying to second guess the ultimate impact for themselves and their clients.

It was the infamous Alconbury case (R v Secretary of State for the Environment Transport and the Regions, ex parte Alconbury Developments (2001)) that turned the spotlight onto the application of Article 6 in the planning process.
The House of Lords judgment made clear as a matter of principle that the processes by which the Secretary of State made decisions and orders under the Town and Country Planning Act 1990, the Transport and Works Act 1992, the Highways Act 1980 and the Acquisition of Land Act 1981 were not incompatible with Article 6 because the combination of the availability of judicial review and the planning inquiry met the Article 6 tests, even though the inquiry itself was not “independent and impartial”.

Since then, the division has grown between those who believe that the current planning process lacks vital transparency, and those who regard the extension of full Article 6 protection on all issues of fact taken in the course of decisions by local planning authorities as unworkable and undemocratic. In Alconbury, Lord Nolan commented on the “obvious unsuitability of the courts as the arbiters in planning and related matters”, and said that “to substitute for the Secretary of State an independent and impartial body with no central electoral accountability” would be “profoundly undemocratic”.

The consenting opinion of the Lords in Alconbury, as expressed by Lord Hutton, was that “the jurisprudence of Strasbourg also recognises that, in a democracy where the courts have jurisdiction to conduct a judicial review of the lawfulness and fairness of a decision, a government minister can be both a policy maker and a decision taker without there being a violation of Article 6(1)”. This stance has been followed in several recent cases.
In the first of these, R (Kathro) v Rhondda Cynon Taff County Borough Council (2001), local residents sought a pre-emptive strike to stop a local council determining its own planning application on the grounds that they would be affected by increased traffic if the application proceeded.
Judge Richards held that it was not open to claimants to challenge proceedings under Article 6 if those proceedings had not been completed, since it is impossible for the court to conclude whether the final decision (in this case on judicial review) has been reached after a fair hearing.

This case illustrates a premise made clear in Alconbury: that any Article 6 challenge in a planning case that stands a chance of success must concentrate on the particular facts rather than on the wider application of public planning processes. There may well be other cases where an interested planning authority seeks to determine an application where there are disputes in matters of fact. In these circumstances, if the application is not called in by the Secretary of State, it may be that the local planning authority would feel it necessary to establish some form of quasi-public inquiry in order to make the final decision compliant with Article 6.

The claimant in Friends Provident Life Office v Secretary of State for the Environment Transport & the Regions (2001) challenged the refusal by the Secretary of State to call in a planning application. In essence, the point of principle in this case was the same as in Kathro, and the court came to a similar conclusion, finding that the issue was one of planning judgement rather than of fact. The challenge was dismissed because, although the issues in the case (such as the effect of the planned development on traffic flow in the city centre) contained elements of fact, they were in substance a matter of planning judgement, regarding which the quasi-judicial procedures of a public inquiry were not required following Alconbury.

The consequences of both Kathro and Friends Provident are that if the circumstances of an application reveal the likelihood of a dispute over primary fact, a local inquiry under an inspector will be essential in order to avoid an argument that there has been a breach of Article 6. As Judge Richards said in Kathro: “There is a real possibility that, in certain circumstances involving disputed issues of fact, a decision of a local planning authority, which is not itself an independent and impartial tribunal, might not be subject to sufficient control by the court to ensure compliance with Article 6 overall”.

This case also opened up the debate on the nature of civil rights when the rights holder is a legal rather than a natural person. Interestingly, Judge Forbes held, in response to submissions that Friends Provident could not have a civil right because its interest was only economic, that Friends Provident’s rights to “use, enjoy and own” its own shopping centre was engaged by Article 6, and that these rights would be “directly affected” by the grant of permission to the rival developer.

In a further case, R v Secretary of State for the Environment Transport & the Regions, ex parte William Adlard & Ors & (1) Fulham Stadium Ltd (2) Hammersmith & Fulham London Borough Council (2002), the Court of Appeal heard an unsuccessful challenge to the refusal by the Secretary of State to call in applications for the demolition and rebuilding of Fulham Football Club’s ground.
The second respondent council had decided in principle to grant permission and consents for the demolition and rebuilding of the ground to increase and modify its capacity in line with the Taylor Report that followed the Hillsborough disaster.

On appeal, the claimants contended that, given the refusal to call in the application, the council’s failure to afford them any form of oral hearing, let alone a public inquiry, infringed their civil rights under Article 6. The court gave this submission short shrift, holding that the rights of objectors to planning applications under Article 6 are not violated if a local authority refuses to accord them a public inquiry, or any other form of oral hearing, because the refusal was simply a procedural decision about which of two public authorities should take the substantive decision and, as such, it did not engage Article 6. The case also raised some important questions about the obligations of the Secretary of State and the fact that he had no duty to ensure that others did not act incompatibly with the 1998 HRA.

What is clear is that Article 6 cannot be ignored by those concerned with planning matters. Just how important it will ultimately be, however, remains to be seen. As Ian Clark, head of property at Pinsent Curtis Biddle’s London office, comments: “In principle, Article 6 could be of fundamental importance to the future evolution of the planning process, but so far the courts have attempted to interpret it in a restrictive way in order to keep back the floodgates of legal challenges on planning decisions”.

Joanna Goldsworthy is specialist products group editor at Lawtel