Planning application — Town and Country Planning (Scotland) Act 1972 — Delay in determining application — Legitimate expectation — Whether breach of statutory duty
In March 1991 the petitioner made an application to Western Isles
Island Council for planning permission to develop a super-quarry. In January
1994, on the recommendation of Scottish National Heritage (SNH), the Secretary
of State called in the application for determination under section 32 of the
Town and Country Planning (Scotland) Act 1972. In October 1994 an inquiry into
the application was held, in which SNH was the principal objector. Following
that inquiry, the reporter prepared her report for the Secretary of State for
Scotland.
On 1 July 1999, in accordance with the Scotland Act 1998, the
respondent Scottish ministers assumed responsibility for determining the
application. Prior to their determination, the transport and environment
minister referred to SNH the issue of whether any part of the application site
should be proposed as a candidate special area of conservation (CSAC) in terms
of Council Directive 92/43/EEC on the conservation of natural habitats and of
wild fauna and flora. The petitioner sought a declarator that the respondent
ministers were in breach of their statutory duty under sections 37(1) and 46 of
the Town and Country Planning (Scotland) Act 1997, as there had been inordinate
delay between the submission of the application to the council in March 1991
and the date of the hearing.
The petitioner had a legitimate expectation that the respondents
would determine the application within a reasonable time. What amounts to a
reasonable time will depend upon the particular circumstances of the case,
including its complexity, the length of the public inquiry at which evidence is
led, and a variety of other factors. The following declarator was pronounced:
(1) the respondents were in breach of their statutory duty by failing to
determine the application within a reasonable time; (2) the respondents’
decision to refer the classification of the site to SHN for advice, in the
context of the determination of the planning application, was ultra vires;
and (3) the respondents had acted in breach of Article 6 of the Convention for
the Protection of Human Rights and Fundamental Freedoms by delaying the
determination of the application and by the reference to SHN in the context of
the planning process.
Bryan v United Kingdom (A/335-/A) November 22 1995
Series A/335-A [1996] 1 PLR 47; [1996] 21 EHRR 342
R v Bow Street Metropolitan Stipendiary Magistrate, ex
parte Pinochet Ugarte (No 2); Pinochet Ugarte (No 2), Re; R v
Evans, ex parte Pinochet Ugarte (No 2); R v Bartle, ex parte
Pinochet Ugarte (No 2) [2000] 1 AC 119; [1999] 2 WLR 272; [1999] 1 All ER
577
R v Kent Police Authority, ex parte Godden [1971] 2
QB 662; [1971] 3 WLR 416; [1971] 3 All ER 20
Santilli v Italy (A/194-D) (1992) 14 EHRR 421
Judicial review
This was a petition brought by Lafarge Redland Aggregates Ltd,
under section 45(b) of the Court of Session Act 1988, for a declarator for the
specific performance of a statutory duty under sections 37(1) and 46 of the
Town and Country Planning (Scotland) Act 1997, and for judicial review of a
decision of the Scottish ministers to a question of Scottish National Heritage.
Edinburgh) appeared for the petitioner, Lafarge Redland Aggregates Ltd.
solicitor to the Scottish Executive) represented the respondents, the Scottish
ministers.
Lord Hardie:
Introduction
The petitioner is a company
incorporated under the Companies Act, having its registered office at Bradgate
House, Groby, Leicester. It was formerly known as Redland Aggregates Ltd. In
this petition, it seeks to bring under judicial review: (i) the failure by the
Scottish ministers (hereinafter referred to as ‘the respondents’) to determine
the petitioner’s application for planning permission for the development of a
super-quarry at Lingerbay, Isle of Harris, (hereinafter referred to as ‘the
application’), lodged with the planning authority on 25 March 1991 and called
in by the Secretary of State for Scotland on 6 January 1994 for determination
by him; and (ii) the decision by the respondents to refer to Scottish Natural
Heritage (hereinafter referred to as ‘SNH’) the question of whether any part of
the application site should be proposed as a candidate special area of
conservation (hereinafter referred to as a ‘CSAC’). Answers to the petition have
been lodged, and at the first hearing of the petition, which lasted for four
days, I heard submissions on behalf of the petitioner and the respondents. I
also heard counsel for both parties by order on 5 October 2000, when I was
advised that the petitioner is a tenant of, inter alia, the application
site, and that, in terms of its lease, the petitioner has various rights to
anorthosite and other minerals on the site.
Planning and procedural history
On 25 March 1991 the petitioner submitted to Western Isles Islands
Council (hereinafter referred to as ‘WIIC’) the application for the extraction,
processing and transport by sea of anorthosite. On 24 June 1993 WIIC informed
the Secretary of State for Scotland that they were minded to grant planning
permission to the petitioner. SNH, a statutory body established under the
Natural Heritage (Scotland) Act 1991 to advise upon environmental issues in
Scotland, recommended to the Secretary of State for Scotland that the
application be called in for his determination. On 6 January 1994 the Secretary
of State for Scotland informed WIIC that he had decided that the application
should be referred to him for determination in terms of section 32 of the Town
and Country Planning (Scotland) Act 1972 (hereinafter referred to as ‘the 1972
Act’). A public local inquiry (hereinafter referred to as ‘the inquiry’) into
the application was held between 11 October 1994 and 6 June 1995 before Mrs GM
Pain (hereinafter referred to as ‘the reporter’). The rules governing the
inquiry and subsequent procedures were the Town and Country Planning (Inquiries
Procedure) (Scotland) Rules 1980 (hereinafter referred to as ‘the rules’). The
principal objector represented at the inquiry was SNH, which led evidence and
made submissions opposed to the grant of planning permission. The grant of
planning permission was also opposed by members of a group known as ‘the Link
Quarry Group’, which comprised a number of environmental and other bodies. An
environmental pressure group, Friends of the Earth (Scotland), appeared and led
evidence against the grant of planning permission as part of the Link Quarry
Group. Two of the witnesses led on behalf of the Link Quarry Group, in
opposition to the application, were Mr Michael Scott, who was then Scottish
officer of plant life, and Mr Kevin Dunion, who was director of Friends of the
Earth (Scotland). Both Mr Scott and Mr Dunion are now members of the main board
of SNH, Mr Scott being the deputy chairman. The term of office of Mr Scott will
continue until at least 31 March 2002, and the term of office of Mr Dunion will
continue until at least 31 March 2003.
Following the conclusion of the inquiry, the reporter prepared a
report in accordance with the rules. Part 1 of the report was circulated in
draft in about March 1998. Following amendments to Part 1, the reporter
delivered the final version of Part 1 and Part 2 of the report to the Secretary
of State for Scotland on 29 April 1999. On 1 July 1999 the respondents assumed
responsibility to determine the application in accordance with the provisions
of the Scotland Act 1998. They have not done so. On 12 July 2000 one of the
respondents, the transport and environment minister (hereinafter referred to as
‘the minister’), in an answer to a question in the Scottish parliament,
intimated that she had decided, prior to determining the application, to refer
to SNH the question of whether any part of the application site should be
proposed as a CSAC in terms of Council Directive 92/43/EEC of 21 May 1992 on
the conservation of natural habitats and of wild fauna and flora (hereinafter
referred to as ‘the directive’).
By a letter dated 12 July 2000, the head of the Scottish executive’s
environment group wrote to the chief executive of SNH seeking its scientific
advice, in co-operation with the Joint Nature Conservation Committee
(hereinafter referred to as ‘JNCC’), ‘about whether or not, applying the
relevant selection criteria, any part of the application area should be
identified as a proposed CSAC’. JNCC was established under the Environmental
Protection Act 1990, inter alia, to establish common standards
throughout Great Britain for the monitoring and analysis of information on
nature conservation and to commission and support relevant research. On 12 July
2000 Mr Kevin Dunion issued a press release on behalf of Friends of the Earth,
welcoming the approach to SNH, but recommending the consideration of other
factual matters in the event of the inquiry being reopened.
Directive and its implementation
The directive was made on 21 May 1992 and required member states to
bring appropriate measures into force within two years of its notification. In
pursuance of this obligation, the government enacted the Conservation (Natural
Habitats Etc) Regulations 1994 (SI 1994 no 2716) (hereinafter referred to as
‘the regulations’), which came into force on 30 October 1994. In so far as
Scotland is concerned, since 1 July 1999 the obligations incumbent upon the
United Kingdom under the directive, and the powers to implement the directive
and the regulations, have fallen to the respondents. In terms of regulation
7(4) of the regulations, the Secretary of State was to transmit to the European
Commission, on or before 5 June 1995, a list of CSACs, selected by him upon the
basis of the criteria set out in Annex III to the directive and relevant
scientific information.
On 6 March 1995 the Scottish Office Environment Department
published Circular 6/1995, entitled ‘Nature Conservation: Implementation in
Scotland of EC Directives on the Conservation of Natural Habitats and of Wild
Flora and Fauna and the Conservation of Wild Birds: The Habitats and Wild Birds
Directives’ (hereinafter referred to as ‘the 1995 circular’), setting out the
initial approach to the implementation of the regulations. Between 1995 and
1999, the UK government submitted to the European Commission several lists of
CSACs, of which approximately 131 were Scottish sites. In selecting CSACs, the
government relied upon the advice of SNH and JNCC, the government’s statutory
advisors upon such issues. Following discussions between member states and the
European Commission, the JNCC set out, within its report no 270 ‘Selection of
Areas of Conservation in the UK’ (hereinafter referred to as ‘the selection
report’), the criteria used in the selection process within the United Kingdom
in order to ensure compliance with the directive and the regulations. The
selection report noted that the process as a whole required consideration of
the relative value of the sites in relation to the whole national resource of
each habitat type and species. It also noted that site assessment had been
based upon the criteria and principles set out in the directive, and did not
simply select existing protected areas. As a consequence, the selection process
identified
a number of CSACs that had not previously been notified as sites of
special scientific interest (hereinafter referred to as ‘SSSI’) under the
Wildlife and Countryside Act 1981.
In September and November 1999 the European Commission held
moderation seminars, when the Commission found that certain member states,
including the United Kingdom, had proposed insufficient sites for CSACs. On 11
January 2000 the Commission announced that it intended to make an application
to the European Court of Justice against certain member states, including the
United Kingdom, in respect of their failure to fulfil their obligations under
the Habitats Directive. In response to this finding and announcement, the
respondents asked SNH, in co-operation with JNCC, to re-examine the selection
process and to make further proposals for CSACs. As a result of this exercise,
the minister announced, on 14 June 2000, a list of the additional sites that
SNH had proposed to her as potential CSACs. No part of the application site at
Lingerbay has been proposed to the minister as a potential CSAC by SNH or JNCC
at any stage of the selection process. The minister herself did not invite SNH
to consider the application site for inclusion as a potential CSAC until July
2000, although the minister had had in her possession the report of the
reporter since at least 1 July 1999. In June 2000 the respondents also issued
guidance updating Circular 6/95.
A further moderation seminar will be held early in 2001, and the
list of proposed sites must be notified by member states to the Commission by
January 2001. The procedure adopted by the respondents to enable a Scottish
site to be included in a list of CSACs involves evaluation of sites by SNH and
the submission to the minister of a list of suitable sites for possible
inclusion as CSACs. The minister determines which sites should be subjected to
further consideration, and these sites are forwarded to JNCC for evaluation
within the context of the United Kingdom. JNCC undertakes a consultation
exercise lasting 12 weeks, and thereafter submits a final United Kingdom list
for consideration by the appropriate ministers. Thereafter, the appropriate
ministers determine which sites are to be proposed as CSACs. It will not be
possible to include the application site in the list for consideration by the
Commission at the next moderation seminar.
Delay
The petitioner seeks a declarator that, by failing to determine the
application, the respondents are in breach of their statutory duty under
sections 37(1) and 46 of the Town and Country Planning (Scotland) Act 1997
(hereinafter referred to as ‘the 1997 Act’). It complains about the inordinate
delay that has occurred between the submission of the application to WIIC on 25
March 1991 and the present date, a period in excess of nine-and-a-half years.
It accepts that the responsibility for such delay on the part of the
respondents, or their predecessors in office as successive Secretaries of State
for Scotland, only commenced on 24 June 1993, when WIIC advised the Secretary
of State for Scotland of their intention to grant the petitioner planning
permission. Even upon that
basis, the petitioner alleges that the delay of a period in excess
of seven years amounts to a breach by the respondents of their statutory duty.
Counsel for the respondents accepted the timetable of events specified in 10/4
of process, subject to the correction that the public local inquiry commenced
in October 1994. It was also accepted that the delay between the end of the
inquiry in June 1995 and the circulation of the first draft of Part 1 of the
report to parties almost three years later, in March 1998, amounted to a
considerable period of time. The reason advanced for this particular period of
delay was that this was an exceptional inquiry, raising a great many complex
issues, compounded by the illness and hospitalisation of the reporter, although
counsel very properly did not maintain that this latter issue justified a
significant proportion of the three-year period. As far as the final stage of
the delay, between 29 April 1999, when the report was submitted to the
Secretary of State for Scotland, and the present date, counsel for the
respondents stated that it was regrettable that the delay had occurred.
In considering the question of delay in the context of the
statutory duty of the respondents, I observe that there is no statutory
timescale within which the respondents must determine an application for planning
permission that is the subject of an appeal to them, or that is the subject of
the call-in procedures under section 46 of the 1997 Act. The absence of such a
timescale is understandable, because each application will differ in its nature
and complexity, and, for that reason, it would not be prudent or appropriate to
have a timescale that applied uniformly, whatever the nature of the
application. Had any alternative approach been adopted in the legislation, the
outcome would probably have been detrimental for all concerned in the planning
process, not least developers. Any uniform timescale would either cater for
complex cases or not. If the former approach were adopted, decisions in less
complex appeals might be delayed unduly if reporters and ministers took
advantage of the time available; the latter approach would probably have the
consequence that complex cases would frequently be the subject of petitions for
judicial review because of a failure to determine them within the statutory
timescale.
However, the absence of a statutory timescale is not determinative
of the respondents’ obligations in cases such as this. The structure of the
planning legislation is such that applicants for planning permission are
entitled to expect a decision on their application from the local planning
authority within a specified time. In terms of section 47(2) of the 1997 Act
and Article 14 of the Town and Country Planning (General and Development
Procedure)(Scotland) Order 1992, as amended (hereinafter referred to as ‘the
GDPO’), an applicant for planning permission may appeal to the respondents if
the local planning authority have not given notice of their decision to the
applicant within two months of the lodging of the application, or such extended
period as may be agreed in writing between the applicant and the planning
authority. In terms of Article 2 of the Town and Country Planning (Notification
of Applications)(Scotland) Direction 1997 (hereinafter referred to as ‘Circular
4/1997’), a local
planning authority that notifies the respondents of their intention
to grant planning permission for development, for which applications must be
notified to the respondents, is precluded from granting such permission for a
period of 28 days. In the present case, the period was extended by agreement to
six months. Thus, applicants may reasonably expect decisions at first instance
within a short timescale, unless they agree to extend the period in question.
The justification for this is readily understood when one considers that
developers require to have prompt decisions of their proposals to enable them
to make alternative proposals for other sites if their application is
unsuccessful, or to make necessary arrangements to enable them to proceed with
the development as soon as possible if it is successful. The time within which
applicants may reasonably expect their appeals to be determined must be
considered in this context. Another factor that will inform the expectations of
developers, in relation to the timescale of appeals or applications that are
called in for determination by the respondents, is the practice of the
respondents and their predecessors in the determination of appeals by other
developers. I was advised by senior counsel for the petitioner that the public
inquiry in the Gartcosh Power Station case lasted 66 days, as compared with 78
days in the present case, and the determination was issued 18 months after the
close of the inquiry. That case also involved the preparation and issue by a
reporter of Part 1 of a report. The timescale in that case could be used as an
indication of what might reasonably be expected in the present case. By
contrast, the respondents did not refer to any other case where the delay
between the close of the inquiry and the determination approximated three
years, being the time taken by the reporter to issue the first draft of Part 1,
far less a period close to four years, being the time taken to submit her
report to the respondents, and certainly not a period in excess of five years,
being the time that has now elapsed since the close of the inquiry.
In all the circumstances, I am of the opinion that the petitioner
had a legitimate expectation that the respondents would determine the
application within a reasonable time. What amounts to a reasonable time in any
case depends upon the particular circumstances of the case, including its
complexity, the length of the public inquiry at which evidence was led and a
variety of other factors, including, in this case, illness of the reporter and
the change of administration following upon devolution. Nevertheless, even
allowing for these special factors, the delay in this case was of scandalous
proportions and the respondents have failed to determine the application within
a reasonable time. The delay on the part of the reporter after the close of the
inquiry on 6 June 1995, even allowing for her illness, was in itself
unreasonable, as was the delay following 29 April 1999. However, the cumulative
effect of both periods of delay resulted in the failure of the respondents to
meet the reasonable expectations of the petitioner that its application would
be determined within a reasonable time by the respondents. In all the
circumstances, I have concluded that, by their said failure, the respondents
have acted unfairly from a procedural point of view. For that reason, I shall
grant the
declarator sought that the respondents are in breach of their
statutory duty by their said failure.
Reference to SNH
The petitioner also seeks a declarator that the decision of the
minister, to refer to SNH the question of whether any part of the application
area should be proposed as a CSAC, was ultra vires. There are a number
of different issues raised in this context and I propose to deal with them in
turn.
Procedural impropriety
(i) Partiality
It was accepted by counsel for both parties that, as far as
partiality is concerned, the test within our jurisprudence is the same as in
European jurisprudence. In the course of his submissions on this aspect of the
case, junior counsel for the petitioner referred to the minister’s alleged
membership of Friends of the Earth. This was not foreshadowed in the petition,
and therefore the respondents had no opportunity to answer this allegation. In
view of the potential significance of junior counsel’s statement, I inquired
whether he intended to develop an argument based upon R v Bow Street
Metropolitan Stipendiary Magistrates, ex parte Pinochet Ugarte (No 2)
[1999] 1 All ER 577, but was advised that the petitioner disavowed any such
argument. Moreover, counsel stated that no reliance was placed upon the
minister’s alleged membership of that organisation. In these circumstances, I
have disregarded this matter, although I am at a loss to understand why any
reference to this matter was made, particularly in the absence of any averment
in what is a particularly detailed petition.
The thrust of the submissions on behalf of the petitioner was that
it was ultra vires of the minister to refer the classification of the
application site to SNH for advice, in the context of a planning application
where SNH had been the principal objector. The objection to the involvement of
SNH at this stage was compounded by the presence on the main board of SNH of Mr
Michael Scott and Mr Kevin Dunion, both of whom gave evidence on behalf of
objectors at the inquiry, and Mr Dunion’s recent public statement in opposition
to the application.
The submissions on behalf of the respondents concentrated upon the
terms of the minister’s statement, and, more particularly, upon the terms of
the letter dated 12 July 2000 to SNH. It was submitted that the tone, tenor and
neutral language of the letter resulted in a construction that negated any hint
of prejudice.
While I have some sympathy with the submission on behalf of the
respondents as far as the tone, tenor and neutral language of the letter is
concerned, I have concluded that the reference to SNH, in the circumstances of
this case, conveys the appearance that it will not bring an impartial judgment
to bear on the matter. It was instrumental in persuading the Secretary of State
for Scotland to call in the application, thereafter it attended the inquiry as
the principal objector to the grant of
planning permission, and two of its present board members gave
evidence on behalf of other objectors. Since the close of the inquiry, Mr
Dunion has made public statements as recently as 12 July 2000, from which it is
clear that he remains opposed to the grant of planning permission. As will be
apparent from my observations when I consider the question of irrationality, it
is essential to distinguish between the respondents’ obligations in terms of
the planning legislation and their obligations under the directive. The
objection to the reference to SNH must be seen as being confined to the planning
process. Having regard to the history of the involvement of SNH in the
application and subsequent planning procedures, and of Mr Scott and Mr Dunion,
it must appear to the petitioner that, in the context of the planning process,
SNH cannot bring an impartial judgment to bear upon the matter and justice
would not be seen to be done. It is well settled in our law that the appearance
of injustice is as offensive as the reality. In that regard, I would refer to R
v Kent Police Authority, ex parte Godden [1971] 2 QB 662. In my opinion,
this is sufficient to justify a declarator that the minister has acted ultra
vires. However, I should also deal with a supplementary submission relating
to another aspect of alleged procedural impropriety.
(ii) Contravention of the rules
The other aspect of procedural impropriety relied upon by the
petitioner relates to an interpretation of the rules. The rules govern the
procedure prior to, during and after the inquiry. Rule 12(3) regulates the
procedure where the minister differs from the reporter on a finding of fact or
wishes to take account of any new evidence. It was submitted that the necessary
procedure had not been followed in this case. The response on behalf of the
respondents was that it is clear from the parliamentary answer that the
minister required further information and had not reached the stage of
disagreeing with the reporter.
Having considered these competing submissions, I am of the opinion
that although there is no specific provision in the rules for the minister to
undertake investigations, it is not unreasonable for her to cause inquiry to be
made to inform her decision as to whether she disagrees with findings in fact.
Accordingly, had the alleged contravention of the rules been the only basis
upon which procedural impropriety was alleged, I would not have concluded that
the minister was acting ultra vires.
Irrationality
Counsel for the petitioner also submitted that the decision of the
minister was irrational, and, accordingly, ultra vires. In considering
this particular aspect of the case, it is essential, in the context of the
minister having a number of different responsibilities, to determine the
purpose of the reference to SNH. In this regard, counsel for the respondents
emphasised that the environment department of the Scottish executive
(hereinafter referred to as ‘the environment department’) was separate from,
and operated independently of, the planning department, even though the
minister was responsible for both functions. Officials within
the environment department were responsible for advising the
minister on the implementation of the directive. They had no interest in the
planning process associated with the application. Although officials in the
environment department had seen and checked the factual accuracy of the
environmental section of Part 1 of the report, it had no other involvement in
the consideration by the minister of the application.
The first question to be considered thus becomes one of whether the
reference to SNH by the minister was solely connected with the fulfilment by
the minister of her obligations under the directive. If the answer to that
question is in the affirmative, I consider that it cannot be maintained that
the reference was irrational. In determining this question, a number of issues
require to be considered. In the first place, what significance is to be
attached to the departure in this case from the normal procedure for the
identification of CSACs? I am of the opinion that there is nothing improper or
irrational in the minister’s departure from the procedure normally followed in
the identification of CSACs. Although the initiative is usually taken by SNH,
in evaluating sites and identifying possible CSACs for submission to the
minister for her consideration as an initial step in the process, it would be
unreasonable to preclude a third party, including the minister, from suggesting
sites to SNH for evaluation that the third party considered to be significant.
In the present case, the minister was aware of the Commission’s view that the
deficiency in the sites submitted by the United Kingdom and other member states
was related to the under-representation of certain botanical species. The
minister was also aware that some of these species were present on the
application site and that the reporter concluded that the bryophyte flora were
of national and international importance. In these circumstances, it would be
totally unrealistic to expect the minister to refrain from asking SNH to
include this site for the purpose of its evaluation of potential CSACs. Indeed,
it might even be argued, with some merit, that if the minister did not refer
the matter to SNH, she would be failing in her duty under the directive.
The second question to be considered is whether the minister could
have determined the planning application without preventing her from
considering the classification of the site as a CSAC. Obviously, if planning
permission were refused by the minister, she would not be precluded from
considering whether the site, or any part thereof, should be proposed as a
CSAC. The issue thus becomes whether the grant of planning permission would
preclude the subsequent classification of the site as a CSAC. It was conceded
by counsel for the respondents that, from the point of view of the protection
of the site, there would be no prejudice in granting planning permission. In my
opinion, that concession was appropriate and could not properly have been
withheld, particularly when it is appreciated that following the grant of
planning permission there would be a period of about four years before any
development of the site could proceed. That period is required to enable the
petitioner to obtain other licences and permissions associated with ancillary
works outwith the application site. The minister could also utilise that period
to enable advice to be obtained concerning the need to classify the site as a
CSAC. If the site were
ultimately classified as a CSAC following the grant of planning
permission, regulation 50 of the regulations provides for the review of
planning permission as soon as reasonably practicable after the date upon which
the site becomes a European site. In order to secure the protection of a CSAC,
planning permission may be revoked or modified in terms of sections 65 to 69
inclusive of the 1997 Act. Section 76 of the 1997 Act provides for the payment
of compensation when planning permission is revoked or modified. Thus, the
scheme of the regulations and the 1997 Act envisages the grant of planning permission
for a site that later becomes a CSAC. In that situation, the CSAC would be
protected from development by the revocation or modification of planning
permission. The provisions for compensation ensure that all the legitimate
interests are balanced and appropriate protection is given to each of these
interests. In these circumstances, there is no need, in the present case, to
defer the determination of the planning application pending advice from SNH as
to whether the site should be proposed as a CSAC. If parliament had considered
that to be a proper approach, the regulations could have been framed
accordingly. I also consider that if the deferral of the decision on the
application is to secure the avoidance of a potential liability to pay compensation,
that is an improper consideration in the context of the regulations and the
statutory provisions to which I have referred.
It is clear from a fair reading of the minister’s statement that
the minister intends to defer determination of the application pending receipt
of advice from SNH about the inclusion of the site as a CSAC. I have reached
the conclusion that there is no justifiable reason to defer consideration of
the planning application pending the receipt of such advice. If the site merits
such a designation, and the protection following such a designation, that can
be achieved before any planning application is implemented. In all the
circumstances, I am of the opinion that the decision of the minister is
irrational, and, as such, is ultra vires.
Article 6
The petitioner also seek a declarator that the respondents have
acted in breach of Article 6 of the Convention for the Protection of Human
Rights and Fundamental Freedoms (hereinafter referred to as ‘the Convention’).
Counsel for the respondents invited me to conclude that Article 6 did not
apply, because there is no dispute or ‘contestation’ as to the petitioner’s
civil rights and obligations, and that until the respondents determine the
application, it could not be asserted that there will be a ‘contestation’. It
was accepted by counsel for the respondents that if Article 6 applied in this
case, the European jurisprudence is the same as our own jurisprudence in
relation to partiality.
The petitioner has a heritable right, in the form of a 99-year
lease of the site, and has indicated a willingness to enter into an agreement
in terms of section 75 of the 1997 Act, formerly section 50 of the 1972 Act. It
also has the right to anorthosite and other minerals on the site. These
property rights of the petitioner are clearly a civil right within the meaning
of Article 6(1) of the Convention. Reference is made to the opinion of the
Commission in Bryan v United Kingdom A-335/A (1996)
21 EHRR 3421 at p351, para 38.
1[1996] 1 PLR 47
The only remaining question is whether the call in of the
application by the respondents, and the resulting proceedings, can be described
as being directly concerned with the way in which the petitioner may use the
land in which it has an interest. Counsel for the respondents accepted that if
the local planning authority had refused the petitioner planning permission,
any appeal to the respondents in terms of the planning legislation would
constitute a dispute about the petitioner’s civil rights and obligations, and
the planning appeal would be governed by Article 6(1). Similarly, in terms of Bryan
v United Kingdom, if the petitioner proceeded to develop the
super-quarry without planning permission, and appealed against any enforcement
notice served upon it, such appeal proceedings would be proceedings that
determined a civil right in terms of Article 6. In either of these
circumstances, the petitioner would be entitled to a fair and public hearing
within a reasonable time by an independent and impartial tribunal established
by law. It is difficult for me to comprehend why, in that situation, the
present proceedings before the respondents should be treated in any different
manner. The approach of the respondents’ counsel was, in my opinion, unduly
restrictive. If an appeal against a refusal of planning permission is protected
by Article 6, it seems astonishing that the proceedings resulting from the call
in of an application that WIIC were minded to grant should be afforded any less
protection. It is even more astonishing when one recalls that the procedure
adopted in respect of applications called in for determination by the
respondents is identical to the procedure in appeals against refusal of
planning permission and appeals against the serving of enforcement notices. I
am of the opinion that there is a dispute about the exercise of the
petitioner’s civil rights, evidenced by the desire of the local planning
authority to grant the petitioner the necessary planning permission and the
call in by the respondents of the application for their determination after a
public local inquiry. Moreover, the consideration of objections to the grant of
planning permission, and the hearing of evidence from witnesses in support of,
and against, the application, clearly points to the existence of a dispute. I
have concluded that the submissions for the respondents should be rejected and
that Article 6 is applicable in the present case.
Having regard to my conclusions concerning the delay in this case,
and to Santilli v Italy (1991) 14 EHRR 421, I am of the opinion
that there has been a breach of Article 6(1). In addition, having regard to the
views that I have already expressed about partiality, I have concluded that
there is also a breach of Article 6(1) in that regard. Accordingly, I shall
pronounce the declarator sought, that the respondents are in breach of Article
6 of the Convention.
Result
I was advised by senior counsel for the respondents that it would
be sufficient for me to pronounce declarators to secure a decision from the
minister within a reasonable time. Upon being pressed concerning the meaning of
‘a reasonable time’ in this context, senior counsel was unable to be more
precise, other than to assure me that the minister and her officials were aware
that the timescale contemplated by me was of the order of 21 days from the date
of my interlocutor. In these circumstances, I consider that it is unnecessary
for me to pronounce any further order at this stage to secure a determination
of the application by the respondents. I shall, accordingly, pronounce a
declarator that: (1) the respondents are in breach of their statutory duty by
failing to determine the application within a reasonable time; (2) the decision
by the respondents to refer the classification of the site to SNH for advice
in, the context of the determination of the planning application, was ultra
vires; and (3) the respondents have acted in breach of Article 6 of the
Convention in respect of the delay in determining the application and the
reference to SNH in the context of the planning process.
The declarator was granted.
