Planning permission — Call-in power — Local authority deciding to grant permission to demolish and rebuild football ground — Appellant objectors challenging Secretary of State’s refusal to call in and set up public inquiry — Whether authority’s decision breaching appellants’ human rights — Whether Secretary of State obliged to call in to prevent such breach — Section 77 of Town and Country Planning Act 1990 — Article 6 of European Convention on Human Rights — Appeal dismissed
The appellants were, for the most part, local residents opposed to plans by Fulham Stadium Ltd to demolish and reconstruct Fulham football ground. The local planning authority decided, in principle, to grant planning permission, listed building consent and conservation area consent for the development. The respondent Secretary of State declined to call in the application and set up a public inquiry pursuant to section 77 of the Town and Country Planning Act 1990. He gave no reasons for his decision.
The appellants brought judicial review proceedings to challenge the Secretary of State’s decision, which effectively gave the go-ahead to the proposed development. They contended, inter alia, that: (i) their right to a fair hearing by an independent and impartial tribunal under Article 6 of the European Convention on Human Rights had been breached by the planning authority’s failure to accord them any form of oral hearing; and (ii) the Secretary of State was obliged, in consequence, to call in the application so as to prevent that breach; or, alternatively (iii) if there were no right to a hearing, the Secretary of State should none the less have considered whether the case was an exceptional one, in which a call in and oral hearing were appropriate. The judge dismissed the claim, and the appellants appealed.
Held: The appeal was dismissed.
1. The local planning authority were not an independent and impartial tribunal, but the requirements of Article 6 were met in the light of the High Court’s jurisdiction to review the initial decision-making process. The planning process was one in which judgment and discretion played the predominant part, and, in such cases, Article 6 was satisfied with a form of inquisition in which the decision-makers acted more as experts than judges, with a second-instance appeal available in the nature of a judicial review: Tower Hamlets London Borough Council v Begum (Runa) [2002] EWCA Civ 239; [2002] 2 All ER 668 applied. The Article 6 requirement for a fair and public hearing was satisfied by the planning system as a whole, and did not confer on objectors the right to an oral hearing: Friends Provident Life Office v Secretary of State for the Environment, Transport and the Regions [2001] EWHC Admin 820; [2002] 1 WLR 1450, R (on the application of Aggregate Industries UK Ltd) v English Nature [2002] EWHC 908 Admin; [2002] NPC 58 and R (on the application of Cummins) v Camden London Borough Council [2001] EWHC Admin 1116 applied; R (on the application of Holding & Barnes plc) v Secretary of State for the Environment, Transport and the Regions [2001] UKHL 23; [2001] 2 PLR 76 distinguished. That being so, there was no need to resort to the Secretary of State’s call-in power to prevent a breach of Article 6, and he had not been obliged to call in on that ground. Moreover, the Secretary of State’s exercise of his discretion declining to call in, did not, itself, engage Article 6, since it was merely a procedural decision as to which of two public authorities should make the substantive decision: Cummins applied.
The Secretary of State was not obliged to consider departing from his usual policy on call-ins simply so as to enable third parties to put their objections at an inquiry. To depart from that policy to accommodate cases where objectors had procedural grievances would significantly distort the established approach taken to the exercise of the call-in power. Moreover, on the evidence, the Secretary of State had in fact considered that matter.
Robert McCracken and Gregory Jones (instructed by Richard Buxton, of Cambridge) appeared for the appellants; John Howell QC and James Maurici (instructed by the Treasury Solicitor) appeared for the respondent; Keith Lindblom QC and Russell Harris (instructed by the solicitor to Hammersmith and Fulham London Borough Council) appeared for the first interested party; Timothy Straker QC and Andrew Tabachnik (instructed by Linklaters & Alliance) appeared for the second interested party, Fulham Stadium Ltd.
Sally Dobson, barrister
