Listed building and conservation area consent — Plans to demolish and rebuild football ground — Local authority deciding, in principle, to grant permission — Claimants objecting to development — Claimants’ challenging Secretary of State’s refusal to call in and set up public inquiry — Whether council’s decision breached claimants’ rights under European Convention — Section 77 of Town and Country Planning Act 1990 — Article 6 of European Convention on Human Rights
The claimants challenged the defendant Secretary of State’s refusal to call in and set up a public inquiry, under section 77 of the Town and Country Planning Act 1990, to consider applications by Fulham Stadium Ltd for planning permission and listed-building and conservation-area consents, that the local planning authority had decided, in principle, to grant. The proposed development involved the demolition and reconstruction of the Fulham football ground to increase its capacity and to include housing. The Secretary of State’s refusal effectively gave the go-ahead to the proposed development.
Most of the claimants lived close to the football ground, and contended that its proposed development could have a serious impact upon: (i) their use and enjoyment of their homes; (ii) the River Thames, both in terms of its wildlife and its recreational purposes; (iii) the visual appearance of the area; and (iv) traffic congestion and parking problems likely to be caused by the increased number of fans attending football matches. They submitted that the decision about the development was too important to be left to the local authority, and should be decided by the Secretary of State. Further, they submitted that the Secretary of State had failed to give reasons for his refusal and had failed to take into account whether the council’s decision itself had breached Article 6 of the European Convention on Human Rights, under which everyone is entitled to a fair and public hearing by an independent and impartial tribunal.
Held: The claim was dismissed.
1. The Secretary of State was given a very wide discretion under section 77 of the 1990 Act as to whether to call in an application for his own decision, which was to be used sparingly. The present case had given rise to considerable local feeling and, since it was at the edge of the London Borough of Hammersmith and Fulham, it would inevitably have some impact outside the area, upon the River Thames, and upon parking and traffic. This was not sufficient reason to call in the application; it was merely a reason to consider whether to call-in. The Secretary of State was not only entitled, but was correct, to base his decision upon the facts of the particular case, and the decision of his predecessor, based upon different facts, could not be determinative.
2. There was a consistent line of authority that reasons need not be given for a decision not to call in. While the courts had been more inclined to impose a duty to give reasons since the coming into force of the Human Rights Act, all would depend upon the circumstances of a case. It was clear that there was no general duty to give reasons for every administrative, or discretionary, decision: if the Secretary of State was not calling in the application, he need not explain why.
3. Article 6 of the Convention could be engaged by a planning or licensing decision that affected a third party. However it was necessary to identify a civil right that was directly affected. There was no evidence in the present case of any diminution in value of a property. Further, it was difficult to identify any civil right that could be affected in respect of claimants who did not live sufficiently close to the ground to be directly affected. For present purposes, the court was prepared to assume the engagement of Article 6(1) at least in the case of some of the claimants.
4. The absence of a public inquiry did not mean Article 6(1) would be violated. The judicial review powers of the court might, and in most planning cases would, provide the necessary compliance with Article 6(1). Only in cases where facts were in dispute could it be said that judicial review might not be adequate to comply with Article 6(1). It was not generally possible in a planning decision to separate findings of fact from questions of judgment and policy. While the court did not rule out the possibility of a need for actual review in the form of an inquiry, such a need would be very rare and did not exist In the instant case.
Robert McCracken and Gregory Jones (instructed by Richard Buxton, of Cambridge) appeared for the claimants; Natalie Lieven (instructed by the Treasury Solicitor) appeared for the defendant; Timothy Straker QC and Andrew Tabachnik (instructed by Linklaters) appeared for Fulham Stadium Ltd, the first interested party; Keith Lindblom QC, Craig Howell Williams and Russell Harris (instructed by the solicitor to Hammersmith and Fulham London Borough Council) appeared for the second interested party, Hammersmith and Fulham London Borough Council.
Eileen O’Grady, barrister
