Human rights —- Planning procedures —- Compulsory purchase and works orders —- Role of Secretary of State —- Role of High Court on review —- Article 6(1) of European Convention on Human Rights —- Right to fair hearing —- Whether Secretary of State independent and impartial —- Whether Secretary of State’s decisions in respect of planning and transport compatible with Article 6(1) —- Whether Secretary of State’s exercise of decision-making powers unlawful
These four applications were concerned
with whether the processes by which the respondent Secretary of State makes
decisions under the Town and Country Planning Act 1990, and makes orders under
the Transport and Works Act 1992, the Highways Act 1980 and the Acquisition of
Land Act 1981, are compatible with Article 6(1) of the European Convention on
Human Rights. The Secretary of State contended that the decision-making process
as a whole, including the right of appeal to, and the reviewing role of, the
High Court, does comply with Article 6. His alternative submission was that the
court should expand its role to review his decisions consistently with sections
3 and 6 of the Human Rights Act 1998. Two of the cases involved decisions by
the Secretary of State to call in applications for planning permission under
section 77 of the 1990 Act. The third case involved a recovered appeal against
refusals of planning permission under sections 78 and 79 of the 1990 Act, and
proposed orders under section 1 of the Transport and Works Act 1992. The fourth
case involved proposed highway orders and related compulsory purchase orders in
connection with a road scheme. The Secretary of State’s acts, in calling in or
recovering planning decisions and proposing to make various orders, were
alleged to be unlawful.
incompatibility ordered. The Secretary of State was not impartial in the manner
required by Article 6, because, in each case, his policy was in issue. What was
objectionable was that he should be the judge in his own cause where his policy
was in play; he could not be both policy maker and decision maker. The process
of public inquiry and report by an inspector to the Secretary of State of his
conclusions and recommendations does not contain sufficient safeguards to
justify the High Court’s restricted power of review of the Secretary of State’s
decisions. In terms of Article 6, a decision on the merits by the Secretary of
State has not been determined by an independent and impartial tribunal. The
processes involved in the four cases were not compatible with Article
6(1) of the Convention. However, the Secretary of State would not act
unlawfully under section 6(1) of the Human Rights Act 1998 because section
6(2), which exempts certain acts from unlawfulness, applied.
Albert and Le Compte
v Belgium A/58 (1983) 5 EHRR 533
Ashbridge
Investments Ltd v Minister of Housing and Local Government [1965] 1
WLR 1320; [1965] 3 All ER 371; (1965) 63 LGR 400; [1965] EGD 216; 195 EG 205,
CA
Belilos v Switzerland
A/132 (1988) 10 EHRR 466
Brown v Stott;
sub nom Stott (Procurator Fiscal) v Brown; Procurator Fiscal,
Dunfermline v Brown; Brown v Procurator Fiscal,
Dunfermline The Times 6 December 2000; 2000 SLT 59
Bryan v United
Kingdom A/335-A [1996] 2 EGLR 123; [1996] 28 EG 137; [1996] 1 PLR 47;
(1996) 21 EHRR 342
Bushell v Secretary
of State for the Environment [1981] AC 75; [1980] 3 WLR 22; [1980] 2 All ER
608; (1980) 78 LGR 269; 40 P&CR 51, HL
County Properties
Ltd v Scottish Ministers [2000] 4 PLR 83; 2000 SLT 965
De Cubber v Belgium
A/86 (1985) 7 EHRR 236
Findlay v United
Kingdom Case C-97/2807 25 February 1997 Reports 1997-I; (1997) 24 EHRR 221
Gransden (EC) &
Co Ltd v Secretary of State for the Environment (1985) 54 P&CR
86; [1986] JPL 519
Iskcon v United
Kingdom (1994) 76A DR 90
Kingsley v United
Kingdom 35605/97 The Times 9 January 2001
Kraska v Switzerland
(1994) 18 EHRR 188
McGonnell v
United Kingdom (2000) 30 EHRR 289; [2000] 2 PLR 69
Ortenberg v Austria
A/295-B (1995) 19 EHRR 524
Piersack v Belgium
A/53 (1983) 5 EHRR 169
Procola v Luxembourg
Case C-96/3170 28 September 1995 Series A no 326; (1996) 22 EHRR 193
R v Criminal
Injuries Compensation Board, ex parte A [1999] 2 AC 330; [1999] 2 WLR 974,
HL
R v Hereford
and Worcester County Council, ex parte Wellington Parish Council (1995) 94
LGR 159; [1996] JPL 573
R v Secretary
of State for Education and Employment, ex parte B (a minor); sub nom R v
Department of Education and Employment, ex parte B (a minor) [2000] 1
WLR 1115
Reid v
Secretary of State for Scotland [1999] 2 AC 512; [1999] 2 WLR 28; [1999] 1
All ER 481
Sramek v Austria
A/84 (1985) 7 EHRR 351
Stefan v United
Kingdom (1998) 25 EHRR CD 130
Tesco Stores Ltd v
Secretary of State for the Environment [1995] 1 WLR 759; [1995] 2 All ER
636; (1995) 93 LGR 403; [1995] 2 EGLR 147; [1995] 27 EG 154; [1995] 2 PLR 72,
HL
Wycombe District
Council v Secretary of State for the Environment (1987) 57 P&CR
177; [1988] JPL 111
X v United
Kingdom (1998) 25 EHRR CD 88
Zumtobel v Austria
A/268-A (1994) 17 EHRR 116
Judicial review
This was a conjoined hearing of three
applications for the judicial review of decisions of the Secretary of State for
the Environment, Transport and the Regions by Holding & Barnes plc,
Premiere Leisure Ltd and Alconbury
invitation of Legal & General Assurance Society Ltd.
Those submitting non-compatibility with
the Human Rights Act 1998:
Kevin Leigh (instructed by Jennings Son & Ash) appeared for Holding &
Barnes plc; Kevin Leigh (instructed by Denton Wilde Sapte) appeared for Premier
Leisure UK Ltd; Martin Kingston QC and Peter Goatley (instructed by the
solicitor to Huntington District Council) appeared for the district council;
Paul Stanley and Timothy Eicke (instructed by David Barney & Co) appeared
for Nene Valley Residents’ Association and Huntingdon Says No to Alconbury
Proposals; John Howell QC and Rabinder Singh (instructed by the Treasury Solicitor)
appeared as amici curiae. Legal & General Assurance Society Ltd were not
represented.
Those submitting
compatibility:
Philip Sales and James Maurici (instructed by the Treasury Solicitor) appeared
for the Secretary of State for the Environment, Transport and the Regions;
Keith Lindblom QC, Craig Howell Williams and Hereward Phillpot (instructed by
Marrons, of Leicester) appeared for Alconbury Developments Ltd; Gregory Jones
and Darren Abrahams (instructed by the solicitor to Cambridgeshire County
Council) appeared for the county council; John Litton (instructed by the
Treasury Solicitor) appeared for the Highways Agency in the Legal & General
Assurance Society case; Jonathan Karas (instructed by the Treasury Solicitor)
appeared for the Highways Agency in the other matters.
judgment was delivered.
TUCKEY J: The following is the
judgment of the court.
Introduction
These four applications raise the very
important question of whether the processes by which the Secretary of State for
the Environment, Transport and the Regions (SSETR) makes decisions under the
Town and Country Planning Act 1990 (TCPA), and makes orders under the Transport
and Works Act 1992 (TWA), the Highways Act 1980 (HA) and the Acquisition of
Land Act 1981 (ALA), are compatible with Article 6(1) of the European
Convention on Human Rights. This article says:
In the determination of his civil rights
and obligations… everyone is entitled to a fair and public hearing… by an
independent and impartial tribunal established by law.
It is common ground that such decisions
and orders do affect civil rights and obligations. In the present cases, the
SSETR does not argue that he is himself an independent and impartial tribunal,
but contends that the decision-making process as a whole, including the right
of appeal to, and the reviewing role of, the High Court, does comply with
Article 6. Whether he is right about this is the central question we have to
decide. If he is not, the SSETR’s alternative submission is that this court
should expand its role to review his decisions consistently with sections 3 and
6 of the Human
say:
[3](1) So far as it is possible to do
so, primary legislation and subordinate legislation must be read and given
effect in a way which is compatible with the Convention rights.
…
[6](1) It is unlawful for a public authority
to act in a way which is incompatible with a Convention right.
(2) Subsection (1) does not apply to an
act if —
(a) as the result of one or more
provisions of primary legislation, the authority could not have acted
differently; or
(b) in the case of one or more
provisions of, or made under, primary legislation which cannot be read or given
effect in a way which is compatible with the Convention rights, the authority
was acting so as to give effect to or enforce those provisions.
(3) In this section ‘public authority’
includes —
(a) a court…
If the processes are not compliant and
cannot be made so, the SSETR contends that section 6(2) of the HRA applies to
them, so that section 6(1), which would otherwise make his acts unlawful, does
not apply. Such a finding would enable us to make declarations of
incompatibility under section 4 of the HRA, which says:
[4](1) Subsection (2) applies in any
proceedings in which a court determines whether a provision of primary
legislation is compatible with a Convention right.
(2) If the court is satisfied that the
provision is incompatible with a Convention right, it may make a declaration of
that incompatibility.
Two of the cases (R v Secretary
of State for the Environment, Transport and the Regions, ex parte Holding &
Barnes plc (HB) and R v Secretary of State for the Environment,
Transport and the Regions, ex parte Premier Leisure Ltd (PL)) involve
decisions by the SSETR to call in their applications for planning permission
under section 77 of the TCPA. As well as the Article 6 challenge to the process
as a whole, HB contends that the decision to call in should be quashed on
conventional judicial review grounds. The third case (Alconbury Developments
Ltd v Secretary of State for the Environment, Transport and the Regions
(ADL)) involves ‘recovered’ appeals against refusals of planning permission
under sections 78 and 79 of the TCPA, and proposed orders under section 1 of
the TWA, relating to the construction and operation of a railway in connection
with the proposed redevelopment of RAF Alconbury. The fourth case (Secretary
of State for the Environment, Transport and the Regions v Legal &
General Assurance Society Ltd (LG)) involves proposed highway orders and
related compulsory purchase orders (CPOs) in connection with a scheme to
improve the A34/M4 junction. It is the SSETR’s acts in calling in or recovering
planning decisions, and proposing to make TWA, HA or CPO orders, that are
alleged to be unlawful under section 6(1) of the HRA because they do not comply
with Article 6.
In the PL case, a public inquiry has been
held but no decision has yet been made. In the ADL and LG cases, public
inquiries have started, but are now adjourned to await the decision of this
court. We have been told that a number of other important public inquiries have
been adjourned for the same reason. For these reasons, the hearing before us
was arranged at short notice and we are extremely grateful to all involved for
the huge amount of work that has gone into its preparation and the presentation
of the argument. In the interests of producing a judgment quickly, we intend to
summarise the material put before us (about 2,500 pages of evidence, 200
authorities and nearly five days of submissions from 10 counsel) as shortly as
possible.
In view of the fact that the SSETR does
not argue that he is an independent and impartial tribunal, it may be thought
that it is unnecessary to consider the way in which he acts in any detail, and
that the focus of our inquiry should be upon the effectiveness of the High
Court’s powers. But this is incorrect. We shall come to the decisions of the
European Court of Human Rights (ECtHR) in due course. But they make it clear
that, in considering whether determinations made in the field of administrative
law comply with Article 6, the whole process must be looked at. Put shortly,
there would be nothing objectionable about the SSETR acting as he does,
providing that his decisions were subject to control by a judicial body that
has ‘full jurisdiction’. What is meant by ‘full jurisdiction’ will be affected
by the extent to which the statutory process is quasi-judicial in character and
contains safeguards of the kind required by Article 6. So the involvement of
the SSETR, and the way in which he comes to make his decisions, does have to be
considered.
What we propose to do first is to amplify
the facts of the four cases, set out the relevant primary and secondary
legislation, and summarise the evidence about the involvement of the executive
and the decision-making process filed on behalf of the SSETR. We shall then
turn to the central and other issues to which we have already briefly referred.
Facts
HB’s application
HB is engaged in motor vehicle salvage on
behalf of contracted insurance companies. It is presently based at Charfleet
Industrial Estate on Canvey Island, where it operates pursuant to a planning
permission that was granted on appeal by an inspector in March 1997. On that
occasion, the SSETR did not recover jurisdiction from his inspector, nor did he
direct a call-in.
HB wishes to relocate its operation to
Haven Road on Canvey Island, and the local planning authority, Castle Point
Borough Council, accept that there would be benefits for the area if that were
to happen. In November 1999 HB made an application for planning permission for
the use of land at Haven Road, Canvey Island, for the parking and storage of
damaged cars and their sale by auction, and for the retention of the surfacing
and bund walls.
The
Health and Safety Executive (HSE) was consulted on the application by the local
planning authority. It advised in principle against allowing the development
due to the proximity of gas storage on some neighbouring sites. However, it
indicated that it would be prepared to withdraw its objection if the
application were modified to keep members of the public out of the new site. HB
agreed to restrict entry to the site to trade members for the purposes of attending
auctions. The HSE made it clear, however, that it intended to attend the
inquiry and to submit evidence in support of its objection unless directed to
the contrary by the SSETR.
On 2 May 2000 the local planning
authority resolved that they were minded to approve the planning application
subject to completion of a section 106 agreement, the director of development
having advised that he did not consider the proposal to be a major departure
from the development plan warranting referral to the SSETR for his
determination. Before the local planning authority could finally determine the
application, the local member of parliament requested the SSETR to call in the
application, drawing attention to concerns about the safety of local residents
in the vicinity of the application site and the effect of the proposed
development on the highway network.
On 25 July the SSETR made a direction
under section 77 of the TCPA that the application should be referred to him
instead of being dealt with by the council. In other words, he called in the
application for his own decision. He gave three reasons for doing so: (1) the
nature of the proposed use; (2) the impact it could have on the future economic
prosperity of Canvey Island; and (3) the site’s location close to hazardous
installations.
In his call-in letter, the SSETR
specified five matters about which he particularly wished to be informed. They
were: (1) the extent to which the proposal accords with the policies in the
adopted and emerging structure plan and the adopted local plan; (2) the
suitability of the site for the proposed use, given its proximity to two
hazardous installations and its location within the cordon sanitaire, and the
extent of any threat to public safety arising therefrom; (3) the effect of the
proposal on the surrounding road network and the amenity of local residents,
and its impact on the appearance and character of the area; (4) bearing in mind
the inclusion of Castle Point in the extended Thames Gateway in the draft
regional planning guidance, the effect of the proposal on the prospect of
enhancing the environment of the area and attracting new investment and
job-creating development to Canvey Island; and (5) the extent and value of any
planning gain, particularly any benefit for the Charfleet industrial estate and
the provision of the Roscommon Way extension.
HB now seeks judicial review of the
SSETR’s decision to call in its application on the ground that it is contrary
to Article 6, and on domestic law grounds as well.
PL’s application
On 4 February 2000 PL applied to the
local planning authority, Castle Point Borough Council, for planning permission
for a health and fitness
belt. On 3 March the local member of parliament wrote to the local planning
authority, and to the SSETR, objecting on behalf of some third parties. On 4
April the local planning authority resolved conditionally to approve the
planning application, subject to the completion of a section 106 agreement. On
22 May 2000 the SSETR decided to call in the application for his determination.
The reason that he gave for doing so was:
because of the possible conflict with
national policy guidance contained in Planning Policy Guidance Note No 2 (PPG
2) on ‘Green Belts’ relating to inappropriate development in the Metropolitan
Green Belt…
In the letter of 22 May, he set out the
matters about which he particularly wanted to be informed. They included such
matters as compatibility with green-belt policies in the development plan,
whether there were very special circumstances to outweigh the inappropriateness
of the development in the green belt, the impact upon residential amenity,
landscape and wildlife, consistency with PPG 17 on ‘Sport and Recreation’ and
consistency with PPG 13, dealing with the need to reduce travel by private car.
A local public inquiry into the proposal
was held between 10 and 13 October, and the SSETR’s decision following the
inquiry is awaited. However, in these proceedings, PL seeks judicial review of
the SSETR’s decision to call in the application on the ground that it is
contrary to Article 6.
In making its application, PL points to
the planning history of the site. In 1983 outline planning permission was
granted on appeal by the SSETR for a sports and leisure complex on the site. In
granting that permission, the SSETR considered that there were circumstances
justifying an exception to green-belt policies. That consent subsequently
lapsed.
In 1988 there was a similar application,
which was granted permission on appeal by an inspector appointed by the SSETR
on the ground that there were very special circumstances justifying an
exception to green-belt policy. That consent was implemented to the extent of
site clearance, the construction of drainage and site access, and a car park.
However, the development has never been completed, although it could be. In
1995 the SSETR determined an application for a sports and leisure complex on
the site, including a tenpin bowling alley, that he had called in for his own
decision. Although he concluded that the 1988 consent was a very special
circumstance, and that the proposed leisure and sports facility did not
constitute a greater threat to the green belt than the 1988 consent, he refused
the application on the ground that the tenpin bowling alley would harm
residential amenity.
All of those matters were no doubt relied
upon by PL at the recent public inquiry, but, as we have said, they are also
relied upon by PL in these proceedings.
ADL’s application
Alconbury Airfield is a redundant
airfield that was vacated by the United States Air Force in 1995. It covers an
area in excess of 1,000 acres and is owned by the Ministry of Defence. It is
located about 5km to the north west of Huntingdon. It lies close to the A1 and
the A14 trunk roads, with direct access via slip roads to both of those trunk
roads. The east coast main line railway from London to Edinburgh lies about
500m to the east of the site.
ADL wishes to develop the site into a
distribution centre of national significance, consisting of up to 650,300m2 of
warehousing and distribution floorspace. It has entered into a development
agreement with the Ministry of Defence, whereby the Ministry of Defence will
receive a pecuniary benefit from ADL if planning permission is granted for
development, together with a profit-sharing agreement thereafter if the land is
developed.
In October 1997 ADL made a number of
planning applications to Huntingdon District Council (HDC), which is the local
planning authority. There was one overarching outline application for
warehousing, with ancillary offices and additional floorspace, leisure and
administrative facilities with access and landscaping, plus approach
infrastructure, including road and rail sidings. There were also a number of
individual outline applications for the separate components of the scheme.
There was an individual outline application for a commercial air-freight
operation, which proved to be very controversial. A local residents’ group
called HuntSNAP (Huntingdon Says No to Alconbury Proposals) was formed to
object to the proposals. The application for the air-freight operation was
withdrawn in March 1998. There was also an application for planning permission
made to Cambridgeshire County Council (CCC), as the waste-disposal authority,
for a temporary recycling depot on part of the site. Later, in December 1999,
ADL applied to the SSETR for an order under section 1 of the TWA, which, if
made, would confer powers on ADL for the construction and use of a rail connection
between the airfield and the east coast main line. It involved proposed
compulsory purchase powers for the land required for the works, and it included
a request to the SSETR for a direction deeming the grant of planning permission
for the construction of the railway connection and accommodation works,
together with the construction of railway sidings within the airfield in order
to provide the rail-freight facilities.
On 4 August 1998 the SSETR refused a
request to call in the planning applications. On 17 February 1999 HDC resolved
to refuse the overarching outline application. On 1 April 1999 ADL lodged an
appeal against HDC’s refusal of the overarching outline application, and it
also lodged an appeal against the failure of CCC to determine the application
relating to the recycling depot within the requisite period. On 11 May 1999 the
SSETR directed, in exercise of his powers under para 3 of Schedule 6 to the
TCPA, that the appeals would be determined by him instead of by his inspector.
In other words, he recovered jurisdiction for both planning appeals. The reason
he gave for doing so was because ‘the appeals relate to proposals
for development of major importance having more than local significance’. An
inspector, Mr Boyland, was appointed to hold the inquiry, which was adjourned
on a number of occasions for various reasons, one of them being the decision of
the SSETR to hold a concurrent inquiry into ADL’s TWA application. Among the
objectors to ADL’s proposals are HuntSNAP, the Nene Valley Association, which
is an association of residents in the Nene Valley in east Northamptonshire, and
Abbots Ripton Parish Council.
The Highways Agency, which is an
executive agency of the SSETR, does not object to the proposed development,
provided that specific conditions are imposed upon any planning permission that
may be granted in order to protect the trunk road network. English Nature,
which is a statutory body funded by the Department of the Environment,
Transport and the Regions (DETR), objects to the proposal due to the impact of
the rail link to the east coast main line, which affects a site of special
scientific interest.
On 3 October 2000 the inspector opened
the inquiry, whereupon submissions, which were handed to the inspector in
written form, were made on behalf of HuntSNAP and the Nene Valley Association,
to the effect that the proceedings were contrary to Article 6. As a result of
those submissions, ADL decided to apply to this court for a number of
declarations to resolve the position. The inquiry was formally adjourned on 7
November to await the outcome of these proceedings. ADL seeks a number of
declarations to the effect that the SSETR’s decisions to entertain and retain
jurisdiction over the planning appeals and the TWA application, and to appoint
the inspector to hold the public inquiry into them, are lawful and not in
breach of, or incompatible with, the HRA. Its application is supported by CCC,
but opposed by HDC, both of whom were represented by counsel at the hearing
before us.
SSETR’S application: A34/M4 junction
improvement scheme
The SSETR made this application at the
invitation of the defendant LG. Subsequently, LG decided not to be legally
represented. The Attorney-General therefore appointed Mr John Howell QC,
together with Mr Rabinder Singh, as amici curiae. The application
relates to the A34/M4 junction 13 improvement scheme. Under that scheme, the
SSETR proposes to provide a dual, two-lane carriageway, all-purpose road for
A34 through traffic under the M4, about 100m to the west of the existing
junction 13. New slip roads would link the A34 to junction 13. Access to a
service area, an hotel and the local road network south of junction 13 would be
provided by two new linked roundabouts connected by new slip roads to the A34
slip roads. North of junction 13, new connecting side roads would replace the
existing roads and Graces Lane south-facing slip roads.
This is a scheme that has a history. Put
briefly, the relevant orders were first published back in 1992. An inquiry into
objections was held during that year. Following the inquiry, the orders were
confirmed and made in August 1993. However, one of the objectors, Mr Ian
Ellison, successfully applied to the court to quash part of a side road order.
Subsequently, the
suggested alternative slip road proposal was considered by the minister
responsible for trunk roads, but it was not adopted.
On 17 February 2000 various new draft
orders were published to replace that part of the previous order that had been
quashed, and to vary other orders that had been made, in order to take account
of the newly constructed Newbury bypass and alterations that had been made to
the junction 13 roundabout since 1992. In addition to those HA orders, a draft
CPO for the whole scheme was published on 24 February.
A number of objections to the draft
orders were received, including an objection from Mr Ellison and an objection
from LG, which owns land that is the subject of the draft CPO. The SSETR
decided to hold a public inquiry into the draft orders. On 29 June the SSETR
appointed an inspector to hold the public inquiry into the draft orders. On 26
July there was a pre-inquiry meeting at which the inspector identified the
matters that were outside the scope of the inquiry. They included government
policy, including methodologies and design standards adopted by the government,
nationally determined economic assumptions and forecasts of traffic growth, to
the extent that they had been adopted by the SSETR. The inspector, however,
accepted that the application of national forecasts to local situations did
come within the scope of the inquiry.
The public inquiry commenced on 19
September and sat for 11 days, after which it was adjourned until 23 October.
Before the resumption of the inquiry, solicitors acting for LG wrote to the
SSETR inviting him to seek declarations from the court to determine the
compatibility of the proceedings with the Convention. On 23 October, at the request
of the SSETR, the inspector adjourned the inquiry for six months to enable the
SSETR to seek declarations from the court. By these proceedings, the SSETR
seeks a number of declarations to the effect that his decisions to hold a
public inquiry into the draft orders, and to appoint the inspector to hold the
inquiry, were lawful and not in breach of, or incompatible with, the HRA.
Primary and secondary legislation
Town and country planning
The relevant primary legislation is to be
found in the TCPA. Under section 57, planning permission is required for the
carrying out of any development of land. Section 55 defines development of land
as being the carrying out of building, engineering, mining or other operations
in, on, over or under land or the making of any material change of use of any
buildings or other land. Section 54A provides that where, in making any
determination under the planning Acts, regard is to be had to the development
plan, the determination shall be made in accordance with the plan unless
material considerations indicate otherwise. Under section 70, a local planning
authority can grant planning permission, either unconditionally or subject to
such conditions as they think fit, or they can refuse planning permission. In
dealing with an application, the authority shall have regard to the development
plan, so far as material to the
a right of appeal to the SSETR against a refusal of planning permission, a
conditional grant of permission or a failure to decide an application within
the prescribed period. Section 79 provides that, before determining such an
appeal, the SSETR shall, if the appellant or the local planning authority so
wish, give them an opportunity of appearing before, and being heard by, a
person appointed by him, following which he can allow or dismiss the appeal.
Para 1 of Schedule 6 to the TCPA empowers
the SSETR to prescribe, by regulations, the classes of appeals under section 78
that may be determined by a person appointed by him, rather than by the SSETR
himself. Under the Town and Country Planning (Determination of Appeals by
Appointed Persons) (Prescribed Classes) Regulations 19971, save for
an exception relating to statutory undertakers, all section 78 appeals are
transferred for determination to inspectors appointed by the SSETR. By virtue
of para 2 of Schedule 6, where an appeal is determined by an inspector
appointed by the SSETR, the appellant and the local planning authority must be
given an opportunity to appear before, and be heard by, the inspector if either
of them so wish. The procedure before the inspector is governed by the Town and
Country Planning Appeals (Determination by Inspectors) (Inquiries Procedure)
(England) Rules 20002, which replaced the Town and Country Planning
Appeals (Determination by Inspectors) (Inquiries Procedure) Rules 19923
as from 1 August 2000. Under those rules, the appellant and the local planning
authority, and certain other bodies, have a right to appear at the inquiry, and
the inspector can permit any other person to appear at the inquiry, such
permission not to be unreasonably withheld. The procedure at the public inquiry
is determined by the inspector, but it involves the calling of witnesses to
give oral evidence, cross-examination of witnesses and the making of
representations. Following the inquiry, the parties are notified of the
inspector’s decision, and his reasons for it, by being sent a copy of the
decision letter.
1 SI 1997/420
2 SI 2000/1625
3 SI 1992/2039
Although the vast majority of section 78
appeals are decided by inspectors pursuant to the 1997 Regulations, para 3(1)
of Schedule 6 to the TCPA gives the SSETR power to recover jurisdiction in
section 78 appeals, by directing that an appeal that would otherwise be
determined by an inspector appointed by him shall instead be determined by him.
Under para 3(2) of Schedule 6, he must state his reasons for making such a
direction.
The procedure for a public inquiry, on an
appeal under section 78 that has been recovered by the SSETR for his
determination pursuant to para 3 of Schedule 6, is governed by the Town and
Country Planning (Inquiries Procedure) (England) Rules 2000, which replaced the
Town and Country Planning (Inquiries Procedure) Rules 1992 as from 1 August
2000. The
by an inspector, save that in this case the inspector makes a written report to
the SSETR containing his conclusions and recommendations. Rule 17(5) provides:
If, after the close of an inquiry, the
Secretary of State —
(a) differs from the inspector on any
matter of fact mentioned in, or appearing to him to be material to, a
conclusion reached by the inspector; or
(b) takes into consideration any new
evidence or new matter of fact (not being a matter of government policy),
and is for that reason disposed to
disagree with a recommendation made by the inspector, he shall not come to a
decision which is at variance with that recommendation without first notifying
the persons entitled to appear at the inquiry who appeared at it of his
disagreement and the reasons for it; and affording them an opportunity of
making written representations to him or (if the Secretary of State has taken
into consideration any new evidence or new matter of fact, not being a matter
of government policy) of asking for the re-opening of the inquiry.
Rule 17(7) provides that the SSETR shall
reopen the inquiry in those circumstances if asked to do so by the applicant or
the local planning authority, otherwise he has a discretion whether to reopen
the inquiry.
Besides the ability to determine a
section 78 appeal by recovering jurisdiction pursuant to para 3 of Schedule 6,
the SSETR is also given the power, under section 77 of the TCPA, to call in an
application for his own decision. Section 77(1) and (5) provide:
(1) The Secretary of State may give
directions requiring applications for planning permission… to be referred to
him instead of being dealt with by local planning authorities.
…
(5) Before determining an application
referred to him under this section, the Secretary of State shall, if either the
applicant or the local planning authority wish, give each of them an
opportunity of appearing before, and being heard by, a person appointed by the
Secretary of State for the purpose.
The Town and Country Planning (Inquiries
Procedure) (England) Rules 2000 also apply to a public inquiry in respect of an
application called in by the SSETR for his own determination. The same rules,
therefore, apply to the procedure at the inquiry, the inspector’s report and
the SSETR’s consideration of the inspector’s report as apply in the case of an
appeal recovered by the SSETR for his own determination.
The validity of a decision made by the
SSETR on a called-in application, or an appeal recovered by him under para 3 of
Schedule 6, can, by virtue of section 284 of the TCPA, only be questioned by an
aggrieved person by way of an application to the High Court made under section
288 of the Act. The grounds upon which a person aggrieved by such a decision
can apply to the High Court are that it was not within the powers of the Act,
or that any of the relevant requirements have not been complied with in
relation to the decision. Section 288(5) provides that the High Court, if it is
satisfied that the decision is not within the powers of
prejudiced by a failure to comply with any of the relevant requirements in
relation to it, may quash the decision.
There is no statutory right of appeal
against a decision by the SSETR to call in a planning application for his own
decision under section 77 of the Act. Such a decision can only be challenged by
judicial review, in accordance with the normal principles of administrative
law.
Transport and works
TWA provides a mechanism for the SSETR to
grant statutory authority, by way of an order, for matters that were previously
authorised by the promotion of a private bill in parliament. The procedure is
invoked by an application being made to the SSETR under section 6 for an order
under section 1 or 3 of the Act. Section 1 empowers the SSETR to make an order
relating to the construction or operation of, inter alia, a railway. By
virtue of Schedule 1, such an order can include the power to acquire land
compulsorily. An applicant may, when applying for a TWA order, ask the SSETR to
direct that planning permission be deemed for all or some of the development
covered by the order. Section 16 of the Act inserts a new section 90(2A) into
the TCPA enabling the SSETR to make such a direction. A request for such a
direction is considered alongside the application for the TWA order, and a
decision on both matters is taken at the same time.
The procedure for making TWA applications
and objections thereto is governed by the Transport and Works (Applications and
Objections Procedure) Rules 1992 for applications made before 16 October 2000.
For applications made after that date, it is governed by the Transport and
Works (Applications and Objections Procedure) Rules 2000. Where an objection is
made by a statutorily qualified objector (which will include local authorities
and landowners whose land would be compulsorily acquired), the SSETR is obliged
by section 11 of the Act to hold a public inquiry if the objector so wishes.
The rules governing the public inquiry
are the Transport and Works (Inquiries Procedure) Rules 1992. The procedure at
the inquiry is determined by the inspector, but it is much the same as for
planning appeals and called-in planning applications. Witnesses are called and
cross-examined and representations can be made. Thereafter, the inspector makes
a written report to the SSETR containing his conclusions and recommendations. Rule
17(4) contains a similar procedural rule as r 17(5) of the Town and Country
Planning (Inquiries Procedure) (England) Rule 2000.
Under section 13, the SSETR can either
make the order with or without modifications, or not make the order. The
validity of an order made by the SSETR can only be questioned by an application
under section 22, which is in similar form to section 288 of the TCPA.
Section 23 enables the SSETR to make
regulations prescribing the classes of application that are to be dealt with by
an inspector rather than by him, but no such regulations have been made by the
SSETR. Even if they were made, any such order made by an inspector could not,
by virtue
compulsory creation or extinguishment of rights over land.
Finally, where a TWA order is linked or
related to a development that does not come within the provision of the 1992
Act, it is usual practice for the inquiries into the TWA order and the planning
appeal to be held concurrently before the same inspector, so that he can
consider all the related issues.
Highways orders
The primary legislation governing
highways orders is the HA. Under section 1, the SSETR is the highway authority
for any highway that is a trunk road. Section 10 places a duty on the SSETR to
keep the trunk road network under review, and it gives him authority to make
orders in relation to existing or proposed highways. Under section 14,
provision may be made by an order to authorise a highway authority for a trunk
road to improve and stop up highways that may be affected by the construction
or improvement of the road, and to construct new highways for purposes
connected with any such alteration. Such an order may also, by virtue of
section 125, deal with the stopping up of, and provision of, new means of
access to private premises adjoining the road.
Orders under the relevant empowering
provisions must be made by the SSETR. The procedure for making the orders is
governed by Parts I and III of Schedule 1 to the Act. Para 7 deals with the
circumstances in which a local inquiry has to be held.
Any such inquiry is governed by the
Highways (Inquiries Procedure) Rules 19941. Under r 2, an inspector
is defined as a person appointed by the SSETR to hold an inquiry, although, in
fact, the inspector is nominated by the Lord Chancellor. After the close of the
inquiry, the inspector is required by r 26(1) to make a report in writing to
the SSETR that includes his conclusions and recommendations. Rule 26(4) contains
a similar procedural rule as in r 17(5) of the Town and Country Planning
(Inquiries Procedure) (England) Rules 2000.
1 SI 1994/3263
Having considered the inspector’s report,
the SSETR is empowered, under para 8 of Schedule 1 to the Act, to make the
order either with or without modification. The statutory right under Schedule 2
to the Act to challenge a highways order made by the SSETR is in similar form
to that in section 288 of the TCPA.
Compulsory purchase
HA gives the SSETR power to acquire land
compulsorily in certain circumstances when exercising his highways powers.
Section 239 gives him power to acquire land compulsorily for the construction
of a trunk road, for the carrying out of works authorised by an order under section
14 and for improvement to highways that he is authorised by the Act to carry
out. He is also empowered, under section 246, to acquire land
existence or use of an existing, improved or proposed highway may have on the
surroundings.
Section 247 provides that the ALA shall
apply to the compulsory acquisition of land under those powers. The ALA sets
out the general scheme and procedures for the compulsory acquisition of land.
Paras 1 to 3 of Schedule 1 to the Act make provision for the publication of the
draft compulsory purchase order and its service on the owner, lessee and
occupier of any land comprised in the order. Para 4 of Schedule 1 provides that
a public local inquiry shall be held if any objection is duly made by any such
owner, lessee or occupier and not withdrawn.
The rules governing such an inquiry are
the Compulsory Purchase by Ministers (Inquiry Procedure) Rules 19941.
Rule 11 provides that the minister may be legally represented at the inquiry.
It also provides that a representative of the minister shall be available to
give evidence and be cross-examined, except on the merits of government policy.
Rule 13 provides that every statutory objector is entitled to appear at the inquiry,
and the inspector can permit any other person to appear, such permission not to
be unreasonably withheld.
1 SI 1994/3264
——————————
The procedure at the inquiry is
determined by the inspector. Witnesses are called and cross-examined, and
representations can be made. Rule 17 provides that, after the close of the
inquiry, the inspector shall make a written report to the minister, containing
his conclusions and recommendations. Rule 17(4) contains a similar procedural
rule as r 17(5) of the Town and Country Planning (Inquiries Procedure)
(England) Rules 2000.
Under para 4 of Schedule 1 to the 1981
Act, the minister may make the CPO either with or without modification. There
is no power for the SSETR to delegate to an inspector the power to make the
decision whether the CPO should be made. Section 25 of the Act provides that
the validity of the order can only be questioned by an application to the High
Court under section 23. The grounds upon which the validity of the order can be
questioned on an application under section 23 are very similar to those under
section 288 of the TCPA.
Finally, section 257 of the Act provides
that, where a compulsory purchase order is proposed to be made in the exercise
of highway acquisition powers for enabling a relevant highways order to be
implemented, the proceedings required may be taken concurrently with the
proceedings required under the Act.
SSETR’s evidence
The DETR is one of the largest
departments of state. It has over 15,000 staff, of which about 4,000 are in its
central offices, 10,000 in executive agencies, which include the planning
inspectorate (PINS) and the Highways Agency, and 1,000 in government offices
for the regions (GOs).
of state, each with a parliamentary under-secretary and different areas of
responsibility. Planning and transport are the responsibility of different
ministers of state.
One
of the most important functions of the DETR is the formulation and promotion of
policy. Our planning system is described by Mr Bowden, the divisional manager
in charge of the development control division of the DETR, as one of the most
sophisticated in the world. This system provides strategic direction for the
use of land and control over individual development with the aim of securing
the most efficient and effective use of land in the public interest. This is
self-evidently reflected in the legislation to which we have already referred.
The policy is promoted by national guidance issued centrally and regional
guidance issued by the GOs. Local planning authorities are required to work
within this wider policy framework when formulating detailed development plans
for their areas. Wide requirements of public participation and consultation are
built into the system to ensure that the formulation of policy at every level
is democratic. The position is similar for transport policy. The Highways
Agency has the responsibility for implementing national transport policy in so
far as it affects the trunk road and motorway network, although it is clear
that with major developments such as Alconbury they have an input into the
formulation of policy as well.
Given the executive’s role in making and
implementing planning and transport policy, it must inevitably have an interest
in decisions of the kind with which we are concerned. Thus, in the HB and PL
cases, its interest is in implementing its policies for a development that may
have more than local implications, or is in the green belt. But the interest
may be more direct, as in the ADL case, where, as well as implementing policies
for the area, the land in question is owned by the state and the proposed
development will produce financial reward for the government if permission is
granted. In the LG case, as in all such cases, it is the executive itself that
is promoting the HA and CPO orders.
So what safeguards are there against the
executive acting simply in its own self-interest when making the decisions in question?
Ministerial decisions are made in the
name of the SSETR, but, in practice, are often taken by the relevant minister
of state or his or her under-secretary. Detailed propriety guidance is issued
to all ministers about their decision-making role. Recognising that ministers
making decisions on planning and transport matters of the kind with which we
are concerned are acting in a quasi-judicial role, the guidance makes it clear
that ministers should act, and be seen to act, fairly and even-handedly by
bringing an unbiased, properly directed and independent mind to consideration
of the matter. The guidance recognises the need for natural justice. The
guidance dealing with road proposals is the most detailed. It says:
The Inquiry
4. The purpose of the inquiry is to
enable the Inspector to advise the Secretary of State on the weight and nature
of objections to a road proposal. In essence the Inspector acts as the
Secretary of State’s ‘eyes and ears’ for hearing evidence and arguments and
inspecting the site of the road proposal. The inquiry provides an open public
forum for the arguments on both sides to be brought to a head. The Rules ensure
that everybody hears everybody else’s arguments and has an opportunity to put
counter-arguments. Having heard all the arguments the Inspector makes his
report to the Secretary of State and recommends whether or not the draft
schemes or orders should be made or confirmed.
The Decision
5. Having received the report the
Secretary of State must then decide whether the schemes or orders should be
made or confirmed in the light of the Inspector’s recommendations. The period
between the close of the inquiry and the announcement of the decision is
particularly sensitive and Ministers need to avoid even giving the impression that
the decision may have been influenced by private representations or factors
which were not put before the inquiry.
All civil servants, whose task is to
serve the duly-constituted government of the United Kingdom, are required to
follow a code of conduct that requires them to do so with integrity, honesty,
impartiality and objectivity. They owe their loyalty to the administration in
which they serve, whose lawful policies they are obliged to carry out. But
their public functions must be performed reasonably and according to law, and
the advice they give ministers must be honest, impartial and without fear or
favour.
One of the obvious safeguards is the
public inquiry. We have already referred to the secondary legislation under
which such inquiries take place. The appointment of inspectors is the
responsibility of PINS. This agency’s 1998 framework document describes its
duties as follows:
2.1 The Agency serves the Secretary of
State on appeal and other casework under planning, housing, environmental and
other allied legislation.
2.2 The Agency’s duty is to decide
appeals and process casework efficiently and effectively, embracing the
principles of openness, fairness and impartiality…
…
2.7 The Agency is responsible for the
recruitment, training, development and management of a panel of independent
Inspectors to hold public inquiries and report on matters on highways, harbours
and other transport legislation in England and Wales and to be available for
nomination by the Lord Chancellor to conduct enquiries into motorways and trunk
roads schemes.
2.8 The processes of decision making on
appeals and other casework are governed by common law, acts of parliament and
statutory instruments which are interpreted by the court and developed by
practice and convention. When inspectors are instructed to hold inquiries on
behalf of the Secretary of State or appointed to decide appeals they have the
same regard to the Secretary of State’s policies as does the Secretary of
State.
2.9
The Agency’s work is subject to the scrutiny of the courts, the Parliamentary
Commission for Administration and the Council on Tribunals. Each inspector must
exercise independent judgment and must not be subject to any improper
influence, nor must it appear that the inspector may be subject to such
influence.
Inspectors
are recruited by open competition. Most inspectors are employed full-time by
PINS, but the Lord Chancellor maintains a separate panel of inspectors who are
employed on a case-by-case basis to conduct inquiries into motorway and trunk
road schemes.
To give some indication as to how the
system works in practice, the planning statistics are as follows. There are
about 500,000 planning applications each year, of which about 130 are called
in. There are about 13,000 appeals to the SSETR, of which about 100 are
recovered, so the vast majority of appeals are decided by inspectors. Of the
called-in decisions and recovered appeals, the SSETR follows the recommendation
of the inspector in about 95% of cases.
The focus of the submissions of those who
criticise the process has been on the time between receipt of the inspector’s
report and the SSETR’s decision. We have already referred to the rules that
require the SSETR to refer back to the parties and reopen the inquiry in
certain circumstances. The position is summarised in Mr Bowden’s statement as
follows:
7.2.9 At post-report stage in
particular, the objective is to ensure that the Secretary of State has
possession of all material considerations needed to reach an informed, fair,
unbiased and reasonable decision in each case as quickly as practicable in all
circumstances. To this end:
The relevant Government office receives
the Inspector’s report — which contains conclusions and recommendations;
Advice is sought by the Government
office on particular points of legal or policy elucidation from the appropriate
legal or policy officials to put to the Secretary of State with the report;
The Minister may wish to refer back to
the parties in some circumstances (and in other circumstances must do so) — eg
to seek more information, before a decision is made.
7.2.10 All decisions on called in cases
and recovered appeals are taken by Ministers, whether the Secretary of State
or, more usually, the Minister of State for Housing, Planning and Construction
or the Parliamentary Under Secretary of State, in accordance with the advice
contained in the Guidance on Propriety Issues in the handling of planning
casework in DETR. Decisions are allocated to Ministers on the basis of responsibility
for particular regions. The geographical split is determined so as to avoid
Ministers taking decisions in regions where they have a constituency or other
interest. In the [ADL] case the decision will be taken by the Parliamentary
Under Secretary of State, Beverley Hughes, who has no knowledge of the previous
exchanges of correspondence referred to in the witness statement by Caroline
Bowdler.
Caroline Bowdler is the director of the
planning and transport division (PTD) of GO East, which is responsible for the
ADL, HB and PL cases. She has been particularly involved with Alconbury and the
formulation of regional planning guidance, which, until recently at least,
identified
will not be involved in the decision-making process. The evidence shows that
after the steps described in para 7.2.9 of Mr Bowden’s statement, ‘GO draft
decision letter and prepare submission to Ministers’. This is done by a
decision officer, whose role Mrs Bowdler describes as follows:
17.
PTD also has an Appeals Decision Officer (‘the Decision Officer’), an
individual senior executive officer grade located (for line management purposes
only) in the Bedfordshire, Hertfordshire and Essex casework team. The Decision
Officer deals with all recovered appeals under section 78 of the TCPA and on
occasions with other planning decisions within GO East’s geographical area. The
Decision Officer is usually only involved with called-in applications where
work loads or propriety make this necessary. The Decision Officer deals with
these matters exclusively and has no other function within PTD, or GO East more
generally. In exercising his functions, the Decision Officer —
works separately from the casework team
of which he is nominally a part, does not discuss the merits of the planning
decisions before him with an individual either within or without GO East, is
not copied into or involved in the preparation of the Regional Planning
Guidance (RPG) or the exercise of any of the Secretary of State’s powers of
intervention under the TCPA, and only has before him the information which the
Inspector would have had at the inquiry into the particular appeal or called in
application, together with any representation made after the close of the
inquiries (all relevant parties are given the opportunity to comment on any
such representations where they are material or raise new matters).
18. So far as the Alconbury decision is
concerned I have made enquiries and confirmed that the Decision Officer has had
no involvement with any of my officers who have been involved with Alconbury or
with the discussions which have taken place previously with regard to the
planning of Alconbury. I can also confirm that it will be the Decision Officer
who will write the relevant submission to the Minister and sign the relevant
decision letter, subject to the decision of the court.
Similar arrangements exist for handling
inspector’s reports and decision making following inquiries into proposed TWA,
HA and CPO orders. These are dealt with by specialist units within DETR central
that do not have any conflicting policy responsibilities for promoting or
financing the scheme involved.
Approach
To determine our approach, we think it is
helpful to start by considering the decision of the ECtHR that is closest to
the situation in the cases before us, and which both sides say supports their
arguments. This is Bryan v United Kingdom A/335-A (1996) 21 EHRR
3421. Mr Bryan was served with an enforcement notice that required
him to demolish buildings that he had erected. TCPA (section 174(2)) gave him a
right of
1 App No 19178/91
appeal to the SSETR on grounds that
included: (a) planning permission should be granted; (b) no planning permission
was required; and (g) demolition was unnecessary. The appeal to the SSETR was
determined by an inspector, who upheld the enforcement notice. Mr Bryan
appealed to the High Court under section 289 of the TCPA, which is in broadly
similar terms to section 288. Ground (b) was not pursued because (according to
evidence put before the ECtHR) of the limited jurisdiction of the court. The
question was whether the buildings were, by their appearance and layout,
agricultural, in which case permission was not required. But this was a matter
of planning judgment, based upon findings of fact that the court was not able
to review. The appeal was, however, pursued and dismissed on grounds (a) and
(g). Mr Bryan’s complaint to the ECtHR was that the process involved a breach
of Article 6(1) because the inspector was not independent and impartial and the
High Court’s powers to review his decision were limited. The Commission
admitted the complaint, but subsequently concluded that there had been no
breach of Article 6. In its judgment, the court accepted that the proceedings
before the inspector ensured the applicant a fair hearing for the purposes of
Article 6(1), but it still had to consider whether the inspector was an
independent and impartial tribunal. It said:
37. In order to establish whether a body
can be considered ‘independent’, regard must be had, inter alia, to the
manner of appointment of its members and to their term of office, to the
existence of guarantees against outside pressures and to the question whether
the body presents an appearance of independence.
38. It is true that the Inspector was
required to decide the applicant’s planning appeal in a quasi-judicial,
independent and impartial, as well as fair, manner. However, as pointed out by
the Commission in its report, the Secretary of State can at any time, even
during the course of proceedings which are in progress, issue a direction to
revoke the power of an Inspector to decide an appeal. In the context of
planning appeals the very existence of this power available to the Executive
whose own policies may be in issue, is enough to deprive the Inspector of the
requisite appearance of independence, notwithstanding the limited exercise of
the power in practice as described by the Government and irrespective of
whether its exercise was or could have been at issue in the present case.
For this reason alone, the review by the
Inspector does not of itself satisfy the requirements of Article 6 of the
Convention, despite the existence of various safeguards customarily associated
with an ‘independent and impartial tribunal’.
It then went on to consider review by the
High Court, recognising that:
even where an adjudicatory body
determining disputes over ‘civil rights and obligations’ does not comply with
Article 6(1) in some respect, no violation of the Convention can be found if
the proccedings before that body are ‘subject to subsequent control by a
judicial body that has full jurisdiction and does provide the guarantees of
Article 6(1)’.
For this proposition, it relied on the
decision in Albert and Le Compte
conclusions in Bryan were as follows:
44. The Court notes that the appeal to
the High Court, being on ‘points of law’, was not capable of embracing all
aspects of the inspector’s decision concerning the enforcement notice served on
Mr Bryan. In particular, as is not infrequently the case in relation to
administrative law appeals in the Council of Europe Member States, there was no
rehearing as such of the original complaints submitted to the inspector, the
High Court could not substitute its own decision on the merits for that of the
inspector, and its jurisdiction over the facts was limited.
However, apart from the classic grounds
of unlawfulness under English law (going to such issues as fairness, procedural
propriety, independence and impartiality), the inspector’s decision could have
been quashed by the High Court if it had been made by reference to irrelevant
factors or without regard to relevant factors; or if the evidence relied on by
the inspector was not capable of supporting a finding of fact; or if the
decision was based on an inference from facts which was perverse or irrational
in the sense that no inspector properly directing himself would have drawn such
an inference.
45. Furthermore, in assessing the
sufficiency of the review available to Mr Bryan on appeal to the High Court, it
is necessary to have regard to matters such as the subject matter of the
decision appealed against, the manner in which that decision was arrived at,
and the content of the dispute, including the desired and actual grounds of
appeal.
46. In this connection the Court would
once more refer to the uncontested safeguards attending the procedure before
the inspector; the quasi-judicial character of the decision-making process; the
duty incumbent on each inspector to exercise independent judgment; the
requirement that inspectors must not be subject to any improper influence; the
stated mission of the Inspectorate to uphold the principles of openness,
fairness and impartiality. Further, any alleged shortcoming in relation to
these safeguards could have been subject to review by the High Court.
47. In the present case there was no
dispute as to the primary facts. Nor was any challenge made at the hearing in
the High Court to the factual inferences drawn by the inspector, following the
abandonment by the applicant of his objection to the inspector’s reasoning
under ground (b). The High Court had jurisdiction to entertain the remaining
grounds of the applicant’s appeal and his submissions were adequately dealt
with point by point. These submssions, as the Commission noted, went
essentially to questions involving ‘a panoply of policy matters such as development
plans, and the fact that the property was situated in a Green Belt and a
Conservation Area.’
Furthermore, even if the applicant had
sought to pursue his appeal under ground (b), the Court notes that, while the
High Court could not have substituted its own findings of fact for those of the
inspector, it would have had the power to satisfy itself that the inspector’s
findings of fact or the inferences based on them were neither perverse nor
irrational.
Such an approach by an appeal tribunal
on questions of fact can reasonably be expected in specialised areas of the law
such as the one at issue, particularly where the facts have already been
established in the
1 App Nos 7299/75 and 7496/76
course of a quasi-judicial procedure
governed by many of the safeguards required by Article 6(1). It is also
frequently a feature in the systems of judicial control of administrative
decisions found throughout the Council of Europe Member States. Indeed, in the
instant case, the subject matter of the contested decision by the inspector was
a typical example of the exercise of discretionary judgment in the regulation
of citizens’ conduct in the sphere of town and country planning.
The scope of review of the High Court
was therefore sufficient to comply with Article 6(1).
The SSETR submits that the instant cases
are within the principles set out in Bryan. The other side say that they
are not. In support of this submission, they rely upon the decision of the
Scottish Outer House in County Properties Ltd v Scottish Ministers
2000 SLT 9651. That case concerned a called-in application for
listed building consent under Scottish planning legislation similar to TCPA.
The Scottish ministers admitted that they were not independent and impartial,
but, relying upon Bryan, argued that the process as a whole, which
included a public inquiry before an inspector (reporter) and a right of appeal
to the High Court, complied with Article 6. The judge disagreed. He distinguished
Bryan because: (1) the decision was to be made by the ministers and not
by the inspector; (2) the case involved deciding an issue between the
petitioner and Historic Scotland (which opposed the application), their own
executive agency; and (3) the case would depend largely upon matters of
aesthetic and planning judgment, which could not be challenged on appeal. This
decision is being appealed to the Inner House, and the SSETR submits that it is
wrongly decided.
1 App No 12235/86
The court in Bryan and the judge
in County Properties accepted and applied the principle in Albert and
Le Compte (para 29) that:
the Convention calls at least for one of
the two following systems: either the jurisdictional organs themselves comply
with the requirements of Article 6(1), or they do not so comply but are subject
to control by a judicial body that has full jurisdiction and does provide the
guarantees of Article 6(1).
This principle was not in issue before
us. It was also accepted that the requirement for a judicial body with full
jurisdiction did not mean jurisdiction to decide all issues of law and fact
whenever the administrative decision maker was not independent and impartial.
This is clear from Bryan, particularly the concurring opinion of Mr
Bratza, then a member of the Commission, who said at p354:
It
appears to me that the requirement that a court or tribunal should have ‘full
jurisdiction’ cannot be mechanically applied with the result that, in all
circumstances and whatever the subject matter of the dispute, the court or
tribunal must have full power to substitute its own findings of fact, and its
own inferences from those facts, for that of the administrative authority
concerned.
He then identified the matters referred
to in para 45 of the court’s judgment as being relevant to whether the power of
judicial review was sufficiently wide to satisfy the requirements of Article 6.
There are other cases that support this
view: see Zumtobel v Austria A/268-A (1994) 17 EHRR 1161
at paras 30-32 — expropriation of land; Iskcon v United Kingdom (1994)
76A DR 902 — another enforcement notice case; Ortenberg v Austria A/295-B (1995) 19 EHRR 5243 at
para 33 — objection to development plan; Stefan v United Kingdom
(1998) 25 EHRR CD 1304 at pp134-135 — proceedings before GMC; and X
v United Kingdom (1998) 25 EHRR CD 885. In the last case,
which concerned a determination by the Secretary of State that the applicant
was not a fit and proper person to be the chief executive of an insurance company,
the Commission said at p97:
It is common ground that the power of
review of the Court of Session was not capable of embracing all aspects of the
decision of the Secretary of State. In particular, as is not infrequently the
case in relation to administrative law appeals in the Member States of the
Council of Europe, the Court of Session could not substitute its own view for
that of the Secretary of State as to the fitness of the applicant. On the other
hand, the Court of Session could have quashed the decision of the Secretary of
State if, inter alia, the decision was irrational, in the sense that it
was a decision that no reasonable minister properly directing himself could
have reached on the basis of the material before him, or if the decision was
reached by reference to irrelevant factors or without regard to relevant
factors or in a procedurally unfair manner.
In the case of BRYAN, the European Court
of Human Rights gave examples of the matters which were relevant to assessing
the adequacy of the review on a point of law in that case: ‘the subject-matter
of the decision appealed against, the manner in which that decision was arrived
at, and the content of the dispute, including the desired and actual grounds of
appeal’…
The subject-matter of the decision
appealed against in the present case was a classic exercise of administrative
discretion. The legislature had charged the Secretary of State with the express
function of insuring, in the public interest, that only appropriate persons
would become chief executive of certain insurance companies, and the contested
decision in the present case was the exercise of that discretion.
1 App No 20490/92
2 [2000] 4 PLR 83
3 App No 12884/87
4 App No 29419/95
5 App No 28530/95
After analysing the manner in which the
decision had been reached and the content of the dispute, the Commission held
that the scope of review of the Court of Session was sufficient to comply with
Article 6(1).
Following this analysis, the argument
before us has been that there is
instant cases that the limited scope of review by the High Court is
insufficient for compliance with Article 6. Consideration of this argument
first involves looking at what Article 6 requires in terms of independence and
impartiality, and how the processes involved in the instant cases measure up to
these requirements, and then, in the light of this assessment, whether the
powers of review of the High Court are sufficient, so that the whole process
complies with Article 6. In order to perform the second stage of this exercise,
we need to consider the extent of the review available in the High Court, since
it is suggested that it is somewhat wider than the court put it in Bryan
at para 44.
Independence and impartiality
It is common ground that the independence
required by Article 6(1) is independence from the executive and from the
parties.
The SSETR is part of the executive, as
are all or any of his ministerial team or the civil servants involved in the
decision-making process. The contrary is, we think, unarguable, which no doubt
explains the SSETR’s stance in these proceedings. Just how exacting is the
requirement for independence from the executive is illustrated by Bryan,
where the largely theoretical possibility that the inspector’s appointment
could be revoked by the SSETR meant that he was not an independent tribunal.
Impartiality is the same as, or very
similar to, independence from the parties. This requires the absence of
prejudice or bias. It is tested subjectively and objectively. Subjective
personal impartiality is assumed until there is proof to the contrary. This is
not alleged in the instant cases. Objectively, the question is whether the
tribunal offers guarantees sufficient to exclude any legitimate doubts about
its impartiality. While appearances are important, they are not decisive, since
misgivings must be capable of being held to be objectively justified: see Kraska
v Switzerland (1994) 18 EHRR 1881 at para 32.
1 App No 13942/88
So much is common ground, but Mr David
Elvin QC, for the SSETR, made a number of submissions that are very much in
issue.
First, Mr Elvin submitted that the court
could look beyond the statutory framework when considering whether a person or
body could be regarded as impartial in a particular case. It did not matter
that the DETR had incompatible functions that would deprive it as a whole of
impartiality, provided that the individuals involved in discharging such
functions were not identical. Since a government department is not a monolithic
entity, different individuals could always be found to discharge the
incompatible functions, and guarantees had been given that this would happen in
these cases.
Mr Elvin supported these arguments by
reference to domestic law. In this field of administrative law, apparent bias cannot
be shown unless the individual involved in the decision-making process has not
kept an open
judicial review. This, he submitted, is the same as the requirement for
objective impartiality under Article 6. Further, Mr Elvin submitted that
domestic law in this field does not recognise institutional or structural bias
because that is built into the legislative scheme and cannot therefore be
avoided.
These arguments met the objection that
the SSETR’s policies were involved in the decisions that had to be taken and
that he promoted highways and CPO orders. Mr Elvin admitted, however, that the
fact that the MoD had a financial interest in the Alconbury development did not
mean that ministers discharging their planning functions in a different
department of state should not be regarded as impartial. Niceties of
constitutional theory should not come into it. It would be quite unrealistic to
imbue the SSETR with the knowledge and predispositions of ministers in other
departments and all civil servants. The interest of the MoD was, in any event,
a public, as opposed to a private, financial interest.
Finally, Mr Elvin submitted, the fact
that the HSE supported the objection to permission being granted in the HB case
did not affect the SSETR’s impartiality. Unlike Historic Scotland, the HSE was
not an executive agency, but a separate corporate entity.
In support of his argument that the court
should look at how, and by whom, the decisions in these cases will be made, Mr
Elvin referred to a number of Strasbourg cases, which, he submitted, showed
that the court was primarily concerned to see whether individuals were
impartial, rather than the body as a whole of which they were part. He referred
us to Piersack v Belgium A/53 (1983) 5 EHRR 1691 — a
criminal trial presided over by a judge who had previously been in charge of
the department that decided to prosecute the applicant; De Cubber v Belgium
A/86 (1985) 7 EHRR 2362 —- a criminal trial presided over by a
judge who had previously been investigating judge; Procola v Luxembourg
Case C-96/3170 (1996) 22 EHRR 1933 —- four of the five members
of the judicial committee of the Conseil D’Etat had previously taken part in
Conseil D’Etat’s advisory opinion on the challenged legislation; McGonnell v
United Kingdom [2000] 2 PLR 694 — the judge previously
presided over a legislative body that adopted the challenged legislation.
1 App No 8692/79
2 App No 9186/80
3 App No 14570/89
4 App No 28488/95
We have considered these and a number of
other cases relied upon by Mr Elvin, but can find no support in them for the
general proposition that he advances. They do show, as one would expect, that
the court will look for lack of objective impartiality on the part of
individuals who form part of the tribunal in question, but they give no support
for the proposition that the court is not also concerned with institutional or
structural impartiality. Indeed, there are a number of cases that suggest that
the court
EHRR 3511, one of the parties to a hearing before the regional
authority deciding whether to approve the applicant’s purchase of land was a
senior civil servant who was the superior of three civil servants who were
members of the authority. Their independence was guaranteed by statute but the
court held at para 42:
Where, as in the present case, a tribunal’s
members include a person who is in a subordinate position, in terms of his
duties and the organisation of his service, vis-à-vis one of the parties,
litigants may entertain a legitimate doubt about that person’s independence.
Such a situation seriously affects the confidence which the courts must inspire
in a democratic society.
Similarly, in Findlay v United
Kingdom Case C-97/2807 (1997) 24 EHRR 2212, the court held that
the organisation of a court martial did not offer adequate guarantees of impartiality
where the members of the court had been appointed by the convening officer. He
played a significant role at the hearing and the members were subordinate in
rank to him and fell within his chain of command. In Belilos v Switzerland
A/132 (1988) 10 EHRR 4663, the applicant complained that the
police board that convicted her of fraud was not impartial. The appointed
member to the board was a municipal servant who was not subject to orders in
the exercise of his judicial powers and took a different oath from the one
taken by police. However, the court said at para 67:
Nonetheless, a number of considerations
relating to the functions exercised and to internal organisation are relevant
too; even appearances may be important. In Lausanne the member of the Police
Board is a senior civil servant who is liable to return to other departmental
duties. The ordinary citizen will tend to see him as a member of the police
force subordinate to his superiors and loyal to his colleagues. A situation of
this kind may undermine the confidence which must be inspired by the courts in
a democratic society.
In short, the applicant could
legitimately have doubts as to the independence and organisational impartiality
of the Police Board, which accordingly did not satisfy the requirements of
Article 6(1) in this respect.
1 App No 8790/79
2 App No 22107/93
3 App No 10328/83
However, we think there are more
fundamental objections to this part of Mr Elvin’s argument. First, although the
legislation vests all the relevant functions in the SSETR, the argument
requires one to assume that there is no one entity involved, only a
multiplicity of officials capable of acting, as necessary, independently and
impartially of one another. This is not the position under domestic law. In Bushell
v Secretary of State for the Environment [1981] AC 75, where the
making of certain highway orders was challenged, Lord Diplock said at p95D:
What is fair procedure is to be judged
not in the light of constitutional
the Crown who serve in the government department of which he is the head, but
in the light of the practical realities as to the way in which administrative
decisions involving forming judgments based on technical considerations are
reached. To treat the minister in his decision-making capacity as someone
separate and distinct from the department of government of which he is the
political head and for whose actions he alone in constitutional theory is
accountable to Parliament is to ignore not only practical realities but also
Parliament’s intentions.
There are also immense practical
difficulties in Mr Elvin’s approach. How is one to identify, within the
department, those who are impartial and those who are not? By definition, none
of them is independent. How, in practice, does any individual offer guarantees
sufficient to exclude legitimate doubt in this respect when his superiors,
including the SSETR himself, are not impartial? Ministers and civil servants
may change over the period under review. Such a review might require the court
to consider detailed evidence about the workings of the department on a
case-by-case basis. The only sensible conclusion, we think, is to treat the
DETR and the SSETR in the way in which Lord Diplock did in Bushell.
There is no dispute about the position
under domestic law. It is well stated in passages from Supperstone and
Goudie (1997) at para 9.21:
In many administrative situations the
possibility of bias is built into the system. Proposers of a scheme may have
strong and carefully thought out views on the subject, and yet may have to hear
and rule on objections to it. Administrators may have guidelines to help them
in their day to day application of legislation. In such situations the concept
of a fair trial may be impossible and indeed undesirable to achieve. It has
been pointed out… that the more indifferent to the aim in view the less
efficient is a Minister or civil servant likely to be. After all, it is his job
to get things done. So while the obvious prejudgment of an issue is not
allowed, a challenge to a decision on the grounds of departmental bias is
unlikely to succeed. It is a Minister’s job to have a policy and to support it
in public.
and De Smith, Woolf and Jowell’s
Judicial Review of Administrative Action (1995) at paras 12-042 to 12-050:
Closely related to the doctrine of
necessity is that which permits public officials to exhibit certain kinds of
bias in the exercise of their judgment or discretion on matters of public
policy…
…
The
normal standards of impartiality implied in the adjudicative setting cannot
meaningfully be applied to a body entitled to initiate a proposal and then to
decide whether to proceed with it in the face of objections. What standards
should be imposed on the Secretary of State for the Environment when he has to
decide whether or not to confirm a compulsory purchase order or clearance order
made by a local authority… or to allow an appeal against refusal of planning
permission? It would be inappropriate for the courts to insist on his
maintaining the lofty detachment required of a judicial officer determining a
lis inter partes. The Secretary of State’s decisions can
governmental responsibilities.
These passages are supported by a number
of authorities, including R v Hereford and Worcester County Council,
ex parte Wellington Parish Council [1996] JPL 573, where Harrison J held
that the ‘Gough‘ test (real danger of bias) had no application in such a
case. All that was required was that the authority did not approach their task
with a closed mind.
But the question we have to answer is
whether the position under domestic law can withstand the unqualified
procedural right conferred by Article 6. We do not think it can. The common law
approach has inevitably been determined by the constraints imposed by
legislation. The logic is that if legislation vests a decision in a person who
is biased, or provides for a decision to be taken in a manner that is not
compatible with the requirements of independence and impartiality, no breach of
the requirements of fairness can be found. Such requirements of fairness as
there may be must be accommodated to the relevant statutory scheme. But the
question now is not how Article 6 can best be accommodated in the interests of
fairness, given the existing statutory scheme, but, rather, whether the scheme
itself complies with Article 6. To accept that the possibility of common law
bias is inherent in the system and mandated by parliament is merely to admit
that the system involves structural bias and requires determinations to be made
by a person who is not impartial.
It must follow from these conclusions
that the Secretary of State is not impartial in the manner required by Article
6, because, in each case, his policy is in issue. This is not, of course, to
say that there is anything wrong with his role as a policy maker. What is
objectionable, in terms of Article 6, is that he should be the judge in his own
cause where his policy is in play. In other words, he cannot be both policy
maker and decision taker. In the Alconbury case there is the added factor of
the financial interest of the government. In the LG case, as we think in any
case where the SSETR, through the Highways Agency, promotes HA and CPO orders,
it cannot possibly be said that, as a decision maker, the SSETR is objectively
impartial. He is a party to the cause in which he is also the judge. Where the Highways
Agency is simply a party at the inquiry, as in the Alconbury case, the same may
also be said. The point has less force in the case of the HSE.
High Court’s powers of review
Earlier in this judgment, we identified
the grounds of statutory challenge to decisions made under the legislative
provisions relevant to these four cases, namely the grounds under section 288
of the TCPA, section 22 of the TWA, para 2 of Schedule 2 to the HA and section
23 of the ALA. All of those grounds are in broadly similar form. Put shortly,
they are that the decision was outside the powers of the relevant Act or that
there was a failure to comply with a relevant requirement. Those grounds
involve consideration of the same principles of review as are involved in
judicial review under what is now CPR Part 54. In other words, the scope of
review by the High Court in all these cases involves consideration of the
normal principles of judicial review that have now become well established.
The conventional grounds of challenge were
stated by Lord Denning MR in Ashbridge Investments Ltd v Minister of
Housing and Local Government [1965] 1 WLR 1320 at p1326G in the following
terms:
it seems to me that the court can
interfere with the Minister’s decision if he has acted on no evidence; or if he
has come to a conclusion to which on the evidence he could not reasonably come;
or if he has given a wrong interpretation to the words of the statute; or if he
has taken into consideration matters which he ought not to have taken into
account, or vice versa; or has otherwise gone wrong in law. It is identical
with the position when the court has power to interfere with the decision of a
lower tribunal which has erred in point of law.
The courts have made it clear on a number
of occasions that they are only concerned with the legality of the decision,
not with the merits of the case. The following two examples illustrate the
position. First, in Tesco Stores Ltd v Secretary of State for the
Environment [1995] 2 PLR 72, Lord Hoffman stated at p94G:
The law has always made a clear
distinction between the question of whether something is a material
consideration and the weight which it should be given. The former is a question
of law and the latter is a question of planning judgment, which is entirely a
matter for the planning authority. Provided that the planning authority have
regard to all material considerations, they are at liberty (provided that they
do not lapse into Wednesbury irrationality) to give them whatever weight
the planning authority thinks fit or no weight at all. The fact that the law
regards something as a material consideration therefore involves no view about
the part, if any, which it should play in the decision-making process.
This distinction between whether
something is a material consideration and the weight which it should be given
is only one aspect of a fundamental principle of British planning law, namely
that the courts are concerned only with the legality of the decision-making
process and not with the merits of the decision. If there is one principle of
planning law more firmly settled than any other, it is that matters of planning
judgment are within the exclusive province of the local planning authority or
the Secretary of State.
Second, in Reid v Secretary of
State for Scotland [1999] 2 AC 512, Lord Clyde put it in this way at p541:
Judicial review involves a challenge to
the legal validity of the decision. It does not allow the court of review to
examine the evidence with a view to forming its own view about the substantial
merits of the case. It may be that the tribunal whose decision is being
challenged has done something which it had no lawful authority to do. It may
have abused or misused the authority which it had. It may have departed from
the procedures which either by statute or at common law as a matter of fairness
it ought to have observed. As regards the decision itself it may be found to be
perverse, or irrational, or grossly disproportionate to what was required. Or
the decision may be found to be erroneous in respect of a legal deficiency, as
for example, through the absence of evidence, or of sufficient evidence, to
support it, or through
to take account of a relevant matter, or through some misconstruction of the
terms of the statutory provision which the decision-maker is required to apply.
But while the evidence may have to be explored in order to see if the decision
is vitiated by such legal deficiencies it is perfectly clear that in a case of
review, as distinct from an ordinary appeal, the court may not set about
forming its own preferred view of the evidence.
The extent to which the court may have
regard to material errors of fact was touched upon by Lord Slynn in R v Criminal
Injuries Compensation Board, ex parte A [1999] 2 AC 330, when he said at
p344G:
Your Lordships have been asked to say
that there is jurisdiction to quash the board’s decision because that decision
was reached on a material error of fact. Reference has been made to Wade
& Forsyth, Administrative Law, 7th ed (1994), pp316-318 in which it is
said:
‘Mere factual mistake has become a
ground of judicial review, described as ‘misunderstanding or ignorance of an
established and relevant fact’. [Secretary of State for Education and
Science v Tameside Metropolitan Borough Council [1977] AC 1014,
1030], or acting ‘upon an incorrect basis of fact’… This ground of review has
long been familiar in French law and it has been adopted by statute in
Australia. It is no less needed in this country, since decisions based upon
wrong facts are a cause of injustice which the courts should be able to remedy.
If a ‘wrong factual basis’ doctrine should become established, it would
apparently be a new branch of the ultra vires doctrine, analogous to finding
facts based upon no evidence or acting upon a misapprehension of law.’
De Smith, Woolf and Jowell, Judicial
Review of Adminstrative Action, 5th ed (1995), p288:
‘The taking into account of a mistaken
fact can just as easily be absorbed into a traditional legal ground of review
by referring to the taking into account of an irrelevant consideration, or the
failure to provide reasons that are adequate or intelligible, or the failure to
base the decision upon any evidence. In this limited context material error of
fact has always been a recognised ground for judicial intervention.’
For my part, I would accept that there
is jurisdiction to quash on that ground in this case, but I prefer to decide
the matter on the alternative basis argued, namely that what happened in these
proceedings was a breach of the rules of natural justice and constituted
unfairness.
So far as planning policy is concerned,
the courts have made it clear that, if the determining authority is going to
depart from its policy, it has to give its reasons for doing so, but that the
weight to be attached to the policy is a matter for the determining authority
alone: see EC Gransden & Co Ltd v Secretary of State for the Environment
[1986] JPL 519 and Wycombe District Council v Secretary of State for
the Environment [1988] JPL 111. As we have already said, the court also has
a restricted power to review decisions on the ground of alleged bias. When
exercising its reviewing function, the court does have power to hear oral
evidence, although that power is rarely exercised.
The scope of the High Court to review the
kind of decisions involved in these four cases is, therefore, restricted in the
way that we have described above. It is only concerned with the legality of the
decision, and it is not
merits of the case. The merits of the case and questions of planning judgment
are for the determining authority, not for the court. It seems to us that, in
para 44 of its judgment in Bryan, the ECtHR gave a fair summary of the
nature of the scope of the review of the High Court in the kind of cases with
which we are concerned.
Are the processes involved in these
cases saved by the High Court’s powers of review?
This is the crucial question that we have
to answer, having regard to ‘matters such as the subject matter of the decision
appealed against, the manner in which that decision was arrived at, and the
content of the dispute, including the desired and actual grounds of appeal’: Bryan
para 45. We know, of course, what the subject matter of the decisions in
question is (planning permission, TWA, HA and CPO orders) and the manner in
which those decisions will be arrived at. We know broadly the content of the
dispute in each case. But, at this stage, we cannot know anything about desired
or actual grounds of appeal. This led to the suggestion by Mr Paul Stanley, for
the Nene Valley Association and HuntSNAP, that these applications were
premature. The same point was made in County Properties. The judge
rejected it, saying at p975G:
The suggestion that the adequacy of the
right of appeal cannot be judged until the grounds on which the petitioners
seek to bring the respondents’ decision under review are identified is in my
view not only unsound in principle but also thoroughly impractical. As…
counsel… submitted, it would be unreasonable to require the petitioners to
defer their challenge to the validity of the call-in decision until after the
inquiry process had run its course, a decision had been made, and it was
possible to say for certain whether in the circumstances the statutory appeal
afforded an adequate review to comply with art 6(1). Considerations of both
time and expense make that approach unattractive.
We find this reasoning compelling. All
other parties to these applications supported it.
We have already said why we think the
SSETR is not independent or impartial. This must be balanced against the
safeguards inherent in the process, the most important of which is the public
inquiry. The rules under which such inquiries are held are designed to, and do,
we think, give the parties a fair and public hearing at which all issues of
fact and law can be ventilated. If the decision was for the inspector, we have no
doubt, as in Bryan, that this would justify a restricted right of review
by the High Court. But that is not the case. The inspector reaches conclusions
and makes recommendations at the end of the inquiry, and the SSETR cannot
disagree with his material findings of fact without giving the parties the
opportunity to make written representations. But, having complied with this
requirement of natural justice, he is free to make his own decision, and does
so after taking account of internal legal and policy ‘elucidation’ and the
recommendation of the decision officer (paras 62, 63 and 64 above), which are
not seen by the parties.
We do not think that this process
contains sufficient safeguards to justify the High Court’s restricted power of
review. In terms of Article 6, the decision on the merits, which usually
involves findings of fact and planning judgment, has not been determined by an
independent and impartial tribunal, or anyone approaching this, but by someone
who is obviously not independent and impartial.
We have to say that we are not pleased to
reach this conclusion, which will obviously have far-reaching consequences. The
system has generally worked well, and we should like to think that it was fair.
But Article 6 does require us to think again, and we do not think that we can
avoid the conclusions we have reached. If one asks the question ‘would those
whose civil rights and obligations are at issue in these cases have them
determined on the merits by a tribunal that was, or was largely, independent
and impartial’, the answer must be ‘no’. Our attention has been drawn to the
Privy Council’s decision in Brown v Stott 5 December 20001,
where Lord Bingham said at para 32:
The general language of the Convention
could have led to the formulation of hard edged and inflexible statements of
principle from which no departure could be sanctioned whatever the background
or the circumstances. But that approach has been consistently eschewed by the
Human Rights Court throughout its history. The case law shows that the court
has paid very close attention to the facts of particular cases coming before it
giving effect to factual differences and recognising differences of degree.
1 Reported at 2000 SLT 59
We hope that we have recognised this in
our judgment. But however flexible and friendly one makes Article 6(1), we do
not think that one can escape from the conclusion that the processes in issue
in these cases are not compatible with it. To hold otherwise would
substantially impair the right.
In support of his submissions, Mr Elvin
urged that the Convention was concerned to maintain and promote the ideas and
values of a democratic society. Planning and transport policy and decisions
were often sensitive political issues for which governments were held
responsible in democratic societies. Because judges were not accountable in
this way, it was desirable for such decisions to be made by government without
interference from the courts, provided they were made lawfully.
We
agree with much of what Mr Elvin says. It is not for us to decide how the
system needs to be changed in the light of our decision, although it is obvious
that government has been considering the options for some time. Our decision
should not be interpreted as a bid for more judge power. This is a specialist
field, in which most judges would be unqualified to make value judgments of the
kind that have to be made. Most judges would not want to do so. With PINS, the
SSETR already has at hand a cadre of sufficiently independent specialists well
equipped to
required to have regard to government policy.
Should the scope of the court’s
powers of review be enlarged?
Here the SSETR’s argument is that the
court, as a public authority, must not act in a way that is incompatible with
the Convention (section 6 of the HRA), and so it must, if it can, read and give
effect to the relevant legislation (section 3(1) of the HRA) and/or enlarge its
own powers by way of judicial review so as to save the processes in issue. In
support of this argument, Mr Elvin obviously contemplated that the court would
undertake a more intensive review of findings of fact, but submitted that it
would not be necessary to review matters of planning judgment.
There are principled and practical
objections to these arguments. The first objection in principle is that it is
not possible to read and give effect to the legislation, which, quite plainly,
precludes ‘full’ appeals or appeals against findings of fact, to accommodate
any enlarged power of review, and it would not be right to do so by the back
door of judicial review. Judicial review is a review and not a full appeal. The
court’s powers to review findings of fact are circumscribed by the nature of
the process. Second, the court’s powers under the legislation, and on judicial
review, are limited to quashing the decision in question. If the court quashed
TWA, HA or CPO orders made in these cases because the process did not comply
with Article 6, the cases could only go back for redecision by the SSETR, so
the court would not have provided an effective remedy. That would be a breach
of Article 6 (see Kingsley v United Kingdom 35605/97 unreported 7
November 20001 paras 58 and 59, where the ECtHR held that there was
a breach of Article 6 because the English court could only quash the decision
in question, which meant that the matter would have to go back for decision by
the same authority, which was not impartial). The practical objection is that
if the court were to consider extending its powers, it should not do so other
than on a case-by-case basis, or at least where it had a set of facts to consider.
Here, the exercise we are being asked to perform is entirely hypothetical. We
decline to do so.
1 Now reported in The Times 9
January 2001
Section 6 of the HRA
It is common ground that if the TWA, HA
and ALA processes do not comply with Article 6, and cannot be made to do so (as
we have found), this is because the primary legislation requires the Secretary
of State to take the relevant decisions, and so he cannot act differently:
section 6(2)(a). His acts are not, therefore, unlawful under section 6(1). This
enables us to make a declaration of incompatibility under section 4, but we
have said that we will hear argument about this and any other relief after
handing down this judgment.
There are, however, section 6 issues
about the planning processes. In the call-in cases, HB and PL argue that
section 6(2) does not apply, because
a way that is compatible (section 6(2)(b)) with Article 6; alternatively, if
such a question does arise, section 77 can be given such effect. In the case of
recovered appeals, ADL, supported by the amicus and others, argues that
the relevant provisions can be given effect because they give the SSETR a
discretion as to whether to recover the appeal. So the provisions can be given
effect by choosing not to recover.
We
deal with section 77 of the TCPA first. Mr Stephen Hockman QC, for HB,
submitted that the court was only concerned with the call-in decisions in these
cases and so it did not need to speculate about whether it was possible for
other call-ins to be made that would not involve a breach of Article 6. But if
one had to speculate, there were cases, such as where a local planning
authority had to give themselves permission, where there would not be a breach
of Article 6, because the local planning authority had no Convention rights.
Alternatively, section 77 could be read down even to the extent that the SSETR
could never call in.
We do not accept these submissions. It
seems to us that where the point is raised (as it is), the court is bound to
consider whether the provision in question can ever be given effect to in a way
that is compatible with Convention rights. Once a planning application is
called in, the legislation requires the Secretary of State to decide it. As all
such cases involve the use of land, in practice there are unlikely to be any
cases in which the civil rights or obligations of persons eligible to take
proceedings under section 7 of the HRA are not affected. The fact that a local
planning authority may not be so eligible (section 7(7) of the HRA and Article
34 of the Convention) does not mean that the authority, which are not the
government (ie a high contracting party), have no rights under Article 6. We do
not think it is legitimate to read down a legislative provision so as to
extinguish it. It follows that we think section 6(2)(b) of the HRA applies to
section 77 of the TCPA, and so the SSETR’s acts are not, and will not, be
unlawful under section 6(1) in the HB and PL cases.
It is argued that the position is
different for recovered appeals. Here, the provisions of the legislation in
question (sections 78 and 79 and paras 1 and 3 of Schedule 6 to the TCPA) give
the SSETR two powers: a power to delegate his decision to an inspector and a
power to recall a decision to himself. These provisions can be given effect in
a way that is compatible with Article 6 by not exercising the power to recover.
The fact that this does away with the power to recover and converts the power
to delegate into a duty to do so is irrelevant. A public authority does not
fail to give effect to a statute if they invariably use one of two powers
conferred on them, if that is the only way of achieving compatibility with the
Convention.
We have not found this an easy issue to
resolve. On analysis, we think the answer depends upon what is meant by ‘one or
more provisions’ in section 6(2)(b). If it refers to the whole statutory scheme
by which appeals under section 78 are to be decided, we think the submissions
that we have set out above are correct. On the other hand, if it refers simply
to the provision by which the Secretary of State can recover appeals under
para 3 of Schedule 6, then we think that section 6(2)(b) does apply, for the
same reasons that it applies to section 77. In other words, this provision
cannot be given effect in a way that is compatible with Article 6. On balance,
we prefer the latter view. Looking at the matter more generally, sections 78
and 79 cast the primary duty of deciding appeals on the Secretary of State. We
have held that he cannot do so in a way that is compatible with Article 6. It
would be somewhat anomolous if the case did not fall within section 6(2). It
follows that we think that section 6(2)(b) also applies to recovered appeals,
and so the Secretary of State’s acts are not, and will not be, unlawful under
section 6(1) in the ALD case.
Domestic law challenge
HB’s main complaint is that the SSETR has
not given any reasons to make it clear whether he was treating the application
as coming within his call-in policy and, if so, why, or whether he was
departing from the policy, and, if so, why.
The
SSETR’s call-in policy is contained in para D7 of Annex D to PPG 11.
It states:
The Secretary of State may require
applications to be referred to him for decision but this call-in power has in
recent years only been exercised in around 130 cases each year. The policy of
the Secretary of State is to be very selective about calling in planning
applications, and such action is generally taken only if planning issues of
more than local importance are involved. Examples are applications which raise
significant architectural and urban design issues, which could have wide
effects beyond their immediate locality, which give rise to substantial
national or regional controversy, which may conflict with national policy on
important matters, or where the interests of foreign governments may be
involved.
1 General policy and
principles February 1997
The site to which HB’s application
relates lies within an area allocated for oil storage in the local plan. The
application therefore involved a departure from the development plan. In his
report to the town planning committee, the council’s director of planning
stated that, for reasons set out in his report, he did not consider the
application to be a major departure warranting referral to the SSETR for his
determination, pursuant to the Town and Country Planning (Development Plans and
Consultation) (Departures) Directions 1999.
Mr Hockman submitted that there was
nothing in the reasons given by the SSETR in his call-in letter on p172 above
to suggest that the application was of more than local importance so that,
under the SSETR’s call-in policy, it would not normally be called in for his
determination. HB’s 1997 application for its present site on the Charfleet
industrial estate, which was ultimately determined by an inspector on appeal,
had not been called in, and comparison was made with the Alconbury proposal,
which was of significantly greater importance, but which had not been called in
by the SSETR. It was therefore submitted that the SSETR’s decision to call in
the
In support of his contention of
arbitrariness, Mr Hockman relied upon a passage in the judgment of Sedley LJ in
R v Secretary of State for Education and Employment, ex parte B (a
minor) [2000] 1 WLR 1115, which was an education case. When dealing with
the principles relating to the exercise of discretion in relation to the policy
relevant in that case, Sedley LJ said at p1132C:
Thirdly, it must not be exercised
arbitrarily or inconsistently as between one pupil and another… Everything
therefore depends on there being adequate factual reasons for either agreeing
or deciding to depart from a policy.
In support of his ‘reasons’ challenge, Mr
Hockman relied upon EC Gransden &Co Ltd v Secretary of State for
the Environment [1986] JPL 519, where Woolf J, as he then was, said that if
a body is going to depart from its policy, it had to give clear reasons for
doing so.
In our view, it is important to bear in
mind that, under section 77 of the TCPA, the Secretary of State is given a very
wide discretion whether to call in an application for his own decision.
Furthermore, there is no statutory requirement for him to give reasons for his
decision whether or not to call in an application. In fact, he has given his
reasons in this case, although he was not statutorily obliged to do so. Those
reasons are now relied upon by HB as giving rise to the need for further
reasons as to whether he has treated the application as coming within his
policy. In our judgment, it was not incumbent upon the SSETR to give the
further reasons suggested. The call-in policy contained in para D7 of Annex D
of PPG 1 is not an exclusive policy, as is made clear by the word ‘generally’
in the policy. The SSETR was not, in our view, under any duty to explain
whether he considered the application to come within the generality of the
policy, in the sense of involving issues of more than local importance. He gave
clear reasons why he had decided to call in the application, and there was no
need for him to go any further than that.
While we can understand HB’s
disappointment in having its application called in, the SSETR has a wide
discretion whether to call in an application, which he has to exercise on a case-by-case
basis. We do not consider that it can be said that his decision to call in HB’s
application was arbitrary, nor can it be said to be perverse or irrational. In
those circumstances, we do not accept the submission that the decision should
be quashed on domestic law grounds.
Conclusions
The processes involved in these four
cases are not compatible with Article 6(1) of the Convention, but the SSETR has
not acted, and will not act, unlawfully under section 6(1) of the HRA, because
section 6(2) applies. We will hear argument whether we should make declarations
of incompatibility in respect of these processes.
HB’s domestic law challenge failed.
