Planning law and human rights

Citation

Waterson, G. and Lee, R. (2001), "Planning law and human rights", Property Management, Vol. 19 No. 4. https://doi.org/10.1108/pm.2001.11319dab.007

Planning law and human rights

Planning law and human rights

R v. Secretary of State for the Environment (etc.) ex parte Holding and Barnes’plcR v. Secretary of State for the Environment (etc.) ex parte Alconbury Developmenl LtdSecretary of State for the Environment (etc.) v. Legal and General Assurance Society Ltd

Readers may very well be aware of the background to this case, since there has been a great deal written in the professional and academic press on the subject of how far, if at all, the provisions of the Human Rights Act 1998, which came into force on 2 October 2000, may impinge upon UK property law in general and the planning system in particular.

In this case (or rather, in these cases), the particular question in issue was whether the procedures which exist under UK law whereby the Secretary of State has power to call-in planning applications for his own decision pursuant to s. 7 of the Town and Country Planning Act 1990, to determine planning appeals under ss.78-9 of the same act, and to make decisions concerning the exercise of compulsory purchase and similar powers under the Acquisition of Land Act 1981 and the Transport and Works Act 1992, were compatible with Article 6 of the European Convention on Human Rights, as incorporated into UK law by the 1998 Act, which guarantees the right to a fair hearing before an independent and impartial tribunal.

When the case(s) came before the Divisional Court of the Queens Bench Division of the High Court in December 2000 (reported at length at [2001] 05 EG 170) the decision of Tuckey L.J. and Harrison J. was probably pretty much as had been generally anticipated, to the effect that the relevant statutory provisions were incompatible with the terms of the 1998 Act, on the basis that the Secretary of State was not impartial in such cases since he was effectively making a decision based upon the policies which he himself (or his predecessors) had formulated.

In the words of the court:

It is common ground that the independence required by Article 6(1) is independence from the executive and from the parties. "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 [and] 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. It must follow 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 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 [consistently with Article 6] be both policy maker and decision taker [in cases such as these where] he is a party to the cause in which he is also the judge. [In consequence the court has concluded that] the processes involved in these cases are not compatible with Article 6(1) of the Convention.

On 9 May 2001, however, the case(s) came before the House of Lords, and a different decision was reached (reported in The Times on the following day).

Put briefly, the House of Lords disagreed with the findings of the court below. The decisions of the Secretary of State in such matters as these were subject to the process of judicial review. It had already been accepted by the European Court of Human Rights in Iskcon v. UK (Application No 20490/92) (1994) and in Bryan v. UK (Application No 19178/91) (1995) 21 EHRR 342 that in cases involving planning enforcement appeals the right of the unsuccessful appellant to challenge the decision by way of an application to the High Court for judicial review was sufficient to satisfy the requirements of Article 6. It was not required that any such judicial review should involve the court in reviewing government policy or in making a decision as to the overall merits of any planning decision. Indeed, any such requirement would not only be contrary to the jurisprudence of the European Court of Human Rights but would also be profoundly undemocratic.