These are uncertain times for the planning system in this country. Cases north and south of the border have raised fundamental challenges to the way that planning decisions are taken. The Government must have expected some challenges when the European Convention on Human Rights was given domestic force by the Human Rights Act 1998, but it cannot have expected the succession of key decisions that have found the planning system falling short of the standards required by the Convention.
Five weeks ago, the House of Lords finished hearing oral submissions in the Alconbury case.
Their Lordships are now considering whether the planning roles of the Secretary of State for the Environment, Transport and the Regions (DETR) are in breach of the right to an independent and impartial tribunal under Article 6 of the Convention, as the High Court concluded in that case, or are compatible with the Convention, as counsel for the Government have argued.
Their Lordships have also heard submissions from counsel for the Scottish ministers, as the the House of Lords’ decision is likely to be influential in future Scottish planning cases. There is confident talk that their Lordships will be sympathetic to the submissions presented for the Government, and that the decision of the High Court will be overturned. However, until the House of Lords delivers its judgment (which may be a month or more away), the future structure
of town and country planning remains in doubt. The findings of the High Court in Alconbury
provide some pointers to the ways a new, improved human rights planning system might be developed.
Can the policy maker also decide?
Two of the four applications considered by the High Court in the Alconbury case related to
the Secretary of State’s decision to call in decisions for his own determination (Holding and Barnes and Premier Leisure).
A third application (Alconbury) involved an appeal against refusal of planning permission where the Secretary of State ‘recovered’ responsibility for making the decision from the Planning Inspectorate. The High Court concluded that where the Secretary of State was both policy maker and decision taker, he could not be an independent and impartial tribunal.
The Secretary of State did not claim that he was an independent and impartial tribunal. He argued that different sections within the DETR determined policy and planning decisions. He went on to say if that argument did not persuade the court (which it did not), then the process was saved by the further appeal that lay to the High Court. This submission also failed to convince the High Court, as the High Court in such an appeal can only consider legal arguments, and not the original merits of the case.
If the House of Lords follows the High Court on this point, the Government would need to consider what steps could be introduced to make decision-making more obviously independent and impartial. The Planning Inspectorate could be released from its relationship with the Secretary of State and be given a new and independent existence.
It might even be restructured as a new Environmental Court, although the Government has shown little enthusiasm for this to date. It is possible that leaving all planning decisions for the Planning Inspectorate, without cutting its ties with the DETR, might be sufficient, as was suggested in the Bryan case.
The High Court could be given an expanded role in those planning appeals that it considers, encompassing a power to review the planning merits and legality of the planning decision.
This may be a more attractive option if the Secretary of State wishes to continue to determine the major decisions himself (whether on appeal or by call in), and ensures compliance with Article 6 by providing access to an independent and impartial tribunal.
