On December 13, 2000, the Divisional Court handed down a startling decision which had enormous implications for the planning world, and potentially for spheres beyond. By May 9, 2001, the House of Lords had overruled it. Those who thought the planning system needed revision were disappointed, but the pragmatic logic of the decision is perhaps difficult to fault.

Four cases came before the court, which are commonly known as R vs The Secretary of State for the Environment, Transport and the Regions ex parte Alconbury Developments.

The company had applied for consent to develop an airfield as a distribution and warehouse site. The land was owned by the Ministry of Defence, which had a financial interest in the project because it had made a profit-sharing agreement with the developer.

Consent was refused and, after the company appealed, the Secretary of State called in the case for his own final determination. This was a common enough procedure, but some objectors to the scheme complained that if the Secretary of State was allowed to make planning policy and to take decisions on individual applications, it was impossible to have a fair hearing.

Breach of rights
Two judges in the Divisional Court ruled that this amounted to a breach of article 6 of the European Convention on Human Rights, the right to a fair trial.

This was described as a landmark decision, but the outcome was not entirely surprising. On the one hand, the dual roles of a minister in these circumstances will strike many as potentially unfair, and a challenge of this type was anticipated before the Human Rights Act came into force.

On the other hand, (assuming that the minister is acting in good faith), the question must be asked whether there is really a practical alternative to the system with which we're familiar?

Ruling on the specifics
The Secretary of State is clearly the appropriate person to lay down policy on planning matters. Assuming that there are substantial matters to be dealt with on a planning appeal, who better to deal with it than the elected representative who has a duty to take into account the wider public interest as well as the interests of the participants in the planning application?

Is the person who made the general policy really incapable of deciding fairly whether or not the criteria have been satisfied in a specific case? Consider what would have happened if the same principle had been applied to other spheres of activity.

First of all, local planning authorities establish and publish their own local policy but, under this logic, would have been unable to make any local decisions. The Court of Appeal gives sentencing guidelines and practice directions (for the sake of consistency and certainty), but would be unable to consider appeals which arise from their implementation. Once a licensing authority determines local policy, who would decide on individual applications? The examples are legion.

The House of Lords has now decided that the setting of planning policy in the national interest was not incompatible with ruling on the merits of individual cases. If the Secretary of State acts lawfully and reasonably, takes into account all relevant factors, and makes rational decisions he will not fall foul of the Human Rights Act. Crucially, the House of Lords felt that the availability of judicial review of a minister's decisions satisfied the article 6 requirement for a fair trial before an independent and impartial tribunal.

  • Kevin Fletcher is a partner at Weightmans.

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