Examination of witness (Questions 20 -
39)
TUESDAY 28 MARCH 2000
PROFESSOR MALCOLM
GRANT
20. They do not have existing rights on the
site that they are trying to develop.
(Professor Grant) They may have. A large proportion
of such appeals involve individual citizens wishing to extend
their dwelling houses, to put up a garage or to build a house
in the back garden. It would be impossible to suggest that they
did not have civil rights and obligations that were being determined
under the convention.
Mrs Ellman
21. What policy changes would be required in
terms of local authority planning committees and the Planning
Inspectorate to make the rights compatible with the human rights
legislation in terms of planning?
(Professor Grant) I do not see any changes being necessary
at the level of local government. Given a right of appeal with
a hearing attached to it, the changes that would need to be made
on appeal are those that I have outlined already. I have to confess
that none of this is set in stone because all of us have quite
different views about what the Human Rights Convention may involve.
Had I been giving evidence six months ago I would probably have
been more conservative in my assessment of it, but since October
last year we have had these three terribly important cases that
must force Ministers to think afresh about the whole role of the
Planning Inspectorate.
22. Are your views and interpretation of this
unusual or compatible with others?
(Professor Grant) It is difficult to provide external
benchmarking for my views other than the evidence that you have
in front of you. I do not think that the views of others from
whom you have heard differ markedly from my own.
23. Do you see a changed role for the Parliamentary
Ombudsman in reviewing objections made to the procedures carried
out by the inspectors?
(Professor Grant) The Parliamentary Ombudsman has
jurisdiction at the moment. In his most recent report there is
a complaint against the Planning Inspectorate which is upheld.
I do not see a development of that jurisdiction because it does
not address anything to do with convention rights and the right
to be heard.
24. You do not see any changes there?
(Professor Grant) Not forced by the Human Rights Act,
no.
25. In order to make improvements to the system,
would you consider any changes?
(Professor Grant) No, I do not think so. The Parliamentary
Ombudsman's jurisdiction is probably roughly in accord with his
jurisdiction over all other departments. It would be difficult
to single out the Planning Inspectorate for differential treatment.
Chairman
26. Can you explain to the Committee what will
happen as far as the time scale is concerned? Presumably the legislation
comes into effect in the autumn.
(Professor Grant) Indeed.
27. There will not be a new planning Act before
the autumn. If someone appeals to the court based on a decision
taken in the autumn, what will happen in that process? Will the
decision be thrown out by the court or will the Government simply
be found at fault for not providing something and therefore the
individual is compensated?
(Professor Grant) The challenge, if and when it comes,
could take a variety of different forms. It would depend on what
sort of challenge was brought. For example, absence of a third-party
right of appeal may take a different form from a challenge by
someone who insists that the Planning Inspectorate's decision
on a developer's appeal has lacked independence. However, the
High Court would have jurisdiction to declare the activity to
be in contravention of convention rights and then it would be
a matter for the Government to consider what action they would
need to take.
28. In regard to the Trafford Centre in the
North West, a planning application was made in the late 1980s
and it took about five years for it to go through the process.
Would going to the European Court, or praying in aid the European
Court, make it even slower to get a decision?
(Professor Grant) There is a big problem. Undoubtedly,
there is a possibility that using the rights of the convention
will lead to delays in the system. There are ways of trying to
counter that. For a start, it will involve people taking additional
points in front of a planning inspector because planning inspectors
are part of the state for the purposes of the Human Rights Act.
If it involves third-party rights of appeal it will create a much
greater work load for planning inspectors. However, my starting
point on this matter would be to say, what is the right thing
to do? We must then consider how we can counter the tendency towards
delay and legalism rather than to use excuses based on procedures,
delays and costs as a way of preventing change from occurring.
29. It seems to me that there are two situations.
You could have new planning legislation and a new framework in
place, but in a sense we shall have to work the existing framework
for some time with that as an overriding consideration.
(Professor Grant) Yes, I do not believe that much
can be done about any of the points that I have raised today without
primary legislation.
Christine Butler
30. I shall use the phase "big business"
rather than an individual's right. I recognise that people put
in planning applications for small conservatories, but I am talking
about people who build whole estates of houses or develop supermarkets
and that kind of thing. Do you think that those big business interests
are helped unfairly under the present system?
(Professor Grant) I do not think that the system is
unfair.
31. Do you think that their interests are helped
unfairly under the present system?
(Professor Grant) Do you mean, do I think that their
interests are given too much prominence in the present system
and that it is unbalanced in their favour?
32. Yes.
(Professor Grant) No, I do not. I think that the advantage
that they have derives from the greater resources to which they
have access. Among a number of major developers there is big pressure
to introduce an expedited system for appeals which would deal
with those that are holding back needed investment in the local
economy and national economy. However, I think that the introduction
of a fast-track system simply for big developments would introduce
a great deal of resentment and unfairness within the system. I
believe that the present balance is about right. If you want to
discriminate between cases, you need a much more aggressive style
of case management such as has been introduced in the civil justice
reforms by Lord Woolf, so that planning inspectors can expedite
appeals if they so wish.
33. How would you describe the term "reasonable
time" within the ambit of the Human Rights Act?
(Professor Grant) It is impossible to put an a
priori definition on that.
34. We talk about it such a lot.
(Professor Grant) Yes.
35. It may have to go to Parliament, so what
is your suggestion?
(Professor Grant) It is impossible to put a definite
time on that.
36. What is reasonable?
(Professor Grant) It must vary in accordance with
the decision under review. There will be some cases where there
is great urgency, and I gave such an instance in my written evidence
to the Committee. There will be other cases where the urgency
is more an economic one than a personal one and where the other
considerations require proper balancing and proper weighing and
where it may be sensible to envisage that the decision will take
some years. The Terminal 5 inquiry is an example of decisions
taking time.
Mrs Dunwoody
37. That is a classic example of what is wrong.
Any other country in the world decides what are its transport
needs, carries out an environmental assessment, balances the interests
of the local people versus the needs of the nation as a whole
and comes to a sensible conclusion. We witter on for five years,
creating an enormous industry for those giving evidence and those
who represent the parties, and you are suggesting an explosion
of even more legalistic and environmental involvements which appear
to be a kind of bureaucracy gone mad.
(Professor Grant) I have to say that I believe there
is a great risk of that.
38. This is terribly important. I have listened
very carefully to what you have said, including what you have
said about the Environmental Court. What you describe is a nightmare.
(Professor Grant) I am grateful to you again for that.
I do not think it is a nightmare. I see the Environmental Court
as giving decision-makers the tools to run inquiries and appeals
properly, to run them in a way that will accord more closely to
the civil justice reforms of Lord Woolf in the civil courts, by
taking the management of the whole process out of the hands of
the parties, where it will run at the pace of the slowest party
in whose interest it is to buy delay, and run it in the interests
of achieving social justice, which may be a much faster process.
Christine Butler
39. Do you think a criteria should be set between
those sorts of applications where a decision could be made reasonably
quickly—and that should include empowerment—and defining
what will be a complex issue which may have to be in the hands
of a government office?
(Professor Grant) Yes, indeed.
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