Examination of witness (Questions 40 -
56)
TUESDAY 28 MARCH 2000
PROFESSOR MALCOLM
GRANT
40. It is already a complicated issue, so it
is not just to do with the inspector, is it? Therefore, should
not the government office look carefully at what is going on in
the localities and say that they know it will be difficult and
get involved early, whereas a system of appeals could proceed
fairly quickly where it is more clear-cut, but the appellant obviously
does not like it and objects and hopes he may win? They are of
a different nature, are they not?
(Professor Grant) Yes, I think they are. That is why
we need a bifurcated system, in which there is a straightforward
appeal system, such as we have at the moment—all we are
talking about in that system is putting it on a different footing—and
then a system in which there needs to be an accountable process
involving government Ministers.
Chairman
41. On the matter of the Environmental Court,
the Aarhus Convention suggests that one is necessary. Do you agree
with that?
(Professor Grant) Yes, I do for two reasons. One is
that on the handling of a third-party right of appeal I do not
believe there should be a completely unconditional third-party
right of appeal. I think that would lead to abuse. The experience
in the Republic of Ireland has seen other developers appealing
against a competitor's development, which is an abuse of the process.
If there were an Environmental Court with a standing jurisdiction,
there would be the capacity to introduce criteria and to throw
out of court quite quickly frivolous appeals.
Mrs Dunwoody
42. How would you protect the small person who
is not able to get highly expensive environmental lawyers? It
sounds to me as though you are creating a whole new profession
of people who do nothing except appear before the Environmental
Court.
(Professor Grant) I do not think we are creating a
new profession. There is quite a number of them already.
43. It is a sort of career structure.
(Professor Grant) I believe the difference is that
if you have inspectors with standing jurisdiction, they have a
capacity for people to come before them to talk about the appeal
and to advise them whether it will go ahead or not. With an Environmental
Court there is the capacity for much greater informality in the
way in which things are dealt with. I would introduce criteria
that said that you have a third-party right of appeal only in
certain cases, for example, if the appellant put in a submission
to the local planning authority in the first place—that
is the Australasian model—or if the case is particularly
important, which is the Swedish model. For example, did it involve
an environmental impact assessment, so that it has been identified
initially as an important case? Is there a departure from the
development plan? Is the local authority interested, in the sense
of owning the land about which the appeal is concerned? Those
are all potential ways of filtering out. The second component
of the Environmental Court is the Aarhus Convention which suggests
that the Government will need to find a way of sharpening up enforcement.
Christine Butler
44. But it is not ratified.
(Professor Grant) It is not ratified, but if we are
signatories to it that would suggest that we may be ratifiers
in due course.
Chairman: Do you know why we have not ratified
that?
Christine Butler
45. It is not us, but others who have not done
so.
(Professor Grant) I believe there are only four ratifications
plus the EU so far. It requires a ratifying state to introduce
a means for citizens to bring proceedings for the enforcement
of environmental law against industry and other citizens, which
presently does not exist.
Chairman
46. Every time we talk about environmental law,
we picture more lawyers and more legalism. Do you think that you
could make it much easier for ordinary people to cope on their
own, without having to employ lawyers?
(Professor Grant) The answer to that lies in the experience
elsewhere, particularly in the Australasian models of environmental
courts. Perhaps the most successful of those has been that in
New South Wales which has been running since 1979 and which provides
a quick and relatively cheap procedure. I do not believe that
one can simply transplant a model that has evolved in another
culture into our culture, but I believe that we can learn a lot
of lessons from that.
Mrs Dunwoody
47. Does that have the little steps about which
you were talking?
(Professor Grant) Yes, indeed.
48. Does it do it by a filtering process?
(Professor Grant) Yes, it has its own filtering process[2].
Mr Brake
49. What idea, if any, do you have of the size
of the Environmental Court or tribunal? Would it have more resources
than the Planning Inspectorate, or fewer?
(Professor Grant) I believe that resource follows
function. If it were to deal with third-party rights of appeal
and enforcement, it clearly would need more resources than the
inspectorate has at present. I believe the most appropriate model
would be like the New South Wales model, of using the Planning
Inspectorate as the bottom tier, the tribunal tier, and having
a court tier with the similar flexibility of the New South Wales
model, which is that you can use informal processes, use ADR as
a way of avoiding the megaphone style of environmental debate
that we often have at local inquiries. You can also have a speedy
response from the judges dealing with the points of law that arise
from inquiries being held by the tribunal tier.
Chairman
50. Are the Woolf reforms so far as civil procedures
are concerned working and are they the sort of thing that you
would like to see used in the Environmental Court?
(Professor Grant) As to whether they are working,
I believe they are starting to work, having overcome an inevitable
degree of resistance from many practitioners. They do not translate
exactly into an environmental court situation because they are
designed primarily for two-party litigation as opposed to multi-party
issues that arise in environmental litigation. By giving the decision-maker
the responsibility to run the process in the interests of justice
overall, and by giving the decision-maker procedural powers to
speed up things, I believe they have a lot to teach us in environmental
disputes, yes.
51. Do you think that we can suck it and see
what happens over the next two or three years, or should the Government
give some urgency to new planning legislation?
(Professor Grant) I hope that the Government is already
giving urgent consideration to new legislation. It would be unfortunate
to regard this as an opportunity for yet further marginal, pragmatic,
incremental tinkering with the existing system. This presents
a challenge and an opportunity for Government to review how planning
appeals are presently dealt with.
Mrs Dunwoody
52. On the whole, over 900 years the British
have done better with pragmatic tinkering of their legislation.
It means that people are less resentful. You are suggesting a
radical change. Forgive me but I am not convinced that it will
not actually be much more complex for ordinary people who want
straightforward protection for their rights in planning disputes
which can really change the quality of their lives.
(Professor Grant) I do not disagree with any of that.
It may be that what I propose enhances that very quality. A great
resentment of the planning system felt by people is that there
is no right of appeal for third parties. The only thing to do
is to complain to the Ombudsman or go to the High Court which
is a hugely expensive and cumbersome process. I do not believe
that we can stand back from that and assume that for the future
we can ignore the clamour for third-party rights of appeal. I
think the Human Rights Act forces the Government to confront the
matter. It may be that they can do so in a less radical way than
I am proposing, but it would be unfortunate if they were to ignore
those options.
Chairman
53. Do you see any evidence that the Government
is about to tackle this issue?
(Professor Grant) Mr Chairman, you may need to ask
Ministers that question.
54. I shall certainly do so, but I wondered
whether you had any evidence that people were getting down to
the thinking that you have implied we should look at?
(Professor Grant) No, I have no evidence. It is only
now that some of the potential opportunities of the Human Rights
Act are coming to bear on people's thinking.
Mr Blunt
55. Do you think that once the Human Rights
Act has had its inevitable effect on the planning system, that
it will be any fairer than it would be if it were developed incrementally
under English law without the Human Rights Act standing over it?
(Professor Grant) Fairness is in the eye of the beholder.
Fairness for one party, such as third parties, comes about potentially
at the disadvantage of the development industry. They may tell
you that a system involving third-party appeals would be unfair
because it would hold up investment in development. If you listen
to groups that are involved in third-party objections and applications,
you will hear that the Human Rights Act will produce a fairer
system.
56. Parliament can make those changes.
(Professor Grant) Yes, indeed.
Chairman: You have given us a fairly provocative
session. Thank you very much indeed.
2 Note by witness: The third party right of
appeal in New South Wales extends only to cases of so-called "designated
development" (usually proposals requiring environmental impact
are given), and only to appellants who have made submissions in
respect of the application to the local authority. Back
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