House of Commons - Environment, Transport and Regional Affairs

Select Committee on Environment, Transport and Regional Affairs Thirteenth Report

THE PLANNING INSPECTORATE AND PUBLIC INQUIRIES

Future of the Planning Inspectorate

84. The Planning Inspectorate and the Inspector-based system of dealing with planning appeals developed during the twentieth century. The role of the Inspectorate as the principal body dealing with planning appeals was established by the Town and Country Planning Act 1947 and has since evolved through "a process of pragmatic development and adjustment"[130] to deal with changing requirements of the system. It is recognised that the current set-up is a relatively good one, which strives to allow parties the right to a fair hearing. Nevertheless, the evidence we received has pinpointed some areas where the Inspectorate and/or the planning appeals system is failing to satisfy its customers.

85. However, the future role and structure of the Planning Inspectorate is perceived by some to be in question as new legislation and rights come into force in the UK. Whatever one's perspective on this matter, it seems likely that some changes will need to be brought about to the planning appeal system. The key questions are really whether small changes to the way the Inspectorate operates will be sufficient or if a more dramatic overhaul is required, and whether the Government should act in advance of any test cases in the courts.

The Drive for Change

HUMAN RIGHTS ACT 1998

86. The Human Rights Act 1998 is the piece of legislation which formally incorporates the European Human Rights Convention into UK law. This will come into force in England on 2 October 2000 and is anticipated to have widespread implications for the way that Government, industry and society go about their business. Although various Articles of the Act will have implications for planning, the most important is Article 6, which protects the right to a fair trial:

"in the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law..."

This raises specific questions about the independence of the Planning Inspectorate from Government, whether existing systems cater for people's civil rights adequately, whether the inquiry is a 'fair and public hearing' and whether decisions are reached 'within a reasonable time'.

ACCESS TO ENVIRONMENTAL JUSTICE (AARHUS CONVENTION)

87. A further issue which may have implications for the planning appeal process is that of access to environmental justice. Professor Malcolm Grant noted the importance of the UK Government being a signatory to the Aarhus Convention, although the convention is not yet in force.[131] Within the Convention, there is an obligation to ensure access to a review procedure before a court of law and/or another independent and impartial body established by law. There is also an obligation to allow access by members of the public to administrative and/or judicial procedures to challenge acts and omissions by private persons and public authorities which contravene provisions of national law relating to the environment. Professor Grant writes that this can be considered to "extend broadly to planning decisions that are subject to environmental assessment."[132]

Implications

88. The debate over the implications of the Human Rights Act 1998 and the Aarhus Convention was very much a developing one during the course of our inquiry and continues to evolve. Nevertheless, we did attempt to reach some conclusions on the problems and opportunities posed by the Act and the Convention. We heard that the current system may fail to meet the requirements of these initiatives on a number of counts and that this could require various changes in the planning appeal system.

THE THIRD PARTY RIGHT OF APPEAL

89. At present, only a party refused planning permission has the right to appeal against a planning decision. For many years, there has been a debate about the equity of this situation, particularly whether someone whose property or activities will be affected by a development should have a right to appeal against permission being granted. Such a provision is termed the third party right of appeal since it relates to neither the developer or the local authority. Witnesses noted that the Human Rights Act 1998 and the Aarhus Convention can be interpreted as requiring some form of third party right of appeal.[133] While considering that a limited third party right of appeal might be sensible in the first instance, we can see difficulties in continuing to restrict the right as awareness of the Human Rights Act 1998 develops.

90. We heard cautious words from many witnesses about the number of additional cases which introducing a third party right of appeal would provoke. Both the Local Government Association and the Royal Town Planning Institute expressed concern that third party right of appeal would result in much additional work for the Planning Inspectorate and risked "clogging up" the whole planning appeals system.[134] We were given the example of Ireland where an unrestricted third party right of appeal has resulted in huge numbers of new cases and told that measures are now being taken to restrict this right.[135]

91. However, witnesses did suggest that a limited third party right of appeal could be introduced without bringing an avalanche of new appeals. For example, the CPRE told us of their proposal for a third party right of appeal to be introduced but restricted to those cases which clearly run contrary to the development plan. This, they estimated, would apply to less than 0.5% of planning applications[136] and they went on to describe the claims that third party rights of appeal would clog up the system as "greatly exaggerated". Other witnesses suggested different mechanisms for limiting the third party right of appeal : for example, to important cases only or to those involving land owned by the local authority.[137]

92. Whatever the practical considerations regarding the introduction of a third party right of appeal, we found Professor Grant's evidence about the absence of such a right most compelling:

138

Further, bodies such as the Royal Town Planning Institute have already accepted that the introduction of some form of third party right of appeal is "inevitable."[139]

93. We find the arguments for a third party right of appeal convincing. Regardless of the direct consequences of the Human Rights Act 1998 and the Aarhus Convention, the absence of such a right goes against the spirit of greater public involvement in planning. We were worried and disappointed that the Government do not appear to be giving active consideration to introducing a third party right of appeal, apparently because of the risk of introducing delays into the planning appeals system.[140] This principle is an important one and we recommend that the Government consult as soon as possible on the details of introducing a limited third party right of appeal, possibly restricted to those applications contrary to the development plan or are on land in which the local planning authority has an interest. Restrictions on the six month period allowed for appeals to be lodged should also be consulted upon. After consultation, the Government should act to introduce a third party right of appeal as soon as practicable.

ENVIRONMENTAL COURT

94. As already noted, the debate about the implications of the Human Rights Act 1998 and the Aarhus Convention is one of which our inquiry could only take a snapshot. Undoubtedly the most controversial proposal for how to accommodate these initiatives within the planning system was to introduce an 'environmental court'. There are a number of examples from other countries of successful environmental court systems such as those in Australian states (notably New South Wales), New Zealand and the Netherlands. The principal exponent of this idea was Professor Grant, who told us that the Planning Inspectorate could not be considered to be 'independent and impartial' as required by Article 6 of the Human Rights Act 1998.[141] Although the Inspectorate's impartiality is not in doubt, its independence is uncertain because of the links between the Government and the Inspectorate and the use of 'recovered' decisions where a case is taken out of the control of the Inspectorate and handled by the Secretary of State. Such cases can be considered to demonstrate that the right to a planning appeal being decided by a body independent of Government is not being met.

95. This problem forms the nucleus of the idea for introducing an environmental court which would be entirely independent of Government. However, witnesses disagreed over whether the current system was in contravention of the Human Rights Act 1998. The Minister told us that the case of Bryan v United Kingdom[142] had already settled that the Planning Inspectorate did qualify as an 'independent' body under the definition used in the Human Rights Act 1998 and that the provisions of Article 6 of the Human Rights Act 1998 are met by the existence of a judicial review framework.[143] However, Professor Grant wrote that this verdict was unsatisfactory and, after considering other cases, concluded that "questions remained" as to whether the independence of the Planning Inspectorate from the Executive would be sufficient to survive a challenge under the Human Rights Act 1998. The Royal Society for the Protection of Birds concurred and, after considering the implications of the case, concluded that "it seems unlikely that the Inspectorate can remain an executive agency."[144]

96. Although we have not been able within the context of this inquiry to come to a conclusion on the need for an Environmental Court, we did consider some aspects of introducing such a court. There are many aspects of the current system which we consider should be retained: the vast majority of the work the Inspectorate carries out and the methods it adopts are considered to be of high quality and there was clear respect from many witnesses for the work of the Inspectorate. There is also advantage in a system in which, for the most part, each contributor pays their own costs. One suggestion made to us was that the Planning Inspectorate could act as a 'court of first instance' to deal with the vast majority of cases, with an Environmental Court providing an upper tier for the more complex cases. This would provide a way of meeting the requirements of the Human Rights Act 1998 without substantially changing the mechanisms employed to deal with planning issues, or changing the way in which the Inspectorate works. This would ensure that the planning appeals system retains much of its accessibility and would also limit the legalistic nature of the whole process. This idea was backed by Professor Grant,[145] who is the author of a report to the DETR on this subject.[146]

97. The Royal Society for the Protection of Birds were broadly supportive of this plan although they noted the potential problems from New Zealand's experience :

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There are other good reasons for wariness about the proposed environmental court system: it could be seen as diminishing the role of local authorities in the planning process, the existing perception of an over-legalistic planning appeal process could be worsened and, since the Secretary of State would cease to be the final arbiter in planning, that the political accountability of major planning decisions would be lost.

98. There may be ways of testing the efficacy of an environmental court system without introducing a fully comprehensive system. For example, the Countryside Rights Association advocate the establishment of an environmental court system to deal specifically with one of the more troublesome categories of appeal, rights of way cases.[148] This could enable an assessment of the merits and disadvantages of the scheme prior to a more complete court being established.

99. If an Environmental Court is introduced, we recommend that the Planning Inspectorate be established as the first tier of that court. Any new system must be designed so as to retain the many strengths of the existing system of dealing with planning appeals. For the immediate future, it is important that any changes to the operation of the Inspectorate would not obstruct its subsequent integration into an Environmental Court system.

INDEPENDENT COMPLAINTS SYSTEM

100. We have already noted our concerns about the way the Inspectorate deals with complaints and the role and capacity of the Advisory Panel on Standards for the Planning Inspectorate. Although we urged the Inspectorate to adopt a better attitude to complaints, and the expansion of the Advisory Panel, we do not consider these to be complete solutions.

101. Witnesses also told us that the Human Rights Act 1998 would require an overhaul of the way in which complaints are dealt with by the Inspectorate.[149] Professor Grant told us that the Act would effectively require an independent body to deal with complaints.[150] This conclusion is based upon the fact that there have been cases before the European Court of Human Rights where the Court has held that a breach of Article 6 had not been rectified because the body to whom there was a right of appeal was not able to reassess the relevant evidence and thus itself decide the issue in dispute.[151]

102. Indeed, witnesses also expressed the view that it was unacceptable for complaints about the Planning Inspectorate to be dealt with internally.[152] It is now common practice for public bodies to have an independent complaints authority and we were somewhat surprised by the Inspectorate's apparent complacency that an internal system remained entirely adequate.[153]

103. We recommend that an independent board be established to deal with complaints to the Planning Inspectorate. This body should handle all complaints and be able to instruct the Inspectorate on how to deal with each complaint. The options available to the board would include the amendment of a decision (with the Inspectorate's agreement) and the re-opening of an appeal. Further details of the potential role of an independent board are outlined in Annex II.

104. Once an independent complaints board has been established, the role of the Advisory Panel on Standards for the Planning Inspectorate will need to be reviewed. We recommend that the Panel be retained to provide continued monitoring of the overall performance of the Inspectorate.

The Government's Response to the Need for Change

105. There are a number of factors at present which appear to point to the need for change within the planning appeals system. Whilst this does not necessarily mean a complete overhaul of the existing system is required, Professor Grant told us:

"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."[

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Although it is a developing debate, the Minister made it very clear to us that the Government was not considering introducing legislation and would now appear to be awaiting legal challenge to the status quo. The Minister told us that the Government was not expecting any changes to the structure of the Inspectorate or to the way it operates.[155] Similarly the Chief Planning Inspector told us that it was safe to "suck it and see" and that any changes which ultimately proved necessary would not be "fundamental".[156]

106. Witnesses noted their frustration with the lack of information provided by the Government on the impacts of the Human Rights Act 1998.[157] For example, the Local Government Association told us of their annoyance with the Department because it was not keeping the LGA informed about the implications of the Human Rights Act 1998.[158]

107. With the Home Secretary calling upon those outside Government to "wise up" to the implications of the Human Rights Act 1998, the Government's attitude as far as it affects the planning appeals system seems unhelpful. It is the Government's role to provide leadership and it must take active steps towards ensuring that the planning system is fully compatible with the Human Rights Act 1998 and the Aarhus Convention, rather than simply waiting to be told by a court that it is not.

130 Ev p65 (HC364-II) Back

131 Ratification by 16 states is required to bring the Convention into force. The EU and four states (not including the UK) have ratified so far. Back

132 Ev p70 (HC364-II) Back

133 Q4 Back

134 Q234 and Q74 Back

135 Q577 Back

136 Ev p31 (HC364-II) Back

137 Q43 Back

138 Ev p70 (HC364-II) Back

139 Q242 Back

140 Q577 Back

141 Q5 Back