Select Committee on Environment, Transport and Regional Affairs Memoranda


Memorandum by Professor Malcolm Grant, University of Cambridge (PI 34)

INTRODUCTION

  1.  I welcome this opportunity to provide evidence to the Committee in its study of the Planning Inspectorate. I note that the terms of reference that have been set by the Committee relate mainly to operational and detailed matters, and not to the broader question of the overall role of the Inspectorate, or its future in a changing world. Nonetheless, there is a reference to the impact of human rights legislation, and I propose therefore to use that as the framework on which to construct a broader view of the options for the future.

THE HISTORIC ROLE OF THE INSPECTORATE

  2.  The Inspectorate plays a central role in the land-use planning system in England and Wales. It handles an extensive caseload every year with increasing efficiency and a good level of customer satisfaction. Yet, as I have sought to demonstrate in Chapters 9 and 10 of my recently published research report, Environmental Court Project: Final Report[54], it is a role which has developed not from any intellectual design of an ideal dispute-resolution system, but from a process of pragmatic development and adjustment over the post-War period.

  3.  The operational origins of the Planning Inspectorate lie in various attempts during the nineteenth century to assist Parliament discharge its obligation of inquiring into disputed matters arising in Private Bill proceedings, by appointing inspectors to undertake local inquiries and report back. That was the model that was then institutionalised with the Housing, Town Planning &c Act 1909, which empowered the Local Government Board "to cause such local inquiries to be held as the Board see fit". A corps of inspectors was established. An inspector's function was to conduct a local inquiry and to report back to the Board (and subsequently, from 1932, to the Minister of Health). The inspector's report was secret, and any recommendations in it did not bind the decision-maker.

  4.  This model was inherited and extended by the Town and Country Planning Act 1947. Local inquiries were to be held for examining objections to development plans, for planning appeals and for miscellaneous other functions where the legislation conferred rights of objection against local authority action, such as the compulsory purchase of land, or the modification or revocation of planning permission. These were not voluntary concessions: all parties directly affected were given a right to be heard, which, unless waived, had to be satisfied either through a hearing or a public local inquiry.

  5.  Yet even in this extended model, the inspector's role was modest. It was as an assistant to the decision-maker, a civil servant employed by the Minister for the purpose. The inspector was the Minister's representative, dispatched to the locality to inquire and report back. The decision was made by the Minister (or, more commonly, by some other, more senior civil servant, on his behalf); not by the inspector.

THE PRESENT ROLE OF THE INSPECTORATE

  6.  The role of an inspector today is greatly different from that of 1947. In practice:

    (1)  The inspector no longer merely reports: the inspector decides. In 99 per cent of planning appeals, jurisdiction has been transferred entirely to the inspector. The inspector's functions have become more akin to those of a judge than to those of an assistant to the decision-maker. The transfer of jurisdiction is not complete: called-in cases are still reserved to the Secretary of State[55] (and take much longer); as are other cases such as compulsory purchase and advertisement control. But in most cases both the responsibilities and the approach resemble those of a specialist judge. The difference is that an inspector is not simply making findings of fact and applying rules of law to those findings, but also applying and advancing policy, often in a way that requires highly subjective judgement, such as on aesthetic considerations.

    (2)  The range of issues which stand referred to inspectors has broadened. Inspectors today decide or report on a wide range of land-related matters, from highways and footpaths to consents and permits relating to environmental pollution; from housing matters to local plans. These are not, strictly speaking, matters that are transferred to the Planning Inspectorate, because it has no separate legal identity. The Inspectorate is the agency that administers the process, undertakes the recruitment and training of inspectors, operates managerial case management and ensures quality control, but it lacks any standing jurisdiction of its own.

    (3)  The character of planning disputes has changed. The decision to implement the European Directive on environmental impact assessment primarily through the planning system, rather than setting up a separate or different consenting regime, means that local planning authorities and planning inspectors are increasingly involved in the application of European environmental law.

    (4)  The procedures of the public local enquiry have become increasingly legalistic. Extensive participation by lawyers in inquiries has inevitably led to their moulding the process in their own image. This creates an impression on the part of the parties that, if they succeed in the forensic debate, they deserve to win the case. Although the Secretary of State can and sometimes does reject inspectors' recommendations in cases where jurisdiction has not been transferred, it is inevitably a controversial decision and frequently leads to High Court challenge. Public inquiries perform best when there is great public interest in a proposal, and not only the parties but also the general public wish to be heard; and also where there is technical or other disputed evidence that needs to be closely tested. But they have proved to be too slow, too formal and too expensive for most appeals. Although costs are not awarded on the "loser pays all" basis of the civil courts, they are used as a penalty against parties who fail to play by the rules.

    (5)  The public local inquiry is no longer the principal mode of inquiry. There has been a wholesale shift on the part of users of the planning system, encouraged by successive Governments, to reliance on written representations or informal hearings in preference to public local inquiries. Public local inquiries are now used in only 8 per cent of all planning appeals. Informal hearings have grown steadily in popularity (now over 16 per cent), and the remaining decisions are taken on the basis of written representations and a site visit.

    (6)  The inspector's accountability in the courts has deepened with the growth of judicial review. Inspectors are directly accountable in the High Court, through the processes of statutory appeals and judicial review, for the manner in which they handle inquiries and for the reasons they provide for their decisions. They are not accountable in this forum for matters of policy, nor for the balance that their decisions strike between competing considerations. But they are expected, as a matter of law, to apply relevant policy (from the development plan or Government circular or PPG) or give adequate and relevant reasons why they have not. If their reasons are found to be inadequate, or contradictory, or to disclose some error of law in their approach to their task, the High Court may strike the decision down, and remit it for redetermination.

  7.  These changes, which have taken place incrementally over many years, mean that there is now a tension between the theory and the reality of the Planning Inspectorate. In theory, the process remains one of political accountability. All decisions are still made by or in the name of the Secretary of State (or, in Wales, the National Assembly). In practice, most decisions are made by inspectors, and political accountability for them is strictly limited because it does not sit easily alongside the need for the inspector to be, and to be seen to be, independent of political pressure. Accountability for process, through the High Court, is of greater practical significance than accountability for substance through the Secretary of State.

  8.  This means that the Secretary of State is now faced with a dilemma. He has progressively delegated most of his decision-making powers to independent inspectors, yet they are all still directly employed by him through the Planning Inspectorate, which remains an agency based within his Department and subject to his direction. Planning decision making is historically an administrative process, in which decisions are made on the basis of policy and the pursuit of some greater public good through a politically accountable process. But in reality, it is a process which balances the collective and individual rights of citizens.

Is the Present Role of the Inspectorate Sustainable?

  9.  An important issue is clearly whether the future development of the Planning Inspectorate should continue along the pragmatic lines of the past, or whether a more fundamental appraisal is now warranted. This is an issue for the forthcoming Financial Management and Performance Review (FMPR) of the Inspectorate, but it is a matter on which the Committee may also wish to reflect. There are two factors in particular that may affect its future role.

THE HUMAN RIGHTS ACT 1998

  10.  The first is the Human Rights Act 1998. Various provisions of the European Convention affect town and country planning. They include:

    (1)  Article 8, which establishes a right to respect for private and family life and the home, and which prohibits interference with it by a public authority except where it is (1) lawful; and (2) necessary in the interests of such matters as public safety, national economic well-being and protection of health. It was sufficient in Lopez Ostra v Spain[56] to found a claim that the construction of a waste treatment plant next to the applicant's house, which had caused severe local pollution and health problems, was in violation of the applicant's rights. This was the case even though the State did not own the plant; it was sufficient that the municipality had allowed it to be built on their land and that the Government had subsidised it. Similarly it was held to be a material provision in a claim in respect of aircraft noise from London's Heathrow Airport, though there was found to be no violation of the Convention in the policy measures that had been adopted[57].

    (2)  the anti-discrimination provision, Article 16, which was at issue in Buckley v United Kingdom,[58] where it was claimed that English planning legislation was discriminatory against gypsies and their traditional way of life by prohibiting them from stationing caravans on unoccupied land. The Court held for the Government, but its members were deeply divided, and the majority took a different line from the Commission for Human Rights which had conducted a preliminary review of the case. This Article has also been pleaded in national courts as a defence by gypsies to eviction proceedings;

    (3)  the property protection provision of Article 1 of the First Protocol, which provides protection from extreme restrictions on property rights, such as 20 years of planning blight[59].

  These substantive provisions are now part of the legal framework within which inspectors are required to act.

  11.  However, the most significant provision affecting the Planning Inspectorate as an institution 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. . . ."

  12.  How does this apply to the Planning Inspectorate? To understand this, we need to break the criteria down into their five components:

    (1)  civil rights and obligations;

    (2)  an impartial tribunal established by law;

    (3)  an independent tribunal established by law;

    (4)  a fair and public hearing;

    (5)  within a reasonable time.

(1)  civil rights and obligations

  13.  It is clear that the rights of landowners under a planning system are "civil rights and obligations". This was accepted by the European Court in Bryan v United Kingdom[60], and it appears to have been conceded in a recent case involving the Deputy Bailiff of Guernsey, McGonnell v United Kingdom[61]. It is not clear that the rights of objectors would necessarily be similarly regarded. Much would depend on the context in which the question arose, but it is not inconceivable that they might, for example in a case where the proposed development might cause serious blight on adjoining property.

(2)  impartiality

  14.  This is a fundamental requirement under national public law for those exercising judicial or (as with a planning inspector) quasi-judicial functions. Those who take decisions under statutory powers must avoid any conflict of interest or other possibility of bias[62]. The doctrine applies to Law Lords[63]; and it applies also to planning inspectors[64]. However, Article 6 has recently been held to go further than current national practice. In McGonnell v United Kingdom[65], the European Court held that the fact that the Deputy Bailiff of Guernsey had presided over the process through which a planning policy document was adopted, was capable of casting doubts on his impartiality when he subsequently determined, as the sole judge of law in the case, the applicant's subsequent planning appeal. That ruling lays the basis for a fundamental challenge to the way in which planning has traditionally been undertaken in this country, as a process in which decisions on planning applications are taken in pursuance of policy, and therefore conveniently taken by the local planning authority, or the Secretary of State, with responsibility for adopting the policy in the first place.

(3)  independence

  15.  This means independence in two dimensions: independence from the parties and independence from the Executive. In relation to the Executive, the issue is not one of the actual acts or predispositions of the decision-maker, but of the structures governing the decision-making process. The European Court has held that, in determining whether a body is "independent", regard must be had, inter alia, to the manner of appointment of its members and their term of office, to the existence of guarantees against outside pressures, and to whether it presents an appearance of independence[66]. Except to the extent that it is a component of impartiality, independence has not been a requirement of national law, and it is therefore an aspect of current practice which will be subject to reappraisal under the Human Rights Act. There have already been some early casualties. In Smith v Secretary of State for Trade and Industry[67], the Employment Appeal Tribunal expressed doubts about the independence of the employment tribunals. They concluded that it was something of an anomaly that the employment tribunals should have such close links with an executive arm of government. They were paid for, largely appointed and administered by the employment appeal service, a DTI agency. There was "a real and troubling question" as to whether employment tribunals might properly and lawfully adjudicate on claims made against the Secretary of State, having regard to Article 6 of the Convention. The matter is on its way to the House of Lords.

  16.  Then the Scots High Court of Justiciary in Starrs v Procurator Fiscal, Linlithgow[68] pronounced that it was unlawful for a prosecution to have been brought before a judge who had no security of tenure and whose appointment was subject to annual renewal, because such a judge was not independent for the purposes of Article 6. The fact that appointment of deputy sheriffs was made by the Executive, following selection by the Lord Advocate, was not in itself objectionable. However, it was necessary in criminal cases that the court of first instance was independent and impartial. The Court held that appointment for a term of office expiring not on the completion of a particular task, or the cessation of a particular state of affairs, but at the end of a fixed period of time of relatively short duration, was liable to compromise the judge's independence if the appointment could be renewed. This relationship of dependency upon the Executive pointed strongly away from the independence required by Article 6. It meant that the temporary sheriff's security of tenure depended upon an assessment by the Lord Advocate of what should be regarded as grounds for removal from office, or for not renewing an appointment, or for declining to allocate work to the temporary sheriff.

  17.  Significantly, the Court dismissed appeals to past practice as a justification for the present system. Although successive Lord Advocates had operated the system with integrity and sound judgement, free from political considerations, it could not always be assumed that the Executive would observe these restraints, and past assumptions need not necessarily hold true following Scottish devolution. Good faith, practice, tradition and public opinion were inadequate substitutes for legislative protection. The decision has not been appealed.

  18.  The position of planning inspectors is no doubt closer to that of employment tribunals than Deputy Sheriffs. They do not hold judicial office, but the great majority have security of tenure in their employment as civil servants. Yet they are appointed by the Secretary of State, and they operate within his policy framework. Jurisdiction can be removed from them by the Secretary of State at any time. Can they be said nonetheless to provide an independent and impartial tribunal in the determination of citizen's civil rights? In Bryan v United Kingdom[69] the European Court was not satisfied that the inspector was an independent and impartial tribunal. Whilst it was true that he was required to decide an enforcement appeal in a quasi-judicial manner, and to act independently, impartially and fairly, it was also true that the Secretary of State could at any time issue a direction revoking the inspector's powers to determine the appeal. The Court held that in the context of planning appeals the very existence of this power available to the Executive, whose own policies might be an issue, was enough to deprive the inspector of the requisite appearance of independence, notwithstanding the limited exercise of the power in practice and irrespective of whether its exercise was or could have been in issue in the present case.

  19.  However, the Court maintained that it had previously accepted[70] that such defects in relation to a tribunal could be overcome if it were subject to the supervision of a judicial body that had full jurisdiction and itself satisfied the requirements of Article 6. It believed that these requirements were met with a planning inspector, because there was a right of appeal to the High Court, and the grounds of review were wide enough to provide the necessary safeguards. They therefore dismissed the claim.

  20.  This finding is unsatisfactory. If the initial hearing was, by definition, conducted by a tribunal which lacked the requisite independence from the Executive, it is impossible to understand how that defect can be corrected by a right of appeal to a body which does not possess the power to rehear the matter afresh[71]. The inspector possesses a power of rehearing in the case of appeals from the decisions of local planning authorities, but the High Court does not. If the threat to the inspector's independence stems, as the Court found, from his or her proximity to the Secretary of State, then appeal to the High Court on a point of law offers no escape from the violation.

  21.  This was a conclusion reached for reasons more of pragmatism than of principle. The Court recognised that it was a frequent feature of judicial control of administrative systems found in different countries that an appeal tribunal would have responsibility for findings of fact, and that a higher court would not have power to substitute its own findings of fact. Indeed, the Court concluded, "the subject matter of the contested decision by the inspector was a typical example of the exercise of discretionary judgement in the regulation of citizens' conduct in the sphere of town and country planning". But this is, in effect, to deny either that "civil rights and obligations" are at stake at all in planning and similar regulatory processes, or that independence from the Executive is necessary in their determination.

  22.  However, certain things follow from the Bryan ruling that "civil rights and obligations" may be involved in planning disputes, not least that the Executive's ability to remove the right to be heard, which has from time to time been mooted, must be taken to be severely restricted, if not foreclosed altogether, by Article 6.

  23.  Secondly, the Human Rights Act crystallises the issue of inspectors' de facto and de jure independence in determining planning matters. The British planning system has traditionally been based on political decision-making and political accountability. This derives from the time when it was Parliament, through the private Bill process, that held the balance between private landowners and the promoters of major projects. The independence from the Executive that planning inspectors have today is a relatively recent development, and they are, constitutionally, part still of the Executive. The procedural rules that advance their fairness, impartiality and openness, operate so as to ensure that parties are (if they wish) properly heard before decisions are taken, but that government policy and the provisions of the development plan will prevail unless good reason is shown to depart from them.

  24.  The McGonnell case (though on personal impartiality rather than institutional independence) advances a quite different model of a planning system. Given the dominant role of the Executive in the British planning system, which is not a characteristic of some other countries, it may not be sensible to conceive of a decision making process that is completely independent of Government. Ministers have to be accountable for so major an area of social regulation, both in policy terms and in relation to projects of national significance, particularly where these have effects for parties not represented in the decision-making process.

  25.  However:

    (1)  relatively few matters going to planning inspectors are in this category. For the bulk of the Inspectorate's work there is no countervailing justification for maintaining the present lack of independence from the Executive;

    (2)  the sentiments of the Scots Court of Session have resonance here. Although successive Ministers may have operated the system with integrity and sound judgement, it cannot always be assumed that the Executive will always observe these restraints, and, as with Scotland, past assumptions need not necessarily hold true following Welsh devolution, nor in England. Good faith, practice, tradition and public opinion are inadequate substitutes for legislative protection; and

    (3)  the independence issue is most acute in those matters where the Secretary of State is directly a party to proceedings. Examples include highways inquiries (where, in order to allay fears about the lack of independence to which this may give rise, inspectors have since the mid-70s been drawn from a special panel maintained by the Lord Chancellor); compulsory purchase for government purposes, and the revocation by the Secretary of State of a planning permission granted by a local planning authority.

  26.  Questions must therefore remain as to whether the independence of the Planning Inspectorate from the Executive is sufficient, and in all cases, to survive a challenge under the Human Rights Act 1998. There are alternative models, including a specialist Environmental Court, which could overcome this problem[72].

(4)  Fair and public hearing

  27.  Fairness, openness and impartiality have been both the mission and the hallmark of the Planning Inspectorate since they were adopted by the Franks Committee in its review of inquiry procedures in 1957. The public local inquiry itself is still a remarkably flexible format. Inspectors have the capacity to adapt between adversarial and inquisitorial styles, as appropriate to achieving the best opportunities for participation by represented and unrepresented parties alike. The right to have all evidence heard in public and all documents open to public inspection is secured by primary legislation[73], and although there is a power for the Secretary of State to direct to the contrary in any particular case[74], it must now be doubtful whether its exercise could survive challenge under Article 6.

(5)  Decision in reasonable time

  28.  It is not easy to forecast the impact of this criterion. The legislation provides applicants with a remedy against slow decision-making by local planning authorities[75], but not against the Secretary of State (or a planning inspector acting in his name). Appeal decisions taking several years, or even a shorter period in a case with important implications for an applicant (for example, an application for a dwellinghouse extension to house a kidney dialysis machine), are potentially challengeable under the Act.

ACCESS TO ENVIRONMENTAL JUSTICE

  29.  The second relevant matter affecting the future role of the Planning Inspectorate is the broader issue of access to environmental justice. The UK Government is a signatory to the Aarhus Convention, concluded in 1998 under the auspices of the UNECE[76]. There are certain obligations in the Convention which will require the UK to review its present arrangements. There is, for example, an obligation to ensure access to a review procedure before a court of law and/or another independent and impartial body established by law, to challenge the legality of certain decisions, acts or omissions specified in the Convention. These extend broadly to planning decisions that are subject to environmental impact assessment[77].

  30.  Second, there is 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 its national law relating to the environment.

  31.  There is widespread concern about two aspects of the British planning system to which these provisions are relevant. The first is the lack of balance in the right to appeal. Developers may appeal against a refusal of permission, but objectors may not appeal against a grant of permission. Their rights are limited to complaining to the Local Government Ombudsman, who has no power to set the permission aside; or by application to the High Court for judicial review, which is confined to questions of law and not of merits. These arrangements reflect the assumptions of 1947 about the relationship between property and the state and third parties. They do not reflect the ideals of a participative democracy of the 21st century, and they are not mirrored in the planning systems of other European or common law countries. That third party appeals could cause delay and administrative problems may be true, but is no answer to the question of principle as to whether such a system is needed. If it is, then administrative reforms need to be designed to accommodate it.

  32.  Secondly, the ineffectiveness of planning enforcement. Experience suggests that administrative systems of enforcement are less effective than the mechanisms of the civil courts. In the case of planning, there is a monopoly of enforcement power in the hands of local planning authorities[78], and a lengthy process of enforcement notices and appeals that is capable of being used to delay the impact of effective enforcement for years. Because it has no standing jurisdiction, the Planning Inspectorate has no enforcement powers, beyond determining appeals against enforcement notices. There is presently no means to meet the Aarhus obligation to allow access by members of the public to challenge acts and omissions by private persons and public authorities which contravene national environmental law.

IMPLICATIONS

  33.  Its review of the Planning Inspectorate provides the Committee with an opportunity to reflect on these broader issues. No structural change should be allowed to prejudice the values and processes that are presently guaranteed by the Inspectorate, and by individual planning inspectors. In some respects (such as the presentation of expert evidence) these have shown the way forward for reforms in the civil justice system more generally. But satisfying the needs of the future may go beyond that which can be achieved by yet more pragmatic adjustments to old structures.

February 2000


54   DETR, February 2000. Back

55   In Wales, the power to call-in, or recover jurisdiction from an inspector, is exercised on behalf of the National Assembly by the First Secretary, or the Environment and Local Government Secretary; and the functions of determining planning appeals are exercised by the National Assembly through ad hoc Planning Decision Committees: for details, see the February 2000 Monthly Bulletin of the Encyclopedia of Planning Law and Practice. Back

56   Case of Lopez Ostra v Spain (41/1993/436/515); 9 December 1994; 20 EHRR 277. Back

57   Powell and Rayner v United Kingdom (1990) 12 EHRR 355. See also Guerra v Italy (19 February, 1998): failure to provide information to local people about nearby chemical factory. Back

58   26 September 1996; [1996] JPL 1018; [1997] 2 PLR 10; 23 EHRR 101. Back

59   Sporrong and Lonnroth v Sweden (1982) A 52; 5 EHRR 33. Back

60   [1996] EG 137; [1996] 1 PLR 47 (ECHR); 21 EHRR 342. Back

61   Judgement 8 February 2000; The Times 22 February 2000. Back

62   See eg R v Gough [1993] AC 646; R v Secretary of State for the Environment, ex p Kirkstall Valley Campaign Ltd [1997] 1 PLR 8. Back

63   R v Bow Street Metropolitan Stipendiary Magistrate, ex p Pinochet Ugarte (No 2) [1999] 1 All ER 577. Back

64   See eg Halifax Building Society v Secretary of State for the Environment [1983] J.P.L. 816: inspector too hostile; Cotterell v Secretary of State for the Environment [1991] 2 P.L.R. 37: inspector too generous. Back

65   Judgement 8 February 2000; The Times 22 February 2000. Back

66   Bryan v United Kingdom [1996] 1 PLR 47. Back

67   The Times, 15 October 1999. Back

68   The Times, 17 November 1999. Back

69   [1996] 1 PLR 47. Back

70   Langborger v Sweden (22 June 1989, Series A No 155) 12 EHRR 416. Back

71   See eg De Haan v Netherlands (1997) 26 EHRR 417 where the European Court held that a breach of article 6 arising from the composition of the original tribunal had not been rectified by a right of appeal to the Central Appeals Tribunal, because that body was not able to reassess the medical evidence and thus decide itself the issue in dispute (para 53). Back

72   See further Malcolm Grant, Environmental Court Project. Final Report. DETR 2000. Back

73   Town and Country Planning Act 1990, s.321. Back

74   Town and Country Planning Act 1990, s.321(2). Back

75   Town and Country Planning Act 1990, s.78(1), which allows the applicant to appeal as if the application had been refused. Back

76   Ratification by 16 states is required to bring the Convention into force. At the time of writing, the EU and four states (not including the UK) had ratified. Back

77   These are listed in Annex I, and although the list is based upon the amending Council Directive 97/11 on environmental assessment, it includes as projects where assessment is mandatory not only those projects listed as mandatory in Annex I to the EC Directive, but also some projects drawn from Annex II of the directive where assessment is a matter for the Member States to determine their own thresholds. This approach is based on the IPPC Directive. Back

78   With a long-stop, and rarely used reserve power for the Secretary of State: Town and Country Planning Act 1990, s.182. Back


 
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