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HOUSE OF LORDS
Lord Slynn of Hadley Lord Nolan Lord Hoffmann Lord Hutton Lord Clyde
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSEREGINA v SECRETARY OF STATE FOR THE ENVIRONMENT, TRANSPORT AND THE REGIONS (ORIGINAL APPELLANT AND CROSS-RESPONDENT) EX PARTE HOLDING AND BARNES PLC (ORIGINAL RESPONDENTS AND CROSS-APPELLANTS) (ON APPEAL FROM THE QUEEN'S BENCH DIVISION OF THE HIGH COURT OF JUSTICE) REGINA v SECRETARY OF STATE FOR THE ENVIRONMENT, TRANSPORT AND THE REGIONS (ORIGINAL APPELLANT AND CROSS-RESPONDENT) EX PARTE ALCONBURY DEVELOPMENTS LIMITED AND OTHERS (RESPONDENTS) AND OTHERS (CROSS-APPELLANTS) (ON APPEAL FROM THE QUEEN'S BENCH DIVISION OF THE HIGH COURT OF JUSTICE) REGINA v SECRETARY OF STATE FOR THE ENVIRONMENT, TRANSPORT AND THE REGIONS (APPELLANT) EX PARTE LEGAL & GENERAL ASSURANCE SOCIETY LIMITED (ON APPEAL FROM THE QUEEN'S BENCH DIVISION OF THE HIGH COURT OF JUSTICE) (CONJOINED APPEALS)
ON 9 MAY 2001
 UKHL 23
LORD SLYNN OF HADLEY
1. These three appeals come direct to the House pursuant to section 12 of the Administration of Justice Act 1969 from decisions of the Divisional Court (Tuckey LJ and Harrison J) in a judgment given on 13 December 2000. Although there are differences between the three cases they raise broadly the same question as to whether certain decision making processes of the Secretary of State for the Environment, Transport and the Regions ("the Secretary of State") are compatible with article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1953) (Cmd 8969) as incorporated in the Human Rights Act 1998 ("the 1998 Act"). There was a consequential question as to whether if these processes are not compatible there should be a declaration under section 4 of the 1998 Act.
2. The Divisional Court held that the following statutory provisions were incompatible with article 6 and accordingly made a declaration of incompatibility under section 4 of the 1998 Act:
3. The Secretary of State appeals against all these decisions and declarations. Since a related question had arisen in Scotland in County Properties Ltd v The Scottish Ministers 2000 SLT 965, the Lord Advocate has intervened in support of the application that the decision of the Divisional Court be reversed on the basis that article 6(1) does not apply to the decision making processes under review and on the basis that they are not in any event incompatible with a Convention right. The role of other parties to the proceedings will appear in a brief summary of facts to which I turn. I summarise briefly because the facts are more fully set out in the judgment of the Divisional Court to which reference can be made and which it is not helpful to repeat4.
Alconbury Developments Ltd ("AD") has agreed with the Ministry of Defence, the owner of a disused airfield at Alconbury, that if planning permission is given AD will redevelop the site into a national distribution centre in return for financial payments to the Ministry. AD applied to Huntingdon District Council ("HDC") for planning permission for the overall scheme with adjunct facilities and approach road and rail sidings. It also applied under various individual applications for planning permission for parts of the scheme. There were related applications (1) to Cambridge County Council ("CCC") as the waste disposal authority for planning permission to construct a temporary recycling depot on part of the site; (2) to HDC for permission to set up a commercial air freight operation though this was opposed by a group of local residents ("Huntsnap") and the application was withdrawn in March 1998; (3) to the Secretary of State under section 1 of the Transport and Works Act for permission to build a rail connection between the airfield and the east coast rail line together with railway sidings within the airfield.
5. On 4 August 1998 the Secretary of State refused a request to call in the planning application to be determined by him but after the HDC dismissed the overall application for planning permission and the CCC failed to determine the application for the waste recycling depot within the prescribed period, AD's appeals were "recovered" by the Secretary of State for determination by him under paragraph 3 of Schedule 6 to the Town and Country Planning Act rather than by an inspector appointed by the Secretary of State. This was done on the basis that "the appeals relate to proposals for development of major importance, having more than local significance".
6. An inspector was appointed to hold an inquiry at which for various reasons Huntsnap and an association of Nene Valley residents ("NVA") together with English Nature, a statutory body, appeared. Huntsnap and NVA contended that the proceedings were contrary to article 6. AD accordingly applied for judicial review of the Secretary of State's decision in order to clarify the position, contending that the Secretary of State's decisions to take jurisdiction over the planning appeals and the TWA applications were lawful. CCC supported AD; HDC Huntsnap and NVA opposed it On the present appeal AD and CCC support the Secretary of State. HDC and NVA contend that the Divisional Court were right in holding that there was a breach of section 6(1) but wrong in its decision on section 6(2). The Secretary of State was bound to act so as to avoid incompatibility with the Convention and therefore to permit the appeal to be determined by an independent inspector.7.
Holding & Barnes Plc ("HB") applied for planning permission to use land at Canvey Island for the storage and sale of damaged cars. The Health & Safety Executive objected because the development was near to gas storage on some neighbouring sites but the executive was willing to reconsider the position if modifications to the proposal could be made. The local planning authority on 2 May 2000 resolved that it was minded to grant permission. On 25 July 2000 the Secretary of State directed, pursuant to section 77 of the Town & Country Planning Act that the application should be referred to him because of (a) the nature of the proposed use, (b) the impact it could have on the future economic prosperity of Canvey Island and (c) the site's location close to hazardous installations. It is that direction which HB challenged on an application for judicial review.
8. Legal & General Assurance Society Ltd. These proceedings are brought by the Secretary of State at the invitation of Legal & General Assurance Society Ltd ("L & G"). The issue relates to an improvement scheme at junction 13 of the A34/M4 proposed by the Secretary of State through the Highway Authority. There are complex details of a dual two-lane carriageway all-purpose road, 100 metres to the west of the existing junction 13, together with connected slip and side roads. In August 1993 following an inquiry, orders were confirmed for the work to go ahead. The court quashed part of one of the side road orders and new draft orders were published on 17 February 2000 followed by a draft compulsory purchase order on 24 February 2000. Following objections the Secretary of State appointed an inspector to hold a public inquiry into the draft order. L & G which own some land the subject of the draft compulsory purchase order invited the Secretary of State to seek a ruling of the court as to the compatibility of the proceedings with the Convention. L & G decided not to be represented in the proceedings and the Attorney General appointed counsel as amici curiae in that case both before the Divisional Court and before the House.
9. The Divisional Court set out with clarity the details of the legislation relevant to these cases. I gratefully adopt their account in paragraphs 30 to 52 of the judgment and accordingly I only summarise the essential characteristics with which these appeals are concerned.
10. It is important to make clear that these appeals are not concerned directly with issues which affect the vast majority of applications for planning permission. Those applications are dealt with by elected local authorities and not by the Secretary of State even though local authorities have to take into account the development plan for their area which does reflect national policies, guidance and instructions given by the Secretary of State. Nor are the present appeals concerned with the majority of appeals from such local authority decisions which are decided by inspectors on the Secretary of State's behalf even though those inspectors may be full-time officials of the Planning Inspectorate and even though they must have regard to the Secretary of States's policies and the framework document setting out their functions. The present appeals under the Town and Country Planning Act are concerned only with applications which are "called in" by the Secretary of State under section 77 of the Act and those appeals which are "recovered" by the Secretary of State under paragraph 3 of Schedule 6 to the Act. The Divisional Court found that of some 500,000 planning applications each year about 130 were "called in" by the Secretary of State and of some 13,000 appeals to the Secretary of State each year about 100 were "recovered" by the Secretary of State. In both types of case the Secretary of State followed to a large extent the recommendations of the inspectors. These figures of 130 and 100 are not insignificant and they concern important questions, important both to the individual and to the nation, but the figures do show the limits of the question raised on the appeals.
11. It is therefore important to see what are the statutory powers under these various sections.
12. Under section 77 of the TCPA the Secretary of State may (1) give directions requiring applications for planning permission to be referred to him instead of being dealt with by local planning authorities:
13. By the Town and Country Planning (Inquiries Procedure) (England) Rules 2000 (SI 2000/1624) the applicant and the local planning authority are entitled to appear before the inspector ("the person appointed") to call and cross examine witnesses and to make representations.
14. Section 78 of the Town and Country Planning Act provides for an applicant who has been refused planning permission or granted planning permission subject to conditions to appeal to the Secretary of State. Before determining an appeal, the Secretary of State is required by section 79(2), if the appellant or the local planning authority wish, to give them an opportunity to be heard by a person appointed by the Secretary of State. By paragraph 1 of Schedule 6 to the Act, the Secretary of State may prescribe classes of appeals to be determined by appointed persons rather than by the Secretary of State. By paragraph 3(1) of Schedule 6 the Secretary of State "may, if he thinks fit, direct that an appeal which would otherwise fall to be determined by an appointed person shall instead be determined by the Secretary of State". Such direction shall state the reasons for which it is given and it is to be served on the appellant, the local planning authority and any person who has made representations.
15. The Town and Country Planning (Inquiries Procedure) (England) Rules 2000 which replaced the Town and Country Planning Act (Inquiries Procedure) Rules 1992 (SI 1992/2039) with effect from 1 August 2000, apply to any local inquiry ordered by the Secretary of State before he determines an application for planning permission referred to him under section 77 or an appeal to him under section 78 of the Act.
16. When an inspector is holding an inquiry leading to an appeal which he will determine himself or when he is holding an inquiry before the Secretary of State decides an application for planning permission called in by him under section 77, or before the Secretary of State determines an appeal under section 78 "recovered" by him, the procedures are broadly the same until the inspector's final report. When an inspector takes a decision he must set out that decision with reasons and notify the parties. When, however, he is holding an inquiry before the Secretary of State takes a decision he must state his conclusions and make his recommendations. There is an important provision in rule 17 (5) of the Town and Country Planning (Inquiries Procedure) (England) Rules 2000:-
17. In relation to applications made under the Transport & Works Act 1992 in relation to the construction and operation of a railway and to authorise the compulsory acquisition of land and to grant any necessary planning permission, under the Transport and Works Act, the decision is taken by the Secretary of State. Where an objection is received, a public inquiry must be held if the objector wishes. The provisions of the Transport and Works (Inquiries Procedure) Rules 1992 (SI 1992/2817) are broadly similar to those found in the Town and Country Planning (Inquiries Procedure) (England) Rules 2000.
18. The Highways Act 1980 gives to the Secretary of State power to make orders in relation to existing and proposed highways and to empower the highway authorities for trunk roads to stop up or improve highways in prescribed circumstances. If a local inquiry is held, the inspector appointed reports his conclusions and recommendations to the Secretary of State. The Highways (Inquiries Procedure) Rules 1994 (SI 1994/3263) contain similar provision to those in the Town and Country Planning (Inquiries Procedure) (England) Rules 2000. The Secretary of State may make an order with or without modification but if he disagrees with his inspector's conclusions or recommendations the Secretary of State must follow a procedure similar to that in rule 17(5) of the Town and Country Planning (Inquiries Procedure) (England) Rules 2000: see rule 26(4) of the Highways (Inquiries Procedure) Rules 1994. When exercising his powers under the Highways Act, the Secretary of State is given power to acquire land compulsorily. The Acquisition of Land Act 1981 and the Compulsory Purchase by Ministers (Inquiries Procedure) Rules 1994 (SI 1994/3264) provide for a public local inquiry to be held if an objection is received. The inspector makes his conclusions and recommendations to the Secretary of State. If the latter disagrees he is required once again to follow a procedure similar to that in rule 17(5) of the Town and Country Planning (Inquiries Procedure) (England) Rules 2000.
19. The various statutes provide for judicial review rather than for an appeal on the facts or the merits of the decision. Thus in section 288 of the Town and Country Planning Act 1990
20. Section 22 of the Transport and Works Act 1992, the provisions for challenge set out in paragraph 2 of Schedule 2 to the Highways Act 1980 and section 23 of the Acquisition of Land Act 1981 are similar.
21. The essence of the complaints in all these cases is that there is a violation of article 6 of the European Convention for the Protection of Human Rights incorporated in Schedule 1 to the Human Rights Act 1998. Article 6 provides as follows
1. 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. . . ".
22. The second and third paragraphs of the article are concerned with criminal offences and are not relevant to the present appeal.
23. The contention in these proceedings is that the processes which I have set out, violate article 6. These are civil rights which are determined without a fair and public hearing by an independent and impartial tribunal established by law.
24. There is really no complaint about the inquiry conducted by an inspector or about the safeguards laid down for evidence to be called and challenged and for representations and objections to be heard. It is not suggested that the inspector himself is not independent and impartial even though he is a member of eg the Planning Inspectorate in the case of planning appeals. The essential complaint is that when a decision is taken, not by such an inspector but by the Secretary of State or one of the Ministers of State or an Under Secretary on behalf of the Secretary of State there is such an interest in the decision that the person concerned cannot be regarded as an independent and impartial tribunal. The Secretary of State or his department, it is said, lays down policy and directs what he or the department considers to be the most efficient and effective use of land in what he sees to be the public interest. They issue guidance and framework directions which local authorities, inspectors and officials operating the planning system must follow. All of these are bound to affect the mind of the Secretary of State when he takes decisions on called in applications or on appeals which he recovers, it is alleged. Moreover it is said that in the case of Alconbury there is a particular factor in that the land in question is owned by another Government department, the Ministry of Defence.
25. Mr Kingston. on behalf of HDC also criticised the correspondence and minutes relevant to the Alconbury project. He contends that the role of the officials involved at the Planning and Transport Division in the Government Office for the Region ("GO") was such that there was a real connection not only with planning matters and planning ministers but also with transport ministers and officials and their policies. A site visit by the Parliamentary Under-Secretary for Transport may not have been prejudicial to the determination of the application before the matter was taken over by the Secretary of State. It was quite different once he took over the case for his own decision. As it was put in the case, even leaving aside the fact that the Secretary of State was carrying out his own policy "it is quite clear that the structures in place in relation to cases where the Secretary of State has recovered jurisdiction do not preserve any appearance of independence".
26. Your Lordships have been referred to many decisions of the European Court of Human Rights on article 6 of the Convention. Although the Human Rights Act 1998 does not provide that a national court is bound by these decisions it is obliged to take account of them so far as they are relevant. In the absence of some special circumstances it seems to me that the court should follow any clear and constant jurisprudence of the European Court of Human Rights. If it does not do so there is at least a possibility that the case will go to that court which is likely in the ordinary case to follow its own constant jurisprudence.
27. It is not necessary to refer to all these cases but some statements of principle by the European Court of Human Rights are important in guiding the House in the present decisions. A preliminary question has arisen as to whether a dispute over administrative law matters of the present kind involved the determination of "civil rights". At first sight to a common lawyer there appears a difference and that difference might seem stronger to a lawyer in a civil law country. In Ringeisen v Austria (No 1) (1971) 1 EHRR 455, para 94, however, the court said
See also Kaplan v United Kingdom (1980) 4 EHRR 64, 85, Allan Jacobsson v Sweden (1989) 12 EHRR 56.
28. In Fredin v Sweden  13 EHRR 784, the court accepted that disputes under planning rules could affect civil rights to build on the applicant's land. Despite the submissions of the Lord Advocate that a decision on a called in application is not a "contestation" on the basis of these and a number of other cases it seems to me plain that this dispute is one which involves the determination of "civil rights" within the meaning of the Convention.
29. The European Court of Human Rights has, however, recognised from the beginning that some administrative law decisions which affect civil rights are taken by ministers answerable to elected bodies. Where there is a two stage process ie there is such an administrative decision which is subject to review by a court, there is a constant line of authority of the European court that regard has to be paid to both stages of the process. Thus even where "jurisdictional organs of professional associations" are set up:
(Albert and Le Compte v Belgium (1983) 5 EHRR 533, para 29). See also Le Compte, Van Leuven and De Meyere v Belgium (1981) 4 EHRR 1, Golder v The United Kingdon (1975) 1 EHRR 524.
30. In Kaplan v United Kingdom 4 EHRR 64, the Commission noted, at paragraph 150, that:
The Commission referred to its earlier opinion in Ringeisen v Austria (No 1) where having referred to a number of examples of State regulation the Commission had stated:
31. The Commission continued, at paragraph 159, in relation to judicial review:
And at paragraph 161:
32. In ISKCON v United Kingdom Application No 20490/92, 8 March 1994 (a decision of the Commission) a local authority served an enforcement notice on ISKCON alleging a material change of use of the land. ISKCON appealed against the notice under section 174(2) of the Town and Country Planning Act 1990 and after a report by an inspector the Secretary of State largely confirmed the enforcement notice. The High Court and the Court of Appeal rejected ISKCON'S appeal. On a complaint under the Convention the Commission recalled that an appeal under section 289 of the Town and Country Planning Act 1990 lay only on a point of law but it took into account that the local authority could only take proceedings within the limits of section 174 of that Act and that in accordance with its own structure plans and the policy guidance laid down by the Secretary of State ISKCON could then seek a determination as to whether the legal requirements had been met. The Commission concluded