Judgments - Alconbury

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    33. In Bryan v United Kingdom (1995) 21 EHRR 342, a case which it is necessary to refer to in some detail since it has been followed in later cases, an applicant was served with an enforcement notice requiring him to demolish buildings erected without planning permission. He complained that the inspector's decision did not satisfy article 6(1). The court and the Commission described the role of the inspector and the procedures to be followed under the Town and Country Planning Act including both his duty under the Framework Directive of the Secretary of State to exercise independent judgment and not to be or to be seen to be subject to any improper influence and to act fairly but at the same time to have regard to the policies promulgated by the Secretary of State on matters of planning. Both the Commission and the court accepted that there had been a fair hearing before the inspector. Because however the inspector's appointment to hear the appeal could be revoked in a situation where the executive's own policies may be in issue, the inspector did not satisfy the requirements of article 6 that there must be an independent and impartial tribunal.

    34. However having set out the national court's powers of review the court like the majority of the Commission concluded that in that case the High Court's powers of review were sufficient to comply with article 6. The court noted, at paragraph 44, that an appeal to the High Court was only on points of law and therefore:

    "not capable of embracing all aspects of the inspector's decision. . . In particular, as is not infrequently the case in relation to administrative law appeals in the Council of Europe member states, there was no rehearing as such of the original complaints submitted to the inspector; the High Court could not substitute its own decision on the merits for that of the inspector; and its jurisdiction over the facts was limited."

    35. The court continued, in paragraph 45-47, that in assessing the sufficiency of the review available before the High Court

    "45. . . . it is necessary to have regard to matters such as the subject matter of the decision appealed against, the manner in which that decision was arrived at, and the content of the dispute, including the desired and actual grounds of appeal.

    "46 In this connection the court would once more refer to the uncontested safeguards attending the procedure before the inspector, the quasi-judicial character of the decision-making process; the duty incumbent on each inspector to exercise independent judgment; the requirement that inspectors must not be subject to any improper influence; the stated mission of the Inspectorate to uphold the principles of openness, fairness and impartiality. Further any alleged shortcomings in relation to these safeguards could have been subject to review by the High Court.

    "47. . . The High Court had jurisdiction to entertain the remaining grounds of the applicant's appeal [ie other than his contention that as a matter of fact and degree the buildings could from their appearance and layout be considered to have been designed for the purposes of agriculture]. And his submissions were adequately dealt with point by point. These submissions, as the Commission noted, went essentially to questions involving 'a panoply of policy matters such as development plans, and the fact that the property was situated in a Green Belt and a conversation area.'

    "Furthermore, even if the applicant had sought to pursue his appeal under ground (b), the court notes that, while the High Court could not have substituted its own findings of fact for those of the inspector, it would have had the power to satisfy itself that the inspector's findings of fact or the inferences based on them were neither perverse nor irrational.

    "Such an approach by an appeal tribunal on questions of fact can reasonably be expected in specialised areas of the law such as the one at issue, particularly where the facts have already been established in the course of a quasi-judicial procedure governed by many of the safeguards required by article 6(1). It is also frequently a feature in the systems of judicial control of administrative decisions found throughout the Council of Europe member states. Indeed, in the instant case, 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.

    "The scope of review of the High Court was therefore sufficient to comply with article 6(1)."

    36. The respondents contend that this judgment does not assist the Secretary of State since his decision making process was not of a quasi-judicial nature; he did not have to exercise an independent judgment, there was no obligation to uphold the principles of openness, fairness and impartiality.

    37. In Chapman v United Kingdom, Application No 27238/95, (unreported) 18 January 2001, the question arose as to the refusal of planning permission and the service of an enforcement notice against Mrs Chapman who wished to place her caravan on a plot of land in the Green Belt. The refusal of planning permission and the enforcement notice were upheld by the inspector. The court like the majority of the Commission held that there had been no violation of article 6.

    "124. The court recalls that in the case of Bryan . . . it held that in the specialised area of town planning law full review of the facts may not be required by article 6 of the Convention. It finds in this case that the scope of review of the High Court, which was available to the applicant after a public procedure before an inspector, was sufficient in this case to comply with article 6(1). It enabled a decision to be challenged on the basis that it was perverse, irrational, had no basis on the evidence or had been made with reference to irrelevant factors or without regard to relevant factors. This may be regarded as affording adequate judicial control of the administrative decisions in issue."

    38. It is also to be noted that in Howard v United Kingdom Application No 10825/84 (unreported) 16 July 1987, a submission that the power of appeal under section 23 of the Acquisition of Land Act 1981 did not provide an adequate remedy to challenge a compulsory purchase order so was not an effective remedy within the meaning of article 13 of the Convention was rejected as inadmissible.

    39. In Varey v United Kingdom, Application No 26662/95 (unreported) 27 October 1999 the Commission concluded on the challenge to a planning decision that the fact that an inspector's recommendation had been rejected by the Secretary of State did not mean that there had been a violation of article 6. The Secretary of State had given reasoned decisions on the basis of facts found by the inspectors

    "and the matters relied on by him in overruling their recommendations could be challenged on appropriate grounds before the High Court. Consequently in these circumstances the Commission is satisfied that the power of review of the process by the High Court ensures adequate judicial control of the administrative decisions in issue." (paragraph 86)

    40. The House has been referred to many other cases some involving other member states where the administrative provisions and the judicial control were in different terms. I do not refer to these only because it seems to me that in the recent cases to which I have referred the court has given an indication of the principle to be followed sufficiently for the disposal of the present case.

    41. On the basis which I have accepted that the planning, compulsory purchase and other related decisions do affect civil rights even if the procedures and decisions are of an administrative law nature rather than strictly civil law in nature, the first question is, therefore, whether the decision of the Secretary of State which effectively determined these rights in itself constitutes "a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law".

    42. "Independent" and "impartial" may import different concepts but there is clearly a link between them and both must be satisfied. It is not suggested that there is actual bias against particular individuals, on the part of the Secretary of State or the officials who report to him or who advise him. But it is contended that the Secretary of State is involved in laying down policy and in taking decisions on planning applications in accordance with that policy. He cannot therefore be seen objectively to be independent or impartial. The position is said to be even more critical when roadworks and compulsory purchases are initiated by the Highways Agency or when as in the Alconbury case the land involved belongs to another ministry of the Crown.

    43. Before the House the Secretary of State did not contend that in dealing with called in or recovered matters he is acting as an independent tribunal. He accepts that the fact that he makes policy and applies that policy in particular cases is sufficient to prevent him from being an independent tribunal and for the same reasons he is not to be seen as an impartial tribunal for the purposes of article 6 of the Schedule to the 1998 Act.

    44. But the many decisions of the European Court of Human Rights make it plain that one does not stop there. A choice was recognised as early as Albert and Le Compte v Belgium 5 EHRR 533, para 29 that:

    "either the jurisdictional organs themselves comply with the requirements of article 6(1), or they do not so comply but are subject to subsequent control by a judicial body that has full jurisdiction and does provide the guarantees of article 6(1)."

    45. These judgements also show that the test whether there is a sufficient jurisdictional control is not a mechanical one. It depends on all the circumstances.

    46. On the basis of these decisions it is in my view relevant as a starting point to have regard to such procedural safeguards as do exist in the decision making process of the Secretary of State even if in the end, because he is applying his policy to which these controls do not apply, he cannot be seen as an impartial and independent tribunal. The fact that an inquiry by an inspector is ordered is important. This gives the applicant and objectors the chance to put forward their views, to call and cross examine witnesses. The inspector as an experienced professional makes a report, in which he finds the facts and in which he makes his recommendations. He has of course to take account of the policy which has been adopted in e.g. the development plan but he provides an important filter before the Secretary of State takes his decision and it is significant that in some 95% of the type of cases with which the House is concerned, the Secretary of State accepts his recommendation. The Divisional Court had evidence, that other steps are taken to ensure that the contentions of the applicant and the objectors are adequately considered. Thus the Divisional Court quoted evidence in paragraph 62 of their judgment as to the way in which it is sought to ensure that all material considerations needed to reach an informed, fair, unbiased and reasonable decision could be arrived at as quickly as practicable. Decisions were taken by ministers who so far as possible had no connection with the area from which the case came and in respect of the decision officer who dealt with the case it was said, in paragraph 63, that he:

    "works separately from the casework team of which he is nominally a part, does not discuss the merits of the planning decisions before him with an individual either within or without GO East, is not copied into or involved in the preparation of the Regional Planning Guidance (RPG) or the exercise of any of the Secretary of State's powers of intervention under the Town and Country Planning Act, and only has before him the information which the inspector would have had at the inquiry into the particular appeal or called in application, together with any representation made after the close of the inquiries (all relevant parties are given the opportunity to comment on any such representations where they are material or raise new matters)."

    47. On the decision making process I do not suggest that one can make artificial distinctions between different branches of a Government department. I refer to what was said by Lord Diplock in Bushell v Secretary of State for the Environment [1981] AC 75, 95. But there is nothing unusual or sinister in the methods provided for planning decisions to be taken by the Executive in the United Kingdom. The European Court of Human Rights has recognised that in many European countries planning decisions are made by elected or appointed officers with a limited judicial review even though the extent of this may vary from state to state. In B Johnson & Co (Builders) Ltd v Minister of Health [1947] 2 All ER 395, 399 Lord Green MR recognised the importance of the administrative stage of the decision.

    "the raising of the objections to the order, the consideration of the matters so raised and the representations of the local authority and the objectors - is merely a stage in the process of arriving at an administrative decision. It is a stage which the courts have always said requires a certain method of approach and method of conduct, but it is not a lis inter partes, and for the simple reason that the local authority and the objectors are not parties to anything that resembles litigation. A moment's thought will show that any such conception of the relationship must be fallacious, because on the substantive matter, viz whether the order should be confirmed or not, there is a third party who is not present, viz the public, and it is the function of the minister to consider the rights and the interests of the public. . . . It may well be that, on considering the objections, the minister may find that they are reasonable and that the facts alleged in them are true, but, nevertheless, he may decide that he will overrule them. His action in so deciding is a purely administrative action, based on his conceptions as to what public policy demands."

    48. The adoption of planning policy and its application to particular facts is quite different from the judicial function. It is for elected Members of Parliament and ministers to decide what are the objectives of planning policy, objectives which may be of national, environmental, social or political significance and for these objectives to be set out in legislation, primary and secondary, in ministerial directions and in planning policy guidelines. Local authorities, inspectors and the Secretary of State are all required to have regard to policy in taking particular planning decisions and it is easy to overstate the difference between the application of a policy in decisions taken by the Secretary of State and his inspector. As to the making of policy, Wade & Forsyth Administrative Law, 8th ed (2000) p 464:

    "It is self-evident that ministerial or departmental policy cannot be regarded as disqualifying bias. One of the commonest administrative mechanisms is to give a minister power to make or confirm an order after hearing objections to it. The procedure for the hearing of objections is subject to the rules of natural justice in so far as they require a fair hearing and fair procedure generally. But the minister's decision cannot be impugned on the ground that he has advocated the scheme or that he is known to support it as a matter of policy. The whole object of putting the power into his hands is that he may exercise it according to government policy."

    As Mr Gregory Jones put it pithily in argument it is not right to say that a policy maker cannot be a decision maker or that the final decision maker cannot be a democratically elected person or body.

    49. Accepting this method of proceeding, the question as the European court has shown, is whether there is a sufficient judicial control to ensure a determination by an independent and impartial tribunal subsequently. The judgments to which I have referred do not require that this should constitute a rehearing on an application by an appeal on the merits. It would be surprising if it had required this in view of the difference of function between the minister exercising his statutory powers, for the policy of which he is answerable to the legislature and ultimately to the electorate, and the court. What is required on the part of the latter is that there should be a sufficient review of the legality of the decisions and of the procedures followed. The common law has developed specific grounds of review of administrative acts and these have been reflected in the statutory provisions for judicial review such as are provided for in the present cases. See as relatively straightforward examples: Ashbridge Investments Ltd v Minister of Housing and Local Government [1965] 1 WLR 1320 and Stringer v Minister of Housing and Local Government [1970] 1 WLR 1281.

    50. It has long been established that if the Secretary of State misinterprets the legislation under which he purports to act, or if he takes into account matters irrelevant to his decision or refuses or fails to take account of matters relevant to his decision, or reaches a perverse decision, the court may set his decision aside. Even if he fails to follow necessary procedural steps—failing to give notice of a hearing or to allow an opportunity for evidence to be called or cross-examined, or for representations to be made or to take any step which fairness and natural justice requires, the court may interfere. The legality of the decision and the procedural steps must be subject to sufficient judicial control. But none of the judgments before the European Court of Human Rights requires that the court should have "full jurisdiction" to review policy or the overall merits of a planning decision. This approach is reflected in the powers of the European Court of Justice to review executive acts under article 230 of the European Community Treaty.

    "It shall for this purpose have jurisdiction in actions brought by a Member State, the Council or the Commission on grounds of lack of competence, infringement of an essential procedural requirement, infringement of this Treaty or of any rule of law relating to its application, or misuse of powers."

    51. The European Court of Justice does of course apply the principle of proportionality when examining such acts and national judges must apply the same principle when dealing with Community law issues. There is a difference between that principle and the approach of the English courts in Associated Provincial Picture Houses Ltd v Wedensbury Corporation [1948] 1 KB 223. But the difference in practice is not as great as is sometimes supposed. The cautious approach of the European Court of Justice in applying the principle is shown inter alia by the margin of appreciation it accords to the institutions of the Community in making economic assessments. I consider that even without reference to the Human Rights Act the time has come to recognise that this principle is part of English administrative law, not only when judges are dealing with Community acts but also when they are dealing with acts subject to domestic law. Trying to keep the Wednesbury principle and proportionality in separate compartments seems to me to be unnecessary and confusing. Reference to the Human Rights Act however makes it necessary that the court should ask whether what is done is compatible with Convention rights. That will often require that the question should be asked whether the principle of proportionality has been satisfied: see R v Secretary of State for the Home Department, Ex p Turgut [2000] Imm LR 306; R v Secretary of State for the Home Department, Ex p Mahmood. The Times, 9 January 2001

    52. This principle does not go as far as to provide for a complete rehearing on the merits of the decision. Judicial control does not need to go so far. It should not do so unless Parliament specifically authorises it in particular areas.

    53. In R v Criminal Injuries Compensation Board, Ex p A [1999] 2 AC 330, 344 I accepted that the court had jurisdiction to quash for a misunderstanding or ignorance of an established and relevant fact. I remain of that view which finds support in Wade & Forsyth Administrative Law, 7th ed (1994), pp 316-318 I said:

    "Your Lordships have been asked to say that there is jurisdiction to quash the board's decision because that decision was reached on a material error of fact. Reference has been made to Wade & Forsyth, Administrative Law, 7th ed. (1994), pp 316-318 in which it is said:

    'Mere factual mistake has become a ground of judicial review, described as "misunderstanding or ignorance of an established and relevant fact", [Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014, 1030], or acting "upon an incorrect basis of fact" . . . This ground of review has long been familiar in French law and it has been adopted by statute in Australia. It is no less needed in this country, since decisions based upon wrong facts are a cause of injustice which the courts should be able to remedy. If a "wrong factual basis" doctrine should become established, it would apparently be a new branch of the ultra vires doctrine, analogous to finding facts based upon no evidence or acting upon a misapprehension of law.'

    "de Smith, Woolf and Jowell, Judicial Review of Administrative Action, 5th ed. (1995), p 288:

    'The taking into account of a mistaken fact can just as easily be absorbed into a traditional legal ground of review by referring to the taking into account of an irrelevant consideration, or the failure to provide reasons that are adequate or intelligible, or the failure to base the decision on any evidence. In this limited context material error of fact has always been a recognised ground for judicial intervention.'"

    54. I accordingly hold that in relation to the judicial review of the Secretary of State's decision in a called in application or a recovered appeal under the planning legislation and to a review of the decisions and orders under the other statutes concerned in the present appeals, there is in principle no violation of article 6 of the European Convention on Human Rights as set out in the Schedule to the Human Rights Act 1998. The scope of review is sufficient to comply with the standards set by the European Court of Human Rights. That is my view even if proportionality and the review of material errors of fact are left out of account: they do, however, make the case even stronger. It is open to the House to rule on that question of principle at this stage of the procedure in the various cases.

    55. I do not consider that the financial interests of the Ministry of Defence automatically precludes a decision on planning grounds by the Secretary of State, or that the communication between Government departments and site visits by ministers to which reference has been made in argument in principle vitiate the whole process. If of course specific breaches of the administrative law rules are established, as for example if the financial interests of the Government were wrongly taken into account by the Secretary of State, then, specific challenges on those grounds may be possible on judicial review.

    56. I would accordingly allow the appeals dismiss the cross appeals and set aside the declarations of the Divisional Court.


My Lords,

    57. I have had the advantage of reading in draft the speech delivered by my noble and learned friend Lord Slynn of Hadley. I gratefully adopt his account of the facts and of the issues raised in these appeals.

    58. I too would allow the appeals, and would declare that the impugned decision-making procedures are not in breach of or incompatible with the Human Rights Act 1998. The case is one of great practical and constitutional importance for this country, and of importance also for the development of human rights law both in this country and abroad, and argument has ranged over a wide field. The central question, however, is the first of those raised in the agreed statement of facts and issues, namely whether the impugned procedures "are compatible with article 6(1) of the Convention as applied by the Human Rights Act … having regard to the existence of statutory rights of appeal to the High Court and of supervision of the procedures by way of judicial review". The alternative to these procedures would effectively involve the removal from the appellant Secretary of State of his discretion over the grant of planning permission and other matters related to the ownership and enjoyment of land in the rare and often controversial cases in which he exercises it at present, and its vesting in some other person or body which constitutes "an independent and impartial tribunal" for the purposes of article 6(1). The precise nature of this alternative entity was not formulated by the respondents, but it would presumably be modelled on the Planning Inspectorate either in its present or in some modified form. Understandable, but, I think, also significant, was the absence of any suggestion that the discretion should be vested in the courts.

    59. My Lords, this brings me at once to my reasons for concluding that the decision of the Divisional Court cannot be allowed to stand. They can be shortly stated.

    60. The first, which reflects the obvious unsuitability of the courts as the arbiters in planning and related matters, is that the decision to be made, as explained by Lord Greene M R in B Johnson & Co (Builders) Ltd v Minister of Health [1947] 2 All ER 395, 399 is an administrative and not a judicial decision. In the relatively small and populous island which we occupy, the decisions made by the Secretary of State will often have acute social, economic and environmental implications. A degree of central control is essential to the orderly use and development of town and country. Parliament has entrusted the requisite degree of control to the Secretary of State, and it is to Parliament which he must account for his exercise of it. To substitute for the Secretary of State an independent and impartial body with no central electoral accountability would not only be a recipe for chaos: it would be profoundly undemocratic.

    61. Electoral accountability alone is, of course, plainly insufficient to satisfy the rule of law. Are then the rights of the subject in planning and related matters adequately protected by the statutory provisions for appeal to the courts and by the process of judicial review? It is said that these remedies fail to meet the article 6(1) criterion because they do not permit a review of the decision of the Secretary of State on its merits. If this criticism is limited to the absence of a review of the decision on its planning merits it is indisputable. But a review of the merits of the decision-making process is fundamental to the courts' jurisdiction. The power of review may even extend to a decision on a question of fact. As long ago as 1955 your Lordships' House, in Edwards v Bairstow [1956] AC 14, a case in which an appeal (from general commissioners of income tax) could only be brought on a question of law, upheld the right and duty of the appellate court to reverse a finding of fact which had no justifiable basis.

    62. The reversal of a finding of fact in the field of planning would no doubt be highly unusual. I mention Edwards v Bairstow simply to illustrate the generosity with which the courts, including your Lordships' House, have interpreted their powers to review questions of law. A similarly broad and generous approach has been adopted in the development of judicial review extending as it does not only points of law in the strict and narrow sense but to such matters as the rationality of the decision and the fairness of the decision-making process. One possibility canvassed in argument was that the powers of review as at present exercised by the courts might be enlarged in order to accommodate the requirements of the Human Rights Act. For my part, at least in the context of the present case, I see no need for that.

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