Key convention rights applicable to planning decisions are:
- Article 1: The right to life. This could be applied where a development carries a risk to health.
- Article 8: The right to respect of private life and family. This includes the right to the peaceful enjoyment of one’s home, but allows interference in accordance with the law and in the interests of national security, public safety or the economic well-being of the country. It could be applied to compulsory purchase cases, or where there are environmental effects of development on residential property, but is probably available to individuals rather than companies.
- Article 6: The right to a fair trial or hearing. This is available to individuals and companies..
- First protocol, article 1: The protection of property. This can cover possessions, as well as commercial property, and may be used by companies and individuals, but allows taking of property in the public interest.
But only someone who can be shown to be actually or potentially a victim can rely on this legislation. This means that there must be a direct effect on that person as the result of the unlawful act of the public authority – so the test of who may use the legislation is more stringent than applies to judicial review, which merely requires a “locus standi”, or right to interfere.
One case found that the call-in of a listed building application set in train procedures that would lead to the denial of a fair trial
Planning has already been shown to be within the ambit of the convention, by Bryan vs UK (1996), which considered planning enforcement appeals in the context of article 6.
How the act may be used
Potentially, the commercially motivated owner of a site that has lost “hope value” as the result of a grant of permission to a rival may challenge that decision. But use of the new act is limited and with careful guidance, it ought to be possible for the developer or its professionals to work with the planning authority to steer through this minefield, just as the promoters of successful sites now work with planning authorities to minimise the risk of judicial review.
Planning is potentially vulnerable to the accusation that the secretary of state, as the ultimate repository of planning power, cannot also be an independent tribunal. In Bryan it was found that the possibility of an appeal to the courts was sufficient to overcome this apparent partiality in the system. More recently in Scotland, where the new legislation is already partly in force, County Properties vs Scottish Ministers (2000) found that the call-in of a listed building application for decision by the Scottish ministers set in train procedures that would lead to the denial of the right to a fair trial. Cases of this sort have led to calls for environmental courts to deal with the technicalities of planning and the environment, but it seems likely that less radical means will be used.
It has, in addition, been suggested that the new act will provide a basis for challenge by landowners who have development allocations in local plans that are affected by a new national policy such as the overriding requirement in PPG3 to use previously developed land first for housing development. Such an approach seems unlikely to succeed unless it could be shown to be outside the proper operation of law. Although a development allocation is likely to be found to be a “possession”, the proper exercise of control in the public interest was upheld by the European Court in Freden vs Sweden (1991), a case involving revoked permits for gravel working.
Finally, the introduction of the act gives scope for challenge by individuals aggrieved by a planning decision close to their homes. A considerable number of cases are expected, and new judges have been appointed to deal with them. Lawyers and litigants will become more skilled in the use of the legislation, but it is unlikely to be revolutionary in its effects.
Ian Trehearne is a partner in Berwin Leighton specialising in planning law.