In their decision on four test cases heard before the High Court in December, judges ruled that the system is incompatible with the Human Rights Act. This ruling, the first since the introduction into English law of the European Convention on Human Rights on 2 October, is likely to have a huge impact.
The English planning system enables the secretary of state for the environment – currently John Prescott – to formulate planning policy and rule upon planning decisions. Each of the four cases challenged his right to act as both judge and jury. While stressing that Prescott is not acting illegally – he is complying with domestic law – the High Court ruled that the secretary of state's planning powers deny protesters and developers the right to a fair trial and are thus incompatible with article 6 of the Human Rights Act.
"He cannot be both policy-maker and decision-maker," said Lord Justice Tuckey and Mr Justice Harrison, the two judges assigned to the cases.
The four cases brought against the government challenged three aspects of Eng lish planning law. The DETR's right to rule upon a scheme involving the profit of another government department – in this case the Ministry of Defence – was called into question by residents in Alconbury, Hampshire. The secretary of state's right to call in projects over a certain size and at will was disputed in two Essex cases: the first a leisure centre near Rayleigh, the second a car storage area on Canvey Island. The final case regarded the secretary of state's compulsory purchase of land for a road improvement scheme at the junction of the A34 and M4 (see factfile).
Government will need to act quickly
The judgment is being considered by the DETR and a spokesman confirmed that an appeal to the House of Lords is likely. If the Lords uphold the High Court's decision, changes are inevitable. Although such an appeal usually takes anything up to two years, industry sources claim that a February hearing is likely.
The act lends itself to pressure groups. All they need to do is identify someone who can get legal aid and the bill will be paid by the taxpayer
Robert Jones, Redrow
Michael Gallimore, head of planning at law firm Lovells, anticipates a swift government response. "Without changes it is likely that someone would take the government to the European Court in Strasbourg, and I don't think they would welcome that. If the Lords go against them, I expect proposals in a matter of a month or two." But Ian Roxborough, managing director of Wimpey's strategic land development arm, is less sure: "The government tends to hang on until the bitter end," he says. "I rather hope that the secretary of state will see planning as not an end in itself but a process. But it may have to go to the House of Commons and end up as emergency new planning legislation." So how has the industry reacted to the judgment? Many fear that it could result in a new lease of life for Nimbyism. Developments that have been pursuing planning consent for years now face a whole new set of challenges. Through its provision for a fair trial, the Human Rights Act gives power to third parties, such as residents or protestors, who currently do not even have the right to ask questions at planning inquiries. Industry figures predict this could create a minefield for both developers and planners, who may have to take into account the quibble and query of everyone who cares to raise their hand at a planning inquiry or committee. "Most of the human rights issues in planning are about the process, not the cases," says Town and Country Planning Association director Gideon Amos. "What is important is how the application is dealt with."
Planners suggest environmental court
The issue of third-party rights causes many industry members great concern. Giving everybody a point of view is all very well when you are discussing the merits of an extension to the local village hall, they argue, but what about mammoth planning inquiries such as Heathrow's Terminal 5? Any new delays to the planning system mean that this 10-year saga could grind to a halt entirely. Robert Jones, chairman of housebuilder Redrow, is blunt about the potential consequences: "The act lends itself to pressure groups. All they need to do is identify someone who can get legal aid and the bill will be paid by the taxpayer," he says.
Three suggestions have been put forward to deal with the consequences of the ruling. The establishment of an environmental court has been advocated by leading planning academics including professor Malcolm Grant, professor of land economy at the University of Cambridge. Such a court would form part of the judicial system and could make final decisions on development plans, applications which would have been called in by the secretary of state, compulsory purchase and the merits of planning appeals. Environmental courts already exist in New South Wales, Australia, and a similar system is in operation in Ireland.
Some developers favour this option; Wimpey's Ian Roxborough says the arbitrary nature of planning guidance means that a planning inspectorate should act as an impartial judge. "What is fashionable in one administration is not in another. The p in planning stands for politics; the notion that it is a science is a nonsense," he says. Others argue that judges should stick to the law and not attempt to make planning decisions. "Deciding whether or not a new road should go ahead or Terminal 5 should be built is a political question, not a legal question," says Michael Redman, senior solicitor at law firm Clifford Chance.
It has also been suggested that responsibility for planning could move to the Lord Chancellor's department, but cosy interdepartmental relationships could lead to new accusations of partiality. Another option is to make the planning inspectorate completely independent of government. Legislation could create an inspectorate that runs itself. Berkeley Group group planning executive Brian Salmon favours such a scheme. "It is a sound body and if given a slightly greater mandate could be the best bet," he says. Yet someone would still have to appoint and regulate such an authority, which could lead to a new quango being formed. "Who would they be accountable to?" asks Faraz Baber, planning policy officer at the RICS. "What links would there still be with government departments?" While the debate rages, advice on what to do next is not forthcoming. The RICS's Baber says the organisation is planning seminars with environmental court experts from Ireland to give planners a taste of what may be to come. The TCPA is also in the early stages of formulating a project to test the viability of an environmental court.
