It was not the early sort of Christmas present the Government (or more specifically the deputy prime minister) expected - or wanted.
Just over a month ago, on 13 December, the High Court delivered a legal slap in the face to a cornerstone of the present planning system.
As a result of four test cases the High Court pronounced that the Secretary of State's powers to call in and decide planning applications himself are in breach of the Human Rights Act 1998 (HRA).
The court also held that where planning appeals are decided by the Secretary of State (SoS) rather than by his inspector, that too is in breach. One of the cases centred on objections to highway improvement orders promoted by the SoS. He is, of course, also the person who decides whether or not to confirm his own order, following a public inquiry. That was held to breach the HRA.
You may recall that when the HRA kicked-in last autumn there was a rash of articles speculating on what the impact might be. I may have missed it but I don't remember a lot of column inches expended on the implications of the new law on the planning system.
Along with the majority of people, I suppose, I thought the HRA would pose the odd difficulty for, say, the prison service or the administrators of the asylum system or maybe the armed services.
Well, in the event, it's the town and country planning system which has emerged as the first loser (or winner, depending on your stance).
None of the quartet of test cases involved housing schemes so you may wonder what all the fuss is about.
David Brock is a top planning lawyer with the practice Mills & Reeve. I am indebted to him for a quick teach-in on the implications of those judgements back in December. He is adamant that, first, the Government has no chance of overturning the judgement on appeal or in the House of Lords, which is where the judgements were heading as this column went to press.
Second, Brock is convinced that a lot of other planning and quasi-planning matters will be caught in this HRA 'net'.
"This is likely to have significant effects in other areas, particularly the making of local plans, some compulsory purchase proceedings, listing of buildings, designation of Sites of Special Scientific Interest, scheduling of ancient monuments and the grant of ancient monument consent," he says.
Adds Brock: "Decisions in these areas all affect rights but are not taken by independent, impartial, tribunals".
At the same time as the High Court found that the Secretary of State's call-in powers breached the HRA, the judges added that the SoS would not be acting unlawfully if he continued to use the process, on the grounds that he would be complying with domestic planning law.
Confused? Well join the queue. This column will attempt to keep you up to date as this intriguing tale unfolds.
Over the coming weeks the Government will seek and get clarification from the Law Lords. In the meantime ministers insist "the existing primary legislation continues to apply and the SoS has a duty to continue determining cases which have been called-in and appeals that have been recovered and to fulfil his statutory functions in relation to orders under the Transport and Works and Highways Acts and under compulsory purchase legislation".
Planning minister Nick Raynsford told MPs recently: "Pending final decisions on the appeals, in deciding whether to call-in or recover cases for his own decision, he will take account of the fact that call-in and recovery, although lawful, have been declared incompatible with the Convention [on Human Rights] by the divisional court".
Just for the record, the SoS (or in this case deputy PM John Prescott) called in 138 planning applications for decision by him during 1998/9, the most recent 12-month "haul".
In truth the judgements set all sorts of hares running. In the fullness of time (indeed relatively soon) the Government may decide to amend planning law. This might involve removing the power to call-in, something which could be achieved by letting only planning inspectors decide call-ins, appeals and highway orders.
As a very long shot, it is just about conceivable that the Government could decide to establish a new environment court. But don't wait up.
Whatever happens, m'learn'd friends are rubbing their hands and you, as a developer, may find yourself either with schemes under a cloud or with a potential avenue for overturning a decision arrived at after 13 December.
These are indeed interesting times, as that Chinese "curse" puts it.....!
Source
Building Homes
