Friends Provident Life & Pensions Ltd v Secretary of State for Transport, Local Government & Regions and Others
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE FORBES |
| Judgment Date | 19 October 2001 |
| Neutral Citation | [2001] EWHC 820 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/510/2001 |
| Date | 19 October 2001 |
[2001] EWHC 820 (Admin)
IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Forbes
Case No: CO/510/2001
Christopher Katkowski QC, Daniel Kolinsky and Ms Carine Patry, instructed by Ashurst Morris Crisp, appeared for the Claimant;
Philip Sales and Paul Nicholls, instructed by The Treasury Solicitor, appeared for the Defendant;
John Pugh-Smith and Matthew Reed, instructed by Mr Philip Mason, Head of Legal Services, Norwich City Council, appeared for the 1 st Interested Party; and
Timothy Straker QC and Sarah-Jane Davies, instructed by Travers, Smith Braithwaite, appeared for the 2 nd Interested Party.
1. Introduction. In these proceedings, the Claimant (hereafter referred
to as “Friends Provident”) challenges by way of Judicial Review the
decision of the Secretary of State for Transport, Local Government and Regions (“the Secretary of State”) not to call in for his own determination
a planning application which has been submitted by the Second Interested
Party (“Lend Lease”) to the First Interested Party (“the Council”) for the
development of a major retail shopping centre and residential
development at the former Nestle site at Chapelfield, Norwich (“the
planning application”).
2. Friends Provident's challenge is now founded on two separate and distinct grounds: see paragraphs 20 to 35 (Ground 1) and paragraphs 44 and 46 (Ground 2) of the Amended Statement of Grounds. The essential thrust of the two grounds can be summarised as follows:
Ground 1. (a) in the particular circumstances of the present case, the Council's determination of the planning application will constitute a breach of Friends Provident's rights under Article 6 of the European Convention of Human Rights (“the Convention”);
(b) in contrast, the Secretary of State's determination of the planning application following its call-in would not be a breach of Article 6 of the Convention; therefore, in deciding not to call in the planning application, the Secretary of State has acted in a manner which is incompatible with Friends Provident's Article 6 rights and which is unlawful by virtue of Section 6(1) of the Human Rights Act 1998; and
Ground 2: (c) further and in any event, in the particular circumstances of the present case, the Secretary of State is obliged to give reasons for his decision and he has refused to do so.
See also paragraph 2 of the written skeleton argument prepared by Mr Katkowski QC and Mr Kolinsky on behalf of Friends Provident.
3. The Legal Framework. So far as material, the relevant statutory and other legal provisions are as follows:
(i) The Town and Country Planning Act 1990 (the “TCPA 1990”):
“Section 58 Granting of Planning Permission: general
(1) Planning Permission may be granted –
…
(b) by the local planning authority…on application to the authority…
…
Section 70 Determination of applications: general considerations
(1) Where an application is made to a local planning authority for planning permission –
(a) subject to sections 91 and 92, they may grant planning permission, either unconditionally or subject to such conditions as they think fit; or
(b) they may refuse planning permission.
(2) In dealing with such an application the authority shall have regard to the provisions of the development plan, so far as material to the application, and to any other material considerations.
…
Section 77 Reference of applications to Secretary of State
(1) The Secretary of State may give directions requiring applications for planning permission…to be referred to him instead of being dealt with by the local planning authorities.
(2) A direction under this section
(a) may be given either to a particular local planning authority or to local planning authorities generally; and
(b) may relate … to a particular application…specified in the direction.
(ii) The Town and Country Planning (Inquiries Procedure) (England) Rules 2000 (“the TCPIR 2000”)
Application of Rules
3.—(1) These Rules apply in relation to any local inquiry caused by the Secretary of State to be held in England before he determines-
(a) an application for planning permission referred to him under section 77…
…
17.—(1) After the close of an inquiry, the inspector shall make a report in writing to the Secretary of State which shall include his conclusions and his recommendations or his reasons for not making any recommendations.
…
(5) If after the close of an inquiry, the Secretary of State
(a) differs from the inspector on any matter of fact mentioned in, or appearing to him to be material, to a conclusion reached by the inspector; or
(b) takes into consideration any new evidence or new matter of fact (not being a matter of government policy),
and is for that reason disposed to disagree with a recommendation made by the inspector, he shall not come to a decision which is at variance with that recommendation without first notifying the persons entitled to appear at the inquiry who appeared at it of his disagreement and the reasons for it; and affording them an opportunity of making written representations to him or (if the Secretary of State has taken into consideration any new evidence or new matter of fact, not being a matter of government policy) of asking for the re-opening of the inquiry.
(iii) The Human Rights Act 1998 (“he HRA 1998”)
Section 1 The Convention Rights
(1) In this Act “the Convention rights”means the rights and fundamental freedoms set out in –
(a) Articles 2 to 12 and 14 of the Convention,
(b) Articles 1 to 3 of the First Protocol, …
as read with Articles 16 to 18 of the Convention
…
Section 3 Interpretation of legislation
(1) So far as it is possible to do so, primary legislation must be read and given effect in a way which is compatible with the Convention rights.
…
Section 6 Acts of public authorities
(1) It is unlawful for a public authority to act in a way
which is incompatible with a Convention right.
(2) Subsection (1) does not apply to an act if –
(a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or
(b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions.
…
(6) “An Act” includes a failure to act…
…
Section 7 Proceedings
(1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may –
(a) bring proceedings against the authority under this Act in the appropriate court or tribunal, or
(b) rely on the Convention right or rights concerned in any legal proceedings
but only if he is (or would be) a victim of the unlawful act.
…
Section 8 Judicial remedies
(1) In relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate.
…
(iv) The European Convention on Human Rights (“the Convention”)
Article 6
Right to a fair trial
1. In the determination of his civil rights and obligations…everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law…
PART 11
THE FIRST PROTOCOL
Article 1
Protection of Property
Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
4. The Factual Background. Friends Provident is the freehold owner of the Castle Mall shopping centre (“Castle Mall”) in Norwich city centre. It is common ground that Castle Mall is a successful city centre development in terms of its location, operation and integration in the city centre. It is recognised in the City of Norwich Local Plan as having provided “a major stimulus to the attractiveness of Norwich as a regional shopping centre”.
5. On 10 th April 2000, Lend Lease submitted the planning application to the Council as the relevant planning authority. It is said that the planning application is for the largest single retail development ever to be proposed in Norwich or anywhere else in Norfolk (“the proposed development”) and would result in a 21% increase in the total amount of net comparison goods retail floor space trading in Norwich. Part of the site which is the subject matter of the amended planning application (see paragraph 44 of this judgment) is owned by the Council, namely the land situated at Chantry Car Park, Chapelfield Road. Part of the material submitted in support of the planning application was a “Retail Assessment of Need and of the Impact of the Development” which was prepared on behalf of Lend Lease by Montagu Evans (the “Montagu Evans Retail Assessment”).
6. On the same day (i.e. on 10 th April), the Council placed an advertisement in the press relating to the application and on 20 th April 2000, letters were duly sent to the various statutory consultees, neighbours and other interested parties inviting representations with regard to the proposed development and giving 28 days to respond. On the 9 th May, the Council placed a further advertisement in the...
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