R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLORD SLYNN OF HADLEY,LORD NOLAN,LORD HOFFMANN,LORD CLYDE,LORD HUTTON
Judgment Date09 May 2001
Neutral Citation[2001] UKHL 23

[2001] UKHL 23

HOUSE OF LORDS

Lord Slynn of Hadley

Lord Nolan

Lord Hoffmann

Lord Hutton

Lord Clyde

Regina
and
Secretary of State for the Environment Transport and the Regions
(Original Appellant and Cross-Respondent)
Ex Parte Holding and Barnes Plc
(Original Respondents and Cross-Appellants)

(on Appeal from the Queen's Bench Division of the High Court of Justice)

Regina
and
Secretary of State for the Environment Transport and the Regions
(Original Appellant and Cross-Respondent)
Ex Parte Alconbury Developments Limited

and Others

(Respondents)

and Others

(Cross-Appellants)

(on Appeal from the Queen'S Bench Division of the High Court of Justice)

Regina
and
Secretary of State for The Environment, Transport and the Regions
(Appellant)
Ex Parte Legal & General Assurance Society Limited
(on Appeal from the Queen'S Bench Division of the High Court of Justice) (Conjoined Appeals)
LORD SLYNN OF HADLEY

My Lords,

1

These three appeals come direct to the House pursuant to section 12 of the Administration of Justice Act 1969 from decisions of the Divisional Court (Tuckey LJ and Harrison J) in a judgment given on 13 December 2000. Although there are differences between the three cases they raise broadly the same question as to whether certain decision making processes of the Secretary of State for the Environment, Transport and the Regions ("the Secretary of State") are compatible with article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1953) (Cmd 8969) as incorporated in the Human Rights Act 1998 ("the 1998 Act"). There was a consequential question as to whether if these processes are not compatible there should be a declaration under section 4 of the 1998 Act.

2

The Divisional Court held that the following statutory provisions were incompatible with article 6 and accordingly made a declaration of incompatibility under section 4 of the 1998 Act:

(a) The Town and Country Planning Act 1990

(i) section 77;

(ii) section 78 and 79 (excluding the words inserted into sub section 79(4) by paragraph 19 of Schedule 7 to the Planning and Compensation Act 1991);

(iii) paragraphs 3 and 4 of Schedule 6 (insofar as it applied to section 79);

(b) The Transport and Works Act 1992 sections 1, 3 and 23(4);

(c) The Highways Act 1980 sections 14(3)(a), 16(5)(a), 18(3)(a) and 125 and paragraphs 1, 7 and 8 of Part 1 of Schedule 1;

(d) The Acquisition of Land Act 1981 section 2 (3) and paragraph 4 of Schedule 1.

3

The Secretary of State appeals against all these decisions and declarations. Since a related question had arisen in Scotland in County Properties Ltd v The Scottish Ministers 2000 SLT 965, the Lord Advocate has intervened in support of the application that the decision of the Divisional Court be reversed on the basis that article 6(1) does not apply to the decision making processes under review and on the basis that they are not in any event incompatible with a Convention right. The role of other parties to the proceedings will appear in a brief summary of facts to which I turn. I summarise briefly because the facts are more fully set out in the judgment of the Divisional Court to which reference can be made and which it is not helpful to repeat

4

Alconbury Developments Ltd ("AD") has agreed with the Ministry of Defence, the owner of a disused airfield at Alconbury, that if planning permission is given AD will redevelop the site into a national distribution centre in return for financial payments to the Ministry. AD applied to Huntingdon District Council ("HDC") for planning permission for the overall scheme with adjunct facilities and approach road and rail sidings. It also applied under various individual applications for planning permission for parts of the scheme. There were related applications (1) to Cambridge County Council ("CCC") as the waste disposal authority for planning permission to construct a temporary recycling depot on part of the site; (2) to HDC for permission to set up a commercial air freight operation though this was opposed by a group of local residents ("Huntsnap") and the application was withdrawn in March 1998; (3) to the Secretary of State under section 1 of the Transport and Works Act for permission to build a rail connection between the airfield and the east coast rail line together with railway sidings within the airfield.

5

On 4 August 1998 the Secretary of State refused a request to call in the planning application to be determined by him but after the HDC dismissed the overall application for planning permission and the CCC failed to determine the application for the waste recycling depot within the prescribed period, AD's appeals were "recovered" by the Secretary of State for determination by him under paragraph 3 of Schedule 6 to the Town and Country Planning Act rather than by an inspector appointed by the Secretary of State. This was done on the basis that "the appeals relate to proposals for development of major importance, having more than local significance".

6

An inspector was appointed to hold an inquiry at which for various reasons Huntsnap and an association of Nene Valley residents ("NVA") together with English Nature, a statutory body, appeared. Huntsnap and NVA contended that the proceedings were contrary to article 6. AD accordingly applied for judicial review of the Secretary of State's decision in order to clarify the position, contending that the Secretary of State's decisions to take jurisdiction over the planning appeals and the TWA applications were lawful. CCC supported AD; HDC Huntsnap and NVA opposed it On the present appeal AD and CCC support the Secretary of State. HDC and NVA contend that the Divisional Court were right in holding that there was a breach of section 6(1) but wrong in its decision on section 6(2). The Secretary of State was bound to act so as to avoid incompatibility with the Convention and therefore to permit the appeal to be determined by an independent inspector.

7

Holding & Barnes Plc ("HB") applied for planning permission to use land at Canvey Island for the storage and sale of damaged cars. The Health & Safety Executive objected because the development was near to gas storage on some neighbouring sites but the executive was willing to reconsider the position if modifications to the proposal could be made. The local planning authority on 2 May 2000 resolved that it was minded to grant permission. On 25 July 2000 the Secretary of State directed, pursuant to section 77 of the Town & Country Planning Act that the application should be referred to him because of (a) the nature of the proposed use, (b) the impact it could have on the future economic prosperity of Canvey Island and (c) the site's location close to hazardous installations. It is that direction which HB challenged on an application for judicial review.

8

Legal & General Assurance Society Ltd. These proceedings are brought by the Secretary of State at the invitation of Legal & General Assurance Society Ltd ("L & G"). The issue relates to an improvement scheme at junction 13 of the A34/M4 proposed by the Secretary of State through the Highway Authority. There are complex details of a dual two-lane carriageway all-purpose road, 100 metres to the west of the existing junction 13, together with connected slip and side roads. In August 1993 following an inquiry, orders were confirmed for the work to go ahead. The court quashed part of one of the side road orders and new draft orders were published on 17 February 2000 followed by a draft compulsory purchase order on 24 February 2000. Following objections the Secretary of State appointed an inspector to hold a public inquiry into the draft order. L & G which own some land the subject of the draft compulsory purchase order invited the Secretary of State to seek a ruling of the court as to the compatibility of the proceedings with the Convention. L & G decided not to be represented in the proceedings and the Attorney General appointed counsel as amici curiae in that case both before the Divisional Court and before the House.

9

The Divisional Court set out with clarity the details of the legislation relevant to these cases. I gratefully adopt their account in paragraphs 30 to 52 of the judgment and accordingly I only summarise the essential characteristics with which these appeals are concerned.

10

It is important to make clear that these appeals are not concerned directly with issues which affect the vast majority of applications for planning permission. Those applications are dealt with by elected local authorities and not by the Secretary of State even though local authorities have to take into account the development plan for their area which does reflect national policies, guidance and instructions given by the Secretary of State. Nor are the present appeals concerned with the majority of appeals from such local authority decisions which are decided by inspectors on the Secretary of State's behalf even though those inspectors may be full-time officials of the Planning Inspectorate and even though they must have regard to the Secretary of States's policies and the framework document setting out their functions. The present appeals under the Town and Country Planning Act are concerned only with applications which are "called in" by the Secretary of State under section 77 of the Act and those appeals which are "recovered" by the Secretary of State under paragraph 3 of Schedule 6 to the Act. The Divisional Court found that of some 500,000 planning applications each year about 130 were "called in" by the Secretary of State and of some 13,000 appeals to the Secretary of State each year about 100 were "recovered" by the Secretary of State. In both types of case the Secretary of State followed to a large extent the recommendations of the inspectors. These figures of...

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