R (Friends Provident Life Office) v Secretary of State for the Environment, Transport and the Regions and Others

JurisdictionEngland & Wales
Judgment Date2002
Neutral Citation[2002] EWHC 820 (Admin)
Date2002
Year2002
CourtQueen's Bench Division (Administrative Court)
Queen's Bench Division Regina (Friends Provident Life Office) v Secretary of State for the Environment, Transport and the Regions and others [2001] EWHC Admin 820 2001 July 23, 24, 26, 27, 30; Oct 19 Forbes J

Human rights - Right to fair trial - Determination of civil rights and obligations - Refusal of Secretary of State to call in planning application for own determination after consideration by inspector - Application to be determined by local planning authority - Whether determination by independent and impartial tribunal - Human Rights Act 1998 (c 42), Sch. 1, Pt I, art 6(1)

The developers applied for planning permission for a proposed major shopping centre to be built in Norwich. The claimant, who was the owner of an existing shopping centre in Norwich city centre, formally objected to the application on the basis that the proposed development would have adverse consequences for its shopping centre and the city centre as a whole. The local planning authority resolved to grant planning permission. The claimant requested the Secretary of State to call in the application for determination by him pursuant to section 77 of the Town and Country Planning Act 1990, so that the application could be considered by an independent inspector at a public inquiry, but the Secretary of State refused. The claimant sought judicial review of the Secretary of State's refusal on the ground, inter alia, that determination of the application by the local planning authority, even though its decision would be subject to the High Court's power of review, would constitute a breach of the claimant's right, guaranteed by article 6(1) of the European Convention for the Protection of Human Rights and Fundamental FreedomsF1, to have its civil rights determined by an independent and impartial tribunal, while determination of the application by the Secretary of State would make the whole process compliant with article 6, so that by refusing to call in the application the Secretary of State had acted in a way which was incompatible with the claimant's Convention rights, contrary to section 6(1) of the Human Rights Act 1998.

On the claim for judicial review —

Held, dismissing the claim, that the planning application concerned the claimant's civil right to use, enjoy and own its own shopping centre; that there was no reason in principle, in an appropriate case, why the scope of article 6 of the Convention should not extend to the administrative decision-making process relating to a third party's objection to the grant of planning permission, provided it directly affected that third party's civil rights; that, since the claimant's right of property in its shopping centre would be directly affected by the decision-making process, article 6 was engaged; that in the determination of planning applications a local planning authority was not itself an independent and impartial tribunal for the purposes of article 6(1); that where an administrative decision depended on the decision-maker making a judgment as to the progress or outcome of some future event, or when the decision was based on purely policy grounds, a combination of the initial decision-making process and the High Court's power of review was sufficient to ensure compliance with article 6; that, where, however, an administrative decision depended on a finding as to some present or future fact, the safeguards of a public inquiry before an independent inspector might well be needed in addition, although there was no absolute rule of law to that effect, and each case had to be judged on its own facts when deciding whether the High Court's power of review was sufficient to make the overall process compliant with article 6; and that the assessment of the likely impact of the proposed development on Norwich city centre was essentially a matter of planning judgment for the local planning authority and, in the circumstances, the local planning authority's procedures, taken together with the High Court's power of review, constituted a determination of the claimant's civil rights compliant with article 6 (post, paras 63, 69, 83, 89–95).

R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] 2 WLR 1389, HL(E) applied.

The following cases are referred to in the judgment:

Albert and Le Compte v Belgium (1983) 5 EHRR 533

Associated Provincial Picture Houses Ltd v Wednesbury Corpn [1948] 1 KB 223; [1947] 2 All ER 680, CA

Bryan v United Kingdom (1995) 21 EHRR 342

Edinburgh Council (City of) v Secretary of State for Scotland [1997] 1 WLR 1447; [1998] 1 All ER 174, HL(Sc)

ISKCON v United Kingdom (1994) 18 EHRR CD 133

Kingsley v United Kingdom (2000) 33 EHRR 288

Le Compte, Van Leuven and De Meyere v Belgium (1981) 4 EHRR 1

Ortenberg v Austria (1994) 19 EHRR 524

R v Ministry of Defence, Ex p Murray [1998] COD 134, DC

R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] 2 All ER 929, DC; [2001] UKHL 23; [2001] 2 WLR 1389; [2001] 2 All ER 929, HL(E)

R (Burkett) v Hammersmith and Fulham London Borough Council [2001] Env LR 684, CA

R (Vetterlein) v Hampshire County Council (unreported) 14 June 2001, Sullivan J

Stefan v United Kingdom (1997) 25 EHRR CD 130

Tre Traktörer AB v Sweden (1989) 13 EHRR 309

X v United Kingdom (1998) 25 EHRR CD 88

Zander v Sweden (1993) 18 EHRR 175

Zumtobel v Austria (1993) 17 EHRR 116

The following additional cases were cited in argument:

Ashbridge Investments Ltd v Minister of Housing and Local Government [1965] 1 WLR 1320; [1965] 3 All ER 371, CA

R v Criminal Injuries Compensation Board, Ex p A [1999] 2 AC 330; [1999] 2 WLR 974, HL(E)

R v Ministry of Defence, Ex p Smith [1996] QB 517; [1996] 2 WLR 305; [1996] 1 All ER 257, CA

R v Westminster City Council, Ex p Monahan [1990] 1 QB 87; [1989] 3 WLR 408; [1989] 2 All ER 74, CA

Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014; [1976] 3 WLR 641; [1976] 3 All ER 665, CA and HL(E)

Uppal v United Kingdom (No 1) (1979) 3 EHRR 391

CLAIM for judicial review

By an amended claim form dated 9 February 2001 and pursuant to permission granted by Harrison J on 13 March 2001, the claimant, Friends Provident Life Office, claimed judicial review by way of (1) an order to quash the decision of the Secretary of State, dated 10 January 2001 and reaffirmed on 18 June 2001, declining to call in for his own determination, pursuant to section 77 of the Town and Country Planning Act 1990, an application for planning permission in respect of land at Chapelfield, Norwich, made to the first interested party, Norwich City Council, by the second interested party, Lend Lease Norwich Ltd; (2) a mandatory order requiring the Secretary of State to reconsider his decision whether to call in the said planning application in accordance with the law; (3) a declaration that it was contrary to article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms for Norwich City Council to determine the said planning application. The grounds of the claim were (1) that since the council had a direct economic interest in the outcome of the application and would be construing its own policies in the determination of the application, determination of the application by the council would be incompatible with the claimant's rights under article 6 of the Convention, and since determination of the application by the Secretary of State would be compatible with the Convention, the Secretary of State had acted in a way which was incompatible with the claimant's Convention rights, contrary to section 6(1) of the Human Rights Act 1998; (2) that in the circumstances the Secretary of State had been under a duty to give reasons for his decision and had not done so.

The facts are stated in the judgment.

Christopher Katkowski QC, Daniel Kolinsky and Carine Patry for the claimant.

Philip Sales and Paul Nicholls for the Secretary of State.

John Pugh-Smith and Matthew Reed for the local planning authority.

Timothy Straker QC and Sarah-Jane Davies for the developers.

Cur adv vult

19 October. FORBES J handed down the following judgment.

Introduction

1 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 the Regions 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 Nestlé 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 for the Protection of Human Rights and Fundamental Freedoms; (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. 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 and Mr...

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