R Holding and Barnes Plc v The Secretary of State for the Environment, Transport and Regions

This is the judgment of the court.:

Introduction.

These four applications raise the very important question whether the processes by which the Secretary of State for the Environment Transport and the Regions (SSETR) makes decisions under the Town and Country Planning Act 1990 (TCPA) and orders under the Transport and Works Act 1992 (TWA), the Highways Act 1980 (HA) and the Acquisition of Land Act 1981 (ALA) are compatible with Article 6 (1) of the European Convention on Human Rights. This Article says:

In the determination of his civil rights and obligations …….. everyone is entitled to a fair and public hearing …….. by an independent and impartial tribunal established by law."

It is common ground that such decisions and orders do affect civil rights and obligations. In the present cases the SSETR does not argue that he is himself an independent and impartial tribunal but contends that the decision making process as a whole including the right of appeal to and the reviewing role of the High Court does comply with Article 6. Whether he is right about this is the central question we have to decide. If he is not, the SSETR's alternative submission is that this court should expand its role to review his decisions consistently with Sections 3 and 6 of The Human Rights Act 1998 ( HRA) so as to make the processes compliant. These sections say:

3. (1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.

6. (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.

(3) In this section "Public Authority" includes —

(a) a court ……..

If the processes are not compliant and cannot be made so, the SSETR contends that Section 6 (2) HRA applies to them so Section 6 (1), which would otherwise make his acts unlawful, does not apply. Such a finding would enable us to make declarations of incompatibility under Section 4 HRA which says:

4. (1) Subsection (2) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right.

(2) If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility.

Two of the cases, ( R v SSETR ex p. Holding and Barnes PLC (HB) and R v SSETR ex p. Premier Leisure (PL)) involve decisions by the SSETR to call in their applications for planning permission under Section 77 TCPA. As well as the Article 6 challenge to the process as a whole HB contends that the decision to call in should be quashed on conventional judicial review grounds. The third case ( Alconbury Developments Ltd. (ADL) v SSETR) involves "recovered" appeals against refusals of planning permission under Sections 78 and 79 TCPA and proposed orders under Section 1 TWA relating to the construction and operation of a railway in connection with the proposed re-development of RAF Alconbury. The fourth case ( SSETR v Legal and General (LG)) involves proposed highway orders and related compulsory purchase orders (CPO) in connection with a scheme to improve the A34/M4 junction. It is the SSETR's acts in calling in or recovering planning decisions and proposing to make TWA, HA or CPO orders which are alleged to be unlawful under Section 6 (1) HRA because they do not comply with Article 6.

In the PL case a public inquiry has been held but no decision has yet been made. In the ADL and LG cases public inquiries have started but are now adjourned to await the decision of this court. We have been told that a number of other important public inquiries have been adjourned for the same reason. For these reasons the hearing before us was arranged at short notice and we are extremely grateful to all involved for the huge amount of work which has gone into its preparation and the presentation of the argument. In the interests of producing a judgment quickly we intend to summarise the material put before us (about 2,500 pages of evidence, 200 authorities and nearly 5 days of submissions from 10 counsel) as shortly as possible.

In view of the fact that the SSETR does not argue that he is an independent and impartial tribunal it may be thought that it is unnecessary to consider the way in which he acts in any detail and that the focus of our enquiry should be upon the effectiveness of the High Court's powers. But this is incorrect. We shall come to the decisions of the European Court of Human Rights (ECtHR) in due course. But they make it clear that in considering whether determinations made in the field of administrative law comply with Article 6 the whole process must be looked at. Put shortly there would be nothing objectionable about the SSETR acting as he does, providing his decisions were subject to control by a judicial body which has "full jurisdiction". What is meant by "full jurisdiction" will be affected by the extent to which the statutory process is quasi judicial in character and contains safeguards of the kind required by Article 6. So the involvement of the SSETR and the way in which he comes to make his decisions does have to be considered.

What we propose to do first is to amplify the facts of the four cases, set out the relevant primary and secondary legislation and summarise the evidence about the involvement of the executive and the decision making process filed on behalf of the SSETR. We shall then turn to the central and other issues to which we have already briefly referred.

The Facts

HB's application..

HB is engaged in motor vehicle salvage on behalf of contracted insurance companies. It is presently based at Charfleet Industrial Estate on Canvey Island where it operates pursuant to a planning permission which was granted on appeal by an inspector in March 1997. On that occasion the SSETR did not recover jurisdiction from his inspector, nor did he direct a call-in.

HB wishes to relocate its operation to Haven Road on Canvey Island, and the local planning authority, Castle Point Borough Council, accept there would be benefits for the area if that were to happen. In November 1999 HB made an application for planning permission for the use of land at Haven Road, Canvey Island for the parking and storage of damaged cars and their sale by auction, and for the retention of the surfacing and bund walls.

The Health and Safety Executive (HSE) was consulted on the application by the local planning authority. It advised in principle against allowing the development due to the proximity of gas storage on some neighbouring sites. However, it indicated that it would be prepared to withdraw its objection if the application were modified to keep members of the public out of the new site. HB agreed to restrict entry to the site to trade members for the purposes of attending auctions. The HSE made it clear, however, that it intended to attend the enquiry and to submit evidence in support of its objection unless directed to the contrary by the SSETR.

On 2 May 2000 the local planning authority resolved that it was minded to approve the planning application subject to completion of a section 106 agreement, the Director of Development having advised that he did not consider the proposal to be a major departure from the development plan warranting referral to the SSETR for his...