R (Kathro) v Rhondda Cynon Taff County Borough Council

JurisdictionEngland & Wales
JudgeMR JUSTICE RICHARDS
Judgment Date06 July 2001
Neutral Citation[2001] EWHC 527 (Admin)
Docket NumberCase No: CO/624/01
CourtQueen's Bench Division (Administrative Court)
Date06 July 2001

[2001] EWHC 527 (Admin)

IN THE HIGH COURT OF JUSTICE

ADMINISTRATIVE COURT

QUEENS BENCH DIVISION

Before:

The Honourable Mr Justice Richards

Case No: CO/624/01

The Queen (on The Application Of (1) Alan Kathro, (2) Michael Evans, (3) Vivienne Evans, (4) Patrick Grant And (5) Llantwit Fardre Community Council)
Claimants
and
Rhondda Cynon Taff County Borough Council
Defendant

Mr Peter Harrison (instructed by Lansdowne, Solicitors, for the Claimants)

Mr Christopher Cochrane QC and Mr Geoffrey Stephenson (instructed by Director of Legal & Administrative Services, Rhondda Cynon Taff County BC, for the Defendant)

MR JUSTICE RICHARDS
1

The first four claimants (Alan Kathro, Michael Evans, Vivienne Evans and Patrick Grant) are residents of Church Village in South Wales. The fifth claimant (Llantwit Fardre Community Council) is the community council for the area which includes Church Village. The defendant (Rhondda Cynon Taff County Borough Council) is the unitary local government authority for the area and has relevant functions as local education authority and local planning authority.

2

The defendant is promoting a major development project on its own land in the centre of Church Village. The project, known as the Garth Olwg development, is described as a "lifelong learning project" and will cover 11.5 hectares and provide for the education of over 1,615 pupils. The main elements of the project are two Welsh medium community schools, community lifelong learning facilities, a day nursery, a culture and arts centre, youth facilities, all-weather sports facilities, new outdoor sports pitches and associated ground works, a customer contact centre, new allotments and associated highway works. The development is to be funded by a Private Finance Initiative (PFI) scheme which requires the approval of the National Assembly for Wales. The defendant considers that the project will have significant educational, social and economic benefits for the area and has the potential to be a "flagship" project for Wales.

3

The claimants are deeply concerned about the impact that the development will have upon the village; and the individual complainants are concerned in particular about its effects upon the peaceful enjoyment of their own homes and upon the value of their properties, especially because of increased traffic and associated parking. They form part of a considerable local opposition to the project, though they accept that there are also those who support the scheme and argue strongly for the benefits it would bring.

4

The present proceedings are concerned not with the factual merits of the proposal, which are not a matter for decision by the court, but with a number of specific legal issues raised by the claimants. The claimants seek judicial review of the defendant's proposed determination of the planning application and of its decision to use a negotiated tendering procedure for the PFI scheme under EC rules on public procurement. In outline they submit that: (1) for the defendant, as local planning authority, to determine the planning application in respect of its own development on its own land will be in breach of the rights of the individual claimants to a determination by an independent and impartial tribunal under article 6 of the European Convention on Human Rights: (2) the defendant is acting unlawfully in proposing to determine the planning application without requiring an environmental impact assessment; (3) the defendant has unlawfully fettered its discretion and predetermined the outcome of the planning application, and has failed to consult with an open mind; and (4) the decision to seek tenders for the project by way of the competitive negotiated procedure rather than the open or restricted procedure was legally flawed. Certain other matters originally canvassed are no longer pursued. Permission to apply for judicial review has been granted in respect of grounds (1) to (3). The application for permission in respect of ground (4) was adjourned to be dealt with at the substantive hearing. I have heard full argument on all issues still pursued.

Background

5

An application for outline planning permission for the development was made on 12 December 2000 by the defendant's Group Director for Education and Children's Services. By regulation 3 of the Town and Country Planning General Regulations 1992, an application for planning permission for development of any land of an interested planning authority shall be determined by the authority concerned unless the application is called in under section 77 of the Town and Country Planning Act 1990. The call-in power falls to be exercised in this case by the National Assembly, to which the relevant powers of the Secretary of State were transferred under the Government of Wales Act 1998. On 27 February 2001 the National Assembly notified the defendant that "the application does not involve planning issues which would warrant taking responsibility for determining it from your Council". Accordingly the application would not be called in and the defendant could determine it for itself. The defendant had already arranged a meeting for 22 February 2001 for the purpose of determining the application. Following the grant of permission to apply to this court, the meeting was postponed pending the outcome of the claim for judicial review.

6

If a decision on the planning application is taken by the defendant, the position until recently was that it would be taken by the Planning Committee and that any member of the council could sit on the Planning Committee for that purpose. By a council resolution adopted on 23 May 2001, however, there has been a significant change in the position. Members of the Policy Committee are no longer eligible for appointment to the Planning Committee, which has been renamed as the Development Control Committee. The change means that members of the council who were involved in decisions of the Policy Committee to promote the project will not be involved in the decision of the Development Control Committee whether to grant or refuse planning permission for the project.

Ground (1): article 6 ECHR

7

At the forefront of the claimants' case is the contention that the defendant council cannot lawfully decide the planning application itself, since to do so would be a breach of the claimants' rights under article 6 ECHR. The case as advanced by Mr Harrison may be summarised as follows. The individual claimants are freehold owners and occupiers of their homes in Church Village. They enjoy rights to respect for their private and family life and their homes under article 8 and the right to peaceful enjoyment of their possessions under article 1 of the First Protocol. Where a person will be directly affected by a development, the determination of a planning application for that development is a determination of matters sufficiently close to the relevant rights as to be directly decisive of those rights and is therefore a determination of civil rights within the meaning of article 6: see Ortenberg v. Austria (1994) 19 EHHR 524 and Balmer-Schafroth v. Switzerland (1997) 25 EHHR 598. In this case all four individual applicants live sufficiently close to the proposed development to be directly affected by it. They will be detrimentally affected in their enjoyment of their homes and the monetary value of those homes will drop. There is a sufficient connection with the planning decision to bring the matter within the scope of article 6.

8

Article 6 provides that "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". If the article applies, then it is submitted that it would be a breach of the article for the defendant to make a decision on a planning application in respect of a development which it is promoting and where it is the landowner. Any such decision would not be made by an "independent and impartial tribunal" as required by article 6. Although the argument was originally advanced in the context of procedures under which members of the Policy Committee could sit on the Planning Committee, it is submitted that the recent procedural change is not sufficient to avoid a breach of article 6.

9

It is further submitted that, if the defendant grants planning permission for its own development on its own land, the breach of article 6 cannot be cured by recourse to any other legal procedure. There is no right of appeal against the grant of planning permission. The possibility of an application for judicial review cannot overcome the breach. The decision of the House of Lords in R (Alconbury Developments Ltd) v. Secretary of State for the Environment, Transport and the Regions [2001] 2 All ER 929, which held that the power of the Secretary of State to determine planning applications on a call-in or similar procedures is compatible with article 6, is distinguished. Indeed, the reasoning in the decision is deployed in support of the claimants' case. In particular, in the Alconbury decision weight was placed on the role of the inspector in holding an inquiry and making findings of fact as part of the Secretary of State's decision-making process, whereas the decision-making process of a local planning authority does not involve an inspector or any like procedure for evaluating evidence and making findings of fact; and judicial review does not involve a sufficient examination of the facts to overcome that defect.

10

On the basis of those and other considerations Mr Harrison submits that it would involve an inevitable breach of article 6 for the...

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