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The
Human Rights Act 1998 -
The
death of planning or the birth of a fairer system?
Alexandra
Fairclough
The incorporation
of the European Convention of Human Rights into UK legislation has caused
uncertainty in our planning system. Cases currently on appeal to the House
of Lords could lead to a radical overhaul of the present system, not least
to separate the decision making process from political influence, and
to establish the rights of objectors.
The Human Rights Act
1998 (HRA) came into force on 2nd October 2000. The act incorporates into
domestic law many of the provisions of the European Convention of Human
Rights (ECHR). The UK Government was heavily involved in the drafting
of the ECHR, and it was one of the first to sign it and the first to ratify
it in 1951. Furthermore, since 1966, the UK has accepted the rights of
individuals to petition the Strasbourg authorities in respect of alleged
breaches of the Convention. Yet those rights have not themselves been
part of, nor actionable within our legal system. The reason argued repeatedly
was that there was no conflict between any of the provisions of the Convention
and UK domestic law.
The main forum for
the protection of human rights in Europe is the Council of Europe. The
Council of Europe has a court of Human Rights in Strasbourg. The citizens
of individual member states can either apply to the Council of Europe
alleging infringement of their human rights, or they can petition the
Court directly if they fulfil certain criteria relating to standing, eligibility
and time limitation. In the UK this has rarely happened; the cost Ð in
time and money Ð has deterred many people from taking cases involving
potential breaches of human rights to Strasbourg.
The Convention has
been binding on UK law for almost half a century. However, it has not
had direct effect within national boundaries. So if you complained of
a violation of a Convention right, you had to exhaust the domestic court
system first before you could apply to the European Court of Human Rights.
In the meantime, the domestic courts would continue to apply the alleged
violating, domestic law in the same way.
This position has
been gradually changing on the basis that the law of the European Union
is part of domestic law. The European Courts of Justice (ECJ) in Luxembourg
has held in recent decisions that member states must respect human rights.
Therefore European law has overlapped with the law of the ECHR.
Also, prior to the
HRA coming into force, the UK courts accepted human rights points on the
basis that Convention rights were said to have influenced previous decisions
of the UK courts, and that all subsequent decisions were already bound
by these ones.
In essence it is unlawful
for a ‘public authority’ such as a court, tribunal or local planning authority,
to act in breach of a Convention right, unless it is necessary to do so
to ‘give effect to legislation’ – that is to say that by obeying the Convention
they would be in breach of another law. Such a breach may be justified
on the grounds that it protects the amenity of the community.
A victim of such an
act has a right of action or a defence where the public authority is acting
unlawfully. Where the authority is acting in breach of a Convention right,
but is giving effect to legislation, the victim can seek a declaration
from the courts that the legislation is incompatible with the ECHR.
However, there are
clear exceptions: an interference with a right may be justified if it
is in accordance with the law and is necessary to a democratic society.
Several cases considered
by the European Court of Human Rights have provided the following conditions
under which an interference may be justified:
- There is some
specific, accessible and precise legal rule justifying the interference
- The interference
serves one of the aims set out in the qualification to the relevant
article
- The interference
is necessary in a democratic society; namely that there is a pressing
social need for the interference and the interference is proportionate
to the aim pursued.
It
is for the public authority in question to justify any interference in
all the above respects and the burden of proof is on the public authority
once interference has been established.
Public authorities,
which includes local planning authorities by definition, are prohibited
from acting in a way which is incompatible
with any of the human rights described by the Convention (Section 6 (1)),
unless legislation makes this unavoidable. If an authority acts in a way
which is incompatible, then separate proceedings can be brought against
it under Section 7 (1). Therefore the Act creates new rights of action
and grounds of appeal whether civil or criminal by a ‘victim’ of the unlawful
act.
The
Convention Rights
The
rights defined by the ECHR are set out in Schedule 1 of the Human Rights
Act 1998. Those rights most likely to affect planning and historic buildings
include:
Procedural
guarantees
- Article
6 (the procedural right to a fair trial)
- Article
14 (the prohibition of discrimination)
Substantive
guarantees
- Article
8 (the substantive right of respect for a person’s home)
- Protocol
1 Article 1 (the substantive right of peaceful enjoyment of one’s possessions
which include one’s home and other land)
The
two ‘substantive rights’ listed above will enable those affected by the
planning process to reinforce their objections by stating that to allow
such a development to proceed or such an enforcement notice to stand would
infringe their human rights. The two ‘procedural guarantees’ will ensure
that all ‘victims’ are given the chance of a fair hearing.
The
full implications of the impact of the HRA are unknown. However, at the
very least, if an interference is established, then it is necessary for
the ‘public authority to justify that incursion’.
Article
6 (the right to a fair trial)
Article
6 relates entirely to procedure and it applies wherever there is a determination
of a person’s ‘civil rights’. These rights encompass property rights,
thus affecting planning and conservation law.
This
article could be of significance to the planning process in that it enables
a complainant, whether developer or objector, to argue that he or she
has not had a fair hearing. Article 6 will only extend to an objector
if he or she is directly affected by any development proposals. However,
the complainant must prove that his rights are also affected. If this
is so then he also must be given a fair hearing. This could lead to major
changes in the way that planning committees are operated.
The
developer’s position has already been tested in Bryan v UK. Here it was
held that a developer could challenge an enforcement notice as a breach
of Article 6.
The
planning appeal system is presently under scrutiny on the basis that the
adjudication of a planning inquiry by a planning inspector is not considered
independent or impartial. In County Properties v Scottish Ministers, it
was established that there was a breach of Article 6 where a listed building
was called in by the Scottish executive agency, Historic Scotland. This
case illustrates how elements of the planning consultation process can
infringe upon the European Convention on Human Rights.
Similarly,
appeals heard by the Secretary of State could also be open to challenge
on the grounds that the Secretary of State is in effect both policy maker
and judge. More recently the Alconbury et alia cases have illustrated
that the Secretary of State’s position as final decision maker and policy
maker was contrary to Article 6. These cases are currently on appeal to
the House of Lords. If the Lords’ uphold the first decision this could
result in a radical overhaul of the present planning system, perhaps by
creating an independent tribunal or environmental court.
The
objector to the grant of permission has had limited rights until now.
Under the Local Government Act 1972, objectors are often unable to present
their case at a planning committee and are hindered by a time restraint.
Often the planning officer’s report may only make a passing reference
to the objections, and once permission has been granted, there is no opportunity
for third parties to appeal against planning permission unless there has
been an error in the legal process of the decision.
If
an appeal against the process of the decision is made, the success of
any ‘judicial review’ which ensues will depend on whether there has been
bias or procedural error in the decision-making process, or the decision
is ultra vires. The judicial review process is itself complicated by the
fact that planning committees do not have to give reasons for approval.
Therefore no appeal on the merits of an approval ever occurs.
In
the recent planning case Ortenberg v Austria the European Court of Human
Rights found that a third party did have the protection of Article 6 (1)
where the grant of planning permission might adversely affect the value
of property. Third party property values may not be considered as material
considerations within the planning process, nonetheless, a person’s civil
rights could possibly be infringed depending on how the courts interpret
Article 6.
Article
6 may allow third parties to lobby the Minister responsible (in England
the Secretary of State) to persuade him to call in controversial applications.
If an application is not called in there may be a right to challenge under
Article 6.
The
right to a fair hearing may induce changes to the way a planning committee
makes decisions, for example oral hearings by objectors and cross-examination.
Article
8 (the right to respect for private and family life)
Article
8 gives everyone the ‘right to respect’ for his or her home but not a
right to a home. Ultimately the courts will have to determine how far
‘respect’ is to be interpreted.
It
must be necessary to safeguard a democratic society in the interests of
national security, public safety(highway safety etc.) or the economic
well-being of the country ( recreation or amenity): for example; for the
prevention of disorder or crime, for the protection of health or morals
and for the protection of the rights or freedoms of others. This last
element in particular provides plenty of scope for planning policy which
overrides the freedom of the individual in the interests of the public.
In
a recent case, Britton v SOS, the courts reappraised the purpose of the
law and concluded that the protection of the countryside falls within
the interests of Article 8 (2). ’Private and family life’ therefore encompasses
not only the home but also the surroundings. Arguably, this could mean
that Article 8 (2) would also apply where a listed building or a conservation
area is affected, enabling people to demand respect for the special interest
of the conservation area in which they live or nearby listed buildings
as a human right.
First
Protocol Article 1(the protection of property)
In
many cases there is likely to be a significant overlap between Article
8 and First Protocol Article 1. However, this right is wider than Article
8 in the sense that it applies to the peaceful enjoyment of all of a person’s
possessions and not merely to his home. This could include land, curtilage
property, fixtures and fittings.
The
grant or refusal of planning permission, listed building consent or conservation
area consent will frequently affect the lives, homes and property of others.
Notably the applicants and the owners and occupiers of neighbouring properties,
all of whom have the right to respect for their home and a right for the
peaceful enjoyment of their possessions.
In
practice it is likely that the interests of the community and those of
the applicant will be balanced. It will be necessary for the local planning
authority, the planning inspectorate and the courts to ensure this balance
is fair.
Planning
Policy
It
is only in exceptional cases that personal circumstances may be relevant
to planning decisions. However, the Convention puts the rights of the
individual first on the basis that the rights of the individual are paramount
unless there is justification in the public interest. Planning policy
always puts the public interest before the rights of the individual. This
may lead to changes in planning policy and in the determination of planning
applications.
Conclusions
The
full impact of incorporating the European Convention of Human Rights into
domestic law is unknown. However, it must be emphasised that challenges
can only be made against a public authority. The intention behind the
incorporation was to provide as much protection as possible for the rights
of individuals against the misuse of power by the state, within the framework
of the act that preserves parliamentary sovereignty. Challenges regarding
Article 6 are currently under consideration. It is anticipated that there
will be an initial surge of challenges until the legislature or judiciary
has fully established the position of Articles 8 and Protocol 1 Article
1 within the planning arena.
The
impact of the Human Rights Act is causing uncertainty including parliamentary
debate on issues such as the creation of an environmental court and third-party
rights of appeal. Changes that may occur could include the following:
- the
creation of an independent inspectorate, tribunal or environmental court
- rights
of appeal against the grant of planning permission, conservation area
consent or listed building consent by third parties whose homes or property
may be affected
- rights
of appeal against the designation of listed buildings and conservation
areas
- the
withdrawal of the right of a local planning authority to determine some
of its own applications.
The
most important cases are under consideration by the House of Lords and
its decision, which is expected in April 2001, may result in a new approach
to the administration of planning law.
Further
Information
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