In meeting the demands of the new Human Rights Act, on 14 December the High Court judged that the Secretary of State for the Environment is neither fair nor impartial and so is no longer in a position to call-in or recover planning decisions. The Act demands a 'fair and public hearing by an independent and impartial tribunal'. The government's appeal is due next month.
Planning lawyers are enjoying this, as you might imagine. Perhaps it keeps their minds off the extent to which current changes in the planning system are reducing their role, although the changes brought by this challenge to the system are likely to lead to major improvements for its users.
First, it is important to understand that the European Convention of Human Rights is largely self-balancing. Rights are recognised and protected on both sides and, in the vast majority of cases, these balance out. Just as the 'victim', say, someone who might be adversely affected by a development proposal, has rights which protect property, environment and home, so the same applies to the applicant, a company or other property owner. Therefore, it is in only a small minority of cases that the rights of one party may be unreasonably prejudiced by the activity of another.
The government has been taking a rather laid-back approach to the impact which the Act might have on planning, seeming content to let the Act run its course, with the courts deciding the effect in the fullness of time.Well, the fullness of time is upon us. Four accelerated test cases heard by the High Court have gone against the status quo in the biggest way possible and are now with the Law Lords.
So what is the likely outcome?
Distance learning Let's start with the Planning Inspectorate, an autonomous agency operating out of Bristol. In recent times it has been getting its act together with very strict timetabling of appeals and new streamlined procedures. Above all, it is accepted by planning authorities and appellants that it has a high degree of independence. However, its inspectors are appointed in the name of the Secretary of State for the Environment, and inspectors' decision-taking is done in his name.
Therefore, under the new legislation it seems likely that the Planning Inspectorate will find that its de facto independence will be reinforced (its distance from government made more explicit) and decisions will no longer be taken in the name of a minister.
Rather more serious is the matter of decisions taken by the Secretary of State himself or, more accurately, by his civil servants. It seems improbable that the view of a High Court will be overturned completely, meaning that in many, if not in all, cases the Secretary of State will have to desist from making planning decisions.
This is almost certain to apply in cases where the government has an interest in the land. It is probable that an independent planning court will be formed, probably based on the Planning Inspectorate.Ministers will be obliged to keep their political hands out of its business.
The real agenda in Modernising Planning, the platform which New Labour introduced in its first year of power, is the introduction of a hierarchy of subsidiarity for planning policy; encouraging the establishment of national and infrastructure policies by Acts of Parliament. In future, such matters as the development of Terminal 5 at Heathrow would be spared the interminable, inefficient and extraordinarily costly appeal inquiry procedure and would be determined by Parliament as a matter of principle within a statutory national policy context. Similarly, regional policies dealing with wider infrastructure or development policy matters will, eventually, establish the context for local plan policies and planning applications to be determined under the development plan system.
My guess is that this aspiration will now have to be brought into effect rapidly. If the Secretary of State and other ministers are forced to stand back from individual planning decisions, however strategic they may consider their significance to be, they may well have to come forward with clear national policies through the higher-level democratic process of Parliament.
For one reason in particular this is to be welcomed - if it happens.Under government urging, the Planning Inspectorate has accelerated its performance and has made the appeal process predictable. Not so Secretary of State call-ins and recovered cases (decisions taken over from local planning authorities under Article 14 of the Planning Act). Some of these take three or four years to yield a decision.
Their elimination would be greeted with widespread relief.
Decisions undermined However, there is a further dimension and this is potentially disturbing and disruptive to the planning system. It is the emerging possibility that the Human Rights Act could give rise to third-party challenges following the determination of a planning application or appeal.
There was a time when the crash of the gavel at the end of a planning committee was the moment when a permission came into force, but no longer. Today, with the blossoming of the judicial review, it is good advice in a major or controversial case to take no precipitate action on the strength of the permission without allowing it to rest for up to three months during which time it is just possible that someone will pop out of the woodwork and challenge the decision. However, the grounds for such action are technical and do not allow for the merits of the case to be reconsidered.
Under the Human Rights Act it seems that third parties may have the right of challenge as much as one year after the decision-making event and have their claims to be victims reopened and reviewed.We would be on largely untested ground. Remember that architects might find themselves liable if they do not warn clients of the risk of acting immediately on the strength of a consent.
Therefore the government will have to consider how to accommodate the interests of third parties in such a way that they are not left with reason or opportunity to undermine the certainty of a planning permission once it has been granted.
For the moment we must hold on through the turbulence. At least for a few weeks the Secretary of State may have lost his power of calling-in cases for his own decision and it is not too clear what will happen to decisions which have been called in since the beginning of October when the new Act came into force. Either way, it seems that the Planning Inspectorate will be expanding its market position.
Brian Waters is principal of the Boisot Waters Cohen Partnership. Tel 020 7828 6555. E-mail email@example.com