Environmental repercussions of the first major Human Rights Act decision

For years commentators have been pointing to the possibility that certain aspects of our Town and Country Planning system are not fully compatible with the European Convention on Human Rights ("Convention"). Only a few months have passed since the Human Rights Act 1998 came into force, thus enabling challengers to plead Convention rights directly before the UK courts, and already we have a major judgment of the High Court which confirms the Governments’ lawyers worst fears - the role of the Secretary of State for the Environment, Transport and the Regions in deciding planning appeals and call-ins is not compatible with one of the procedural safeguards guaranteed by Article 6, namely that decisions on such matters must be taken by an "independent and impartial tribunal".

The High Court heard four test cases (R v Secretary of State for the Environment, Transport and the Regions ex parte Holding and Barnes Plc; and three other cases) which between them concerned various powers of the Secretary of State under various planning law provisions. In the landmark judgment given on 13th December 2000, the High Court for the first time used its new powers under the Human Rights Act 1998 to declare that certain provisions of our planning legislation are incompatible with the Convention. The case is being appealed and is likely to leapfrog the Court of Appeal and go straight to the House of Lords. If upheld, the decision will put great pressure on the Government to amend the legislation to remove the incompatibility. We will have to await their Lordship’s judgment before we can be certain of the consequences.

Although the case has been widely reported in terms of its consequences for the planning system (many sources lamenting that it leaves the planning system in "chaos") the repercussions will be felt much more widely, in particular in the environmental arena.

First, it should be remembered that most of our statutory regimes for environmental protection - ranging from regulation of radioactive substances to industrial pollution control - give a similar role to the Secretary of State in relation to appeals and call-ins as under planning law. Consideration will need to be given in each case to whether these could be subject to a similar challenge.

Second, the decision increases pressure on the Government to consider alternative options for adjudication under both planning and environmental law, including the possibility of creating some new kind of "environmental court". Indeed, Professor Malcolm Grant in his final report on the Environmental Court Project highlighted the potential problems which the Human Rights Act 1998 posed for the present system. These turned out to be more imminent than many people expected.

Finally, the case serves as a warning to those devising new systems - such as the Emissions Trading Group - that the procedural safeguards of Article 6 must be taken into account.

For further information, please contact David Short at [email protected] or on +44 (0)20 7367 2535.