Future delays for proposed major development projects?

Fundamental Change

The High Court issued judgment in December 2000 in four applications which are of fundamental importance not only to the planning system, but also to all major infrastructure projects in the UK.

Wide Impact

The judgment affects all projects where the Secretary of State grants planning permissions, makes Transport and Works Orders, makes Highways Orders, or authorises compulsory purchase. The implications may extend into other procedures as well.

Incompatible

The High Court has decided that the Secretary of State's decision making role is incompatible with Article 6 of the European Convention of Human Rights, which 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 over it".

This conclusion has been widely anticipated by experienced commentators. This does not mean that the Secretary of State was acting unlawfully, because he was acting in accordance with UK law but, assuming that the House of Lords upholds the position, the Government will have to deal with the incompatibility.

Main Points

The main points are:

1. Policy Maker/Decision Taker - The Secretary of State cannot be both policy maker and decision taker in planning cases. When he "Calls-In" a planning application, or recovers jurisdiction on a planning appeal, he may be applying his own policy at the same time as making the planning decision.

2. Highway Agency - Where the Secretary of State through the Highway Agency permits a highway order or compulsory purchase order, it cannot be said that the Secretary of State is impartial - he is party to the cause in which he is also the judge.

3. Transport and Works Act - The same principle may apply to Transport and Works Act Orders made by the Secretary of State.

4. Inspector's Decision - The Court appeared to say that planning appeals where an Inspector makes the decision himself are not incompatible with Article 6, and this part of the system can continue as it stands. However this was obiter dicta.

Appeal

It is expected that this judgment will go straight to the House of Lords, although there is some doubt whether the "leap frogging" of the Court of Appeal will be permitted.

Next Steps for Government

Assuming the present system is fatally wounded by these judgments, the Government will need to consider how it can achieve a separation of the decision making process from DETR. There is a strong possibility that the Secretary of State will have to divest himself of his decision-making powers. Options could include removing the Secretary of State's powers to call in major planning applications, establishing the existing Planning Inspectorate as a body entirely independent of government (following the model in Eire), or establishing a new environmental court.

Fundamental Change

This decision, if upheld, will fundamentally change the nature of the planning system in the form we have known it since 1947. Consent applications for major development schemes will no longer be determined by policy makers within Government but by an independent body taking a rights based approach. The transition period could be lengthy, and there will be considerable uncertainty in the short term about the programming of major development proposals.

Please contact Tony Kitson at [email protected] or on +44 (0)20 7367 3556 or Chris Williams at [email protected] or on +44 (0)20 7367 3571 in the Planning Team if you would like a more detailed discussion of any of these issues.