The Human Rights Act 1998
death of planning or the birth of a fairer system?
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:
- Article 6 (the procedural right to a fair trial)
- Article 14 (the prohibition of discrimination)
- 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’.
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.
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.
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.
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.
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.
- Human Rights Act 1998 – Website www.legislation.hmso.gov.uk. For further information on the Institute of Historic Building Conservation please view www.ihbc.org.uk.
- For further information on the European Convention on Human Rights please view http://conventions.coe.int, the website for the Treaty Office of the Council of Europe