Thank you - good afternoon and welcome to the final lecture of this afternoon - an update on the Human Rights Act 1998. It is fair to say that over the last six months since the Act has been in force, there has been some significant European and British cases on human rights issues that will have a clear impact on planning law and enforcement matters. Now I want you to all cast your minds back to the 2nd October 2000. Those of you who attended my last S.E.O.G. presentation will recall that it was three days before my birthday - I was going to be 21 (for the seventh time). Thank you, by the way, to those who sent me birthday wishes. Anyway, this is me on the 2nd October, I was holidaying in Spain. As you can see it was a lovely hot sunny day. I sipped plenty of Sangria and work was far from my mind. However, back in the U.K. a momentous day was occurring in the history of the British Constitution because the Human Rights Act came into force. The Government ran a nation-wide radio and newspaper campaign - these are some of the adverts outlining the rights guaranteed under the Act. The newspapers over the coming weeks also foreshadowed the introduction of the Act with a variety of eye-catching headlines - "Human Rights threat to Planning." "Human Rights Act will make Cannabis legal." "How Euro law will change your life." "Planning Law left in chaos by ruling." And my Personal favourite - "Human Rights Act bans filming at nativity play." So, have those headlines come true? Have the predictions of commentators, like myself, been translated into case law? I've decided to pick out some of the reoccurring themes of the case law, legislation and guidance over the last six months to present an update on the Human Rights decisions within those areas. The biggest challenge by far has been to the process of planning applications in connection with Article 6, the right to a fair trial. This threatens to upset a system put in place over fifty years ago. Some themes are perennial favourites and I'm sure no one could have missed the recent number of gypsy cases concluded in the European Courts. A new and important theme emerging is planning applications for mobile phone masts - and I have some comments on that. We then move onto the investigation process and I have some updates on the Magistrates' Court, Surveillance and Planning Contravention Notices. Finally, if we have time I want to quickly look at the retrospective application of Human Rights to enforcement notices. So we best move on quickly, let us first look at the huge impact of the Human Rights Act on planning procedure. Certainly the main area of challenge over the last six months has been in the area of legal procedures as opposed to substantive rights. In particular, it was confirmed that companies as separate entities can have their private rights infringed: R v Broadcasting Standards Commission, ex p BBC. It is perhaps ironic that an Act potentially aimed at improving the rights of the individual, has seen the first six months resulting in large developers using the Act to add weight to their planning applications. Now, you will recall that Article 6 provides that in the determination of civil rights and obligations, we are all entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. As foreseen, cases early on confirmed that the determination of planning matters fell within Article 6. So, in Redland Aggregates v The Scottish Ministers, the property rights of Redland in the form of a 99 year lease of a proposed site for a super quarry and a section 75 agreement, fell within the definition of civil rights under Article 6(1). The Secretary of State's call-in procedure was therefore a determination of those civil rights. The Court held that Article 6 had been breached, as there had been an unreasonable delay of six years between the decision to call-in and the Secretary's refusal to determine the application but instead refer the matter to Scottish Heritage to consider whether the site was a Special Area for Conservation. The court additionally commented on the partiality of the Secretary of State as judge in his own cause but did not consider this in detail relying instead on the fact of delay. Equally, as in the Redland case, the courts have had to consider the question of whether Ministers and at times planning committees act effectively as judges in their own cause when they determine applications with respect to land, either which they own or which other agencies of government have an interest in. Clearly, in those cases it is impossible for the authority or Minister to meet the requirements of independence and impartiality. In Samuel Smith Old Brewery (Tadcaster) v City of Edinburgh Council, another Scottish case, the decision by the local planning authority to grant planning permission for the erection of a wastewater pumping station was not in breach of Article 6 despite the fact that the application was in respect of land which the authority owned. The Court was unclear as to whether Article 6 ought to apply at the local planning authority stage of the decision making process, but decided in practice it could not, otherwise an authority could never decide applications with respect to their own property. So, perhaps no surprises so far, the determination of planning applications falls within Article 6, but Planning Committees and the Secretary of State cannot comply with that Article. The big question is therefore whether the existence of Judicial Review will remedy the flaw allowing for a fair trial of the planning determination. All is not clear either in Europe or Britain. In Europe there appears to be two conflicting approaches emerging. In November, a case involving a decision of the Gaming Board resolved that the nature of judicial review, which restricted the court to examining the quality of a decision as opposed to looking at the merits of the case, did not meet the requirements of a fair trial: Kingsley v (UK). However, in relation to planning decisions, the Gypsy cases, which I shall discuss in more detail in a moment, held that the scope of the High Court's powers to review the planning inspectors decisions did meet Article 6 as it did provide adequate judicial control of the administrative decisions in issue. These followed the case of Bryan v UK (1995), which you will recall found essentially that JR saved the day. In the U.K., the first big case was Country Properties Ltd v The Scottish Ministers. This was a decision by the Scottish Minister to call in an application for listed building consent. This process did not comply with Article 6 as the Minister was evaluating objections by another executive agency - Historic Scotland - and was therefore a judge in his own cause. As aesthetics and planning merit played a major part in the decision and these issues could not be raised by way of judicial review, then the breach of Article 6 was not curable through the Judicial Review process. The big case under Article 6, however, as I am sure you are all aware, is the case of Holding and Barnes plc or Alconbury Developments - the full title is on the screen. This case was heard by the Divisional Court on the 13th December 2000. It is currently being heard by the House of Lords and a decision is imminent. The case potentially threatens to be the biggest upheaval in planning law since 1948 as the High Court held that the planning system contained structural bias. The Secretary of State was not an independent tribunal when he called in applications for planning permission under sections 78 and 79 of the Town and County Planning Act 1990. Furthermore, judicial review was not an adequate method of challenging planning decisions made under that process, as it could not deal with planning merit. The Divisional Court therefore signalled it was minded to make a declaration of incompatibility with respect to the relevant provisions of the Act. The DETR immediately appealed to the House of Lords. The decision equally applies to similar call-in procedures in relation to Compulsory Purchase Orders and the Highways Act. It could also by implication apply to local plan inquiries and logically to decisions of local planning committees. However, there are some crumbs of comfort. First of all, although the process would be adjudged unlawful, the decision may be saved by section 6(2) of the Human Rights Act. That is to say that the authority could not have acted differently because it was acting in accordance with primary legislation. Accordingly, primary legislation would be required to reform the planning system. Such legislation would be unlikely until after the next election. In the meantime one would be expected to carry on business as usual despite the procedure being incompatible with Human Rights. Accordingly, the Secretary of State's decision letters directing that a planning determination will be called in, now include a paragraph labelled 'Human Rights Act' and stating that 'in considering whether he should direct that this application should be referred to him, the Secretary of State has taken account of the fact that his power to call in applications has been declared by the Divisional Court to be incompatible with the European Convention on Human Rights. Nevertheless, his exercise of that power remains lawful.' Further, in a statement to the House of Commons on 19th December 2000, the Minister for Planning explained if the Alconbury decision was upheld, the Government would have to deal with the incompatibility but in the meantime the primary legislation continued to apply. Guidance on the application of Article 6 has been provided by the Local Government Association in their booklet 'Deciding Rights.' Essentially, this advises that members of planning committees must provide reasons for their decisions where they decide contrary to an officer recommendation or for different reasons then those set out in the officer's report. This gives applicants or objectors the opportunity to know the reasons behind a decision and hence make available the opportunity to judicially review the that decision. Obviously, this advice may still not save a decision if it is determined that judicial review is an ineffective remedy, although, as I have said, provided the authority acts in accordance with the primary legislation, the decision will still be a valid one. I now want to turn away from procedural issues and look at the cases involving substantive rights. The major cases you will be aware of from the newspapers are the series of Gypsy cases that have been brought before the European Court of Human Rights. There were five cases in total - Chapman v UK; Coster v UK; Beard v UK; Lee v UK; Jane Smith v UK. Although all of the cases vary slightly in detail, they more or less mirror the case brought by Sally Chapman. Mrs Chapman brought a piece of land in 1985 in the Three Rivers District Council area where there were no official gypsy sites. She moved onto the land and then applied for planning permission which was refused. Enforcement notices were served, she appealed and there was an enquiry. The enquiry upheld the Council's decision. The land was in the Green Belt and national and local policies overrode the applicant's needs. Mrs Chapman was given 15 months to move. She failed to do so. She did however make a further application for planning permission, this time for a bungalow on the site. This was refused, she appealed, and the appeal was refused. Eventually, summonses were served for failing to comply with an enforcement notice and she was fined - twice. There were subsequent further applications and appeals, all the applications failed and the case again went to an enquiry which held that the application did not show sufficiently special circumstances to allow permission contrary to local and national Green Belt policies. To cut a very long story short, some sixteen years after she brought the land, in January of this year, the case was heard by the European Court of Human Rights, interestingly by the Grand Chamber of 17 judges. This is the judgement, it is available free on the European Court web site, I'll let you know the address at the end, and if you are interested, it clearly sets out the reasons for the Court's decision as well as the dissenting opinions, because the final judgement was carried by a 10 to 7 majority. Mrs Chapman argued four points - that the refusal of planning permission and the enforcement measures taken were contrary to her human rights guaranteed by Articles 8, 6, 14 and Protocol 1, Article 1. Let us look first at Article 8 - the right to respect for private and family life, home and correspondence. First of all, the judges held that occupation of a caravan was an integral part of Mrs Chapman's ethnic identity as a gypsy and therefore that measures effecting that occupation went beyond respect for her home but also impinged upon her ability to maintain her identity as a gypsy and to lead her private and family life in accordance with that tradition. The refusal of planning permission and the enforcement measures, therefore, had been an interference by a public authority of her rights under Article 8. You will recall, however, that a local authority may interfere with an individual's rights under Article 8(2) providing the interference is in accordance with the law and necessary in a democratic society in pursuit of one of the aims set out in the Convention. The response has to be both legitimate and proportionate. In coming to their decision as to whether the provisions of Article 8(2) were met, the Court relied heavily on another familiar case, Buckley v UK (1996). The Court held that the planning and enforcement measures were in accordance with the law and pursued the legitimate aim of protecting the rights of others through preservation of the environment. Further, the enforcement action requiring Mrs Chapman to leave the site was proportionate, particularly given the fact that she had set up her home there unlawfully. In addition, although alternative sites were not available in the immediate area, she did have other options open to her. The authority had accordingly reached its decision weighing the needs of the individual against the interests of the community and environmental protection. There was therefore no breach of Article 8. This exact reasoning was employed by the Planning Inspector in a recent case - Brazil v Chichester District Council - which fell to be re-determined by him following the initial decision being quashed by the High Court. Similarly, the Court found no breach of Protocol 1, Article 1, the right to peaceful enjoyment of one's possessions, because the interference with her property had been proportionate and had struck a fair balance. As I have mentioned, the Court equally held no breach of Article 6, relying on the existence of judicial review to provide her with the requirements of a fair trial. It is questionable whether the same decision would be arrived at in the U.K. Finally, Mrs Chapman also argued that Article 14 had been breached as she had been discriminated against because she was a gypsy. Again the Court was satisfied that this was not the case as she was not in a different position to non-gypsies setting up home unlawfully on a Green Belt site. To complete the full range of decisions, three of the cases also argued that Article 2 of Protocol 1 had been breached, the right to education, as the enforcement action requiring them to move had interfered with their children's and grand children's schooling. The Court also held there had been no breach in this case. So enforcement actions with respect to gypsies have been upheld in Europe. There was one headline you might have seen with regard to the case of Varey v UK. This case was struck out by the European Court after a friendly settlement was reached with the Government paying the Applicants, who again were gypsies, £60,000 damages and £15,000 costs. Again the gypsies were alleging breaches of Articles 8, 6 and 14 with respect to planning refusals and enforcement action concerning their occupation of land in the Green Belt. The cycle of the case is similar to the others. However, I suspect, and I can only guess, that a settlement was offered in this particular case because on subsequent planning applications, the planning inspector allowed the appeals because over the years an increased number of gypsies used the site, the fact that the site was well maintained and there was less visual impact as a result of screening, the fact there was a prison newly built nearby and there were additional plans for a new orbital road to run near the site. In fact, the inspector ultimately concluded the visual harm to the surrounding area was 'slight'. Nevertheless, the Secretary of State dismissed the appeals deciding the gypsy's rights did no override Green Belt policy. The pay out perhaps also reflected the fact that the gypsy concerned had been given a suspended prison sentence after failing to comply with enforcement notices. One final gypsy case for those who take enforcement against illegal encampments under the Criminal Justice and Public Order Act 1994. In R (on the application of Ward) v Hillingdon London Borough Council, it was held that for the purposes of that Act, a caravan occupied by a trespasser on a site, could not be said to be his home for the purposes of Article 8, and therefore the right to respect for his home life was not breached by taking action under that Act. Following the big two, I now move on to some smaller, but no less interesting topics, starting with a new press favourite and that is mobile phone masts. Newspaper reports have recently suggested that Mast Action UK are planning to institute legal proceedings against the Planning Minister for breach of Article 6 with regard to his letter to Council leaders saying that bans on mobile phone mast applications were wholly unjustified. The Group is apparently supported by the terrifying likes of Jerry Hall and Carol Voderman - you have been warned. The government state they will be publishing their conclusions on mobile phone masts and planning issues shortly. In addition, there is currently an appeal - David Hale v Orange - going through the Courts against a decision to put a mast next to the Claimant's house. The Claimant is arguing that his rights to a fair trial were breached as he was not allowed to object during the planning process that the masts were a danger to public health. I now want to move on to look at the effects of recent Human Rights decisions on the enforcement process. In Europe, the overriding number of cases deal with delays breaching the requirement for cases to be determined within a reasonable time under Article 6. I am aware of one recent Magistrates' Court decision where breach of Article 6 on the grounds of delay led to the Magistrates striking out a prosecution for failing to comply with an enforcement notice. The notice had been made some years previously and no other action had been taken during that time to enforce compliance. It may be that the Magistrates in that case had regard to the new forms produced by my local Magistrates' Court Committee for the Justices to complete documenting the reasons for their decision. These include boxes to indicate:- 1) if the trial took place in the Defendant's absence, the reasons for proceeding in the light of Art. 6(1), 2) the evidential and legal issues, 3) the ECHR points identified in the case, with an explanation how the Article and Protocols had been applied, and 4) an analysis of all of the above to produce a verdict. A similar process is gone through for sentencing decisions. The use of these forms perhaps illustrate how the Act has now permeated through all levels of the court system and shows that an eye has to be kept on the Act in investigating enforcement matters as the Magistrates' will take account of it once it gets to court. Moving onto investigations, I'm sure most of you know but the Draft Statutory Code of Practice on Surveillance brought in by the Regulation of Investigatory Powers Act 2000 is now available. The RIP Act came into force on the same day as the Human Rights Act plugging the gap created by European Case law which held that the U.K. had no legislation authorising surveillance, and carrying out surveillance was therefore contrary to a person's right to respect for their private life. The Act and Code provide an authorisation system for covert surveillance operations. However, the everyday activities of enforcement officers in observing potential planning contraventions as they drive around or make site visits are unlikely to be caught by the Act or by Human Rights provided no private information is being obtained. The controversial area of requisition notices or PCN's now seems to have been resolved by two recent cases. In R v Hertfordshire County Council, ex p Green Environmental Industries, the House of Lords held that the local authority could compel the lessee of a site containing unlicensed waste to give information for the purposes of discharging its functions as a waste regulation authority under the Environmental Protection Act 1990. The provision did not breach the right to a fair trial or the rule against self-incrimination as the request was not part of the criminal process but needed to ensure the protection of public health and safety. Furthermore, if obtained unfairly, evidence could be excluded at any subsequent trial under the provisions of PACE. This case was followed by Brown v The Procurator Fiscal, a decision of the Privy Council. I'm sure you know the facts of the case, but they re so good I think they are worth repeating. Mrs Brown was arrested for shoplifting. The sensible police officer who arrested her noticed the smell of alcohol and her car in the Store's Car Park. He accordingly required her to provide information as to the driver of the vehicle under section 172 of the Road Traffic Act 1988. She admitted being the driver and he arrested her for drink driving as well. The Court held this did not breach her rights under Art. 6 as there was no express guarantee of privilege in the Convention provisions and national authorities could require information to be given where there was a clear and proper public objective to do so. In this case a requirement to answer questions was necessary to enforce road traffic legislation. The Courts are therefore willing to allow provisions which require questions to be answered in order to gain information which will assist in protecting the public. Since then there has in fact been an additional case, DPP v Wilson which held that any admission made by a defendant pursuant to the Road Traffic Act was admissible in evidence by virtue of the provisions of the Act notwithstanding the rule against self-incrimination. My final theme for today is to briefly look at retrospective application of Human Rights principles to enforcement notices. There have been two cases to look at this issue. The first, Mabey v SSETR, held that the HRA did not apply retrospectively. An enforcement notice was served requiring the cessation of use of a workshop as a dwelling house The notice was upheld on appeal prior to the Act coming into force. The Appellant claimed the restriction on use infringed Article 8 and the effect of the notice would render him homeless. However, the Act did not apply as the proceedings were completed prior to the conclusion of the case. This approach suggests that any subsequent separate court action, for example, a prosecution in the Magistrates' Courts for failure to comply with the notice, launched after the 2nd October 2000 would attract compliance with the Act, and I think that has to be correct. This is supported by the second case, R v Macclesfield Borough Council, where the Court of Appeal granted permission to the appellant to apply for Judicial Review of an authority's decision on the basis that it had a duty to revisit a decision taken before the 2nd October 2000 to demolish a property under s 178 of the Town and Country Planning Act 1990 and have regard to human rights before continuing with enforcement action. Therefore concluded proceedings cannot be re-rehearsed to take human rights into account but before continuing action on cases where decisions or notices were made prior to the HRA it makes sense to consider the human rights implications of continuing that action and whether it remains a proportional response. So, what may happen in the future:- Courts may be more willing to allow interference by public authorities on grounds of protecting rights of others by preserving the environment, certainly Green Belt and other Environmental Policies may take precedence over individual rights. The Magistrates' Court will be increasingly scrutinising HRA points. The planning system may have to change. Ideas have been floated for an environmental court, an independent inspectorate, or the call in power being given to an independent body. Development plan procedures may have to be reviewed, and third party rights may be given to challenge planning permission. Such claims may be brought in relation to mobile phone masts with an attempt to allow planning decisions to take account of health grounds. The 13th Report of the House of Commons Select Committee on the Planning Inspectorate supported the third party right of appeal driven by the HRA. However, the Government's response on 20th October 2000 was this was not desirable in principle or necessary as a consequence of the Human Rights Act and that there was no current plans to introduce such a scheme. In other words - watch this space ... Further information can be found on the following web sites:- The text of European Judgements can be found free on the HUDOC case database which has an excellent search facility. This can be found via a link from the European Court of Human Rights Page at www.dhcour.coe.fr. Text of House of Lords Judgements can be accessed through the Stationery Office at www.parliament.the-stationery-office.co.uk. The Alconbury decision will be available here once it is published. And I naturally have to plug the S.E.O.G. site where a text of this lecture can be found, www.seog.e-planning.co.uk. Thank you for very much for listening.

Up-to-date as at 19th March 2001