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Human Rights
Copyright Richard Cowen
The Human Rights Act 1998 came into force in October 2000.It grants certain rights and fundamental freedoms to individuals to protect them from the State (not private companies). There are some restrictions to many of these rights and freedoms but there is no need to detail them here.
The Act states that when any right or freedom question is raised, the Court or Tribunal must take into account any decision of the European Court of Human Rights. The State is prohibited from acting in a way which is incompatible with these rights and freedoms.
Two rights are granted by the Act which seem relevant in planning cases. First, by Article 8
"Everyone has the right to respect for his private and family life, his home and his correspondence"
Secondly, Article 1 of the First Protocol says
"Every(one) is entitled to the peaceful enjoyment of his possessions"
There are restrictions to both these rights but they need not concern us here.
You may wish to see what the North East Opencast Action Group said about this by clicking on it below
THE RESULT OF THE OPENCAST INQUIRY
At the Public Inquiry into the opencast proposals, we put forward arguments about Human Rights along the lines mentioned below. We accepted that the Inspector should first seek to determine the appeal on planning grounds and that, from the residents' point of view,human rights only beacme an issue if it were decided that planning permission should be granted. As can be seen from the opening of this web site, planning permission has been refused firmly on planning grounds. In his decision letter, the Secretary of State says he has considered the Human Rights arguments but "given that planning permission has been refused, does not consider it necessary to come to any conclusions on them".
We cannot argue with this comment. It is in accord with our own submissions. However, I must add the Inspector's comments on this issue in his report to the Secretary of State. In view of his findings, he commented this was "something of an academic question" (no argument on this point. He did however go on
"If it is determined that the positive aspects of the proposals outweigh the harmful impacts, including these effects on individuals living conditions, then it would appear proper to grant planning permission. This is not a decision that would deprive any individual of his home or his private and family life. I do not consider that the possible effects on property values need separate investigation, nor that the existence of the Human Rights Act undermines the advice given in PPG1 in relation to the position of property values as a material consideration in decision making on planning applications".
These comments are of course left open as a result of the Secretary of State's decision. I have left my arguments below unaltered as a result of the decision. I still believe there are points of issue here. Indeed, we never questioned that the development would deprive us of our homes (although we did as to the quality of our private and family life). Quite the reverse, in fact. Our argument was that, if allowed on planning grounds, then it was extremely likely that we could notdeprive ourselves of our homes, at least at anything like proper market value. As I understand the Hatton and Dennis decisions mentioned below, of course one has to take into account full community benefits but one also has to take into account the effect on the individual who may be asked to pay a high price for the community's benefit. If I am correct on this, Human Rights arguments may not lead to permission being refused, but may lead at least to compensation for the affected individual(s).
That question is clearly not resolved now. It may be that planning policies mean it will never have to be. But I think that, in appropriate cases, my arguments below are still worth considering and putting before the relevant tribunal.
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Planning and Human Rights
In the time since the Human Rights Act came into force and NEOAG wrote its article, there have been some developments. We shall try to list these in the following pages. It appears however the law is not yet fully developed in this topic.
If Human Rights law only protects individuals from the acts of public authorities, how does it affect planning law where, in the vast majority of cases, the applicant is a private individual or a company?
The answer seems to be that, in determining the application, the planning authority must, when deciding the application, “take reasonable and appropriate measures to secure the (residents’) rights under Article 8 of the Convention” This was stated to be a positive duty, one which States must undertake. It was said by the European Court of Human rights in the case of Hatton v UK, a case decided in October 2001 and concerning government orders made to control night flying at Heathrow. (See however below as this decision is now being appealed. The views below are given on the decision as it stands on 8 November 2002).
While not referring to that case, in May 2002, Lord Steyn giving a leading judgement in the House of Lords, the highest court in the land, said “There is an obligation on national courts to ensure that individual rights are fully and effectively protected….” (R v Hammersmith and Fulham LBC ex parte Burkett).
A fuller article on the Heathrow case can be seen by clicking below |
How is this done?
Must the developer take any additional steps when proposals are likely to have a detrimental impact on a neighbourhood?
Yes, he may have to prepare an Environmental Assessment (see the Town and Country Planning (Environmental Impact Assessment) Regulations 1999). Such an assessment is always required in applications for opencasting and must be considered before planning permission can be granted. Lord Steyn stated that the purpose of this was to “redress to some extent the imbalance in resources between promoters of major developments and those concerned, on behalf of individual or community interests, about the environmental effects of such projects”.
In other cases one may be required if certain conditions are met e.g one is required for wind turbines only if there are to be more than two of them or any one of them has a hub height exceeding 15 metres where they have a significant effect on the environment. In certain cases there may need to be a screening opinion as to whether development does require an Environmental Assessment. While affected people can no doubt make representastions about whether such an Assessment is required, the Regulations do not give them the right to request one.
Any screening opinion, while it does not have to give any reasons for the decision, must be properly recorded and publicly available. Merely mentioning it in the report to the Planning Committee is not enough. Failure to due this can invalidate any planning permission granted - see Lebus v South Cambridgeshire District Council.
What if an Environmental Assessment is defective, or if it shows the project will have a serious detrimental impact on the neighbourhood? (This it appears is what the Hammersmith case is about, but up to now it has dealt only with legal technicalities.)
In our view, the Environment Assessment accompanying the opencast application is deficient in many respects. We consider this project will have a serious detrimental impact on our neighbourhood.
We note that in the Hatton case it was said “States are required to minimise, as far as possible, the interference with these rights, by trying to find alternative solutions and by generally seeking to achieve their aims in the least onerous way as regards human rights. In order to do that, a proper and complete investigation and study with the aim of finding the best possible solution which will, in reality, strike the right balance should precede the relevant project” (paragraph 97).
Those words about the “right balance” are perhaps the most important. Everybody’s rights have to be considered, including of course the applicant’s. In certain cases (as indeed at Heathrow) the economy may also be a relevant consideration (Paragraph 107). There has, of course, to be an element of “give and take” and in the vast majority of cases the outcome is likely to be no different from what it would have been had just planning issues been considered.
But if a project does have a severe detrimental effect on a neighbourhood, (and we believe an opencast project does have this effect), but it is decided in the national interest or for any other reason that planning permission should be granted, just what does have to be done? Are planning conditions alone enough? Or must the State do more?
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Is this happening?
This is perhaps the most difficult question to answer.
Planning conditions may be fine in theory, but what if the planning authority does not, for any reason, enforce them? What if things unexpectedly happen that have a severe effect on local residents? What if they cannot sell their houses because of the development, no matter how many conditions are imposed and no matter how well they are adhered to and enforced? Are planning conditions the only remedy that is available?
We believe this cannot be the case. If a development is likely to have such an impact, we consider it may be necessary for the State to resort to more than just planning conditions. Indeed, the Hatton case refers to two incidents on the Continent where nearby residents were moved because of the effects of such developments.
It does not appear this issue has been fully resolved in English law. We do not know whether the Hammersmith case, when it comes back before the courts, will answer this point but it will be most interesting to follow it.
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Do property values count?
Anyone who has received a notice from a Council that a neighbour has made an application for planning permission is likely to see that it contains a phrase such as “loss of view, devaluation of property or boundary disputes” will not be taken into account . While this may be correct in strict planning terms, can it be correct in Human Rights terms?
We must of course remember that the State must strike the right balance and there must be an element of give and take, but what can affect your enjoyment of your home more than knowing that a development next door may make your home unsaleable?
In Hatton, the British judge (Sir Brian Kerr, who seems to have thought his colleagues were going too far and therefore disagreed with them) noted that “none of the applicants has been prevented from moving away from the area. None claims that their house became unsaleable or that they lost value to such an extent that equivalent property elsewhere was not affordable.” He noted that this was probably because of the effect of the London property market, but the implication of this comment, we suggest, is that, even if property values are not a planning consideration, they are a human rights one.
As mentioned below, this decision in Hatton was overturned when the Government appealed to the Grand Chamber. But it is interesting that Brian Kerr in dissenting from his colleagues in the "lower" court still said this even though he considered the Government had in fact taken reasonable steps to overcome the problems caused by Heathrow (a view which won in the Grand Chamber). In particular the Grand Chamber considered States should be given a "wide margin of appreciation" in considering planning matters. This did not mean they could ignore Human Rights issues completely, but they are given a much wider discretion that the lower court had allowed.
Hatton (the Grand Chamber decision) has now been considered in R(Lough) v First Secretary of State that was heard in the Court of Appeal on 12 July 2004. Before considering Lough, let me first consider some earlier decisions.
In October 2002,the Court of Appeal said a consideration was "material....if it is relevant to the question whether the application should be granted or refused; that is to say if it is a factor which, when placed in the decision-maker's scales, would tip the balance to some extent". The factor may not be determinative and must rationally relate to land use issues (Kides v S Cambridgeshire District Council).
Unfortunately, the only case found where this was specifically argued (Rank v E Cambridgshire District Council) failed on this ground (the applicant was successful on another ground). However he had not raised this factor in his objection to the Council and, although others had, it was said he could not represent them on this point.
The topic of property values was specifically considered in Lough. It has to be said the result is not encouraging. Pill LJ, while noting "the importance to land owners of a loss of value caused by neighbouring developments" did not consider it constituted a "separate or independent basis for alleging a breach of the Convention rights involved". He stated "a loss of value in itself does not involve a loss of privacy or amenity and it does not affect the peaceful enjoyment of possessions".
While I am aware of a new case which, as I understand it, is to challenge an Inspector's decision on thsi point, this has to be the latest position in English law. While I think this part of the decision is disappointing, it perhaps does not mean that property values is absolutely taboo. But if Pill LJ is correct, then it cannot be the only ground. the most that can happen, as I see it, is that it can support other grounds. And indeed, one can only assume that property values are devalued because the development has a major and detrimental effect on the property.
Lough did refer to the right of a landowner to develop his own land, quoting from an earlier case to say the prospective developer "is equally entitled to the enjoyment of its possessions". I do not think anything I have said is inconsistent with this and have tried to limit myself to the situation where a proposed devlopment is likely to have severe detrimental consequences to neighbouring property but it is still considered planning permission should (perhaps in the national interest) be granted. Then, I ask, why should the neighbouring owners, perhaps only one, be expected to bear the brunt in the national interest - a point discussed in Dennis, mentioned below.
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What if it affects a lot of properties?
What if a human rights decision is likely to affect a lot of homes? Does this mean that for reasons of, say economy, they should be overlooked.?
Sir Brian had something to say about this too. He said “In performing the balancing exercise under Article 8 in this case, one should also consider the consequences of a finding that there has been a violation. The mere fact that a finding of a violation in a particular case might give rise to a large number of applications is not a reason to shirk from that finding. If the Convention standards are not met in an individual case, it is the role of the Court to say so, regardless of how many others are in the same position”
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What is Bowburn Opencast Action Group doing?
At the Public Inquiry, we propose to argue forcefully that planning permission should be refused on planning grounds alone.
We intend also however to draw attention to these human rights issues as we believe that a decision to grant permission would fundamentally affect the rights of residents under the Human Rights Act.
We can only hope that planning permission is refused for this opencast site.
At this stage, we cannot say what we will do if planning permission is in fact granted.
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Update as at 8 November 2002
The Government is to appeal the decision in Hatton v UK. This is to commence on 13 November 2002 but the decision may take some time to be delivered. This is clearly important and may have a significant bearing on the points I have made above.
I shall update this page with further information as soon as it is available. |
The present position re Hatton v UK
In November 2002, this case went to the Grand Chamber of the European Court of Human Rights. In July 2003 the Chamber gave its decision and this is the final word in this case.
As you may have heard, they overturned the earlier decision mentioned above and so the residents have lost their case at least so far as the environmental issues are concerned. However this appears to be because the Chamber has allowed the State a much wider "margin of appreciation" (discretion, I think, to the layman) than their colleagues did beforehand in how it deals with these matters.
As I understand their decision, the State must still take into account environmental issues and if it does not, it is liable to be challenged under Human Rights principles. But the State's discretion is much wider in this type of case than it is, say, in criminal matters that affect a person's liberty. This I think is the fundamental difference between the decision now and that mentioned above.
The Chamber also noted that it was accepted in this case that house prices were not affected by the nuisance from aircraft approaching Heathrow and considered this an important point in determining whether the State had exercised its discretion properly. It therefore seems that, in Human rights terms at least, property values are a valid consideration.
I have not deleted the quotes from the lower court as I think these are still interesting and could be relevant. Indeed, there is an argument that this is the way the Court of Human Rights is ultimately going. However, the final decision (which is long) can be read by clicking below. Of aprticular interest are paragraphs:-
98, which maintains the State has a duty to regulate private industry and strike a fair balance between the individual and the community as a whole.
101, which confirms that planning cases are included
104, which deals with the Court's power to review procedure if principles are not followed, and
127, which indicates that an inability to sell because of a development could be a relevant issue |
Other developments
Since originally preparing this feature, Hatton (before the Grand Chamber decision changed the position) was considered in the case of Dennis v MOD (decided in April 2003). Again, like Hatton, not a planning case, this involved the problems Mr Dennis had with Harrier jets constantly flying over his home. In the judgment it is said "In my view, common fairness demands that where the interests of the minority, let alone an individual, are seriously interfered with because of an overriding public interest, the minority should be compensated".
This perhaps is the crucial issue. Human Rights may not stop a development if it is otherwise needed in the public interest, but at least affected homeowners who are seriously affected (and those words are very important), they should at least be compensated. There is no provision for that now in the Planning system so, if I am correct on this argument, this should be a significant step forward.
But, until the decison in Lough, it must be remembered that, so far as I am aware, there had been no case law on this point in the UK. And I cannot say how, if at all, the final decision in Hatton would have affected the decision in Dennis.
Lough is important in that it did apply Hatton to a planning situation. Although in Lough the Inspector did not fully address Human Rights, Pill LJ did consider that in the decison making process he had considered all the relevant issues. He did not consider there had been a breach of Article 8 but did say that it must now be recognised that Article 8 and Article 1 of the First Protocol are part of English law. That being the case, they should be considered as an integral part of the decision making process and not dealt with in a footnote.
I believe this is important. I have already said that the number of cases where a different result will be achieved after considering Articles 8 and 1 is likely to be small - very small. But a different approach must, in appropriate cases, lead to a different decision on some occasions, usually I suppose in the big, controversial cases where the impact on nearby residents is likeley to be severe.
Dennis was not considered in Lough. Whether the sections I have quoted above from Dennis remain good law remains to be seen - but at present they have not been overruled.
Neither was Burkett considered in Lough. The quotation above from Lord Steyn was therefore not considered. It is not, and never has been, my argument that property owners have an absolute right to stop their neighbours from developing but I do believe, in fully protecting the individual's rights, the court ought at least to consider the effect of a proposed devlopment on the ability of a neighbour to sell. While I am endeavouring to reflect the law as it stands today, as a result of which I must take account of Lough, it is my opinion that an inability to sell because of a bad neighbour development significantly affects a person's enjoyment of his property.
R v First Secretary of State and T-Mobile
This case was decided by the Court of Appeal on 8 February 2005. It involved erection of a phone mast. The Council notified residents, a number of whom objected on grounds of health and property values. The Council appear to have accepted these objections but did not respond to the applicant within 56 days. The Council then notified T - Mobile that they would need planning permission for the site they had chosen. T-Mobile erected the mast anyway and the Council served an enforcement notice. T-Mobile appealed and an inspector was appointed to hold a public inquiry. The Inspector noted there is a special procedure for phone masts and that if notice was not given within 56 days permission was granted, as opposed to the usual position where it is a deemed refusal.
The residents applied to Court to arguing their Right under Article 6 to a fair trial had been infringed. All the judges agreed saying that this included the right to argue property values. Per Waller LJ
"It seems to me clear that Dr Nunn's Article 6 rights were here infringed. She and others affected had the right to make representations to the LPA on the effects on health and on the appearance of the mast as it affected them and the value of their properties. T-Mobile of course contested that their health could be affected and contested that the appearance affected the value of their homes."
The question however was who had infringed those rights. The Court considered that the procedure was compatible with the HR Convention but the Council had failed to comply with the procedure (see paragraph 30). Therefore, the residents lost the case against the First Secretary but it seems clear from this that the Court considered that property value was at least a legitimate argument.
The council was not a party to these proceedings, and the Court suggested that the proper course for the residents may well have been for them to seek compensation against the council. The Court acknowledged that the residents did not really want compensation but the re-siting of the mast, but under the circumstances considered this to be the only remedy available to residents. |
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