THE QUEEN (on the application of ADLARD & OTHERS) v SECRETARY OF STATE FOR ENVIRONMENT, TRANSPORT & REGIONS [2002] EWCA Civ 735

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

(ADMINISTRATIVE COURT)

(Mr Justice Collins)

[2002] EWCA Civ 735

Case No Case No: 2002/0199

Venue Royal Courts of Justice, Strand,, London, WC2A 2LL

Between

THE QUEEN (on the application of ADLARD & OTHERS)Appellant

SECRETARY OF STATE FOR ENVIRONMENT, TRANSPORT & REGIONSRespondent

(1) FULHAM STADIUM LIMITED

Interested

(2) LONDON BOROUGH OF HAMMERSMITH & FULHAMParties

Before

Lord Justice Simon Brown

Lord Justice Mummery

Lord Justice Dyson

R McCracken Esq & G Jones Esq

(instructed by Messrs Richard Buxton) for the Appellant

J Howell Esq, QC & J Maurici Esq

(instructed by The Treasury Solicitor) for the Respondent

K Lindblom Esq, QC & R Harris Esq

(instructed by LB of Hammersmith & Fulham) for the First Interested Party

T Straker Esq, QC & A Tabachnik Esq

(instructed by Linklaters & Alliance) for the Second Interested Party

Date 17 May 2002

Lord Justice Simon Brown:

Fulham

[1]Football Club's Craven Cottage ground was opened in 1896. It lies on the north bank of the Thames between Hammersmith and Putney bridges. Its stadium is dilapidated and plainly in need of re-development. For some years its owners, now Fulham Stadium Limited, the first interested party, have been seeking planning permissions and listed building consents for the purpose. In June 1995 the local planning authority, the London Borough of Hammersmith and Fulham ("LBH"), the second interested party, resolved to grant planning permission for a 15,000 capacity, all-seater stadium (the existing capacity of the stadium, not all-seated, being 25,000). In August 1995, however, the Secretary of State exercised his power under section 77 of the Town and Country Planning Act 1990 to call in the application. Section 77, so far as material, provides:

"(1) The Secretary of State may give directions requiring applications for planning permission to be referred to him instead of being dealt with by local planning authorities. (2) A direction under this section- (a) may be given either to a particular local planning authority or to local planning authorities generally; and (b) may relate either to a particular application or to applications of a class specified in the direction. (5) Before determining an application referred to him under this section, the Secretary of State shall, if either the applicant or the local planning authority wish, give each of them an opportunity of appearing before, and being heard by, a person appointed by the Secretary of State for the purpose."

[2]In August 1996, following a public inquiry, the Secretary of State granted the planning permission sought. Upon challenge by Lady Berkeley, one of the present appellants, however, that decision was eventually quashed by the House of Lords on 6 July 2000 on the ground that there had been no environmental impact assessment and the Secretary of State had failed to consider properly whether there should have been - see Berkeley -v- Secretary of State for the Environment

[2001] 2 AC 603

[3]Meantime, in March 2000, a further application had been submitted. The proposals this time included a 30,000 capacity all-seater stadium. Unsurprisingly this has proved highly controversial. The appellants, most of whom live nearby, are amongst those most strongly opposed. But there are many supporters too. This time an environmental impact assessment was produced. A comprehensive consultation exercise was carried out and a full report was prepared for the planning committee (the Committee). On 27 February 2001 the Committee met. Some 600 people attended. Oral representations were not permitted. The Committee resolved to grant the application.

[4]That decision has never been challenged. Instead the appellants have sought to persuade (and by these proceedings seek to compel) the Secretary of State, as before, to call in the application. One of them, Mrs Jenny Dearden, ended her letter of 28 February 2001 to the Secretary of State:

" I believe the only way to get a reasonable and fair hearing for all parties is for you to call it in to a Public Enquiry. I earnestly ask you to do this."

[5]On 15 March 2001, the appellants' solicitor, Mr Richard Buxton, wrote:

"It seems to us beyond argument that if it was thought right to give the opportunity for objectors to be heard previously, then our client and other local people are entitled to the same opportunity in relation to the new application and proper decision-making process [sic]."

[6]On 28 March 2001 the Secretary of State replied, saying that he had decided not to call in the application. His letter continued:

"The Secretary of State's policy on call-ins is to be very selective. It is right that in almost all cases the initial decision on whether a development should proceed should be taken by the local planning authority. Therefore, planning applications are in general only called-in if planning issues of more than local importance are involved, and if those issues need to be decided by the Secretary of State rather than at local level. Each case is considered on its individual merits. However, we have given as examples of cases where the Secretary of State might consider call-in appropriate those which, in his opinion, may conflict with national policies on important matters; could have significant effects beyond their immediate locality; give rise to substantial regional or national controversy; raise significant architectural and urban design issues; or may involve the interests of national security or of foreign Governments. After very careful consideration, the Secretary of State has concluded, from the information before him that it is right in this case to leave the decision to be taken by the planning authority."

[7]On 6 April Mr Buxton wrote again saying that the points he had raised in his letter of 15 March had not been met and "it is imperative that the Secretary of State provides full and cogent reasons for his decision". He added:

"One also notes that by failing to call the matter in, the Secretary of State is, in effect, negating the rights of people affected by the development to a hearing, contrary to the Human Rights Act, 1998. A similar point arises in relation to the lack of a hearing in relation to departure from the development plan, which had been subject to inquiry."

[8]On 25 April 2001 the Secretary of State responded, by reference to caselaw, that he was not required to give reasons. He then repeated his policy very much as set out in his previous letter, stating that he would "in general" only call in applications if planning issues of more than local importance are involved, although "each case will be judged on its individual merits". His letter concluded:

"In this instance, after very careful consideration, the Secretary of State has concluded, from all the relevant information before him, including your representations of 15 March, that it was appropriate for the decision as to whether to grant planning consent to be taken by the local planning authority."

[9]It is that decision, the Secretary of State's refusal to call in the application, which it is sought to impugn in these proceedings. The challenge at first instance was advanced on a variety of grounds. Collins J, having heard argument for three days in mid-November 2001, comprehensively dismissed the claim in an admirably clear judgment given on 17 January 2002. On 24 April 2002 this court (Laws and Arden LJJ) gave limited permission to appeal on two points. Permission was principally granted to argue that the Secretary of State, in deciding whether or not to exercise his call-in power, should have considered whether "this being a very major development with arguably very important consequences for the local people perhaps exceptionally an oral hearing was required", such a hearing not being available to the objectors under the local planning authority's procedures. In addition, however, the court decided not to "shut out" argument that the appellants "were entitled as of right to an oral hearing", although Laws LJ described that as "a very uphill struggle". There being evidence to show that the delay brought about by the challenge had already increased construction costs by some £3 million, the appeal hearing was expedited and given a one-day time limit. For my part I find it surprising that in those circumstances the court was presented with bundles containing over 100 authorities.

[10]With that comparatively brief introduction let me return now to the facts of the case in rather greater detail. These I gratefully take verbatim from the judgment below, passing over the earlier history of the site and starting in March 2000 with the present planning application. "7. In March 2000 the present applications were submitted. They involved the erection of a 30,000 all-seater stadium with ancillary facilities, a new riverside walk and a 7-storey apartment block containing 30 residential units. The existing buildings, including the listed buildings save for the brick façade to the Stevenage Road stand, were to be demolished. In October 2000, the scheme was modified in that the residential block was lowered to 5 storeys and the units reduced to 16 and there was some reduction to the proposed length of the building. There were some modifications to the design of the riverside walk. The application had been accompanied by a full environmental statement which was supplemented in October 2000. That statement was submitted for review and grading to the Institute of Environmental Management and Assessment and overall it was considered to be a good statement, containing only minor omissions and inadequacies (which were identified), and in some respects was excellent. In addition, the LBH gave the proposals extensive publicity and carried out comprehensive consultation. That exercise was also carried out in relation to the similar proposal lodged in July 1999. This was overtaken by the March 2000 applications largely because the LBH in September 1999 required the applicants to produce an Environmental Impact Assessment which was to and did include the following:- '(i) The impact of the physical scale of the development in relation to surrounding land uses and occupiers. (ii) The impact of the use of development on match days, including how other uses within the site operate during that time, how people would arrive at and depart from the site and the impact and extent this would have on the surrounding area including adjoining Boroughs, in terms of noise, disturbance, litter and transport (including issues such as traffic generation, on and off street parking, existing/potential public transport provision, pedestrian movements etc). Also any additional impact connected with the emergency evacuation of the stadium. (iii) The impact of the use of the development on non-match days, the type, frequency and hours of use of all the proposed activities and the numbers likely to be involved and the impact of this on the surrounding area in terms of noise, disturbance, litter and transport. (iv) The impact of the development on the historical and architectural interest of the remaining listed buildings, the character and appearance of the conservation areas and the justification for the demolition of the listed buildings. The impact of the development on Bishops Park as a landscape of historical/cultural/archaeological interest. (v) The impact of the development on the ecology of Bishops and Stevenage Park. (vi) The impact of the development on the archaeology of the application site which includes the foreshore of the River Thames. (vii) The visual impact on the development on the River Thames from the river, from riverwalks on both banks, from Hammersmith and Putney Bridges and from other points across the river. (viii) The impact on the ecology of the River Thames. (ix) The impact of the development on the hydrology and flood defences of the River Thames. (x) The impact of the development on the recreational, leisure and commercial uses of the River Thames.' 8. The responses to the consultation exercises are summarised in the very full and detailed report which was prepared for the Committee which considered the applications on 27 February 2001. It runs to 115 pages together with a further 191 pages of annexes. Annex 2 (145 pages) contained the consultation responses which were summarised in the body of the report in Annex 1. It is not nor could it be suggested that the report failed fairly to identify the objections which had been put forward or to set out all relevant considerations which the committee must take into account, including the fact that the proposals were not in accordance with the UDP in the respects to which I have already referred [I should interpolate that the Unitary Development Plan, adopted in December 1994, included as Site Policy 19:

'(a) Retention and enhancement of listed buildings in association with football or other spectator sport or entertainment as appropriate in the location; (b) Provision of a public Riverside walk with links inland as appropriate; (c) Residential development reasonably necessary to enable the achievement of these objectives and in accordance with normal housing and environment policies.'] The report recommended that the applications should be approved and planning permission granted subject to a satisfactory s.106 agreement and to a number of conditions to ensure that there should be as much compliance as possible with the relevant policies in the UDP and that the adverse impact of the development on local residents should be kept as small as possible. In particular, it was proposed (and the Committee agreed) to include the following conditions:- '7. The stadium's primary purpose shall be for the playing and watching of Association Football and the playing area and terracing and seating overlooking the playing area shall only be used for the following purposes: - (a) The home matches of only one professional club for the playing of Association Football. (b) Events within Use Class D2(e) for children and educational establishments. To ensure that the development does not result in conditions prejudicial to the amenities of the surrounding area from additional traffic, noise and disturbance which may be generated by the development contrary to UDP policies. EN21, TN14 and TN15 as a consequence of more frequent crowd-generating or noise than one club's football matches. 9. On non-match days the total number of patrons using all the facilities of the stadium shall not exceed 150 at any one time unless it is for an event under Use Class D2 (e) for children and educational establishments.'

There were other conditions (such as a prohibition use of the stadium between 11pm and 9am and that the restaurant must only be used as such and the café must not be used after 8pm except on match days) which were designed to keep disturbance to a minimum, including restrictions applicable to the demolition and construction involved. 9. It is to be noted that there were a large number of responses which supported the applications. Overall in terms of numbers more responses in support were received than in opposition. However, many letters in support were what are described as standardised. But it is clear that there is considerable support for the proposals as well as objection to them. Furthermore, it is important to bear in mind that the development will not bring a new football ground to a residential area where none existed before. Those who live nearby either came to or have spent all their lives close to a football ground which, depending on the future of the club, has attracted a more or less substantial number of fans. The problems of parking and congestion on match days have always existed. In addition, there have been recent concerns, reflected in correspondence, about the loutish behaviour of fans which has intimidated local residents and which the police have not seemed either willing or able to control. One of the matters to be covered by the s.106 agreement involves the installation of CCTV in the streets immediately adjoining the stadium. It is convenient to set out the brief summary of the matters raised against and in support of the proposals. These are in Paragraphs 4.13 to 4.15 of the officer's report, which read:- "4.13. The main representations put forward by objectors are:- (i) The demolition of the listed buildings, involving the loss of Craven Cottage in its entirety and the demolition of all but the façade of the Stevenage Road stand is unacceptable and unjustified. (ii) The scale and design of the Stadium is unacceptable in relation to the site and the surrounding area. (iii) The proposals would fail either to preserve or enhance the character and appearance of the conservation areas within the site lies and adjoins. The site lies within the Fulham Reach Conservation Area and adjoins the Bishops Park and Crabtree Conservation areas. (iv) The height, massing and visual appearance of the proposal, because of the site's prominent position on the River Thames, would have an unacceptable impact. (v) The development would be detrimental to residential amenity by reason of its visual impact, traffic generation and associated affects upon air quality. (vi) The proposed development is contrary to UDP policies, particularly Site Policy 19. (vii) The highways impact on the proposals would be unacceptable. The use of the existing stadium puts pressure on the highway network and upon parking. The redevelopment proposals have the potential to more than double the attendance. The impact of the additional cars would be felt in Fulham and outside the Borough. There would be 26,000 HGV movements during the construction period which would adversely impact on residential amenity and highway network. (viii) The public transport system would be incapable of adequately catering for the increase in passenger movements. (ix) The development would severely prejudice the function of the River Thames as an ecological resource and as a recreation facility. (x) The stadium might become a "white elephant" if the football club either fail to achieve promotion to the Premier League or fail to maintain Premier League status if promotion is attained. (xi) The applicants have failed to consider all alternatives to the proposals, including the feasibility of the football group being redeveloped as a phased programme which would have different environment impacts. (xii) The need case for a new stadium of 30,000 capacity has not been proven nor has the need for the housing block. (xiii) There would be unacceptable encroachment on to the River Thames which is public open space and should be protected from development. Any development should be contained within the site. 4.14 Additionally objectors criticised the Environment statement. They contend that it is deficient in its assessment of a number of key issues including highways and transportation, impact on the river and consideration of alternatives. 4.15 The main points made by supporters of the development are as follows: (i) The proposal would be an improvement visually over what is on the site at present. (ii) The stadium has to be brought in line with safety requirements and football guidelines and this is an opportunity to provide a well designed and up to date new stadium. (iii) It is important to retain the club on the site as it is part of the Borough's heritage. (iv) The development would introduce a valuable new section of river walk and enhanced river views. (v) The football club makes a significant contribution to the local community and the development would enable this contribution to continue and to be enhanced by securing Fulham Football Club's future at its historic home. (vi) The development would bring employment to the area.' 10. The Fulham Alliance had submitted a fully reasoned objection to the proposals through expert advisers. There was a further reasoned objection from Thamesbank, which dealt with the social and environmental damage which would be caused by the proposals, particularly to the River Thames. The Fulham Alliance document made the point that it was 'not convinced that the football club have fully explored the possibility of pursuing a smaller all seater stadium, for example accommodating 20,00025,000 spectators'. The present capacity of the ground is 25,000, but that is because it is not all seat and it will not be approved by the Football Association unless it is. That follows the recommendations made in the Taylor Report on the Hillsborough disaster. Fulham Stadium Ltd. assert that a ground with a capacity of 30,000 is the minimum which will be financially viable in the long term. In the report, the officers have said that they are not convinced of this or that a development with a smaller capacity ground would necessarily mean that the Club would not have a future. But they say in Paragraph 15.22:- 'What is apparent is that, if the proposed stadium were built, Fulham Football Club would be likely and probably more likely to remain on its historic site into the foreseeable future. Additionally, it is likely that the existence of the new stadium would contribute towards future sporting success though, of course, it would in no way guarantee it.' 11. The meeting of the Committee on 27 February 2001 attracted a full house: some 600 people apparently attended it. There were complaints made that the Committee seemed to have made their minds up in advance and that objectors were not able to make any representations. English heritage, whose views on the listed buildings consent were of great importance, had stated that their support for the proposal:- ' has been and continues to be made on the basis that the Council shall have properly satisfied itself that the size and capacity of the proposed stadium is the minimum to ensure the viability of the Football Club development and the provision of the benefits referred to in the supporting documentation'. At the meeting, the Assistant Director (Development Services) told the Committee that the officers had concluded that, because of the intangibles surrounding the financing of football clubs and a scheme such as the one proposed, it was most unlikely that any conclusive evidence could ever be forthcoming. Officers, he said, therefore took the view that notwithstanding the qualification contained in the English heritage letter, the visual, historic and aesthetic qualities of the proposals remained unchanged and the recommendations to approve the applications should stand. There can be no doubt that English Heritages' concerns were properly put before the Committee which was, in the exercise of its judgment, entitled to decide that the scheme could nevertheless be approved. "

[11]Those, then, are the facts concerning the development itself and the circumstances in which it came to be approved by LBH's resolution of 27 February 2001. I have already sufficiently indicated the circumstances in which the Secretary of State thereafter declined to exercise his call-in power. I can turn now therefore to the grounds of appeal for which leave was given, these grounds raising, as it seems to me, the following issues. i) Given that the Secretary of State has declined to call in this planning application, have the appellants' article 6 rights been breached by LBH's failure to accord them any form of oral hearing, let alone a public inquiry? ii) If so, was the Secretary of State therefore obliged to call in the application so as to prevent the breach? iii) Even if the appellants had no right to an oral hearing of their objections, ought the Secretary of State nevertheless to have considered whether exceptionally to call in the application so as to accord them such a hearing? iv) If so, did he consider this?

[12]It will readily be seen that issues (i) and (ii) go to the subsidiary ground of appeal for which permission was given only in the slipstream of the other ground. They are, however, issues of the utmost importance to the entire domestic planning process and logically they fall to be considered first. It will also be appreciated that for the appellants to succeed on this first and most fundamental ground of appeal, they must succeed on issue (ii) as well as issue (i). Given that, for reasons to which I shall come, issue (ii) to my mind plainly falls to be resolved against the appellants, it is tempting not even to address the rather more complex first issue. There is, after all, no separate challenge to LBH's resolution to grant planning permission, surprising though that may seem. Having, however, heard full argument on issue (i), and given its obvious wider importance and the (at least theoretical) possibility that the appellants might hereafter, were the present challenge to fail, seek to challenge LBH's proposed formal grant of planning permission, I think it right to decide the point. Issue (i)

[13]So far as presently material, article 6(1) provides:

"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."

[14]The respondents and interested parties, whilst reserving their position in the event of any further appeal, have been prepared to assume for the purposes of the present appeal that the grant of planning permission here will be directly decisive of the civil rights of one or more of the appellants (albeit less obviously in their case as third party objectors than, say, in the case of site owners) so that the decision whether or not to grant planning permission engages their rights under article 6.

[15]Issue (i) can, therefore, be re-stated as follows: is the appellants' entitlement to "a fair and public hearing" by "an independent and impartial tribunal" satisfied by the English planning system which, in the case of objectors, allows the local planning authority to grant planning permission without having afforded them any opportunity of an oral hearing subject only and always to this court's supervisory jurisdiction on a judicial review application?

[16]Perhaps somewhat surprisingly, the local planning authority itself is not to be regarded as an independent and impartial tribunal. Independent for this purpose means independent of the executive as well as of the parties. So much is accepted. The question whether or not article 6 is satisfied, however, falls to be considered by reference not merely to the initial decision-making process but also in the light of the High Court's review jurisdiction. The proper approach was recently clarified by Laws LJ's valuable judgment (with which Lord Woolf CJ and Dyson LJ agreed) in London Borough of Tower Hamlets -v- Runa Begum

[2002] EWCA Civ 239

. The court there was concerned with whether the procedure for a local housing authority's internal review of its decisions on homelessness, such reviews being subject only to appeal in point of law to the County Court, complies with article 6. Laws LJ said this:

"40. As I have shown, the extent to which the first instance process may be relied on to produce fair and reasonable decisions is plainly an important element. But it is not to be viewed in isolation. The matter can only be judged by an examination of the statutory scheme as a whole; that is the necessary setting for any intelligent view as to what is fair and reasonable. Where the scheme's subject- matter generally or systematically involves the resolution of primary fact, the court will incline to look for procedures akin to our conventional mechanisms for finding fact: rights of cross-examination, access to documents, a strictly independent decision-maker. To the extent that procedures of that kind are not given by the first instance process, the court will look to see how far they are given by the appeal or review; and the judicial review jurisdiction (or its equivalent in the shape of a statutory appeal on law) may not suffice. Where however the subject-matter of the scheme generally or systematically requires the application of judgment or the exercise of discretion, especially if it involves weighing of policy issues and regard being had to the interests of others who are not before the decision-maker, then for the purposes of Article 6 the court will incline to be satisfied with a form of inquisition at first instance in which the decision-maker is more of an expert than a judge (I use the term loosely), and the second instance appeal is in the nature of a judicial review. It is inevitable that across the legislative board there will lie instances between these paradigms, sharing in different degrees the characteristics of each. In judging a particular scheme the court, without compromise of its duty to vindicate the Convention rights, will pay a degree of respect on democratic grounds to Parliament as the scheme's author. 43. I should indicate moreover that although there were sharp issues of primary fact falling for determination in the present case, that is not a necessary feature in a s.202 review, and certainly not a systematic one. As often as not there will be no real question of fact, and the decision will turn on the weight to be given to this or that factor against an undisputed background Now, clearly the statutory scheme is either compliant with Article 6 or it is not. Its compliance or otherwise cannot vary case by case, according to the degree of factual dispute arising. That would involve a wholly unsustainable departure from the principle of legal certainty. In my opinion, judged as a whole, this statutory scheme lies towards that end of the spectrum where judgment and discretion, rather than fact-finding, play the predominant part."

[17]What, then, of the planning process? Where in the spectrum does this statutory scheme lie? To my mind there can only be one answer to that question and it is the same answer as Runa Begum gave with regard to the homelessness legislation, namely "towards that end of the spectrum where judgment and discretion, rather than fact-finding, play the predominant part". Accordingly (see paragraph 40 of Runa Begum ) "the court will incline to be satisfied with a form of inquisition at first instance at which the decision-maker is more of an expert than a judge and the second instance appeal is in the nature of a judicial review".

[18]It is against this background that I now come to consider Mr McCracken's argument that it is nonetheless imperative, for compliance with article 6, that some form of oral hearing, if not indeed a full public inquiry, be accorded by the decision-making body in every case. The argument, I should note, relates most specifically, perhaps exclusively, to those who object to the grant of planning permission. If planning permission is refused, the applicant has a right of appeal to the Secretary of State which will secure him, if he wishes, a public inquiry. That is the position too, of course, with regard to enforcement proceedings. It is only objectors who have no right to any form of oral hearing before the local planning authority and no right of appeal. Is this fatal to the scheme of the legislation?

[19]In submitting that it is, Mr McCracken places heavy reliance upon R (Alconbury Developments Limited and Others) -v- Secretary of State for the Environment, Transport and the Regions

[2001] 2 WLR 1389

and in particular those of the speeches which underline the importance of public inquiries. Amongst the passages relied upon are these:

"The fact that an inquiry by an inspector is ordered is important. This gives the applicant and objectors the chance to put forward their views, to call and cross-examine witnesses. The inspector as an experienced professional makes a report, in which he finds the facts and upon which he makes his recommendations." (Lord Slynn at paragraph 46) "

It is only when one comes to findings of fact, or the evaluation of fact, such as arise on the question of whether there has been a breach of planning control, that the safeguards are essential for the acceptance of a limited review of fact by the appellate tribunal." (Lord Hoffmann at paragraph 117) The safeguards there referred to are those described by the ECtHR in Bryan -v- United Kingdom

(1995) 21 EHRR 342

which include that of a public inquiry before an inspector. "In the civil context the whole process must be considered to see if the Article [article 6] has been breached. Not every stage need comply. If a global view is adopted one may then take into account not only the eventual opportunity for appeal or review to a court of law, but also the earlier processes and in particular the process of public inquiry at which essentially the facts can be explored in a quasi-judicial procedure and a determination on factual matters achieved." (Lord Clyde at paragraph 152) "So far as the manner in which the decisions will be taken is concerned it is to be noticed that in each case there will be a public inquiry before an inspector. That will be an occasion for the exploration of the facts, including the need and desirability of the development." (Lord Clyde at paragraph 157)

[20]Mr McCracken's reliance upon these passages is misplaced. Quite apart from the fact that his argument plainly proves too much - is it seriously to be suggested that anyone objecting to a planning application has the right to a public inquiry before an inspector? - it entirely overlooks the context in which those views were expressed. The focus in Alconbury was on the requirement under article 6 for "an independent and impartial tribunal" and in particular the propriety of the Secretary of State himself taking the planning decisions in question - in two of the cases having himself called in the applications (the very opposite of the position on the present appeal) and in the third case being seised of a compulsory purchase order in respect of land sought by his own department for a road improvement scheme. The cases were in no way concerned, as this one is, with the requirements of "a fair and public hearing". The speeches simply never addressed the question whether any form of oral hearing was required. As to the importance generally of the "safeguards" identified in Bryan , it is necessary to read the first part of paragraph 117 of Lord Hoffmann's speech:

"If, therefore, the question is one of policy or expediency, the 'safeguards' are irrelevant. No-one expects the inspector to be independent or impartial in applying the Secretary of State's policy and this was the reason why the court said that he was not for all purposes an independent or impartial tribunal. In this respect his position is no different from that of the Secretary of State himself. The reason why judicial review is sufficient in both cases to satisfy Article 6 has nothing to do with the 'safeguards' but depends upon the Zumtobel principle of respect for the decision of an administrative authority on questions of expediency."

[21]Lord Hoffmann then went on to make the distinction between that type of administrative decision (typically the grant of planning permission where the decision turns on "questions of expediency") and enforcement notice appeals which typically turn on questions of fact - a distinction which Lord Hoffmann had earlier made in paragraphs 90 and 110.

[22]In short, Alconbury to my mind says nothing as to whether objectors are entitled to any form of oral hearing. What, then, of other domestic authorities? We were shown a series of first instance decisions none of which supported Mr McCracken's argument and several of which tend strongly against it. I need touch on them only briefly, exceedingly long although most of them are.

[23]Sullivan J in R(Vetterlein) -v- Hampshire County Council (transcript 14 June 2001) said this:

"68 The special meeting was held in public. The agenda was available to members and to the public beforehand. In deciding whether there has been a breach of Article 6(1) the procedures have to be looked at in their entirety, including the earlier opportunities to make representations during the consultation process and the subsequent right to seek relief by way of judicial review if the Council errs in law. A 'fair' hearing does not necessarily require an oral hearing, much less does it require that there should be an opportunity to cross-examine. Whether a particular procedure is 'fair' will depend upon all the circumstances, including the nature of the claimant's interest, the seriousness of the matter for him and the nature of any matters in dispute."

[24]True it is, as Mr McCracken points out, that Sullivan J had already by then concluded that the claimants' interest were so remote that no article 6 rights were engaged, but in paragraph 71 he expressed himself "satisfied that even if article 6(1) did entitle the claimants to a fair and public hearing, the procedures adopted by the County Council when looked at in totality did afford them just that opportunity".

[25]Forbes J's decisions respectively in Friends Provident Life Office -v- Secretary of State for the Environment (transcript 16 October 2001) and in Aggregate Industries -v- English Nature (transcript 24 April 2002) and Ouseley J's decision in Cummins -v- London Borough of Camden (transcript 21 December 2001) all adopt that same approach. Friends Provident and Cummins were both concerned, like the present case, with objectors' challenges to the Secretary of State's refusal to call in planning applications. Both considered, as I am considering, the sufficiency for article 6 purposes of the local planning authority's procedures when taken together with the court's supervisory jurisdiction. Ouseley J in Cummins concluded in paragraph 343 (of a 374 paragraph judgment refusing applications for permission to move for judicial review!):

"Decisions as to whether or not to grant planning permission are policy or 'expediency' decisions which call for a range of planning judgments. These are decisions entrusted to democratically accountable bodies, because of the policy content. Article 6(1) is complied with because of the availability of judicial review. On that review, the Court has the full jurisdiction to deal with procedural and substantive errors of law. Its jurisdiction therefore permits a challenge to be brought on the basis that a material fact has been ignored or misunderstand or that a view of the facts or their evaluation has been reached unreasonably. I do not consider that the comments in the speeches in Alconbury and of Lord Hoffmann in particular can be taken to suggest that findings of fact and the evaluation of fact involved in the decision whether or not to grant planning permission, require the interposition of an inspector in order for the limited review of fact by the court to satisfy Article 6."

[26]Forbes J in both Friends Provident and Aggregate Industries (giving express consideration in the latter to the Court of Appeal's judgments in Runa Begum ) reached a similar conclusion.

[27]True it is that in all these cases the objectors were given some limited opportunity to make oral representations. Paragraph 86 of Forbes J's judgment in Friends Provident notes that the objectors' advisors made submissions both in writing and orally at the planning committee's meeting. Ouseley J in Cummins records in paragraphs 130 and 143 that oral deputations by objectors were heard initially by the relevant sub-committee and then again by the full council. Forbes J in Aggregate Industries - a challenge to the confirmation of certain land as a Site of Special Scientific Interest - records in paragraph 103(vi) that the applicant's solicitors made oral representations at the relevant council meeting and "were given a fair and public hearing on that occasion". Nothing in the judgments, however, suggests that those brief oral hearings were central to the court's conclusion that the planning system as a whole satisfies the requirement under article 6 for "a fair and public hearing" - or, indeed, that but for those hearings the court would have struck down the individual decisions as unfair.

[28]I pass, therefore, to the final authorities upon which Mr McCracken seeks to rely with regard to issue (i), two judgments of the ECtHR respectively in Fredin -v- Sweden (No 2) A 283-A (1994) and Jacobsson -v- Sweden (No 2) (8/1997/792/993), which I can deal with really very briefly. In paragraphs 21 and 22 of its judgment in Fredin the court stated that under its existing caselaw it was clearly established that "in proceedings before a court of first and only instance" the right to "a public hearing" entailed an entitlement to an "oral hearing". The critical question arising there was whether the fact that the applicant was denied an opportunity to present oral argument before the Supreme Administrative Court, the first and only tribunal seised of the applicant's challenge to the underlying administrative decision, breached article 6(1). The court held that it did: he had been guaranteed a right to an oral hearing and had had none.

[29]That decision was applied in Jacobsson although in the event the court there reached a different conclusion:

"49. the Court does not find on the evidence before it that the applicant's submissions to the Supreme Administrative Court were capable of raising any issues of fact or of law pertaining to his building rights which were of such a nature as to require an oral hearing for their disposition on the contrary, given the limited nature of the issues to be determined by it, the Supreme Administrative Court, although it acted as the first and only judicial instance in the case, was dispensed from its normal obligation under Article 6(1) to hold an oral hearing."

[30]Those decisions cannot in my judgment avail the appellants: it hardly needs pointing out that had they challenged LBH's resolution by judicial review they would plainly have been entitled to an oral hearing of their application. Neither Fredin nor Jacobsson say anything to suggest that article 6(1) confers the right to be heard orally by the administrative decision-making body.

[31]For my part, I can find no warrant, whether in domestic or in Strasbourg jurisprudence, for concluding that where, as in Runa Begum and as again here, the administrative decisions taken at first instance are generally likely to turn on questions of judgment and discretion rather than on findings of fact, the statutory scheme must provide for an oral hearing at that initial stage. On the contrary, I have reached the clearest conclusion that the statutory scheme as a whole is plainly compliant with article 6 and that there is no need to resort to the Secretary of State's call-in power to make it so.

[32]With regard to issue(i) I add just this. The remedy of judicial review in my judgment amply enables the court to correct any injustice it perceives in an individual case. If, in short, the court were satisfied that exceptionally, on the facts of a particular case, the local planning authority had acted unfairly or unreasonably in denying an objector any or any sufficient oral hearing, the court would quash the decision and require such a hearing to be given. This presents no difficulties: Mr McCracken disputes neither the authority's power to conduct such a hearing nor the court's power to order it. I should make it plain, however, that I am by no means persuaded that any oral hearing was required on the facts of the present case. Quintessentially the decision whether or not the permit this development (and the departure from the development plan which it represents) involves questions of discretion and planning judgment rather than the resolution of primary fact. When invited to identify the most acute factual issues in the case Mr McCracken could find nothing more telling than: (a) whether the development would result in 3,744 more parked cars (the appellants' estimate) or a maximum of 2,500 parked cars (the respondent's rival case); and (b) whether only 1,080 cars could be accommodated within the suggested area (as the appellants contend) or as many as 1,800-2,300 (the respondents' estimate). Issue

(ii)

[33]Having regard to my conclusion upon the first issue, it could perhaps be said that issue (ii) now becomes moot. Recognising, however, that it is the Secretary of State's refusal to call in this application which is directly under challenge here, I shall address it nonetheless.

[34]On what basis do the appellants seek to impose upon the Secretary of State a duty to exercise his section 77 power so as to prevent a violation of article 6? Mr McCracken argues that the call-in power is "part of the composite process which taken as whole achieves compliance with article 6". To this end he relies upon a single sentence from Lord Clyde's speech in Alconbury :

"159 Parliament, democratically elected, has entrusted the making of planning decisions to local authorities and to the Secretary of State with a general power of supervision and control in the latter."

[35]Founding himself upon that broad dictum, Mr McCracken submits that the Secretary of State has a supervisory role comparable to that of the court on judicial review but to be exercised before the review jurisdiction is invoked, judicial review being a remedy of last resort. The Secretary of State, he submits, is the "primary decision-maker as to whether there should be a public hearing".

[36]I have no hesitation in rejecting this argument. There are, I think, two central points to be made with regard to it. First, the Secretary of State's obligation under section 6 of the Human Rights Act 1998 is not himself to act incompatibly with a Convention right; he is not obliged to ensure that other public authorities themselves act compatibly. Secondly, it is one thing to accept, as the Secretary of State does, that the decision whether or not to grant planning permission in this case directly affects the appellants' civil rights so as to engage article 6; quite another to suggest that article 6 is engaged by the exercise of the section 77 discretion whether or not to call the application in. The latter is simply a procedural decision as to which of two public authorities should take the substantive decision. In short, it seems to me perfectly clear that article 6 rights are not engaged by the exercise of the Secretary of State's section 77 discretion. Similarly, even assuming that the appellants' article 8 rights are engaged with regard to the substantive planning decision, there can be no question of their being interfered with by the exercise of the Secretary of State's call-in power.

[37]It is to be noted that Ouseley J rejected precisely the same argument in Cummins :

"362. [Claimants' counsel] recognised the force of [respondent counsel's] next submission that even if [the claimant's] civil rights were engaged and the way in which the Council dealt with the applications involved a breach of Article 6, it was not the duty of the Secretary of State to judge the adequacy of the procedures adopted by the Council and then to intervene to ensure that the procedures which it adopted complied with Article 6. The Secretary of State has no power to do that. It is for the Courts to review the decisions of public bodies and not the Secretary of State. It is for the Court which tells the Council what it must do as a public body to comply with the obligations in section 6(1) of the Human Rights Act 1998 so as to avoid acting in ways which are in breach of a convention right. If the Courts conclude that there has been a breach of Article 6 by the Council it will tell the Council what it has to do in order to comply with Article 6 and it would then be for the Council to comply with those directions. I accept [respondent counsel's] submission that the combination of the Court's direction as to the procedure to be followed and the obligation of the Council to comply with that direction provide a complete system by which compliance with Article 6 is then ensured. None of that procedure involves the Secretary of State's intervention. It follows that the Secretary of State does not act incompatibly with Article 6 rights if he declines, as he did in this case, to call the case in for his decision. There is no duty under which he himself is obliged, by virtue of section 6(1) of the Human Rights Act to call in the planning applications. 363. The Secretary of State has no duty to substitute his supervision of the Council's procedures for that of the High Court. It is the High Court, in the exercise of its power of review, which has the role of authoritatively deciding what minimum standards of fair procedure are required by Article 6 as a matter of law in the particular case. This argument was accepted was Forbes J in the Friends Provident case."

[38]It follows from all this that in my judgment Collins J was correct to conclude as he did:

"28. the Secretary of State has no duty to consider whether the procedures would be compliant with Article 6 in deciding whether or not to call in. It is matter for the court to decide whether overall the procedures were compliant and fair. I am satisfied in this case that they were. But the challenge in my view should have been made to the LBH's decision, not the Secretary of States."

Issue (iii)

[39]I have already indicated my view that the Secretary of State was entitled to exercise his section 77 discretion without regard to whether or not, were he to decline to call the application in, the High Court on judicial review would view the objectors as having been unfairly treated and so itself order an oral hearing. Ought he nevertheless to have considered whether or not the desirability of there being an oral hearing was such that exceptionally he should call in the application even though under his policy he would not otherwise do so? Was he legally obliged to consider departing from his policy so as to ensure that the objectors became entitled to a hearing, such being in practice the invariable consequence of call-in? Was this, in short, a material consideration of the kind which the Secretary of State was bound to take into account when exercising his discretion?

[40]For my part I think not. As Lord Slynn recorded in Alconbury , the Secretary of State in fact calls in only about 130 of some 500,000 planning applications made annually. To alter, or depart from, his present policy (described in paragraph 6 above) to accommodate cases where objectors have procedural grievances would significantly distort the approach hitherto taken to the exercise of this power. Mr McCracken makes the point that the present application, involving as it does a substantial departure from the development plan, was one which LBH were obliged to notify to the Secretary of State pursuant to paragraph 3(c) of The Town and Country Planning (Development Plans and Consultation) (Departures) Directions 1999 for him to consider whether to exercise his call-in power. He furthermore points out that anyone objecting to policies and proposals in the draft development plan would at that stage have been entitled to be heard at a public inquiry. I nevertheless remain unpersuaded that even in this relatively limited category of cases the Secretary of State is bound to consider departing from his policy simply so as to enable third parties to put their objections at a public inquiry.

[41]That is not to say, however, that the Secretary of State cannot have regard to this consideration if he thinks it right to do so. Rather, in my judgment, it is a consideration of the kind which the Secretary of State can have regard to or not as he chooses. The statute permits but does not require consideration of the matter - see CREEDNZ Inc -v- Governor-General

[1981] 1 NZLR 172

, approved by Lord Scarman in the House of Lords in In re Findlay

[1985] 1 AC 318

, 333-334. Issue (iv)

[42]Did the Secretary of State in any event consider whether exceptionally to call in the application so as to accord the objectors an oral hearing? Mr McCracken submits not, urging that it would be wrong to conclude that he did since he refused to give any proper reasons for declining to call the application in. I recognise that certain of the phrases used in the Secretary of State's letters of 28 March and 25 April 2001 - "each case is considered on its individual merits", "after very careful consideration", and such like - appear somewhat standardised (appear, indeed, to have been used in similar letters sent in the earlier cases which establish that reasons - beyond those implicit in saying that the case does not fall within the Secretary of State's policy for calling in applications - are not required for such decisions). There nevertheless seems to me no sufficient reason here for declining to take at face value the Secretary of State's assertion, at the end of his letter of 25 April 2001, that he had given careful consideration to "all the relevant information before him, including [Mr Buxton's] representations of 15 March", representations which expressly contended that the objectors were entitled to "a hearing in relation to departure from the development plan, which had been subject to inquiry".

[43]Even, therefore, were I to conclude that the Secretary of State was bound to consider calling in the application, specifically so as to accord the appellants an oral hearing of their objections, I would hold on the evidence before the court that in fact he did so.

[44]It follows that in my judgment each of the four issues raised before us falls to be determined against the appellants. Whatever sympathy one may feel for them in the face of this impending development, they have failed to establish any basis for a legal challenge. I would dismiss this appeal.

Lord Justice Mummery :

[45]For the reasons set out by my Lords, Lord Justice Simon Brown and Lord Justice Dyson, I, too, would dismiss this appeal. Lord Justice Dyson:

[46]I agree that this appeal should be dismissed, and for the reasons given by Simon Brown LJ. As he explains in his analysis of issue (i), the rights of objectors to planning applications under

article 6 of the European Convention on Human Rights

are not violated if a local planning authority refuses to accord them a public inquiry, or indeed any form of oral hearing. This is because a combination of the authority's initial decision-making process and judicial review by the High Court is sufficient to ensure compliance with article 6.

[47]Accordingly, issue (ii) is moot. Nevertheless, I wish to add a few words of my own on this issue, since it raises an important question as to the nature and scope of the power accorded to the Secretary of State by section 77 of the Act. Simon Brown LJ has set out the relevant provisions at paragraph 1 above. I draw attention to two points. First, the section does not specify any criteria for the exercise of the power. The Secretary of State is given an apparently unfettered discretion (subsection (1)) to give directions requiring applications for planning permission to be referred to him, instead of being dealt with by local planning authorities, and (subsection (2)) to give a direction either to a particular local planning authority or to local planning authorities generally, which may relate to a particular application or to applications of a specified class. Secondly, the Secretary of State can exercise the power at any time before the planning authority has "dealt with" the application.

[48]Mr McCracken submits that the Secretary of State is under a duty to exercise his section 77 power so as to prevent violations of article 6. In my judgment, this submission is misconceived. He relies strongly on a single sentence in paragraph 159 of the speech of Lord Clyde in Alconbury which has been quoted by Simon Brown LJ at paragraph 34 above. But, properly understood, that sentence provides no support for Mr McCracken's argument. It is necessary to cite a little more from the passage in question:

"As I indicated at the outset, Parliament, democratically elected, has entrusted the making of planning decisions to local authorities and to the Secretary of State with a general power of supervision and control in the latter. Thereby it is intended that some overall coherence and uniformity in national planning can be achieved in the public interest and that major decisions can be taken by a minister answerable to Parliament. Planning matters are essentially matters of policy and expediency, not of law. They are primarily matters for the executive and not for the courts to determine"

Lord Clyde was referring back, in particular, to paragraphs 140 and 141 of his speech. At paragraph 140, he had said:

"Planning and the development of land are matters which concern the community as a whole, not only the locality where the particular case arises. They involve wider social and economic interests, considerations which are properly to be subject to a central supervision. By means of a central authority some degree of coherence and consistency in the development of land can be achieved"

It can be seen, therefore, that, when he spoke of "supervision and control" of local planning authorities by the Secretary of State, Lord Clyde was not referring to a function analogous to the supervisory jurisdiction exercised by the court when determining, for example, an application to quash the grant of a planning permission. He was referring to something very different, namely a planning function exercisable by the Secretary of State on planning merits, having regard to the public interest and the policy considerations identified by Lord Clyde.

[49]Accordingly, the passage in Lord Clyde's speech relied on by Mr McCracken affords no support for his argument. Quite the contrary. I would add that, the fact that the exercise of the section 77 power is an alternative to an application for planning permission being "dealt with" by the local planning authority shows that it was not the intention of Parliament that the function of the Secretary of State should be to make good any shortcomings in the process undertaken by the planning authority. Parliament intended that applications for planning permission would usually be dealt with at local level by local planning authorities; but that, exceptionally, they could be dealt with by the Secretary of State if he decided to call them in. The two procedures are plainly alternatives. The purpose of the power conferred by section 77 is as described by Lord Clyde. It is to give the Secretary of State the power to call in planning applications where he considers that this is necessary or desirable in the national interest. It is not to exercise some supervisory control over the process by which local planning authorities perform their functions in individual cases. That is the function of the courts. I would endorse the passages in the first instance judgments to which Simon Brown LJ has referred on this point.

[50]Mr McCracken counters the argument that it is for the courts to supervise the local planning authorities by submitting that this argument leaves out of account the well-established principle that, save in exceptional cases, parties should not have recourse to the High Court where they have an adequate alternative remedy. The principle is indeed well-established. But Mr McCracken's riposte begs the question whether the section 77 power does provide an alternative remedy to judicial review. For the reasons that I have summarised, as well as those stated by Simon Brown LJ, the section 77 power does not provide an alternative remedy to judicial review. It is not the function of the Secretary of State to exercise his power under section 77 in order to make good any procedural shortcomings in the process adopted or to be adopted by the local planning authority.

[51]I too would dismiss this appeal.

Order

Appeal dismissed with an order for costs in favour of the Secretary of State alone. Permission to appeal to the House of Lords refused. (Order does not form part of the approved judgment)

Cited in 27 later judgments

and 18 more of the most senior