Will the Human Rights Act 1998 help or hinder property development?
As you brace yourself for another day at the office consider for a moment Article 4 of the European Convention on Human Rights:
Prohibition of Slavery and Forced Labour
No one shall be held in slavery or servitude.
This and the remainder of the European Convention on Human Rights will be given effect in UK domestic law when the Human Rights Act 1998 comes into force on 2nd October. It will no longer be necessary for complainants to go to the European Court of Human Rights in Strasbourg.
The main purpose of the Convention is to protect a "person, non-governmental organisation or group of individuals" from the acts of "public authorities" which are in breach of convention rights and freedoms. Person includes "every natural or legal person", which means corporate bodies as well as individuals. "Public authority" includes government departments, local authorities, the planning inspectorate and "any person certain whose functions are functions of a public nature".
Primary and subordinate legislation must be read and given effect in a way which is compatible with convention rights. Primary legislation cannot be overruled, but convention rights take precedence over secondary legislation and administrative acts by public authorities unless "primary legislation prevents removal of the incompatibility". Convention rights, therefore, will to permeate most areas of public administration.
As far as property development is concerned, the immediate impact is likely to be felt in two main areas: quiet enjoyment of home and possessions, and public inquiry procedures.
Quiet Enjoyment
Article 8 gives everyone the right to respect for private and family life, home and correspondence. A public authority cannot interfere with the exercise of this right except in accordance with the law and if necessary for a variety of reasons which include the economic well-being of the country and the protection of the rights and freedom of others.
Under Article 1 of the First Protocol every natural and legal person is entitled to the peaceful enjoyment of his possessions. This does not, however, prevent the State acquiring property or controlling its use "in the general interest" or to levy taxes.
So what's new? UK law has a long tradition of protection of property rights, stretching back to Magna Carta. The common law (trespass, nuisance etc) provides a wide range of protections, although there have been some suggestions that public authority landlords may face difficulty in exercising the right to distrain for arrears of rent, or forfeiture. There is a tried and tested statutory framework for the exercise of planning and compulsory purchase powers, and a statutory compensation code. The mechanisms for public authorities and the Courts to balance the rights of the individual against the wider public interest therefore exist already: in Convention terms providing for "proportionality" and compensation within the "margin of appreciation" allowed to the State.
Under the Act
However, these protections are essentially negative - the public authority cannot interfere with the individual's rights, except in the wider public interest. Significantly, the public authorities are obliged to protect individual rights. This means that we are likely to see a rash of actions by individuals and companies trying to compel local authorities, government departments, regulatory bodies and other public authorities to protect them from the impact of developments. This will cause huge delay in developments which have been examined and approved through existing procedures.
Article 8 has already been used with most success in ECHR cases to complain of the effects of pollution. Unlike the right to life under Article 2 which can be invoked only if pollution is causing serious health consequences, any pollution which is seriously affecting the quality of a person's life is likely to be regarded as within the scope of Article 8. Fumes, noise from aircraft and excessive light from a power station have all been held to constitute an interference with this right.
In Lopez – Ostra it was held that emissions of noise, fumes and smells from a waste treatment plant breached the applicant's Article 8 right. The case was brought against the Spanish authorities even though the waste treatment plan was privately operated due to the fact that the authorities had allowed the plant to be built on to their land and had also subsidised its construction. In certain circumstances the Article 8 right also imposes an obligation on public authorities to obtain and provide information about environmental risks. In Guerra the applicants were residents near to a large chemical factory who wanted access to information about the risks it posed and what would be done in the event of an accident. It was held that by failing to provide such information, the State had not fulfilled its obligation to secure the applicants' right to respect for their private life.
Third Party Rights of Appeal
The most likely candidates for such challenges are third party objectors to planning applications. To comply with Article 8 and Article 1 of the First Protocol public authorities will not only have to take decisions within existing UK statutory powers, but will also have to ensure that any exercise of discretion is also carried out in Convention terms.
There has been pressure for some time for third party rights of appeal, possibly as part of a new Environment Court. Article 6 (an individual’s right to a fair and independent hearing in the determination of his civil rights) may lead to rights for third party objectors to appear at public inquiries, assuming that environmental impact is to be regarded as an interference with civil rights. There is considerable doubt that the existing planning appeals system meets the requirements of Article 6. Although the case of Bryan -v- UK in 1996 suggested that the appeals system complies with the Convention, it has been noted by many commentators that, for example, Mr Bryan may have had a right of appeal to the High Court, but the High Court had no power to substitute its own findings of fact. The case for substantial changes in the system of determining planning issues is even more compelling for the local plan process, in which a local planning authority can approve its own plan contrary to recommendations of the local plan Inspector. Where a local planning authority grants planning permission for its own land, the case for change seems unanswerable.
Form or Substance?
The UK systems of development control and compulsory purchase have many deficiencies but one has to question whether they "victimise" individuals to the extent that a new set of rights is needed. Promoters of development have rights of appeal, and consultation and open consideration of objections are an integral part of the approval process.
The environmental assessment experience is instructive. There have been a number of High Court challenges to planning decisions in recent years on the grounds of non-compliance with the Environmental Impact Assessment Regulations. On 31st July 2000 Mr Justice Sullivan gave judgment in the second of two challenges involving Rochdale Borough Council which considered whether an outline planning application could comply with the UK Regulations in cases where an environmental impact assessment was required. In the first challenge Mr Justice Sullivan found that a bare outline application could not comply because there was insufficient information in it to enable the essential elements of the environmental impact assessment (scale, siting etc) to be considered. However, in the second challenge he found that an outline application supported by a development framework and masterplan could comply with the Regulations, provided the local planning authority was satisfied that it had been given sufficient information.
Lady Berkeley has recently successfully challenged the lack of a formal environmental statement in support of the Fulham Football ground development. Unanimously reversing a decision of the Court of Appeal, the House of Lords held that an environmental assessment, if required under the Regulations, must be in the form prescribed by the Regulations.
With the possible exception of the first Rochdale case it is worth noting that none of the many challenges brought to Court during the past few years indicate that the objectors had been deprived of environmental information, or an opportunity to obtain it. The challenges were brought because the objectors were strongly opposed to the development in principle. We can therefore expect most human rights challenges to be brought against proposed development for the same reason, or simply as part of commercial competition, rather than because individual rights have been prejudiced.
But it cannot be denied that in the 15 years or so since the first EC Directive on environmental assessment arrived attitudes to environmental issues have changed enormously. In much the same way, the Human Rights Act will hopefully encourage a genuine re-focusing on the quality of life of the individual and greater accountability for public authorities.
This article first appeared in Property Week on 29th September 2000. For further information please contact Tony Kitson at tony.kitson@cms-cmck.com or on +44 (0) 20 7367 3556 or David Short at david.short@cms-cmck.com or on +44 (0) 20 7367 2535.
