When the Human Rights Act 1998 comes into force at the beginning of November 2000, there will almost certainly be a period when the law will have to do a great deal of growing up.
Traditionally, there have been relatively few cases involving claimants from England and Wales going to the European Court of Human Rights on planning matters. To start with, this has only been possible after all legal avenues within this country have been exhausted. The cost in pursuing these has been largely prohibitive. Consequently, the ability to pursue Human Rights arguments directly in this jurisdiction will undoubtedly be attractive to parties who have a grievance about planning or environmental matters but who have hitherto not been tempted to go to law.
There are already a number of firms of Solicitors that claim to specialise in pursuing Court actions on planning and environmental matters for "the ordinary man". The cases they take on have often been funded with Legal Aid but have hitherto been relatively unsuccessful because of the current difficulties with regard to the Judicial Review system. That system includes not only an initial "weeding out" process (the requirement to obtain leave, or permission as it is now called) but also has a relatively high set of hurdles to be overcome in order to convince a Court of illegality in any planning or environmental decision making process.
The new Act is likely to change this position significantly. Over time, it may well be the case, that as the Courts make more decisions and the parameters for use of Human Rights arguments become more defined, the number of challenges could reduce. Initially, however, it is believed that there may be a period where people seek to exercise new opportunities for inhibiting development proposals.
In the context of planning , perhaps the most important areas to be aware of are:
- the decision to issue an enforcement/stop notice
- the decision to call in an application by the Secretary of State
- the determination of a called in application by the Secretary of State
- the resolution to pursue, and confirmation of, compulsory purchase
- the confirmation of preservation orders (trees) or the listing of buildings
- decisions in relation to the adoption of policies within development plans (icluding waste plans and structure plans).
From a developer’s point of view, it will be necessary to address these challenges as early as possible and as thoroughly as possible. Some cases, for example where a Legal Aid Certificate has been obtained on rather thin ground may be capable of being de-railed by seeking to have that Certificate revoked. Others for example Judicial Review actions, where Human Rights Act arguments are pursued will need to be responded to thoroughly at the permission stage. All will need to be taken seriously.
From a Public Authority’s point of view, there will be a need to take any decisions which could amount to a determination of a party’s human rights extremely carefully.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
