Explain how the Human Rights Act 1998 has impacted on environmental case law. 28Apr2013

The coming into force of the Human Rights Act 1998 (‘the Act’) in October 2000 ensured the direct applicability of convention rights[1] before the domestic courts.

Among other things the Act requires the courts to interpret legislation so far as is possible in compliance with convention rights[2] and places a duty upon public authorities (including the courts) not to act in a manner incompatible with convention rights.[3]Fundamentally, the Act provides litigants who are, or who will be, the victims of an infringement of their convention rights by a public authority with a cause of action in the domestic courts[4] and requires the court to take into account the jurisprudence of the European Court of Human Rights[5].

Challenges in the field of environmental and planning law have been focussed primarily on Article 6 (right to a fair trial), Article 8 (right to respect for private and family life) and Article 1 of the first protocol (protection of property). Despite the extensive litigation that has occurred in the field in the intervening twelve years since its coming into force it is submitted that the Act has not had a revolutionary impact.

Early challenges were made to the lawfulness, under Article 6, of the decision making process under the Town and Country Planning Act 1990, in particular where cases where recovered by the Secretary of State for his determination or on appeal to the Secretary of State.

Thus in Alconbury[6]the claimants alleged that the Secretary of State’s responsibility for laying down planning policy and guidance and then taking decisions on planning applications where he is bound to consider the same policy and guidance would adversely affect the claimant’s ability to obtain a fair hearing. In effect the Secretary of State would be a judge in his own cause. It was also argued that the recourse to the courts by way of judicial review was inadequate to remedy the apparent breach of Article 6 as the court’s review would not permit reconsideration of the merits of the decision or on findings of fact; instead being limited to the traditional grounds of review i.e. irrationality, procedural irregularity or failure to have regard to relevant considerations or having regard to irrelevant consideration.

The House of Lords, in five reasoned judgements, unanimously rejected this line of argument. While accepting that the claimant’s (in this case the applicant for planning permission) Article 6 rights were engaged notwithstanding the public law character of the proceedings[7] they did not find any breach of Article 6. The Lords re-iterated their traditional judicial deference in planning matters to the expertise of the administrative decision maker in matters of public policy and emphasised that the courts are ill-equipped to take such decisions.[8] They held, following Bryan v United Kingdom[9]  and Runa Begum[10], that any alleged incompatibility with Article 6 is remedied by the court’s supervisory powers; viewed together there is no breach of Article 6.

While Alconbury was important for affirming the legality of the Town and Country Planning regime it is clear that the impact of the Act here is minimal. The decision merely preserved the status quo in respect of a process that is used in only a minority of planning cases (albeit that such cases tend to be those of greatest public interest and controversy). An element that assisted the Lords in arriving at their decisions was that in appeal/recovered cases additional procedures are used such as a written representations, hearings or public inquiries where interested parties have an opportunity to state their case[11].

What then is the position in the majority of cases which are decided by a local planning authority (‘LPA’)? In these cases third parties, in contrast to their developer counterparts, do not have an opportunity to appeal to the Secretary of State to avail themselves of these additional procedures?

The Court of Appeal considered this issue in Adlard[12]. In this case the LPA decided not to allow any party to make oral representations before the planning committee. The objector’s to the scheme sought judicial review the Secretary of State’s decision not to recover the application for his determination in order preserve the objectors’ Article 6 rights. The Court of Appeal held that (i) in cases where administrative decisions turn on judgement and discretion rather than fact finding there is no requirement for an oral hearing to be conducted[13] (ii) the Secretary of State is under no duty to use his recovery power to police planning applications before LPA’s to ensure compliance with Article 6[14] and (iii) that the Town and Country Planning regime taken together with the availability of judicial review ensures compliance with Article 6[15]. In particular the courts treated with incredulity the suggestion that in any case where there is an objection to a planning application that it is necessary to hold a public inquiry, incurring delay and expense, to satisfy Article 6.

While the court in Adlard made no ruling on whether the objectors’ article 6 rights were engaged by the planning process, for which they would be required to establish status as a ‘victim’ of an infringement of their convention right,[16] it seems clear that it would only be in exceptional cases that Article 6 would be of value to an objector. In such manifestly unfair circumstances, for example where only the developer and not the objectors are permitted to make oral representations before an LPA, such unfairness is likely to have been susceptible to review on traditional grounds. Again, as in Alconbury, despite the extensive litigation; the impact of the Act has been minimal. A similar approach has been followed in other regimes including for the notification of SSSI’s.[17]

Perhaps then a larger impact may have been caused in the Article 8 cases? The European Court of Human Rights has long held that environmental damage, absenting direct personal injury, may infringe Article 8[18].

Of significance is the litigation brought by objectors’ to a change in permitted levels of nocturnal air traffic arising from Heathrow Airport in the Hatton[19] case. The residents alleged that the increase in nocturnal aviation noise which affected their ability to sleep infringed their Article 8 rights and, as sleep is an ‘intimate’ (in the Dudgeon[20]sense) aspect of human life in this regard the member state should be afforded only a narrow margin of appreciation. The Grand Chamber of the European Court of Human Rights however, emphasised the ‘fundamentally subsidiary’ nature of the convention and emphasised that national authorities with democratic accountability are best placed to evaluate local needs and conditions (they should be afforded “special weight”). Here it would seem that the court was swayed by the balancing of the wider economic benefit versus the interference to a minority.

A similar approach was adopted by the House of Lords in Marcic[21]. Here, a claimant brought a claim founded in nuisance (in the Leakey[22]sense) and infringement of Article 8 against a statutory undertaker regulated under the Water Industries Act 1991. The claimant alleged that the defendant’s sewers were inadequate for the volume of water that they were required to convey and overflowed thus caused damage to his home. Following Hatton the Lords took a broad view of the regime under the Water Industries Act 1991 and its compliance with the convention. The Lords ruled that the Water Industries Act 1991 strikes a reasonable balance between the interests of water customers and companies and that it would be inappropriate to side step the regime using the Act or the common law.

The principles developed in Marcic were revisited in the extensive group litigation in Dobson[23]. While human rights were asserted in the case it turned principally on traditional principles of nuisance, negligence and the interpretation of the Water Industries Act 1991. The limited impact of the Act is further demonstrated in a later appeal[24]which focussed on the measure of damages. Returning to ground covered by the Lords in Hunter v Canary Wharf[25] the claimants sought to establish the appropriate measure of damages for an occupier of land, with no proprietary interest, where the court finds negligence amounting to a breach of Article 8 and where an award in damages is made to  another person who does possess a proprietary interest in the same property. In essence the Court held that in most circumstances an award of damages to the parent, with a proprietary interest, would normally constitute ‘just satisfaction’ of the claim of the child (without a proprietary interest). Again, the door is left ajar for the Act but it is clearly playing second fiddle to the common law.

To conclude, the Act has been employed in environmental case law and it will no doubt continue to be used. However, on balance its impact has been limited and ‘fundamentally subsidiary’ to the traditional principles of domestic law.

Jonathan Leary, Planning and Environmental Lawyer at Zyda Law.

[1] The European Convention on Human Rights

[2] Section 3 Human Rights Act 1998

[3] Section 6 Human Rights Act 1998

[4] Section 7 Human Rights Act 1998

[5] Section 2 (1) (a) Human Rights Act 1998

[6] [2001] UKHL 23

[7]  Ibid at para 41

[8]Ibid at para 159

[9]Bryan v United Kingdom (1995) 21 EHRR 342

[10]London Borough of Tower Hamlets v Runa Begum [2002] EWCA Civ 239

[11]Alconbury [2001] UKHL 23 at para 157

[12]R (on the application of Adlard & Others) v Secretary of State for Environment Transport & Regions [2002] EWCA Civ 735

[13]Ibid at para 31

[14]Ibid at para 36

[15]Ibid at para 32

[16] Section 7 (1) Human Rights Act 1998

[17]R (on the Application of Aggregate Industries UK Ltd) v English Nature [2003] Env LR 3

[18]Lopez Ostra v Spain (Application no. 16798/90)

[19]Hatton and Others v The United Kingdom 36022/97

[20]Dudgeon v United Kingdom (Application no. 7525/76)

[21]Marcic v Thames Water Utilities Ltd [2003] UKHL 66

[22]Leslie McDonald Leakey v The National Trust [1979] EWCA Civ 5

[23]HanifaDobson et al v Thames Water Utilities Limited [2007] EWHC 2021 (TCC)

[24]Dobson and Ors v Thames Water Utilities Limited and Anr [2009] EWCA Civ 28

[25]Hunter v Canary Wharf Ltd [1997] UKHL 14