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Secretary of State for Environment Transport and the Regions; Regina (Alconbury Developments Ltd and Others) -v- Same; Same -v- Legal and General Assurance; HL 9 May 2001
References: Times 10-May-01, Gazette 14-Jun-01, [2001] 2 AC 295, [2001] 2 WLR 1389, [2001] 2 All ER 929, [2001] UKHL 23
Links: Bailii, House of Lords
Coram: Lord Slynn of Hadley Lord Nolan Lord Hoffmann Lord Hutton Lord Clyde
The powers of the Secretary of State, to call in a planning application for his decision, and certain other planning powers, were essentially an administrative power, and not a judicial one, and therefore was not a breach of the applicants’ rights to a fair hearing before an impartial tribunal. Some decisions are properly taken by ministers administratively and they are answerable to elected bodies. Also there existed in many circumstances additional power to take such decisions was subject to judicial review by the courts. The test of whether there is sufficient judicial control is not a mechanical one, but a test which varies according to the circumstances. In the absence of some special circumstances the court should follow any clear and constant jurisprudence of the European Court of Human Rights. In interference with a claimant’s use of property as opposed to his ownership, will not usually give right to an order for compensation. Lord Hoffmann described departmental decision-making processes: ‘These contain, on the one hand, elaborate precautions to ensure that the decision-maker does not take into account any factual matters which have not been found by the inspector at the inquiry or put to the parties and, on the other hand, free communication within the department on questions of law and policy, with a view to preparing a recommendation for submission to the Secretary of State or one of the junior ministers to whom he has delegated the decision.’ but ‘the process of consultation within the department is simply the Secretary of State advising himself’.
Lord Hoffmann said: ‘The House is not bound by the decisions of the European Court and, if I thought that the Divisional Court was right to hold that they compelled a conclusion fundamentally at odds with the distribution of powers under the British constitution, I would have considerable doubt as to whether they should be followed’
Statutes: Human Rights Act 1998, Town and Country Planning Act 1990, European Convention on Human Rights
This case cites:
  • Appeal from – Regina (Holding and Barnes Plc) -v- Secretary of State for Environment, Transport and Regions; Regina (Premier Leisure UK Limited) -v- Secretary of State for Environment, Transport and Regions; Regina (Alconbury) etc Admn (Times 24-Jan-01, Bailii, [2000] EWHC Admin 432)
    A declaration of incompatibility was granted with regard to the processes by which the Secretary of State made decisions under the Planning Act and orders under the Transport and Works Act, Highways Act and Acquisition of Land Act. They were . .
  • Explained – Bushell -v- Secretary of State for the Environment HL ([1981] AC 75, [1980] 2 All ER 608, Bailii, [1980] UKHL 1, [1980] 3 WLR 22, (1980) 144 JP 387, (1980) 78 LGR 269)
    The House considered planning procedures adopted on the construction of two new stretches of motorway, and in particular as to whether the Secretary of State had acted unlawfully in refusing to allow objectors to the scheme to cross-examine the . .
  • Cited – Ringeisen -v- Austria ECHR (2614/65, Bailii, [1971] ECHR 2, Bailii, (1971) 1 EHRR 455, Bailii, [1968] ECHR 7, Bailii, [1972] ECHR 2, Bailii, [1973] ECHR 1)
    The Austrian District and Regional Real Property Transactions Commission refused to approve the sale of a number of plots of land. The applicant challenged the refusal alleging bias and contending that his article 6 rights were violated for that . .
  • Cited – Golder -v- The United Kingdom ECHR (4451/70, [1975] 1 EHRR 524, Bailii, [1975] ECHR 1, ECHR, , Bailii)
    G was a prisoner who was refused permission by the Home Secretary to consult a solicitor with a view to bringing libel proceedings against a prison officer. The court construed article 6 of ECHR, which provides that ‘in the determination of his . .
  • Cited – County Properties Limited -v- The Scottish Ministers OHCS (Times 19-Sep-00, Bailii, ScotC, [2000] ScotCS 212, 2000 SLT 965)
    The company applied for planning permission. The Secretary of State called in the application to be decided by a reporter. The applicant complained that this infringed its right to a hearing before an impartial tribunal. Such a person might deal . .
  • Cited – Kaplan -v- United Kingdom ECHR ((1980) 4 EHRR 64, 7598/76, LIP)
    (Admissibility) The Secretary of State had, after preliminary procedures, served notices on an insurance company disallowing it from writing any new business, because its managing director the applicant, had been found not to be a fit and proper . .
  • Cited – ISKCON -v- United Kingdom ECHR (20490/92, (1994) 18 EHRR CD 133)
    (Commission) A local authority had served an enforcement notice on ISKCON alleging a material change of use of the land. ISKCON appealed against the notice under section 174(2) of the Town and Country Planning Act 1990 and after a report by an . .
  • Cited – Le Compte, Van Leuven And De Meyere -v- Belgium ECHR ((1983) 5 EHRR 533, Worldii, 7238/75, 6878/75, Bailii, [1982] ECHR 7)
    Even where ‘jurisdictional organs of professional associations’ are set up: ‘Nonetheless, in such circumstances the Convention calls at least for one of the two following systems: either the jurisdictional organs themselves comply with the . .
  • Cited – Albert And Le Compte -v- Belgium ECHR (7496/76, Bailii, [1983] ECHR 1, Bailii, [1983] ECHR 10, 7299/75, (1983) 5 EHRR 533)
    . .
  • Cited – Fredin -v- Sweden ECHR ([1991] 13 EHRR 784, 12033/86, Bailii, [1991] ECHR 2, ECHR, , Bailii)
    A gravel pit licence was revoked without compensation pursuant to legislation brought in after the owner had acquired the pit but before it had begun to exploit it. The actual revocation took place after the pit had been exploited for a number of . .
  • Cited – Allan Jacobsson -v- Sweden ECHR (10842/84, [1989] 12 EHRR 56, Bailii, Bailii, [1989] ECHR 18)
    ‘According to the Court’s case law, this provision comprises three distinct rules. The first rule, set out in the first sentence of the first paragraph, is of a general nature and enunciates the principle of peaceful enjoyment of property; the . .
  • Cited – Associated Provincial Picture Houses Ltd -v- Wednesbury Corporation CA ([1947] 2 All ER 680, [1948] 1 KB 223, 1947 WL 10584, (1948) 92 SJ 26, [1948] LJR 190, [1948] 45 LGR 635, (1948) 112 JP 55, 63 TLR 623, Bailii, [1947] EWCA Civ 1)
    The applicant challenged the manner of decision making as to the conditions which had been attached to its licence to open the cinema on Sundays. It had not been allowed to admit children under 15 years of age. The statute provided no appeal . .
  • Cited – Chapman -v- United Kingdom; similar ECHR (Times 30-Jan-01, 27238/95, (2001) 33 EHRR 18, Bailii, [2001] ECHR 43, (2001) 33 EHRR 479, (2001) 33 EHRR 399, Bailii)
    The question arose as to the refusal of planning permission and the service of an enforcement notice against Mrs Chapman who wished to place her caravan on a plot of land in the Green Belt. The refusal of planning permission and the enforcement . .
  • Cited – Regina -v- Secretary of State for the Home Department, Ex parte Turgut ([2000] Imm LR 306)
    . .
  • Cited – Edwards (Inspector of Taxes) -v- Bairstow HL ([1956] AC 14, [1955] 3 All ER 48, [1955] 36 Tax Cas 207, Bailii, [1955] UKHL 3)
    The House was asked whether a particular transaction was ‘an adventure in the nature of trade’.
    Held: Although the House accepted that this was ‘an inference of fact’, on the primary facts as found by the Commissioners ‘the true and only . .
  • Cited – Regina -v- Criminal Injuries Compensation Board Ex Parte A HL (Times 26-Mar-99, House of Lords, Gazette 28-Apr-99, House of Lords, Bailii, [1999] UKHL 21, [1999] 2 AC 330, [1999] 2 WLR 974, [1999] QB 659)
    A police doctor’s statement in a contemporary medical report that her findings were consistent with the claimant’s allegation had not been included in the evidence before the CICB when it rejected her claim for compensation.
    Held: The decision . .
  • Cited – Bryan -v- The United Kingdom ECHR (Times 08-Dec-95, 19178/91, 44/1994/491/573, Worldlii, ECHR, Bailii, [1995] ECHR 50, [1996] 28 EG 137, [1996] 2 EGLR 123, [1996] 1 PLR 47, (1996) 21 EHRR 342)
    Bryan was a farmer at Warrington in Cheshire. He built two brick buildings on land in a conservation area without planning permission and the planning authority served an enforcement notice for their demolition. He appealed on grounds (a) (that . .
  • Cited – Ashbridge Investments Ltd -v- Minister of Housing and Local Government CA ([1965] 1 WLR 1320, [1965] 3 All ER 371)
    The Minister had decided to confirm a CPO of premises which were now alleged not to be a house as was required by the legislation under which the order was made.
    Held: The court can interfere if the decision maker has taken into account a . .
  • Cited – Howard -v- United Kingdom ECHR (10825/84,
    . .
  • Cited – Sporrong and Lonnroth -v- Sweden ECHR (7152/75, [1983] 5 EHRR 35, Bailii, [1982] ECHR 5, ECHR, 7151/75)
    (Plenary Court) The claimants challenged orders expropriating their properties for redevelopment, and the banning of construction pending redevelopment. The orders remained in place for many years.
    Held: Article 1 comprises three distinct . .
  • Cited – Konig -v- Federal Republic of Germany ECHR ((1978) 2 EHRR 170, 6232/73, Bailii, [1978] ECHR 3, Bailii, [1978] ECHR 3, Bailii, [1980] ECHR 2)
    The reasonableness of the duration of proceedings must be assessed according to the circumstances of each case, including its complexity, the applicant’s conduct and the manner in which the administrative and judicial authorities dealt with the . .
  • Cited – Secretary of State for Education and Science -v- Tameside Metropolitan Borough Council HL ([1977] AC 1014, Bailii, [1976] UKHL 6, [1976] 3 All ER 665, [1976] 3 WLR 641)
    An authority investigating an application for registration of rights of common over land has an implied duty to ‘take reasonable steps to acquaint (itself) with the relevant information.’ A mere factual mistake has become a ground of judicial . .
  • Cited – Stringer -v- Ministry of Housing and Local Government ([1970] 1 WLR 1281)
    The material considerations to be allowed for by the local authority in exercising its planning functions are considerations of a planning nature, ‘all considerations relating to the use and development of land are considerations which may, in a . .
  • Cited – Benthem -v- The Netherlands ECHR (8848/80, Bailii, [1985] ECHR 11, ECHR, Bailii, (1985) 8 EHRR 1)
    Hudoc Judgment (Merits and just satisfaction) Violation of Art. 6-1; Non-pecuniary damage – finding of violation sufficient . .
  • Cited – Zander -v- Sweden ECHR (14282/88, Bailii, [1993] ECHR 59, [1993] 18 EHRR 175, ECHR, , Bailii, (1993) 18 EHRR 175)
    Hudoc Judgment (Merits and just satisfaction) Violation of Art. 6-1; Non-pecuniary damage – financial award; Costs and expenses award – Convention proceedings . .
  • Cited – Skarby -v- Sweden ECHR (12258/86, Bailii, [1990] ECHR 16, ECHR, , Bailii, (1990) 13 EHRR 90)
    Hudoc Judgment (Merits and just satisfaction) Violation of Art. 6-1; Pecuniary damage – claim rejected; Non-pecuniary damage – financial award; Costs and expenses award – Convention proceedings . .
  • Cited – Pudas -v- Sweden ECHR (10426/83, Bailii, [1987] ECHR 27, Bailii, (1987) 10 EHRR 380)
    Hudoc Judgment (Merits and just satisfaction) Violation of Art. 6-1; Pecuniary damage – claim rejected; Non-pecuniary damage – financial award; Costs and expenses award – domestic proceedings; Costs and expenses . .
  • Cited – Tre Traktorer Aktiebolag -v- Sweden ECHR (10873/84, [1991] 13 EHRR 309, Bailii, [1989] ECHR 15, ECHR, , Bailii, [1989] ECHR 15)
    An alcohol licence for a restaurant was withdrawn with immediate effect because of financial irregularities, with the result that the restaurant business collapsed.
    Held: ‘The government argued that a licence to sell alcoholic beverages could . .
  • Cited – Boden -v- Sweden ECHR ((1987) 10 EHRR 367, 10930/84, Bailii, [1987] ECHR 26, Bailii)
    Hudoc Judgment (Merits and just satisfaction) Violation of Art. 6-1; Pecuniary damage – claim rejected; Non-pecuniary damage – finding of violation sufficient; Costs and expenses award – Convention proceedings . .
  • Cited – Francis -v- Yiewsley and West Drayton Urban District Council ([1958] 1 QB 478)
    The claimant was said to have failed to comply with an enforcement notice.
    Held: A person prosecuted for failure to discontinue a use in accordance with an enforcement notice could challenge the validity of the notice before the criminal court . .
  • Cited – X -v- United Kingdom ECHR ((1998) 28 D&R 177)
    The Commission held that a compulsory purchase order affected the applicant’s private rights of ownership, that these were ‘civil rights’, and that in challenging the making of the order she was entitled to the protection of article 6(1). . .
  • Cited – Moreira De Azevedo -v- Portugal ECHR (Bailii, 11296/84, Bailii, [1991] ECHR 41, (1992) 14 EHRR 113)
    Held: Article 6(1) applied where the applicant had joined as an assistant in criminal proceedings with a view to securing financial reparation for injuries which he claimed he had suffered at the hands of the accused but had not filed any claim in . .
  • Cited – Regina -v- Wicks HL (Times 26-May-97, Gazette 17-Sep-97, House of Lords, Bailii, , [1997] UKHL 21, [1998] AC 92, [1997] 2 All ER 801, [1997] 2 WLR 876)
    Criminal proceedings, forming part of the general scheme of enforcement of planning control contained in Part VII of the Act, had been taken.
    Held: The validity of a planning enforcement notice must be challenged in civil proceedings, not . .
  • Cited – Zumtobel -v- Austria ECHR (12235/86, [1994] 17 EHRR 116, Bailii, [1993] ECHR 41, ECHR, , Bailii, [1993] ECHR 41)
    The Zumtobel partnership objected to the compulsory purchase of their farming land to build the L52 by-pass road in the Austrian Vorarlberg. The appropriate Government committee heard their objections but confirmed the order. They appealed to an . .

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Categories: Planning, Human Rights, Administrative, Constitutional

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