Adlard & Ors, R (on the application of) v Secretary of State for Environment, Transport & Regions

This Court held that where administrative decision-making predominantly involves planning judgment and discretion, Article 6(1) does not require that objectors be given an oral hearing before the local decision-maker.

Judicial review by the courts, acting as supervisory review, can satisfy Article 6 in that context.

The Secretary of State's section 77 call-in power is discretionary and is not rendered a duty by Article 6; he is not obliged to call in applications to prevent an Article 6 breach.

The appeal challenged the Secretary of State's refusal to "call in" a local authority planning decision for determination under section 77 of the Town and Country Planning Act 1990. A major redevelopment scheme for Fulham's stadium had been approved by the local planning authority without oral representations by objectors. The claimants alleged that that absence of an oral hearing breached their rights under Article 6(1) of the Convention and that the Secretary of State was therefore obliged to call the application in.

The High Court (Collins J) dismissed the claim. Limited permission to appeal was given on whether an oral hearing was required and whether the Secretary of State must consider call-in to secure such a hearing. The Court of Appeal (Simon Brown LJ, Mummery LJ, Dyson LJ) heard a one-day appeal and considered domestic and Strasbourg authorities and the statutory scheme governing planning decisions.

1. Outcome: The appeal was dismissed. The Court concluded unanimously that the claimants failed on all grounds (per Simon Brown LJ, with whom Mummery LJ and Dyson LJ agreed).
2. Article 6 and planning decision-making:
   • Where the statutory scheme principally requires planning judgment and discretion, rather than primary fact-finding, Article 6(1) is satisfied by the combination of the administrative decision-making process and the availability of judicial review. (Per Simon Brown LJ; see the judgment's analysis drawing on Runa Begum and related authority.)
   • Domestic first-instance procedures need not provide an oral hearing in every case. The court must judge the statutory scheme as a whole. Where judgment and policy predominate, a form of inquisitorial administrative process plus supervisory judicial review is sufficient to comply with Article 6. (Per Simon Brown LJ.)
3. Call-in discretion under section 77:
   • The section 77 power is discretionary, unfettered in form and designed to permit exceptional transfer of merits decision-making to the Secretary of State. It is not a supervisory function analogous to judicial review. (Per Dyson LJ and Simon Brown LJ.)
   • Article 6 does not engage the Secretary of State's section 77 discretion. The Secretary of State has no duty under the Human Rights Act 1998 to call in an application so as to safeguard the Article 6 rights of persons affected by the local authority's decision.
4. Materiality of the need to provide an oral hearing:
   • Although the Secretary of State may take into account the desirability of an oral hearing when exercising his call-in discretion, that consideration is not legally obligatory and does not convert the discretion into a duty. The matter is a permissible but non-compulsory consideration. (Simon Brown LJ; CREEDNZ and In re Findlay cited on the permissive character of considerations.)
5. Application to the facts:
   • On the evidence the local procedures, taken with the remedy of judicial review, were sufficient for Article 6. Even if the Secretary of State had been obliged to consider calling in to secure an oral hearing, the Court accepted his account that he had given careful consideration to representations. Collins J's conclusion at first instance was therefore correct.
6. Practical orders: Appeal dismissed. Costs awarded to the Secretary of State. Permission to appeal to the House of Lords refused.

1. Court of Appeal (Civil Division): Appeal from the Administrative Court (High Court). This Court dismissed the appeal and refused permission to appeal to the House of Lords.
2. High Court (Administrative Court): Collins J heard judicial review and dismissed the claim (judgment handed down 17 January 2002). The Court of Appeal granted limited permission to appeal on two points.