R (Adlard) v Secretary of State for the Environment, Transport and the Regions

Article 6 does not require planning objectors to receive an oral hearing before a local planning authority. Compliance is assessed across the statutory scheme as a whole. Where decisions predominantly involve planning judgment, discretion and policy, the authority’s procedures combined with judicial review provide sufficient protection.

The Secretary of State’s call-in power under section 77 of the Town and Country Planning Act 1990 serves planning merits and the national interest. It is neither a supervisory remedy for procedural shortcomings at local level nor an alternative to judicial review. The Secretary of State may consider an objector’s desire for an oral hearing when deciding whether to call in an application, but is not legally required to do so.

A local planning authority resolved to permit the redevelopment of Fulham Football Club’s Craven Cottage ground as a 30,000-seat stadium. The appellants, principally local residents, had submitted objections but were not permitted to make oral representations at the planning committee meeting. They did not challenge the authority’s resolution. Instead, they challenged the Secretary of State’s refusal to call in the planning application under section 77 of the Town and Country Planning Act 1990.

Collins J dismissed their judicial review claim. The Court of Appeal permitted a limited appeal concerning whether article 6 required an oral hearing and whether the Secretary of State had to consider using the call-in power to provide one. The further questions were whether the call-in discretion engaged Convention rights and whether the Secretary of State had, in any event, considered the appellants’ request.

1. Appeal dismissed unanimously. Simon Brown LJ gave the leading judgment. Dyson LJ agreed and added reasons concerning the purpose of the call-in power. Mummery LJ agreed with both judgments.

2. The planning system complied with article 6. Its adequacy had to be assessed as a whole, including the local authority’s decision-making process and the High Court’s judicial review jurisdiction. Planning decisions generally lie towards the end of the spectrum where judgment, discretion and policy predominate over primary fact-finding. Article 6 therefore did not require an oral hearing before the local authority in every case. An objector could obtain an oral hearing on a judicial review claim, and the court could quash an individual decision where the denial of an oral hearing had exceptionally caused unfairness.

3. The public-inquiry safeguards discussed in R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] 2 WLR 1389 did not establish a general right for planning objectors to be heard orally. That case concerned the independence and impartiality of the Secretary of State when deciding planning matters. It did not decide whether a fair hearing invariably required an oral procedure before the administrative decision-maker.

4. The Secretary of State had no duty under section 6 of the Human Rights Act 1998 to ensure that another public authority acted compatibly with the Convention. Article 6 was not engaged by the section 77 call-in decision itself. That decision merely determined which public authority would decide the planning application.

5. Per Dyson LJ, the section 77 power exists so that applications may exceptionally be decided centrally on planning merits where necessary or desirable in the national interest. It does not confer supervisory control over the fairness of local authority procedures and is not an alternative remedy to judicial review.

6. The desirability of giving objectors an oral hearing was a consideration which the Secretary of State was permitted, but not required, to take into account. In any event, his statement that he had considered all relevant information, including the appellants’ representations, established that he had considered their request. The appeal was dismissed with costs in favour of the Secretary of State. Permission to appeal to the House of Lords was refused.

1. Court of Appeal: The appeal in [2002] EWCA Civ 735 was dismissed unanimously. Costs were awarded to the Secretary of State, and permission to appeal to the House of Lords was refused.
2. High Court, Administrative Court: Collins J dismissed the judicial review claim on 17 January 2002. No citation is stated in the judgment.