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England and Wales Court of Appeal (Civil Division) Decisions
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Cite as:  EWCA Civ 671
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(Mr Justice Collins)
London, WC2A 2LL
B e f o r e :
LORD JUSTICE MUMMERY
LORD JUSTICE DYSON
| THE QUEEN (on the application of ADLARD & OTHERS)||Appellant|
|- and -|
|SECRETARY OF STATE FOR ENVIRONMENT, TRANSPORT & REGIONS|
|(1) FULHAM STADIUM LIMITED||Interested|
|(2) LONDON BOROUGH OF HAMMERSMITH & FULHAM||Parties|
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
(instructed by Messrs Richard Buxton) for the Appellant
J Howell Esq, QC & J Maurici Esq
(instructed by The Treasury Solicitor) for the Respondent
K Lindblom Esq, QC & R Harris Esq
(instructed by LB of Hammersmith & Fulham) for the First Interested Party
T Straker Esq, QC & A Tabachnik Esq
(instructed by Linklaters & Alliance) for the Second Interested Party
AS APPROVED BY THE COURT
Crown Copyright ©
Lord Justice Simon Brown:
“(1) The Secretary of State may give directions requiring applications for planning permission … to be referred to him instead of being dealt with by local planning authorities.
(2) A direction under this section-
(a) may be given either to a particular local planning authority or to local planning authorities generally; and
(b) may relate either to a particular application or to applications of a class specified in the direction.
(5) Before determining an application referred to him under this section, the Secretary of State shall, if either the applicant or the local planning authority wish, give each of them an opportunity of appearing before, and being heard by, a person appointed by the Secretary of State for the purpose.”
“… I believe the only way to get a reasonable and fair hearing for all parties is for you to call it in to a Public Enquiry. I earnestly ask you to do this.”
“It seems to us beyond argument that if it was thought right to give the opportunity for objectors to be heard previously, then our client and other local people are entitled to the same opportunity in relation to the new application and proper decision-making process [sic].”
“The Secretary of State’s policy on call-ins is to be very selective. It is right that in almost all cases the initial decision on whether a development should proceed should be taken by the local planning authority.
Therefore, planning applications are in general only called-in if planning issues of more than local importance are involved, and if those issues need to be decided by the Secretary of State rather than at local level. Each case is considered on its individual merits. However, we have given as examples of cases where the Secretary of State might consider call-in appropriate those which, in his opinion, may conflict with national policies on important matters; could have significant effects beyond their immediate locality; give rise to substantial regional or national controversy; raise significant architectural and urban design issues; or may involve the interests of national security or of foreign Governments.
After very careful consideration, the Secretary of State has concluded, from the information before him that it is right in this case to leave the decision to be taken by the planning authority.”
“One also notes that by failing to call the matter in, the Secretary of State is, in effect, negating the rights of people affected by the development to a hearing, contrary to the Human Rights Act, 1998. A similar point arises in relation to the lack of a hearing in relation to departure from the development plan, which had been subject to inquiry.”
“In this instance, after very careful consideration, the Secretary of State has concluded, from all the relevant information before him, including your representations of 15 March, that it was appropriate for the decision as to whether to grant planning consent to be taken by the local planning authority.”
“7. In March 2000 the present applications were submitted. They involved the erection of a 30,000 all-seater stadium with ancillary facilities, a new riverside walk and a 7-storey apartment block containing 30 residential units. The existing buildings, including the listed buildings save for the brick façade to the Stevenage Road stand, were to be demolished. In October 2000, the scheme was modified in that the residential block was lowered to 5 storeys and the units reduced to 16 and there was some reduction to the proposed length of the building. There were some modifications to the design of the riverside walk. The application had been accompanied by a full environmental statement which was supplemented in October 2000. That statement was submitted for review and grading to the Institute of Environmental Management and Assessment and overall it was considered to be a good statement, containing only minor omissions and inadequacies (which were identified), and in some respects was excellent. In addition, the LBH gave the proposals extensive publicity and carried out comprehensive consultation. That exercise was also carried out in relation to the similar proposal lodged in July 1999. This was overtaken by the March 2000 applications largely because the LBH in September 1999 required the applicants to produce an Environmental Impact Assessment which was to and did include the following:-
‘(i) The impact of the physical scale of the development in relation to surrounding land uses and occupiers.
(ii) The impact of the use of development on match days, including how other uses within the site operate during that time, how people would arrive at and depart from the site and the impact and extent this would have on the surrounding area including adjoining Boroughs, in terms of noise, disturbance, litter and transport (including issues such as traffic generation, on and off street parking, existing/potential public transport provision, pedestrian movements etc). Also any additional impact connected with the emergency evacuation of the stadium.
(iii) The impact of the use of the development on non-match days, the type, frequency and hours of use of all the proposed activities and the numbers likely to be involved and the impact of this on the surrounding area in terms of noise, disturbance, litter and transport.
(iv) The impact of the development on the historical and architectural interest of the remaining listed buildings, the character and appearance of the conservation areas and the justification for the demolition of the listed buildings. The impact of the development on Bishops Park as a landscape of historical/cultural/archaeological interest.
(v) The impact of the development on the ecology of Bishops and Stevenage Park.
(vi) The impact of the development on the archaeology of the application site which includes the foreshore of the River Thames.
(vii) The visual impact on the development on the River Thames from the river, from riverwalks on both banks, from Hammersmith and Putney Bridges and from other points across the river.
(viii) The impact on the ecology of the River Thames.
(ix) The impact of the development on the hydrology and flood defences of the River Thames.
(x) The impact of the development on the recreational, leisure and commercial uses of the River Thames.’
8. The responses to the consultation exercises are summarised in the very full and detailed report which was prepared for the Committee which considered the applications on 27 February 2001. It runs to 115 pages together with a further 191 pages of annexes. Annex 2 (145 pages) contained the consultation responses which were summarised in the body of the report in Annex 1. It is not nor could it be suggested that the report failed fairly to identify the objections which had been put forward or to set out all relevant considerations which the committee must take into account, including the fact that the proposals were not in accordance with the UDP in the respects to which I have already referred [I should interpolate that the Unitary Development Plan, adopted in December 1994, included as Site Policy 19:
‘(a) Retention and enhancement of listed buildings in association with football or other spectator sport or entertainment as appropriate in the location;
(b) Provision of a public Riverside walk with links inland as appropriate;
(c) Residential development reasonably necessary to enable the achievement of these objectives and in accordance with normal housing and environment policies.’]
The report recommended that the applications should be approved and planning permission granted subject to a satisfactory s.106 agreement and to a number of conditions to ensure that there should be as much compliance as possible with the relevant policies in the UDP and that the adverse impact of the development on local residents should be kept as small as possible. In particular, it was proposed (and the Committee agreed) to include the following conditions:-
‘7. The stadium’s primary purpose shall be for the playing and watching of Association Football and the playing area and terracing and seating overlooking the playing area shall only be used for the following purposes: -
(a) The home matches of only one professional club for the playing of Association Football.
(b) Events within Use Class D2(e) for children and educational establishments.
To ensure that the development does not result in conditions prejudicial to the amenities of the surrounding area from additional traffic, noise and disturbance which may be generated by the development contrary to UDP policies. EN21, TN14 and TN15 as a consequence of more frequent crowd-generating or noise than one club’s football matches.
9. On non-match days the total number of patrons using all the facilities of the stadium shall not exceed 150 at any one time unless it is for an event under Use Class D2 (e) for children and educational establishments.’
There were other conditions (such as a prohibition use of the stadium between 11pm and 9am and that the restaurant must only be used as such and the café must not be used after 8pm except on match days) which were designed to keep disturbance to a minimum, including restrictions applicable to the demolition and construction involved.
9. It is to be noted that there were a large number of responses which supported the applications. Overall in terms of numbers more responses in support were received than in opposition. However, many letters in support were what are described as standardised. But it is clear that there is considerable support for the proposals as well as objection to them. Furthermore, it is important to bear in mind that the development will not bring a new football ground to a residential area where none existed before. Those who live nearby either came to or have spent all their lives close to a football ground which, depending on the future of the club, has attracted a more or less substantial number of fans. The problems of parking and congestion on match days have always existed. In addition, there have been recent concerns, reflected in correspondence, about the loutish behaviour of fans which has intimidated local residents and which the police have not seemed either willing or able to control. One of the matters to be covered by the s.106 agreement involves the installation of CCTV in the streets immediately adjoining the stadium. It is convenient to set out the brief summary of the matters raised against and in support of the proposals. These are in Paragraphs 4.13 to 4.15 of the officer’s report, which read:-
“4.13. The main representations put forward by objectors are:-
(i) The demolition of the listed buildings, involving the loss of Craven Cottage in its entirety and the demolition of all but the façade of the Stevenage Road stand is unacceptable and unjustified.
(ii) The scale and design of the Stadium is unacceptable in relation to the site and the surrounding area.
(iii) The proposals would fail either to preserve or enhance the character and appearance of the conservation areas within the site lies and adjoins. The site lies within the Fulham Reach Conservation Area and adjoins the Bishops Park and Crabtree Conservation areas.
(iv) The height, massing and visual appearance of the proposal, because of the site’s prominent position on the River Thames, would have an unacceptable impact.
(v) The development would be detrimental to residential amenity by reason of its visual impact, traffic generation and associated affects upon air quality.
(vi) The proposed development is contrary to UDP policies, particularly Site Policy 19.
(vii) The highways impact on the proposals would be unacceptable. The use of the existing stadium puts pressure on the highway network and upon parking. The redevelopment proposals have the potential to more than double the attendance. The impact of the additional cars would be felt in Fulham and outside the Borough. There would be 26,000 HGV movements during the construction period which would adversely impact on residential amenity and highway network.
(viii) The public transport system would be incapable of adequately catering for the increase in passenger movements.
(ix) The development would severely prejudice the function of the River Thames as an ecological resource and as a recreation facility.
(x) The stadium might become a “white elephant” if the football club either fail to achieve promotion to the Premier League or fail to maintain Premier League status if promotion is attained.
(xi) The applicants have failed to consider all alternatives to the proposals, including the feasibility of the football group being redeveloped as a phased programme which would have different environment impacts.
(xii) The need case for a new stadium of 30,000 capacity has not been proven nor has the need for the housing block.
(xiii) There would be unacceptable encroachment on to the River Thames which is public open space and should be protected from development. Any development should be contained within the site.
4.14 Additionally objectors criticised the Environment statement. They contend that it is deficient in its assessment of a number of key issues including highways and transportation, impact on the river and consideration of alternatives.
4.15 The main points made by supporters of the development are as follows:
(i) The proposal would be an improvement visually over what is on the site at present.
(ii) The stadium has to be brought in line with safety requirements and football guidelines and this is an opportunity to provide a well designed and up to date new stadium.
(iii) It is important to retain the club on the site as it is part of the Borough’s heritage.
(iv) The development would introduce a valuable new section of river walk and enhanced river views.
(v) The football club makes a significant contribution to the local community and the development would enable this contribution to continue and to be enhanced by securing Fulham Football Club’s future at its historic home.
(vi) The development would bring employment to the area.’
10. The Fulham Alliance had submitted a fully reasoned objection to the proposals through expert advisers. There was a further reasoned objection from Thamesbank, which dealt with the social and environmental damage which would be caused by the proposals, particularly to the River Thames. The Fulham Alliance document made the point that it was ‘not convinced that the football club have fully explored the possibility of pursuing a smaller all seater stadium, for example accommodating 20,000–25,000 spectators’. The present capacity of the ground is 25,000, but that is because it is not all seat and it will not be approved by the Football Association unless it is. That follows the recommendations made in the Taylor Report on the Hillsborough disaster. Fulham Stadium Ltd. assert that a ground with a capacity of 30,000 is the minimum which will be financially viable in the long term. In the report, the officers have said that they are not convinced of this or that a development with a smaller capacity ground would necessarily mean that the Club would not have a future. But they say in Paragraph 15.22:-
‘What is apparent is that, if the proposed stadium were built, Fulham Football Club would be likely and probably more likely to remain on its historic site into the foreseeable future. Additionally, it is likely that the existence of the new stadium would contribute towards future sporting success though, of course, it would in no way guarantee it.’
11. The meeting of the Committee on 27 February 2001 attracted a full house: some 600 people apparently attended it. There were complaints made that the Committee seemed to have made their minds up in advance and that objectors were not able to make any representations. English heritage, whose views on the listed buildings consent were of great importance, had stated that their support for the proposal:-
‘… has been and continues to be made on the basis that the Council shall have properly satisfied itself that the size and capacity of the proposed stadium is the minimum to ensure the viability of the Football Club development and the provision of the benefits referred to in the supporting documentation’.
At the meeting, the Assistant Director (Development Services) told the Committee that the officers had concluded that, because of the intangibles surrounding the financing of football clubs and a scheme such as the one proposed, it was most unlikely that any conclusive evidence could ever be forthcoming. Officers, he said, therefore took the view that notwithstanding the qualification contained in the English heritage letter, the visual, historic and aesthetic qualities of the proposals remained unchanged and the recommendations to approve the applications should stand. There can be no doubt that English Heritages’ concerns were properly put before the Committee which was, in the exercise of its judgment, entitled to decide that the scheme could nevertheless be approved. ”
i) Given that the Secretary of State has declined to call in this planning application, have the appellants’ article 6 rights been breached by LBH’s failure to accord them any form of oral hearing, let alone a public inquiry?
ii) If so, was the Secretary of State therefore obliged to call in the application so as to prevent the breach?
iii) Even if the appellants had no right to an oral hearing of their objections, ought the Secretary of State nevertheless to have considered whether exceptionally to call in the application so as to accord them such a hearing?
iv) If so, did he consider this?
“In the determination of his civil rights and obligations … everyone is entitled to a fair and public hearing … by an independent and impartial tribunal established by law.”
“40. As I have shown, the extent to which the first instance process may be relied on to produce fair and reasonable decisions is plainly an important element. But it is not to be viewed in isolation. The matter can only be judged by an examination of the statutory scheme as a whole; that is the necessary setting for any intelligent view as to what is fair and reasonable. Where the scheme’s subject- matter generally or systematically involves the resolution of primary fact, the court will incline to look for procedures akin to our conventional mechanisms for finding fact: rights of cross-examination, access to documents, a strictly independent decision-maker. To the extent that procedures of that kind are not given by the first instance process, the court will look to see how far they are given by the appeal or review; and the judicial review jurisdiction (or its equivalent in the shape of a statutory appeal on law) may not suffice. Where however the subject-matter of the scheme generally or systematically requires the application of judgment or the exercise of discretion, especially if it involves weighing of policy issues and regard being had to the interests of others who are not before the decision-maker, then for the purposes of Article 6 the court will incline to be satisfied with a form of inquisition at first instance in which the decision-maker is more of an expert than a judge (I use the term loosely), and the second instance appeal is in the nature of a judicial review. It is inevitable that across the legislative board there will lie instances between these paradigms, sharing in different degrees the characteristics of each. In judging a particular scheme the court, without compromise of its duty to vindicate the Convention rights, will pay a degree of respect on democratic grounds to Parliament as the scheme’s author.
43. I should indicate moreover that although there were sharp issues of primary fact falling for determination in the present case, that is not a necessary feature in a s.202 review, and certainly not a systematic one. As often as not there will be no real question of fact, and the decision will turn on the weight to be given to this or that factor against an undisputed background … Now, clearly the statutory scheme is either compliant with Article 6 or it is not. Its compliance or otherwise cannot vary case by case, according to the degree of factual dispute arising. That would involve a wholly unsustainable departure from the principle of legal certainty. In my opinion, judged as a whole, this statutory scheme lies towards that end of the spectrum where judgment and discretion, rather than fact-finding, play the predominant part.”
“The fact that an inquiry by an inspector is ordered is important. This gives the applicant and objectors the chance to put forward their views, to call and cross-examine witnesses. The inspector as an experienced professional makes a report, in which he finds the facts and upon which he makes his recommendations.” (Lord Slynn at paragraph 46)
“It is only when one comes to findings of fact, or the evaluation of fact, such as arise on the question of whether there has been a breach of planning control, that the safeguards are essential for the acceptance of a limited review of fact by the appellate tribunal.” (Lord Hoffmann at paragraph 117)
The safeguards there referred to are those described by the ECtHR in Bryan -v- United Kingdom (1995) 21 EHRR 342 which include that of a public inquiry before an inspector.
“In the civil context the whole process must be considered to see if the Article [article 6] has been breached. Not every stage need comply. If a global view is adopted one may then take into account not only the eventual opportunity for appeal or review to a court of law, but also the earlier processes and in particular the process of public inquiry at which essentially the facts can be explored in a quasi-judicial procedure and a determination on factual matters achieved.” (Lord Clyde at paragraph 152)
“So far as the manner in which the decisions will be taken is concerned it is to be noticed that in each case there will be a public inquiry before an inspector. That will be an occasion for the exploration of the facts, including the need and desirability of the development.” (Lord Clyde at paragraph 157)
“If, therefore, the question is one of policy or expediency, the ‘safeguards’ are irrelevant. No-one expects the inspector to be independent or impartial in applying the Secretary of State’s policy and this was the reason why the court said that he was not for all purposes an independent or impartial tribunal. In this respect his position is no different from that of the Secretary of State himself. The reason why judicial review is sufficient in both cases to satisfy Article 6 has nothing to do with the ‘safeguards’ but depends upon the Zumtobel principle of respect for the decision of an administrative authority on questions of expediency.”
“68 The special meeting was held in public. The agenda was available to members and to the public beforehand. In deciding whether there has been a breach of Article 6(1) the procedures have to be looked at in their entirety, including the earlier opportunities to make representations during the consultation process and the subsequent right to seek relief by way of judicial review if the Council errs in law. A ‘fair’ hearing does not necessarily require an oral hearing, much less does it require that there should be an opportunity to cross-examine. Whether a particular procedure is ‘fair’ will depend upon all the circumstances, including the nature of the claimant’s interest, the seriousness of the matter for him and the nature of any matters in dispute.”
“Decisions as to whether or not to grant planning permission are policy or ‘expediency’ decisions which call for a range of planning judgments. These are decisions entrusted to democratically accountable bodies, because of the policy content. Article 6(1) is complied with because of the availability of judicial review. On that review, the Court has the full jurisdiction to deal with procedural and substantive errors of law. Its jurisdiction therefore permits a challenge to be brought on the basis that a material fact has been ignored or misunderstand or that a view of the facts or their evaluation has been reached unreasonably. … I do not consider that the comments in the speeches in Alconbury and of Lord Hoffmann in particular can be taken to suggest that findings of fact and the evaluation of fact involved in the decision whether or not to grant planning permission, require the interposition of an inspector in order for the limited review of fact by the court to satisfy Article 6.”
“49. … the Court does not find on the evidence before it that the applicant’s submissions to the Supreme Administrative Court were capable of raising any issues of fact or of law pertaining to his building rights which were of such a nature as to require an oral hearing for their disposition … on the contrary, given the limited nature of the issues to be determined by it, the Supreme Administrative Court, although it acted as the first and only judicial instance in the case, was dispensed from its normal obligation under Article 6(1) to hold an oral hearing.”
“159 … Parliament, democratically elected, has entrusted the making of planning decisions to local authorities and to the Secretary of State with a general power of supervision and control in the latter.”
“362. [Claimants’ counsel] recognised the force of [respondent counsel’s] next submission that even if [the claimant’s] civil rights were engaged and the way in which the Council dealt with the applications involved a breach of Article 6, it was not the duty of the Secretary of State to judge the adequacy of the procedures adopted by the Council and then to intervene to ensure that the procedures which it adopted complied with Article 6. The Secretary of State has no power to do that. It is for the Courts to review the decisions of public bodies and not the Secretary of State. It is for the Court which tells the Council what it must do as a public body to comply with the obligations in section 6(1) of the Human Rights Act 1998 so as to avoid acting in ways which are in breach of a convention right. If the Courts conclude that there has been a breach of Article 6 by the Council it will tell the Council what it has to do in order to comply with Article 6 and it would then be for the Council to comply with those directions. I accept [respondent counsel’s] submission that the combination of the Court’s direction as to the procedure to be followed and the obligation of the Council to comply with that direction provide a complete system by which compliance with Article 6 is then ensured. None of that procedure involves the Secretary of State’s intervention. It follows that the Secretary of State does not act incompatibly with Article 6 rights if he declines, as he did in this case, to call the case in for his decision. There is no duty under which he himself is obliged, by virtue of section 6(1) of the Human Rights Act to call in the planning applications.
363. The Secretary of State has no duty to substitute his supervision of the Council’s procedures for that of the High Court. It is the High Court, in the exercise of its power of review, which has the role of authoritatively deciding what minimum standards of fair procedure are required by Article 6 as a matter of law in the particular case. This argument was accepted was Forbes J in the Friends Provident case.”
“28. … the Secretary of State has no duty to consider whether the procedures would be compliant with Article 6 in deciding whether or not to call in. It is matter for the court to decide whether overall the procedures were compliant and fair. I am satisfied in this case that they were. But the challenge in my view should have been made to the LBH’s decision, not the Secretary of States.”
Lord Justice Mummery:
Lord Justice Dyson:
“As I indicated at the outset, Parliament, democratically elected, has entrusted the making of planning decisions to local authorities and to the Secretary of State with a general power of supervision and control in the latter. Thereby it is intended that some overall coherence and uniformity in national planning can be achieved in the public interest and that major decisions can be taken by a minister answerable to Parliament. Planning matters are essentially matters of policy and expediency, not of law. They are primarily matters for the executive and not for the courts to determine”
Lord Clyde was referring back, in particular, to paragraphs 140 and 141 of his speech. At paragraph 140, he had said:
“Planning and the development of land are matters which concern the community as a whole, not only the locality where the particular case arises. They involve wider social and economic interests, considerations which are properly to be subject to a central supervision. By means of a central authority some degree of coherence and consistency in the development of land can be achieved”
It can be seen, therefore, that, when he spoke of “supervision and control” of local planning authorities by the Secretary of State, Lord Clyde was not referring to a function analogous to the supervisory jurisdiction exercised by the court when determining, for example, an application to quash the grant of a planning permission. He was referring to something very different, namely a planning function exercisable by the Secretary of State on planning merits, having regard to the public interest and the policy considerations identified by Lord Clyde.