A coach and Aarhus through the planning system? Third party rights under scrutiny
15 August 2012
The Geneva-based Aarhus Compliance Committee is considering a wide-ranging pair of challenges to the planning system claiming that it does not comply with the Aarhus Convention on Environmental Matters. The Committee (ACC) heard oral submissions on 27 June 2012, and on 12 August received what should be the last of the written submissions of the parties. A decision may emerge before the end of the year, but there is so much interesting material in the papers before the Committee (for which see this and this link) which is worth having a look at.
The challenges raise a whole host of issues – the key ones are:
(i) not all planning committees allow objectors to address them orally before making a planning decision – when they do, they get a bare 3 minutes to say their piece;
(ii) an objector cannot appeal the grant of planning permission; all he can do is seek judicial review if the planning authority err in law, with the potential costs consequences which that involves; compare the developer who has a full appeal on fact and law;
(iii) an objector cannot enforce planning conditions attached to a grant; all he can do is challenge the local authority if it refuses to enforce, again on a point of law;
(iv) the UK does not comply with Article 6 of the Convention in that not all projects likely to have an effect on the environment are properly challengeable;
(v) the UK does not comply with Article 7 of the Convention in respect of public participation in all plans which may relate to the environment.
These applications are the latest in a series of challenges. In 2010, the ACC said that domestic judicial review law was in breach of international law in environmental cases; it was prohibitively expensive, the timing rules were insufficiently certain, and it questioned whether judicial review enabled a review of the “substantive legality) of a decision under Article 9(4) of the Convention, without reaching a definitive conclusion. I analysed all this at some length in my 2010 post, and see the ACC summary report of April 2011 on these and related cases.
Backing up a bit for those new to Aarhus, the UN Economic Commission for Europe concluded this Convention at Aarhus in 1998 and it entered into force for the UK in May 2005 shortly after the UK ratified it. It sets out rules on access to information, public participation, and access to justice in environmental matters. Whilst the UK is a party to the Convention, it has not directly incorporated it into domestic law (save in two specific contexts where it was required to do so by European law, namely under the IPPC Directive and the EIA Directive).
The first challenge (Communication 45 in the lingo) arose out of the grant of planning permission to a Sainsbury’s superstore in Hythe, Kent, and the difficulties which the objectors faced both before and after determination in having their say, both in and out of court – but the complaint ranged far and wide. The second (Communication 60) by an individual complained that he was not allowed to address orally a number of London Borough planning Committees; he said that the law should enable this to be done in all cases.
Both revisited the imbalance in the system arising out of the lack of appeal for objectors and the substantive and procedural difficulties inherent in judicial review. The lack of substantive review was put very well by the former applicant:
To comply with Article 9(2) and 9(3) it must be possible for a court or other body to make a judgement as to whether the decision, act or omission under scrutiny was within the law. To do so, the court has to be able to establish the facts of the case and then apply the relevant law to those facts. This is not possible in the UK. The only option usually available for third parties is judicial review. In judicial review proceedings, the court cannot investigate or make findings on disputed evidence or visit the location to which the case relates.
The complaint about a lack of procedure to allow objectors to seek enforcement of planning conditions sounds a bit pernickety, but is in fact vitally important. Many problematic environmental issues are not determined by the Council when granting permission or at inquiry, but are left over till later; so, for instance, a developer may be ordered to submit a scheme for ensuring that the development does not generate more than x decibels of noise when measured nearby. It is then left up to under-resourced council officers to go chasing up a developer and be in a position to assess the robustness of the noise proposals and, indeed, to enforce against the developer if the permitted use in the event does not comply with any noise scheme. Why, said the challengers, could not objectors play a part in this enforcement process? Or in Aarhus terms, why was there not a breach of Article 9(3) of the Convention which enabled parties to challenge acts or omissions both by public authorities and private persons (i.e. developers not complying with planning conditions)?
The other big theme in Communication 45 is its challenge to the way in which key decisions about funding are taken before any meaningful public involvement in development proposals. There are a whole welter of organisations (with attendant slew of acronyms -LEPs, LSP, LIPs – see the link to the communicant’s response of 12.6.2011 for the details) who play a part in paving the way towards major developments proceeding. They are not public bodies in the way that a local authority is, subject to open meetings and the like; in practice, they are dominated by local business interests. It was argued that there was no public participation in the preparation of these plans for development.The Government department, Defra, countered by arguing that any decisions by these bodies did not fall within Article 7 – they were not plans or programmes relating to the environment, and such plans and programmes only came later when land-use plans were drawn up, and there were public participation provisions in respect of the latter. Naive – said the challenger –
In the real world the very act of attaching money to a proposal confers legitimacy, whether it is a planning application or in a development plan. Strategic assessments can always be tailored to fit. There is no such thing as objective truth as choices have to be made. It would be a brave councillor, officer or planning inspector who dared to raise objection to a proposal with funding attached, especially in these austere times.
Lurking beneath this challenge is a wholesale scepticism about the current balance of power within the planning system, between councils, developers and objectors. This point of view is sparkily put in an article sent to the ACC, by Wendy Le-Las and Emily Shirley, well entitled Does the Planning System Need a Tea Party? Councils have concentrated real power in Cabinet, advised by professional managers; there is no independent public spirit and true representation in these “streamlined” processes:
The days of professionally qualified chief officers has gone: administrators run merged departments, sometimes spread over neighbouring boroughs and many staff are part time. A conscientious councillor may never identify the source of a problem. Development schemes are formulated between portfolio holders and managers. These are rubberstamped by the Planning committee before going out to public consultation but return straight to the Cabinet for decision: there is no vehicle for public questioning of this decision. A Cabinet’s activities are overseen by the Overview and Scrutiny Committee: it can call the Cabinet to account, but, crucially, there are no powers to make them change course……. Meanwhile “Backbench” councillors are left to liaise with their wards and raise any pressing issues with the portfolio holders. Those considered “troublesome” are simply left out of any working parties, e.g. the development plan sub-committee.Thus the power of the LPA has been concentrated into the hands of the Cabinet.
Who knows what the Aarhus Compliance Committee will make of all these? Given their views on the earlier applications, they must be sympathetic to the view that environmental judicial review is inadequate and too costly to be the panacea which Defra claims it to be. Defra’s answer to why private citizens cannot enforce planning conditions also seems a bit limp. I doubt, however, whether the ACC will decide that it is mandatory that all objectors get a chance to address the planning committee before any planning decision is made. Literal observance of this would hand a powerful weapon to those wishing to filibuster applications. Quite whether the ACC will get sufficient a handle on the rather opaque processes lurking behind planning decisions remains to be seen.
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