TUESDAY 28 MARCH 2000

PROFESSOR MALCOLM GRANT

  1. Good morning. Welcome to the first session of the Committee's inquiry into the Planning Inspectorate and public inquiries. All the evidence that was received on time has been published by the Stationery Office and is available for purchase at the price of £13.60[1]. However, it is also available on the Internet for those who do not want to pay that price. Please would you introduce yourself?
  (Professor Grant) Thank you, Chairman. I am Malcolm Grant, Professor and Head of the Department of Land Economy at the University of Cambridge.

  2. Are you happy for us to go straight into the questions, or do you wish to say something by way of introduction?
  (Professor Grant) I am happy to go straight into the questions.

  3. What will be the main impacts of the Human Rights Act 1998 in respect of town and country planning?
  (Professor Grant) I believe that its impact will be mixed, but probably more radical than many commentators presently assume, as borne out by the tenor of the evidence given to the Committee. One likelihood is that it will require a fresh look to be taken of the system of planning appeals, in particular to look at the prospect of introducing a third-party right of appeal, and to consider what the implications are in terms of the tension that presently exists between individual rights and collective rights. My belief is that we shall need to see something of a resettlement in the relationship between the individual rights being determined by the planning inspectors and the collective rights that government policy is keen to advance.

  4. Arising from that answer, when talking about third party rights of appeal, are you saying that objectors should be able to appeal against a decision just as a putative developer can?
  (Professor Grant) Yes. When one looks closely at the convention rights and looks at the case law that has arisen from the court in Strasburg and from our national courts, it is difficult to avoid two conclusions. One is that in planning appeals Article 6 applies to appeals by developers because it involves the determination of people's civil rights and obligations. If that is true of prospective developers, it is also equally true of objectors, although not in every case. However, there will be cases in which it would be foolish to deny that people who are objectors to a development had civil rights and obligations that were being determined. If that is the case, at present we would be falling short of our convention obligations were we not to have a third-party right of appeal in such instances.

  5. Are you also suggesting that there would be a conflict of interest if we did not provide more clarity in the relationship between the executive agency, the Planning Inspectorate itself, and the Government? Would that mean that in some respects we have to decide on the issue of accountability which must always be a political matter?
  (Professor Grant) That refers to the tensions to which I referred in my opening comments. On the one hand, the convention has been interpreted in such a way as to focus on the rights of citizens and to insist, under Article 6, that the citizen is entitled to a fair hearing by an impartial and independent tribunal. We have no difficulty with impartiality. I want to stress that nothing that I say this morning is intended to be critical of the Planning Inspectorate or of the planning inspectors. Impartiality is nailed to the mast of that agency. The real problem is independence. The Planning Inspectorate has evolved over the past 40 years in a very pragmatic way, from a series of activities that were deeply embedded within government, in which inspectors were civil servants who reported to senior civil servants who reported to Ministers, to a period now in which inspectors are quite independent of the Executive because 99 per cent of appeals are transferred to them to deal with. There is a tension between those two extreme positions. In many of the appeals that are not transferred to inspectors, there are important collective and policy implications on which Ministers need to be accountable to Parliament. The independence to which I refer under Article 6, refers to those other appeals where what is being determined is much more a matter of individual right and individual entitlement. I believe that there is a tension between them and that is a tension that the Government will need to explore when considering how to implement the convention.

  6. Have you any suggestions as to how that issue may be resolved?
  (Professor Grant) We need to start by taking away from the inspectorate those elements which presently are held potentially to infringe its independence. The starting point is the Bryan case in which the European Court of Human Rights held that the British Planning Inspectorate did not have the necessary appearance of independence from the Executive. That was because Ministers have the power to recover from an inspector the jurisdiction to determine a particular appeal. So it suggests that the days of that recovery power must now be limited if we are to restore to the inspectorate an appropriate sense of independence from the Executive. The second part is whether it is still appropriate to have an inspectorate that is embedded within DETR as an agency and with a Secretary of State for Environment, Transport and the Regions who has the capacity to hire and fire and to finance the inspectorate. One decision that may be considered on that front is that which was proposed back in 1957 by the Franks Committee, which was to transfer the entire inspectorate to the department of the Lord Chancellor. Things have moved on since 1957. Indeed, the recent McGonnell case, to which I referred in my written evidence, could be read in such a way as to suggest that where one person has overall policy responsibility and has an overall decision responsibility in applying that policy, there is a conflict of interest that means that the tribunal is not sufficiently independent of the Executive. The third step from there would be the need to try to explore whether there is another way of rendering planning inspectors even more independent from the Executive.

  7. Would the fairly unfettered powers, ultimately, of the Secretary of State need to change?
  (Professor Grant) I believe that we have to address the problem of those cases which are of such importance that you cannot avoid political responsibility for the outcome. I do not believe that that is true of 99 per cent of planning appeals, but it is certainly true of major inquiries, such as that involving Terminal 5 at Heathrow. It is inconceivable that that could be given to an entirely independent inspector because there are so many political implications. We need to find a dividing line. There needs to be an a priori dividing line; not a dividing line that involves Ministers recovering jurisdiction in the course of an appeal. That is an unfortunate practice that will need to cease.

  8. Why should it be thought that if you are appointed by the Lord Chancellor there are fewer political decision-making processes at work than if you are appointed by the Department of the Environment, Transport and the Regions? Or has that something to do with the strong faith in the infallibility of lawyers?
  (Professor Grant) That is a faith that obviously I share.

  9. It is a limited faith, Professor, with very few adherents outside those who are paid.
  (Professor Grant) I am grateful to you for that. The strength with which I could have supported the Franks Committee has probably diminished over the years. Certainly the McGonnell case casts doubt about the position of the Lord Chancellor across the three branches of government. When we come to review the impact of the convention on planning perhaps we shall need to take a more radical approach.

  10. That is the core. The tensions that you highlight, which are sensible and important, concern me. At some point they have to be resolved. Are you really saying that the interpretation of the Human Rights Act means that the Government, at a certain moment, must move totally outside the process because they have taken policy decisions? If that is so at what point do you reconcile the practical need to employ planning inspectors? Planning inspectors have to be paid by someone in the final analysis. They will never be outwith the processes of government.
  (Professor Grant) I think "never" is too big a word, with respect. There are other models of decision-making that could take inspectors outside government and the Environmental Court is a model that we may have an opportunity to explore further this morning. However, I still believe that there are two aspects to this matter. One is the employment and payment of inspectors. There is a need to ensure that the appearance of independence is maintained by taking them away from the department that has primary responsibility for the policy that they apply and by taking away the capacity of the Secretary of State to recover jurisdiction from them. Employment and salaries are one issue. Final decision-making is a separate issue. It seems to me that final decision-making is capable of being brought down to two possibilities. One is that inspectors make decisions themselves, as they now do in 99 per cent of all planning appeals, and the second possibility is that in the remaining 1 per cent of cases, and in other matters that are not presently transferred to inspectors, they can continue to write reports which can continue to be determined by Ministers. However, we need an a priori, an up-front definition of those types of cases that raise such matters of public interest so that they are no longer capable of being dealt with solely by an inspector, but require the political accountability of Ministers to Parliament.

  11. In the end they will not meet any test of independence in the European Court because if a local authority makes a finding and there is an appeal to the inspectors, the inspectors will make a decision based on policy planning guidance, issued by central government, that does not require the approval of Parliament. In 99 per cent of cases, it is against that framework that they make the decision. Then you have the other 1 per cent of cases where frankly the Secretary of State can be as arbitrary as he likes in coming to his final decision, based on the advice that he receives from his own civil servants. That system is wholly open to challenge, is it not?
  (Professor Grant) Yes, indeed, it is. It is even more complex than you have suggested. In 99 per cent of cases, not all will be clearly governed by PPG and the development plan must take priority anyway. Inspectors are always having to balance conflicting and opposed principles of policy derived from the development plan and from PPG. The difference is that they are, unlike a judge, taking a decision that involves policy, and that has as its objective the advancement of policy, as opposed to the resolution of a dispute on the facts and on the law. However they are constructed, whether as an independent body or within government, they have a different role from a conventional judge, so it is not possible to apply to them a puritan approach to the interpretation of the convention. As they grapple with the impact of the convention on the planning system, the Government will need to do their best to try to ensure that independence is made as great as possible for those cases where inspectors can properly take decisions, and that where Ministers have to take decisions that nonetheless the process of inquiry and reporting retains its independence.

  12. Do you have guidelines for the criteria under which the Secretary of State may call in matters for his own decision?
  (Professor Grant) Yes, we do have guidelines for two categories of cases at the moment. One is for call-in decisions and one is for recovery decisions. It may be important to shift those to ensure that both recovery and call-in decisions are taken at the same time and that there is no subsequent interference with an inspector's jurisdiction while handling an appeal.

  13. Am I right in thinking that the complaints system about planning appeals will not meet the requirements of the Human Rights Act when it comes into force on 2 October?
  (Professor Grant) No, I do not believe it will.

  14. Is it possible to establish an independent complaints system that would enable full investigation of the inspectorate's decisions to take place under the Human Rights Act without prejudicing people's ability to seek judicial review in the High Court?
  (Professor Grant) That is difficult. People tend to complain about a procedure on the basis of outcome. The clear rule is that one cannot interfere with outcome once a decision has been handed down because it is a public decision and has wide-spread implications. The only way in which to interfere with it is by application to the High Court, which is a slow, cumbersome and expensive procedure. To deal with people's sense of grievance it is necessary to have an open and transparent complaints procedure. The inspectorate runs such a procedure, but inevitably it is a process in which inspectors themselves review the decision-making that has taken place by themselves, or by other inspectors and that lacks a wholly ideal sense of independence.

  15. Would there be a way of establishing a system whereby the Planning Inspectorate was wholly independent so that that could be used by local authorities that decided to make a reference, and so that central government could interfere only when they made a declaration that there were national issues at stake in terms of any particular planning application?
  (Professor Grant) Yes, I think the only model that satisfies that possibility would be one of an independent tribunal, court, commission, or whatever title it was given, a body that functioned independently of the Executive, and to which there was a right of appeal by developers and potentially by third parties and which decided the bulk of the decisions itself, but with the important qualification that there would be some that, ultimately, would need to be determined by the Government.

  16. In terms of making something compliant with the Human Rights Act, is there a way of trying to ensure the primacy of decisions by locally elected politicians, and the policy that they set, rather than what we have at the moment which is a wholly centralised system?
  (Professor Grant) I think the Human Rights Act points in the opposite direction. Once we have decided that something involves the determination of a person's civil rights and obligations, Article 6 insists upon a fair and open hearing. Local authorities do not give that. The process of decision-making is by committee; not by hearing. The only way in which it can be made to accord with the convention is through a right of appeal to a body that can meet the requirements of Article 6.

  17. Pursuing that last point, are you saying that the Human Rights Act is in contradiction or in conflict with the notion of elected accountability?
  (Professor Grant) I do not say that it is in contradiction; I say that locally elected accountability may not be sufficient. It is a necessary first step, but decisions taken by local authorities do not themselves meet the requirements of Article 6. Those requirements can be met by the prospective developer having a right of appeal, provided the independence of the Planning Inspectorate can be secured. They are not presently met for third parties who are denied a right of appeal. If third-parties' rights qualify as civil rights and obligations, as I have suggested this morning that they do, it suggests that there is a gap in the coverage.

  Mr Blunt: On the Human Rights Act, why should the developer have a right of appeal in any event? Surely, only the objectors should have a right of appeal. What human rights do developers have?

  Mrs Dunwoody: That I should live to hear you say that, Mr Blunt!

  18. Some of us want to protect our constituents from millions of tonnes of concrete!
  (Professor Grant) I shall avoid answering the question directly. The pattern of which I have spoken has been the pattern since 1947 in which disappointed applicants/developers have a right of appeal, but third parties do not. This morning my argument is that that may need to be addressed in order to meet the convention's requirements and to see whether we should have a right of appeal for third parties.

  19. Surely, under the Human Rights Act, the whole thing should be the other way around. It is the objectors whose human rights are being affected. If a developer is not able to make money for his shareholders on a particular site he can find another site.
  (Professor Grant) Yes, but developers are individuals as well.