Planning & Human Rights - Time To Revisit?

When the European Convention on Human Rights was introduced as being directly enforceable in the UK, there was considerable speculation about the impact that direct applicability of the Convention would have on UK domestic law. While prior to October 2002 (the date the Human Rights Act became fully operational throughout the UK) recourse could be made to the Convention the procedure was time consuming and cumbersome. The position in Scotland had changed slightly earlier as a result of provisions in the Scotland Act which have more recently proved controversial. That difference however is not overly significant for present purposes.

In fact except in certain areas (notably the area of criminal law) so far as the law of Scotland is concerned in many areas the direct applicability of the Convention has had limited impact to date. Generally speaking where it has been applicable and relied upon is in relation to very personal or individual rights (for example the slopping out cases concerning prisoners).

In some ways this "slow burn" is not surprising. A number of commentators considered that the impact of the Act would grow significantly once judges and lawyers became familiar with the Convention and the rights that it might bring.

In relation to planning there was considerable speculation about whether or not significant aspects of the planning legislation would come under consideration as a result of the Convention being directly applicable. The position came under early review both in the Supreme Court (or House of Lords as it then was) – see Regina v Secretary of State for the Environment, Transport & the Regions on the application of Alconbury Developments Limited (2001) 2W.L.R. 1389 and more directly in Scotland in County Properties Limited v Scottish Ministers an application for judicial review (P430/2000).

By the time County Properties came before the Inner House (on appeal) Alconbury had been decided. Equally a number of issues which were relied upon in the judicial review application before the judge at first instance in the Outer House were not relied upon in the Inner House.

In the County Properties case the Scottish Ministers conceded that neither "they nor the Reporter appointed by them in the present case constitute an independent and impartial tribunal" for the purposes of the issues in question – in effect an appeal under Section 58 of the Planning (Listed Buildings & Conservation Areas) (Scotland) Act 1997. While the County...