EUROPEAN COMMISSION OF HUMAN RIGHTS
Application No. 19178/91
John Bryan
against
the United Kingdom
REPORT OF THE COMMISSION
(adopted on 28 June 1994)
TABLE OF CONTENTS
Page
I. INTRODUCTION
(paras. 1-16). . . . . . . . . . . . . . . . . . . . . .1
A. The application
(paras. 2-4). . . . . . . . . . . . . . . . . . . .1
B. The proceedings
(paras. 5-11) . . . . . . . . . . . . . . . . . . .1
C. The present Report
(paras. 12-16). . . . . . . . . . . . . . . . . . .2
II. ESTABLISHMENT OF THE FACTS
(paras. 17-32) . . . . . . . . . . . . . . . . . . . . .3
A. The particular circumstances of the case
(paras. 17-23). . . . . . . . . . . . . . . . . . .3
B. Relevant domestic law
(paras. 24-32). . . . . . . . . . . . . . . . . . .6
III. OPINION OF THE COMMISSION
(paras. 33-47) . . . . . . . . . . . . . . . . . . . . .9
A. Complaint declared admissible
(para. 33). . . . . . . . . . . . . . . . . . . . .9
B. Point at issue
(para. 34). . . . . . . . . . . . . . . . . . . . .9
C. As regards Article 6 para. 1 of the Convention
(paras. 35-46). . . . . . . . . . . . . . . . . . .9
CONCLUSION
(para. 47). . . . . . . . . . . . . . . . . . . . 11
CONCURRING OPINION OF MR. N. BRATZA . . . . . . . . . . . . 12
DISSENTING OPINION OF MM. TRECHSEL, ROZAKIS,
GEUS, REFFI AND CABRAL BARRETO . . . . . . . . . . . . . . 14
APPENDIX I : HISTORY OF THE PROCEEDINGS . . . . . . . . . 15
APPENDIX II : DECISION OF THE COMMISSION AS TO THE
ADMISSIBILITY OF THE APPLICATION . . . . . . 16
I. INTRODUCTION
1. The following is an outline of the case as submitted to the
European Commission of Human Rights, and of the procedure before the
Commission.
A. The application
2. The applicant is a British citizen, born in 1931 and resident in
Warrington. He was represented before the Commission by
Mr. R.M. Napier, of Messrs Albinson Napier and Co., Warrington.
3. The application is directed against the United Kingdom. The
respondent Government were represented by their Agent, Mr. I. Christie
of the Foreign and Commonwealth Office, London.
4. The case concerns proceedings by which the High Court reviewed
a decision, taken by an inspector appointed by the Secretary of State
for the Environment, to confirm an enforcement notice which had been
served on the applicant. It raises issues under Article 6 para. 1 of
the Convention.
B. The proceedings
5. The application was introduced on 29 October 1991 and registered
on 9 December 1991.
6. On 7 July 1992, the Commission decided, pursuant to
Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the
application to the respondent Government and to invite the parties to
submit written observations on the admissibility and merits of the
applicant's complaint under Article 6 para. 1 of the Convention.
7. The Government's observations were submitted on 4 November 1992.
The applicant replied on 29 December 1992 and the Government submitted
further observations on 29 July 1993.
8. On 2 April 1993 the Commission decided to hold a hearing of the
parties. The hearing was held on 14 October 1993. The Government were
represented by Mr. I. Christie, Agent. Mr. D. Pannick, Q.C., and
Mr. D. Anderson, Counsel, and Ms. V. Harrison of the Department of the
Environment, Adviser. The applicant was represented by Mr. R. Drabble
and Mr. E. Owen, Counsel, and Mr. R.M. Napier, solicitor. The
applicant and Mrs. Bryan were also present.
9. On 14 October 1993 the Commission declared admissible the
applicant's complaint under Article 6 para. 1 of the Convention. It
declared inadmissible the remainder of the application.
10. The text of the Commission's decision on admissibility was sent
to the parties on 2 November 1993 and they were invited to submit such
further information or observations on the merits as they wished. No
further submissions were received.
11. After declaring the case admissible, the Commission, acting in
accordance with Article 28 para. 1 (b) of the Convention, also placed
itself at the disposal of the parties with a view to securing a
friendly settlement. In the light of the parties' reaction, the
Commission now finds that there is no basis on which such a settlement
can be effected.
C. The present Report
12. The present Report has been drawn up by the Commission in
pursuance of Article 31 of the Convention and after deliberations and
votes, the following members being present :
MM. C.A. NØRGAARD, President
S. TRECHSEL
A. WEITZEL
F. ERMACORA
G. JÖRUNDSSON
Mrs. G.H. THUNE
Mr. C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
G.B. REFFI
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
13. The text of this Report was adopted on 28 June 1994 by the
Commission and is now transmitted to the Committee of Ministers of the
Council of Europe, in accordance with Article 31 para. 2 of the
Convention.
14. The purpose of the Report, pursuant to Article 31 of the
Convention, is :
(i) to establish the facts, and
(ii) to state an opinion as to whether the facts found disclose
a breach by the State concerned of its obligations under
the Convention.
15. A schedule setting out the history of the proceedings before the
Commission is attached hereto as Appendix I and the Commission's
decision on the admissibility of the application as Appendix II.
16. The full text of the parties' submissions, together with the
documents lodged as exhibits, are held in the archives of the
Commission.
II. ESTABLISHMENT OF THE FACTS
A. The particular circumstances of the case
17. On 4 December 1989 an enforcement notice was issued and was
served on the applicant by the Vale Royal Borough Council ("the
Council") requiring the demolition of two brick buildings on land which
the applicant had bought in 1987. The enforcement notice recited that
there appeared to the Council to be a breach of planning control in
that the two brick buildings had been erected without the required
planning permission. The notice required the applicant to demolish the
buildings and remove the building materials within three months.
18. The applicant appealed to the Secretary of State for the
Environment under Section 174 (2) (a),(b),(g) and (h) of the Town and
Country Planning Act 1990 (TCPA), which consolidated and amended the
earlier legislation.
19. On 1 October 1990 an inspector dismissed the appeal. He was a
salaried inspector, a civil servant and an employee of the Planning
Inspectorate, appointed by the Secretary of State after approval of the
Lord Chancellor. He held, inter alia, as follows:
[The appeal on ground (b)]
"12. What I need to decide in respect of this ground of appeal
is whether, as a matter of fact and degree, the buildings could,
from their appearance and layout, be considered to have been
designed for the purposes of agriculture. I conclude, from
examination of photographs taken during construction and from
noting the alterations made since, that the Council were right
to be concerned that the appeal buildings had the appearance of
large detached houses. The size, layout, and original external
appearance of the buildings and their detailing did little to
change that view.
13. In my opinion, as originally constructed, the buildings
would have led any reasonable person to have concluded that he
or she was looking at the start of a small new detached housing
estate. Indeed, that appeared to be the widely held view of many
local people, supported by the local Member of Parliament, who
were concerned to see what was being built on the edge of the
village. The more recent construction of an, as yet, uncompleted
but similar building close to the 2 appeal buildings serves to
compound the effect.
14. But it is the original appearance of the 2 appeal buildings
and particularly the first assessment of the Ministry of
Agriculture Fisheries and Food which convinces me that the
buildings were not requisite or reasonably necessary for the
purposes of agriculture. Numerous features of the buildings were
more suited to houses than barns. The original openings in
building No. 1 were said to be doorways for a veal calf unit.
But this building did not incorporate internal drainage
considered necessary for such stock. The doorways appeared to
have been more likely to have been useful as window openings,
none reached ground level as built; one was almost waist high
above outside ground level measured from the lower edge of the
unbonded brickwork added later. Other features in both buildings
include the extensive use of Georgian style windows and other
windows made for domestic use. I understand that Mr Bryan's
contacts allowed him to buy these windows cheaply. But whatever
their source, they contribute to an impression that the buildings
look more like houses than barns. There are other features which
add to that view. The use of domestic style eaves and gable
barge boarding. The residential look of the 'porch' to No 1
building. And the [Ministry of Agriculture, Fisheries and
Food's] view about the uneconomic layout of both buildings as
originally built all add to the impression that these buildings
were not designed for agricultural purposes, albeit they have
since been modified and adapted for such a use.
15. You said that the buildings looked like many local old
barns. But it is my view that, as originally built, the appeal
buildings would have looked much more like houses. They did not
look as if they had been designed for the purposes of
agriculture. My opinion is not altered by my finding them now
being used for storing hay. The appeal on ground (b) fails.
The appeal on ground (a)
16. The appeal buildings lie in part of the green belt ...
They also lie within the Higher Whitley Conservation Area but
outside the village policy area for Higher Whitley shown on the
draft Vale Royal Borough Local Plan. In my opinion, the decision
turns on the following main issues. Whether, if the development
is inappropriate to the green belt, there are any special
circumstances to justify the granting of planning permission;
secondly, whether the appeal buildings enhance or preserve the
character or appearance of the Conservation Area. I shall also
consider the effect of the development on the countryside
surrounding the village.
...
17. The appeal buildings have neither enhanced nor preserved
the appearance of this part of the Conservation Area, rather the
reverse. Much of the pleasant nature of the Area is derived from
the grouping of the older housing around the centre and from its
rural and agricultural setting. The 2 appeal buildings look like
part of a small estate of detached houses with access roads and
suitable garden areas. The third building, not subject of this
appeal, exacerbates this impression.
19. These objections amount to sound and clear cut reasons why
planning permission should be withheld. The fact that other
buildings or buildings of a broadly similar nature, if considered
to be designed for agricultural purposes, could be built under
the provisions of the Town and Country Planning General
Development Order 1988, does not affect my decision. The appeal
on ground (a) fails.
The appeal on ground (g)
20. You said that demolition of the buildings and the removal
of the materials was an excessive requirement. I do not agree.
Harm to the purpose of the green belt has been caused. The
appearance and character of the Conservation Area has not been
either enhanced or preserved. Encroachment on the countryside
has occurred. Making the buildings look more like those which
might have been permitted development as you suggested could
mitigate a little of the harm I have identified. But this is not
just a matter of cosmetics. The main objections would remain.
In my opinion, the proper and necessary course of action is that
required by the notice. That includes removal of materials.
Such a requirement would not preclude their re-use on site for
any possible future permitted development. The appeal on ground
(g) fails.
The appeal on ground (h)
21. ... Mr. Bryan wanted more time in order to erect a
replacement or replacements before demolition. I see no need to
insist on a period which would make undue difficulty for him.
I will increase the period to 6 months. ...
22. I have taken account of all the other matters raised,
including the possibility of your client putting up a large steel
clad building under permitted development rights, but find they
do not affect my decision."
20. The applicant appealed against the inspector's / Secretary of
State's decision under Section 289 TCPA. In his Notice of Motion, the
applicant first (grounds 1 and 2) alleged that the inspector had "erred
in law in applying the wrong test in deciding whether the buildings
were permitted development under the provisions of the ... General
Development Order" and "in considering that the said buildings were not
requisite or reasonably necessary for the purposes of agriculture when
there was no evidence upon which any reasonable inspector could so
find". The subsequent grounds of appeal dealt expressly with grounds
(a) and (g) of the appeal under Section 174 (2) TCPA to the Secretary
of State.
21. The appeal was dismissed by the High Court on 8 March 1991, the
judge, Mr Lionel Read, Q.C., finding inter alia as follows:
"A principal argument on behalf of the applicant at the inquiry
under [ground] (b) was that the erection of the two buildings was
permitted development under the General Development Order. ...
The applicant does not challenge the inspector's decision under
ground (b). Nevertheless paragraphs 14 and 15 of the decision
letter, where he is still dealing with that ground, are relevant
to the court's consideration of his decision on grounds (a) and
(g) ...
In my judgment ... it cannot be said that the inspector failed
to take into account the fact that the applicant might, within
his General Development Order rights, erect buildings of a
broadly similar nature. He addressed that very consideration in
terms at paragraph 19 of his decision letter. Because the
applicant had those rights and wanted more time to erect a
replacement or replacements, the inspector extended the
applicant's time for complying with the enforcement notice under
ground (h).
Whether the existence of these General Development Order rights
provided sufficient reason for the inspector to grant planning
permission for the buildings in fact erected, whether or not
conditioned as suggested by the applicant, was a matter for
judgment - the inspector's judgment. Whether another decision-
maker would have reached the same conclusion as did this
inspector is not to the point. Nor is the view of this court,
which does not sit on appeal from the judgment of inspectors,
relevant. I am unable to say that there was anything irrational
in the inspector's decision. In particular, the question whether
the alterations proposed to a building were, as he evidently
thought, a 'matter of cosmetics' and would not meet the main
objections was entirely a matter of planning judgment for him.
It is to be remembered that, in order to stay within his General
Development Order rights, the applicant must erect replacement
buildings which, by their appearance and layout, could be
considered as designed for the purposes of agriculture. If they
are, their effect on the Green Belt, the countryside and the
Conservation Area is irrelevant to the exercise of that right.
That does not, however, in my judgment mean that the inspector
acted irrationally in concluding that the buildings in fact
erected without permission under the General Development Order
were objectionable and should be demolished. In the result, I
find no error of law and I dismiss the application."
22. At the hearing held before the Commission on 14 October 1993, the
applicant's representatives stated that, although they had not
represented the applicant before the High Court, they surmised that the
challenge to the inspector's ground (b) reasoning had been raised in
the Notice of Motion and then abandoned at the hearing because of the
limited jurisdiction of the High Court.
23. Leave to appeal to the Court of Appeal was refused. The Court
of Appeal, on 11 June 1991, also refused leave to appeal.
B. Relevant domestic law
24. By reason of Article 3 and Class A of Part 6 of Schedule 2 to the
General Development Order 1988, planning permission is granted for the
following development:
"A. The carrying out on agricultural land comprised of an
agricultural unit of -
(a) works for the erection, extension or alteration
of a building, or
(b) any excavation or engineering operations, reasonably
necessary for the purposes of agriculture within that unit."
25. Planning permission granted by the General Development Order is
known as deemed planning permission. Development is not permitted by
Class A by reason of paragraph A.1(c) if "a building, structure or
works not designed for the purposes of agriculture would be provided
on the land".
26. Section 64 TCPA provides that application may be made to the
local authority for a determination of whether planning permission is
required for proposed operations on land.
27. Section 174 (2) TCPA provides that an appeal against an
enforcement notice may be made to the Secretary of State on any of the
following grounds:
"(a) that planning permission ought to be granted for the
development to which the notice relates or, as the case may be,
that a condition or limitation alleged in the enforcement notice
not to have been complied with ought to be discharged:
(b) that the matters alleged in the notice do not constitute a
breach of planning control;
...
(g) that the steps required by the notice to be taken exceed what
is necessary to remedy any breach of planning control or to
achieve a purpose specified in Section 173 (4);
(h) that the period specified in the notice as the period within
which any step is to be taken falls short of what should
reasonably be allowed."
28. Section 175(3) TCPA provides that if an appellant of the local
authority desires, the Secretary of State shall give each of them the
opportunity of appearing before and being heard by a person appointed
by the Secretary of State for the purpose. Where such a person has
determined an appeal, his decision shall be treated as that of the
Secretary of State.
29. Section 289 TCPA provides for appeals against a decision of the
Secretary of State under Section 174. An appeal may be made to the
High Court on a point of law, or the Secretary of State may be required
to state a case for the opinion of the High Court (Section 289 (1)
TCPA).
30. At the hearing before the Commission on 14 October 1993, the
applicant asserted and the Government accepted that a point of law
includes a review as to whether a decision based on a finding of fact
is perverse or irrational. However, the court of review cannot
substitute its own decision on the merits of the case for that of the
decision-making authority (cf. para. 21 above).
31. As an appeal to the High Court under Section 289 (1) is on a
point of law, the High Court has no power to receive further evidence
on primary facts (Green v. Minister of Housing and Local Government
[1963] 1 All ER 578). Halsbury's Statutes of England and Wales, Fourth
Edition, Vol. 46 (1990 Re-issue) describes many of the cases on the
question of whether a point is one of fact or of law as
"irreconcilable" (p. 836). Halsbury's Laws of England states that "if
there is no evidence for a particular finding or if the tribunal does
not take into account at all a relevant consideration, there could well
be grounds of appeal raising a question of law. The contention that
a tribunal has failed to give adequate weight to evidence or sufficient
consideration to a particular circumstance does not afford such
grounds; and the weight which a tribunal gives to a particular piece
of evidence on a particular consideration is a matter for that
tribunal" (Halsbury's Laws of England, Fourth Edition, Vol. 46 (1992
Re-issue), p. 698). In one recent case, a brick building had been
erected on agricultural land. The local authority issued an
enforcement notice against which the landowner appealed under grounds
(a), (b), (c), (g) and (h) of Section 174(2) TCPA. An inspector
determined the appeal, largely against the landowner. The High Court
judge who heard the landowner's further appeal under Section 289 TCPA
had regard to an affidavit submitted on behalf of the landowner,
considered that the inspector's conclusion that the building was not
"designed for the purposes of agriculture ..." was perverse, and
remitted the question to the Secretary of State. The Secretary of
State appealed to the Court of Appeal. The Court of Appeal recalled:
"An appeal to the High Court under Section 289 lies on a point
of law only. The inspector is responsible for finding facts ...
[O]n an appeal to the High Court, the court should not itself
receive evidence unless it is argued that the inspector has not
properly summarised, or has disregarded, some material evidence.
That is not suggested in his case."
It continued:
"... So the exercise [the judge] was carrying out was ... finding
an explanation for the cavity walls and then ... turning that
into a finding of fact that was in fact the reason for the cavity
walls.
In my view, the judge was not entitled to make such a finding of
fact. The inspector had not found that; he had found that the
cavity walls were not necessary for the purpose of a building for
agricultural use in connection with this holding. ...
I therefore conclude that the judge was not justified in
describing the inspector's finding that the building was not
designed for agricultural purposes as perverse. On the contrary,
in my view this was a finding of fact which, on the evidence
before him, the inspector was entitled to make." (Clarke v.
Secretary of State for the Environment and another [1992] 3 PLR
146).
32. According to The Planning Inspectorate Executive Agency Framework
Document (1992), the Planning Inspectorate serves the Secretary for
State on appeals and other casework under planning and allied
legislation. Through the work of the Agency, the policies of the
Secretary of State are taken forward. Disputes between individuals and
public authorities are resolved against the background of these
policies. In processing planning appeals, the staff of the
Inspectorate act on behalf of the Secretary of State. Inspectors,
exercising their own independent judgment, decide cases or make
recommendations to the Secretary of State. In determining planning
appeals, inspectors act in a quasi-judicial capacity, and are required
to comply with the various procedural rules for the conduct of
enforcement appeals (the Town and Country Planning (Enforcement Notices
and Appeals) Regulations 1981, and the Town and Country Planning
(Enforcement) (Inquiries Procedure) Rules 1981).
III. OPINION OF THE COMMISSION
A. Complaint declared admissible
33. The Commission has declared admissible the applicant's complaint
that the review undertaken by the High Court of the decision of the
inspector was not of sufficient scope to comply with the requirements
of Article 6 para. 1 (Art. 6-1) of the Convention.
B. Point at issue
34. The issue to be determined is whether there has been a violation
of Article 6 para. 1 (Art. 6-1) of the Convention.
C. As regards Article 6 para. 1 (Art. 6-1) of the Convention
35. Article 6 para. 1 (Art. 6-1) of the Convention provides, so far
as relevant, as follows:
"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."
36. The applicant considers that Article 6 para. 1 (Art. 6-1) applies
to the proceedings, and the Secretary of State's inspector did not
satisfy the criteria of independence and impartiality necessary to
comply with the provision as he is a salaried employee and an
individual case can be removed from him at any stage. He also
considers that the review by the High Court, which is limited to points
of law, is not able to, and did not in this case, deal with the central
factual inferences which the inspector drew from the primary facts.
37. The Government do not accept that the proceedings determined the
applicant's civil rights, but consider that even if they did, the
quasi-judicial proceedings before the inspector complied with Article 6
(Art. 6). They further consider that the subsequent review by the High
Court was in any event of sufficient scope to comply with the
provision.
38. The Commission recalls that the right of property is clearly a
"civil" right within the meaning of Article 6 para. 1 (Art. 6-1) of the
Convention, and the enforcement notice issued by the local authority
and the subsequent enforcement proceedings were directly concerned with
the way in which the applicant was entitled to use his land (cf. Eur.
Court H.R., Zander judgment of 25 November 1993, Series A no. 279-B,
para. 27, with further references). Consequently, the proceedings in
the present case determined a "civil right".
39. As to the role of the inspector in the proceedings, the
Commission notes that it is not called on to determine whether the
inspector conducted the proceedings fairly, as there has been no
suggestion from the applicant that the proceedings were unfair. The
Commission sees no reason to dissent from the Government"s contention
that the proceedings before the inspector complied with the
requirements of fairness.
40. The Commission must, however, consider whether the inspector in
determining the appeal constituted the "independent and impartial
tribunal established by law" which Article 6 (Art. 6) requires.
41. The function of the inspector is to determine matters within his
competence on the basis of rules of law, following proceedings
conducted in a prescribed manner (see para. 32 above). He therefore
comes within the concept of a "tribunal" within the substantive sense
of the expression as used in Article 6 para. 1 (Art. 6-1). Moreover,
the tribunal was one "established by law", that is, by the Town and
Country Planning Act 1990.
42. As to the independence and impartiality of the inspector, the
Commission notes that inspectors are chosen from salaried staff of the
Planning Inspectorate. The Planning Inspectorate serves the Secretary
of State in the furtherance of the Secretary of State's policies.
Inspectors deciding planning appeals do so on behalf of the Secretary
of State, regardless of whether they are salaried employees or not.
Whilst the Secretary of State and his inspector are not parties to the
dispute as such, the Commission finds that the fact that the Secretary
of State's policies can be at issue in appeals means that the inspector
cannot have the independence necessary for Article 6 (Art. 6) of the
Convention. Moreover, a case can be removed from an inspector's
jurisdiction even after he has been seised of it.
43. Given that the proceedings before the inspector did not comply
with Article 6 (Art. 6) of the Convention because of his lack of
independence, the Commission must consider whether appeal to the High
Court was consistent with Article 6 para. 1 (Art. 6-1). This will only
be the case if the appeal was conducted before "judicial bodies that
have full jurisdiction" (Eur. Court H.R., Albert and Le Compte judgment
of 10 February 1983, Series A no. 58, p. 16, para. 29; Zumtobel
judgment of 21 September 1993, Series A no. 268-A, para. 29).
44. The Commission recalls that the applicant's appeal against the
enforcement notice in the present case was heard by an inspector
appointed by the Secretary of State. The inspector was able to
consider all matters on that appeal, whether they related to facts or
to law, by virtue of Section 174 (2) TCPA. The subsequent appeal to
the High Court, however, was limited to points of law, and the
Commission must decide whether, in the present case, that limitation
deprived the High Court of the "full jurisdiction" required by
Article 6 (Art. 6) of the Convention.
45. The Commission notes that the applicant raised the matter of the
inspector's reasoning under ground (b) of Section 174 (2) TCPA in his
Notice of Appeal, but that he appears to have abandoned his challenge
before the High Court. Whilst it is true that the judge referred to
some of the inspector's ground (b) findings in determining the appeal
against the ground (a) and (g) reasoning, he was nevertheless not
ultimately required to consider the ground (b) challenge, and so
formally did not have to review against the test of perversity or
irrationality the question whether the "matters" alleged in the
enforcement notice did, or did not, constitute a breach of planning
control.
46. The Commission recalls that in the above-mentioned Zumtobel
case the European Court of Human Rights referred to the "respect which
must be accorded to decisions taken by administrative authorities on
grounds of expediency" (at para. 32). The challenge to the inspector's
ground (a) reasoning concerned questions which indeed call for respect
on the "grounds of expediency" as they involved the application of the
panoply of policy matters such as development plans, and the facts that
the property was situated in a green belt and a Conservation Area. The
ground (b) challenge, by contrast, would have raised matters of a more
factual nature in that they would have gone directly to questions of
whether the applicant had erected a building which fell within the
General Development Order, and so had the benefit of deemed planning
permission. The submissions actually relied on before the High Court
were dealt with point by point. In the absence of an argued ground (b)
challenge, it cannot be assumed that a review of whether or not the
inspector's findings of fact were perverse or irrational would have
been inadequate. Moreover, given the carefully reasoned nature of the
Inspector's report, the absence of dispute as to primary facts as
distinct from factual inferences and the planning context of the case,
there is nothing to indicate that the limited review available was
inadequate in the particular circumstances of this case. The ground
(g) and (h) challenges, which both expressly leave open a discretion
to the local authority (a determination of whether the steps required
exceed what was "necessary" under ground (g) or, under ground (h),
whether any periods specified fell short of what "should reasonably"
be allowed), also involved the consideration by the inspector of
matters closely linked to policy considerations.
CONCLUSION
47. The Commission concludes, by 11 votes to 5, that in the present
case there has been no violation of Article 6 para. 1 (Art. 6-1) of the
Convention (para. 46).
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
(Or. English)
CONCURRING OPINION OF Mr. N. BRATZA
I share the view of the majority of the Commission that, on the
facts of the present case, the only challenge to the enforcement notice
which the applicant pursued in the High Court related to matters of
planning policy and that, consistently with the Court's reasoning in
the Zumtobel case, Article 6 does not in any event require that a court
should have the power to substitute its view for that of the
administrative authorities on matters of planning policy or
"expediency". It is said that the reason why the applicant did not
pursue his appeal under ground (b) of Section 174(2) of the 1990 Act
may have been the fact that the court's powers of review were too
limited to justify pursuing the appeal. However, as the Commission
correctly notes (para. 22) this is a matter of surmise only. The
reason for withdrawing the ground might equally have been a recognition
on the part of the applicant that the primary facts found, and the
conclusion reached by the Inspector on the basis of those facts, were
so clearly correct as to be unassailable, however wide the review
powers of the High Court.
However, I also find that there has been no violation of
Article 6 in the present case on the broader ground that the powers of
review of the High Court under Section 289 of the 1990 Act are
sufficiently wide to satisfy the requirement held by the Court to be
inherent in Article 6 that the judicial body determining the
applicant's civil rights and obligations should have "full
jurisdiction".
It appears to me that the requirement that a court or tribunal
should have "full jurisdiction" cannot be mechanically applied with the
result that, in all circumstances and whatever the subject matter of
the dispute, the court or tribunal must have full power to substitute
its own findings of fact, and its own inferences from those facts, for
that of the administrative authority concerned. Whether the power of
judicial review is sufficiently wide to satisfy the requirements of
Article 6 must in my view depend on a number of considerations,
including the subject matter of the dispute, the nature of the decision
of the administrative authorities which is in question, the procedure,
if any, which exists for review of the decision by a person or body
acting independently of the authority concerned and the scope of that
power of review.
In my view the powers of review of the High Court, when combined
with the statutory arrangements under the 1990 Act for appealing
against an enforcement notice, satisfy the requirements of Article 6
para. 1.
So far as the statutory arrangements are concerned, Section 174
of the 1990 Act provides that an appeal against an enforcement notice
served by a local authority may be made to the Secretary of State on
grounds, inter alia, that the matters alleged in the notice do not
constitute a breach of planning control. Section 175(3) of the Act
provides that if an appellant or the local authority desires, the
Secretary of State shall give each of them the opportunity of appearing
before and being heard by a person appointed by the Secretary of State
("the Inspector") and power is conferred on the Inspector to determine
the appeal.
In determining planning appeals Inspectors act in a quasi-
judicial capacity and in accordance with prescribed procedures, full
powers being conferred on both parties to appear, with or without legal
representation, adduce evidence, both written and oral, and make
submissions of both law and fact. Further, the appeal results in a
reasoned decision letter.
In paragraph 42 of the Report the Commission, while accepting
that the Inspector is a "tribunal" within the substantive sense of the
expression as used in Article 6 para. 1 and that such a tribunal is one
"established by law", concludes that an Inspector does not satisfy the
requirement of independence and impartiality: it is correctly pointed
out that Inspectors are chosen from salaried staff of the Planning
Inspectorate, which serves the Secretary of State in the furtherance
of his policies, and that while the Secretary of State and his
Inspector are not parties to the dispute as such, the fact that those
policies can be in issue on appeals means that the Inspector cannot
have the independence necessary for Article 6 of the Convention.
While this is true, there is equally nothing to suggest that, in
finding the primary facts and in drawing conclusions and inferences
from those facts, an Inspector acts anything other than independently,
in the sense that he is in no sense connected with the parties to the
dispute or subject to their influence or control; his findings and
conclusions are based exclusively on the evidence and submissions
before him.
An appeal is from an Inspector's decision to the High Court under
Section 289 of the Act "on a point of law". As appears from the
Commission's Report, this does not mean that the Inspector's findings
of fact or the inferences drawn by him from those facts are free from
review by the Court. The Court cannot substitute its own findings of
fact or its own inferences from those facts for those of the Inspector.
However, the Court can set aside a factual finding by an Inspector if
that finding is unsupported by any evidence before him. The Court can
also set aside inferences drawn by the Inspector from those facts if
those inferences are perverse or irrational in the sense that no
Inspector properly directing himself could reasonably have drawn such
inferences.
Applying these principles to the circumstances of the present
case, the High Court could have quashed the decision of the Inspector
if it could have been shown that there was no evidence before him on
which he could have found that the building did not, as originally
built, incorporate the internal drainage necessary for a veal calf
unit; that none of the alleged doorway openings reached ground level
and that one was almost waist high above outside ground level; that
other features included the extensive use of Georgian style windows and
other windows made for domestic use; that domestic style eaves and
gable barge boarding had been used; and that the building had a
residential looking "porch". Equally the High Court could have quashed
the decision of the Inspector if it had been shown that no Inspector
properly directing himself could reasonably have concluded on the basis
of these primary facts that the building was not, as originally built,
designed for the purposes of agriculture.
In my view this power of review of the High Court, combined with
the statutory procedure for appealing against an enforcement notice,
is sufficient to meet the requirement of "full jurisdiction" inherent
in Article 6 para. 1 of the Convention.
(Or. English)
DISSENTING OPINION OF MM. TRECHSEL, ROZAKIS, GEUS,
REFFI AND CABRAL BARRETO
We disagree with the finding of the majority that this case
discloses no violation of Article 6 of the Convention.
In the present case, a key element of the applicant's appeal to
the Secretary of State and subsequently of his notice of appeal to the
High Court was that the building he had erected was indeed a barn
designed and intended for agricultural use such that it had the
benefit, without further authority, of deemed planning permission under
the General Development Order. Whilst it is true that he withdrew his
appeal against the inspector's ground (b) reasoning at the hearing
before the High Court, he pursued the appeal against the reasoning
under grounds (a) and (g) and the High Court judge, in dealing with the
challenge to the inspector's conclusions under grounds (a) and (g),
affirmed that the inspector's ground (b) reasoning was relevant to his
own conclusions. We consider that the judge's comments to the effect
that he was not prepared to substitute his opinion for that of the
inspector amount to a denial of jurisdiction to re-consider either the
primary facts of the case or the question whether the building fell to
be regarded as an agricultural building or not. We feel that the
applicant's representatives may well have decided not to pursue the
contention that the applicant had deemed planning permission because
they were unable to invite the court to substitute its own findings for
the inspector's findings of fact, and could not maintain an argument
that those findings were perverse or irrational: it is unrealistic to
expect an advocate to raise arguments which he knows a court will not
entertain.
In the Zumtobel case the European Court of Human Rights referred
to the "respect which must be accorded to decisions taken by
administrative authorities on grounds of expediency" (at para. 32).
Whilst questions of expediency play a large role in matters relating
to, for example, the public interest involved if a particular
development is permitted, the present case concerns, at least in part,
the fundamental factual issue of whether the building erected by the
applicant was, or was not, designed for the purposes of agriculture and
so had deemed planning permission. This factual issue was in dispute
and in the circumstances of this case the High Court judge was not able
to provide a "determination" of it (cf. the Albert and Le Compte
judgment, p. 16, para. 29). For us, this deprived the applicant of
access to a "tribunal" to which Article 6 para. 1 of the Convention
entitled him.
APPENDIX I
HISTORY OF THE PROCEEDINGS
Date Item
_________________________________________________________________
29 October 1991 Introduction of application
9 December 1991 Registration of application
Examination of admissibility
7 July 1992 Commission's decision to communicate the
case to the respondent Government and to
invite the parties to submit observations
on admissibility and merits
4 November 1992 Government's observations
29 December 1993 Applicant's observations in reply
29 July 1993 Government's further observations
2 April 1993 Commission's decision to hold a hearing
14 October 1993 Hearing on admissibility and merits, the
parties being represented as follows :
Government : Mr. I. Christie, Agent
Mr. D. Pannick Q.C.
Mr. D. Anderson, Counsel
Ms. V. Harrison, Adviser
Applicant : Mr. R. Drabble)
Mr. E. Owen ) Counsel
Mr. R. M. Napier, Solicitor
14 October 1993 Commission's decision to declare
application in part admissible and in part
inadmissible
Examination of the merits
5 March 1994 Commission's consideration of state of
proceedings
28 June 1994 Commission's deliberations on the merits,
final vote and consideration of text of
the Report and adoption of Report
Full & Egal Universal Law Academy