Holding and Barnes v. the United Kingdom (dec.)

Information Note on the Court’s case-law 40

March 2002

Holding and Barnes v. the United Kingdom (dec.) - 2352/02

Decision 12.3.2002 [Section IV]

Article 6

Civil proceedings

Article 6-1

Access to court

Scope of judicial review of planning decisions: inadmissible

The applicant company applied for planning permission to relocate part of its business. The local authority resolved that it was minded to grant permission but the Secretary of State for the Environment subsequently “called in” the application to be determined by him because of the nature of the proposed use, the potential impact on the future economic prosperity of the region and the proximity of hazardous gas storage installations. The applicant challenged the Secretary of State’s power to call in the application as a breach of Article 6 of the Convention and the Divisional Court found in its favour. However, on appeal the House of Lords reversed that judgment, holding that, although the Secretary of State was not an independent and impartial tribunal, judicial review of the legality of his decision and the procedures followed constituted sufficient judicial control to ensure determination by such a tribunal.

Inadmissible under Article 6 § 1 – As the Government Minister responsible for developing national planning policy, the Secretary of State was not an independent and impartial tribunal and the issue was therefore whether the possibility of seeking judicial review of his decision was sufficient to satisfy Article 6. In the Bryan judgment (Series A no. 335-A), the Court had found that the availability of judicial review was enough to ensure compliance with Article 6, despite the fact that it could not embrace all aspects of the decision, and in particular the merits. In the present case, the call-in procedure had a number of procedural guarantees of fairness. Thus, at the request of either party the Secretary of State had to appoint an inspector to hear oral submissions and evidence from both parties and, if the Secretary of State was inclined to reach a different conclusion from that reached by the inspector, the parties were entitled to be informed before the Secretary of State took a decision and had to be given an opportunity to make written representations or ask for the inquiry to be reopened to assess the new evidence. Moreover, it was open to an aggrieved party to appeal against the Secretary of State’s decision and the reviewing court had jurisdiction to quash the decision if it found that he had acted ultra vires, taken irrelevant matters into account or failed to take relevant matters into account, reached a perverse decision or a decision based on a misunderstanding or ignorance of an established and relevant fact or failed to follow the required procedural steps. The fact that it was the Secretary of State himself who was to take the decision, rather than the inspector, did not afford a sufficient basis for distinguishing the present case from the Bryan case: manifestly ill-founded.

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This summary by the Registry does not bind the Court.

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