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Lord Hardie's Lafarge Opinion

Lord Hardie's Court of Session Ruling re. Lafarge Redland Superquarry Due Process and Corporate "Human" Rights under Article 6 of the European Convention on Human Rights

This page comprises:

  1. My letter to a lawyer, raising issues in Lord Hardie's ruling

  2. The lawyer's reply

  3. The official transcript of Lord Hardie's ruling

See also: 

  1. Main superquarry page on this website

  2. George Monbiot's Guardian column on Larfarge corporate personhood

  3. My Stornoway Gazette article which precipitated George's column

 

1. My letter seeking legal clarification from a friend in law school

Dear ...,   I'm writing to you as my informal legal adviser on campaign issues... 

Alison Johnson (White Horse Press, a Harris resident with a brilliant mind on planning issues) has kindly forwarded me the attached document comprising Lord Hardie's ruling on the superqurry delay. He's basically expecting the Scottish Excutive to decide within 3 weeks, and is ruling that recourse to SNH for turning the area into a conservation zone is not acceptable, partly because Mike Scott and Kevin Dunion are on the Board. He seems to be saying that as the affair is a Civil law matter, it automatically comes under the European Human Rights provisions.

If you have time, could you give me your view on 2 issues:

1) The Judge clearly had in mind the recent Pinochet case, though Lafarge Redland did not draw upon it. The Judge seems to be saying that, in order to be seen to be fair, a government advisory body such as SNH must be completely disinterested. Accordingly the presence of environmental campaigners like Scott and Duninion on the Board damages its partiality.

Well, that's all very well, and it has a certain logic if you believe that values-based decisions can be made with reference only to abstract scientific logic, but if you think that the environment is only safe in the hands of those who care and know something about it, it creates a dangerous position.

It means that upcoming environmentalists may be less likely to take a campaigning position lest this will compromise their future ability to work within the system. It will select in favour of those who are all talk and no action. Also, I remember in the late eighties and early nineties when the Government flirted with going green, a lot of pressure was placed on some of us to work within the system. I refused to do so to a compromising degree as was expected at Edinburgh University, and the CHE was closed down in consequence. However, it seems now that those who found niches within the system where, it is clear from their actions, they did not compromise themslves, are being penalised from a different angle.

There is a further implication to all this, and tell me if you think I read it right. Would it not follow that in the case of damaging developments like the Cairngorm furnicular that was being driven by the HIE and other enterprise bodies, that if those bodies contain (as they do) active businessmen who support business expansion, then their advice to Government must, in law, be considered similarly tainted?

Secondly, am I right in my understanding of Lord Hardie's ruling that he accepts that Lafarge Redland ("the respondents") have had their human rights violated on the grounds that this is a civil law case, and that civil law is a competent field of play for corporations? Am I, then, right in concluding that Lord Hardie has failed to consider whether it is "rational", in his words, to consider a corporation to merit "human" rights?

 

2. Reply

Hi Alastair,

 

Thanks for your email and I've had a look at Lord Hardie's opinion. The

thing that really screams out to me is the precautionary principle, but

there is no mention of it here.

 

The first of your points about impartiality is the more complex of the two

you were asking about. In judicial review there is this common law concept

of 'natural justice' (somewhat ironically named don't you think?!) which

has two main rules: 1)the rule against bias; 2) the right to a fair

hearing. Until the 1960's the bias concept revolved solely around judicial

or quasi-judicial decisions, but after the case of Ridge v. Baldwin [1964]

AC 40 its principles spread to other areas including police officers (the

subject of the case Lord Hardie used to give authority for his decision

here - R v Kent Police Authority + Others ex parte Godden 1971 2 QB 662 -

and although I haven't read the case, it seems strange to stretch a

decision about the police to the likes of SNH).

 

Lord Bridge in the case of Lloyd v McMahon [1987] AC 625 discussed the

flexibility of natural justice when he said: "[The] so-called rules of

natural justice are not engraved on tablets of stone. To use the phrase

which better expresses the underlying concept, what the requirements of

fairness demand when any body, domestic, administrative or judicial, has to

make a decision which will affect the rights of individuals depends on the

character of the decision-making body, the kind of decision it has to make

and the statutory or other framework in which it operates."

 

Certainly a direct pecuniary interest creates bias, but also wherever there

is a 'real danger' that a judge or tribunal member would have a bias for or

against one of the parties. Maybe this is the crux, because if it is seen

that Michael Scott and Kevin Dunion demonstrated a personal animosity to

Redland Lefarge (which is unlikely) then it could be seen as bias. But if

the basis of their stance was one of sound, scientific prudence and

judgement then I don't see how it can be seen as being partial.

 

Everyone in a decision has some element of partiality, be it a sheriff who

because he loves his mother admonishes a criminal offender described as

similarly being fond of his own mother (it happens). Everybody has to have

some starting point of interest, otherwise they would never be in the job

they are in. And if you sit on the board of SNH you don't get there because

you are primarily an expert on car engines. It seems to me that SNH's

stance in the original inquiry was made not because they had a private axe

to grind with Redland, but because Redland Lefarge's plans were so

blatantly disastrous and grotesque.

 

The point about human rights. All I could find Lord Hardie saying was that

"property rights are clearly a civil right". Nowhere does he seem to define

corporations and human/civil rights - he just seems to assume that they

have them because they can own property (a weak and weird argument, huh?).

The point about civil law here is that it is the opposite of criminal law.

Civil rights however is a different concept. I haven't read those EHRR

cases of Santilli and Bryan he refers to, but it certainly seems that he's

carving new territory in Scots Law...

 

I hope this is of some help.

 

 

3. Lord Hardie's Opinion

 

OUTER HOUSE, COURT OF SESSION

P766/00

 

 

 

 

 

 

 

 

 

 

OPINION OF LORD HARDIE

 

in Petition of

 

LAFARGE REDLAND AGGREGATES LIMITED

 

Petitioners;

 

for

 

An order in terms of section 45(b) of the Court of Session Act 1988 for the specific performance of a statutory duty under sections 46 and 37(1) of the Town and Country Planning (Scotland) Act 1997 and for Judicial Review of a decision of the Scottish Ministers

 

________________

 

 

 

Petitioners: Martin, Q.C., Mure; Burness

Respondents: Brailsford, Q.C., S. Wolffe; R. Henderson, Solicitor to the Scottish Executive

 

18 October 2000

Introduction

[1] The petitioners are a company incorporated under the Companies Act having its Registered Office at Bradgate House, Groby, Leicester. They were formerly known as Redland Aggregates Limited. In this petition they seek to bring under Judicial Review (i) the failure by the Scottish Ministers (hereinafter referred to as "the respondents") to determine the petitioners' application for planning permission for the development of a "superquarry" at Lingerbay, Isle of Harris, (hereinafter referred to as "the application") lodged with the planning authority on 25 March 1991 and called in by the Secretary of State for Scotland on 6 January 1994 for determination by him and (ii) the decision by the respondents to refer to Scottish Natural Heritage (hereinafter referred to as "SNH") the question of whether any part of the application site should be proposed as a candidate Special Area of Conservation (hereinafter referred to as a "cSAC"). Answers to the petition have been lodged and at the first hearing of the petition, which lasted four days, I heard submissions on behalf of the petitioners and the respondents. I also heard counsel for both parties By Order on 5 October 2000 when I was advised that the petitioners are tenants of inter alia the application site and that in terms of their lease the petitioners have various rights to anorthosite and other minerals on the site.

The planning and procedural history

[2] On 25 March 1991 the petitioners submitted to the Western Isles Islands Council (hereinafter referred to as "WIIC") the application for the extraction, processing and transport by sea of anorthosite. On 24 June 1993 WIIC informed the Secretary of State for Scotland that they were minded to grant planning permission to the petitioners. SNH, a statutory body established under the Natural Heritage (Scotland) Act 1991 to advise upon environmental issues in Scotland, recommended to the Secretary of State for Scotland that the application be called in for his determination. On 6 January 1994 the Secretary of State for Scotland informed WIIC that he had decided that the application should be referred to him for determination in terms of section 32 of the Town & Country Planning (Scotland) Act 1972 (hereinafter referred to as "the 1972 Act"). A public local inquiry (hereinafter referred to as "the inquiry") into the application was held between 11 October 1994 and 6 June 1995 before G.M. Pain (hereinafter referred to as "the Reporter"). The rules governing the inquiry and subsequent procedures were the Town & Country Planning (Inquiries Procedure) (Scotland) Rules 1980 (hereinafter referred to as "the Rules"). The principal objector represented at the inquiry was SNH which led evidence and made submissions opposed to the grant of planning permission. The grant of planning permission was also opposed by members of a group known as "the Link Quarry Group", which comprised a number of environmental and other bodies. An environmental pressure group, Friends of the Earth (Scotland), appeared and led evidence against the grant of planning permission as part of the Link Quarry Group. Two of the witnesses led on behalf of the Link Quarry Group in opposition to the application were Mr Michael Scott, who was then Scottish Officer of Plantlife and Mr Kevin Dunion, who was Director of Friends of the Earth (Scotland). Both Mr Scott and Mr Dunion are now members of the Main Board of SNH, Mr Scott being the Deputy Chairman. The term of office of Mr Scott will continue until at least 31 March 2002 and the term of office of Mr Dunion will continue until at least 31 March 2003.

[3] Following the conclusion of the inquiry the Reporter prepared a report in accordance with the Rules. Part 1 of the Report was circulated in draft in about March 1998. Following amendments to Part 1 the Reporter delivered the final version of Part 1 and Part 2 of the Report to the Secretary of State for Scotland on 29 April 1999. On 1 July 1999 the respondents assumed responsibility to determine the application in accordance with the provisions of the Scotland Act 1998. They have not done so. On 12 July 2000 one of the respondents, the Transport and Environment Minister (hereinafter referred to as "the Minister"), in an answer to a question in the Scottish Parliament, intimated that she had decided, prior to determining the application, to refer to SNH the question whether any part of the application site should be proposed as a cSAC in terms of Council Directive 92/43/EEC of 21 May 1992 on the Conservation of Natural Habitats and of Wild Fauna and Flora (hereinafter referred to as "the Directive") . The full text of the Minister's reply is contained in 11/2 of process.

[4] By letter dated 12 July 2000 (6/4 of process) the head of the Scottish Executive's Environment Group wrote to the Chief Executive of SNH seeking its scientific advice, in co-operation with the Joint Nature Conservation Committee (hereinafter referred to as "JNCC") "about whether or not, applying the relevant selection criteria, any part of the application area should be identified as a proposed cSAC." JNCC was established under the Environmental Protection Act 1990 inter alia to establish common standards throughout Great Britain for the monitoring and analysis of information on nature conservation and to commission and support relevant research. On 12 July 2000 Mr Kevin Dunion issued a press release (6/14 of process) on behalf of Friends of the Earth welcoming the approach to SNH but recommending the consideration of other factual matters in the event of the inquiry being re-opened.

The Directive and its implementation

[5] The Directive was made on 21 May 1992 and required Member States to bring appropriate measures into force within two years of its notification. In pursuance of this obligation the Government enacted the Conservation (Natural Habitats Etc.) Regulations 1994 (S.I. 1994 No.2716) (hereinafter referred to as "the Regulations) which came into force on 30 October 1994. In so far as Scotland is concerned, since 1 July 1999 the obligations incumbent upon the United Kingdom under the Directive and the powers to implement the Directive and the Regulations, have fallen to the respondents. Copies of the Directive and the Regulations are produced as 6/5 and 6/6 of process respectively. In terms of Regulation 7(4) of the Regulations the Secretary of State was to transmit to the European Commission on or before 5 June 1995 a list of cSACs, selected by him on the basis of the criteria set out in Annex III to the Directive and relevant scientific information.

[6] On 6 March 1995 the Scottish Office Environment Department published circular 6/1995 entitled "Nature Conservation: Implementation in Scotland of EC Directives on the Conservation of Natural Habitats and of Wild Flora and Fauna and the Conservation of Wild Birds: The Habitats and Wild Birds Directives" (hereinafter referred to as "the 1995 Circular") setting out the initial approach to the implementation of the Regulations. Between 1995 and 1999 the UK Government submitted to the European Commission several lists of cSACs of which approximately 131 were Scottish sites. In selecting cSACs, the Government relied upon the advice of SNH and JNCC, the Government's statutory advisors upon such issues. Following discussions between Member States and the European Commission, the JNCC set out within its report No.270 "Selection of Areas of Conservation in the UK" (hereinafter referred to as "the Selection Report") the criteria used in the selection process within the United Kingdom in order to ensure compliance with the Directive and the Regulations. The Selection Report noted that the process as a whole required consideration of the relative value of the sites in relation to the whole national resource of each habitat type and species. It also noted that site assessment had been based upon the criteria and principles set out in the Directive and did not simply select existing protected areas. As a consequence the selection process identified a number of cSACs which had not previously been notified as a site of special scientific interest (hereinafter referred to as "SSSI") under the Wildlife and Countryside Act 1981.

[7] In September and November 1999 the European Commission held moderation seminars when the Commission found that certain Member States, including the United Kingdom, had proposed insufficient sites for cSACs. On 11 January 2000 the Commission announced that it intended to make an application to the European Court of Justice against certain Member States, including the United Kingdom, in respect of their failure to fulfil their obligations under the Habitats Directive. In response to this finding and announcement the respondents asked SNH, in co-operation with JNCC, to re-examine the selection process and to make further proposals for cSACs. As a result of this exercise the Minister announced on 14 June 2000 a list of the additional sites which SNH had proposed to her as potential cSACs. No part of the application site at Lingerbay has been proposed to the Minister as a potential cSAC by SNH and JNCC at any stage of the selection process. The Minister herself did not invite SNH to consider the application site for inclusion as a potential cSAC until July 2000, although the Minister had had in her possession the Report of the Reporter since at least 1 July 1999. In June 2000 the respondents also issued guidance updating Circular 6/95 (11/4 of process).

[8] A further moderation seminar will be held early in 2001 and the list of proposed sites must be notified by Member States to the Commission by January 2001. The procedure adopted by the respondents to enable a Scottish site to be included in a list of cSACs involves evaluation of sites by SNH and the submission to the Minister of a list of suitable sites for possible inclusion as cSACs. The Minister determines which sites should be subjected to further consideration and these sites are forwarded to JNCC for evaluation within the context of the United Kingdom. JNCC undertakes a consultation exercise lasting 12 weeks and thereafter submits a final United Kingdom list for consideration by the appropriate Ministers. Thereafter the appropriate Ministers determine which sites are to be proposed as cSACs. It will not be possible to include the application site in the list for consideration by the Commission at the next moderation seminar.

Delay

[9] The petitioners seek a declarator that by failing to determine the application, the respondents are in breach of their statutory duty under sections 37(1) and 46 of the Town and Country Planning (Scotland) Act 1997 (hereinafter referred to as "the 1997 Act"). They complain about the inordinate delay which has occurred between the submission of the application to WIIC on 25 March 1991 and the present date, a period in excess of nine and a half years. They accept that the responsibility for such delay on the part of the respondents, or their predecessors in office as successive Secretaries of State for Scotland, only commenced on 24 June 1993 when WIIC advised the Secretary of State for Scotland of its intention to grant the petitioners planning permission. Even on that basis the petitioners allege that the delay of a period in excess of seven years amounts to a breach by the respondents of their statutory duty. Counsel for the respondents accepted the timetable of events specified in 10/4 of process, subject to the correction that the public local inquiry commenced in October 1994. It was also accepted that the delay between the end of the inquiry in June 1995 and the circulation of the first draft of Part 1 of the Report to parties almost three years later in March 1998 amounted to a considerable period of time. The reason advanced for this particular period of delay was that this was an exceptional inquiry raising a great many complex issues compounded by the illness and hospitalisation of the Reporter, although counsel very properly did not maintain that this latter issue justified a significant proportion of the three year period. As far as the final stage of the delay between 29 April 1999 when the Report was submitted to the Secretary of State for Scotland and the present date, counsel for the respondents stated that it was regrettable that the delay had occurred.

[10] In considering the question of delay in the context of the statutory duty of the respondents, I observe that there is no statutory timescale within which the respondents must determine an application for planning permission which is the subject of an appeal to them or which is the subject of the call in procedures under section 46 of the 1997 Act. The absence of such a timescale is understandable because each application will differ in its nature and complexity and for that reason it would not be prudent or appropriate to have a timescale which applied uniformly, whatever the nature of the application. Had any alternative approach been adopted in the legislation, the outcome would probably have been detrimental for all concerned in the planning process, not least developers. Any uniform timescale would either cater for complex cases or not. If the former approach were adopted, decisions in less complex appeals may be delayed unduly if reporters and Ministers took advantage of the time available; the latter approach would probably have the consequence that complex cases would frequently be the subject of petitions for Judicial Review because of a failure to determine them within the statutory timescale.

[11] However the absence of a statutory timescale is not determinative of the respondents' obligations in cases such as this. The structure of the planning legislation is such that applicants for planning permission are entitled to expect a decision on their application from the local planning authority within a specified time. In terms of section 47(2) of the 1997 Act and Article 14 of the Town & Country Planning (General and Development Procedure) (Scotland) Order 1992, as amended (hereinafter referred to as "the GDPO"), an applicant for planning permission may appeal to the respondents if the local planning authority has not given notice of its decision to the applicant within two months of the lodging of the application or such extended period as may be agreed in writing between the applicant and the planning authority. In terms of Article 2 of the Town & Country Planning (Notification of Applications) (Scotland) Direction 1997 (hereinafter referred to as "Circular 4/1997"), a local planning authority, which notifies the respondents of its intention to grant planning permission for development for which applications must be notified to the respondents, is precluded from granting such permission for a period of 28 days. In the present case the period was extended by agreement to six months. Thus applicants may reasonably expect decisions at first instance within a short timescale unless they agree to extend the period in question. The justification for this is readily understood when one considers that developers require to have prompt decisions of their proposals to enable them to make alternative proposals for other sites if their application is unsuccessful, or to make necessary arrangements to enable them to proceed with the development as soon as possible if they are successful. The time within which applicants may reasonably expect their appeals to be determined must be considered in this context. Another factor which will inform the expectations of developers in relation to the timescale of appeals or applications which are called in for determination by the respondents is the practice of the respondents and their predecessors in the determination of appeals by other developers. I was advised by senior counsel for the petitioners that the public inquiry in the Gartcosh Power Station case lasted sixty six days, as compared with seventy eight days in the present case, and the determination was issued eighteen months after the close of the inquiry. That case also involved the preparation and issue by a reporter of Part 1 of a report. The timescale in that case could be used as an indication of what might reasonably be expected in the present case. By contrast the respondents did not refer to any other case where the delay between the close of the inquiry and the determination approximated three years, being the time taken by the Reporter to issue the first draft of Part 1, far less a period close to four years being the time taken to submit her report to the respondents and certainly not a period in excess of five years, being the time which has now elapsed since the close of the inquiry.

[12] In all the circumstances I am of the opinion that the petitioners had a legitimate expectation that the respondents would determine the application within a reasonable time. What amounts to a reasonable time in any case depends upon the particular circumstances of the case, including its complexity, the length of the public inquiry at which evidence was led, and a variety of other factors including, in this case, illness of the Reporter and the change of administration following upon Devolution. Nevertheless, even allowing for these special factors, the delay in this case was of scandalous proportions and the respondents have failed to determine the application within a reasonable time. The delay on the part of the Reporter after the close of the inquiry on 6 June 1995, even allowing for her illness, was in itself unreasonable as was the delay following 29 April 1999. However, the cumulative effect of both periods of delay resulted in the failure of the respondents to meet the reasonable expectations of the petitioners that their application would be determined within a reasonable time by the respondents. In all the circumstances I have concluded that by their said failure the respondents have acted unfairly from a procedural point of view. For that reason I shall grant the declarator sought that the respondents are in breach of their statutory duty by their said failure.

Reference to SNH

[13] The petitioners also seek a declarator that the decision of the Minister to refer to SNH the question of whether any part of the application area should be proposed as a cSAC was ultra vires. There are a number of different issues raised in this context and I propose to deal with them in turn.

Procedural impropriety

(i) Partiality

[14] It was accepted by counsel for both parties that as far as partiality is concerned the test within our jurisprudence is the same as in European jurisprudence. In the course of his submissions on this aspect of the case, junior counsel for the petitioners referred to the Minister's alleged membership of Friends of the Earth. This was not foreshadowed in the petition and therefore the respondents had no opportunity to answer this allegation. In view of the potential significance of junior counsel's statement I enquired whether he intended to develop an argument based upon R v Bow Street Metropolitan Stipendiary Magistrates and Others ex parte Pinochet Ungarte (No.2) 1999 1 All. E.R. 577 but was advised that the petitioners disavowed any such argument. Moreover, counsel stated that no reliance was placed upon the Minister's alleged membership of that organisation. In these circumstances I have disregarded this matter although I am at a loss to understand why any reference to this matter was made, particularly in the absence of any averment in what is a particularly detailed petition.

[15] The thrust of the submissions on behalf of the petitioners was that it was ultra vires of the Minister to refer the classification of the application site to SNH for advice in the context of a planning application where SNH had been the principal objectors. The objection to the involvement of SNH at this stage was compounded by the presence on the main board of SNH of Mr Michael Scott and Mr Kevin Dunion, both of whom gave evidence on behalf of objectors at the inquiry, and Mr Dunion's recent public statement in opposition to the application.

[16] The submissions on behalf of the respondents concentrated upon the terms of the Minister's statement (No. 11/2 of process) and more particularly upon the terms of the letter dated 12 July 2000 to SNH (No. 6/4 of process). It was submitted that the tone, tenor and neutral language of the letter resulted in a construction which negated any hint of prejudice.

[17] While I have some sympathy with the submission on behalf of the respondents as far as the tone, tenor and neutral language of the letter is concerned, I have concluded that the reference to SNH in the circumstances of this case conveys the appearance that they will not bring an impartial judgment to bear on the matter. They were instrumental in persuading the Secretary of State for Scotland to call in the application, thereafter they attended the inquiry as the principal objectors to the grant of planning permission and two of its present board members gave evidence on behalf of other objectors. Since the close of the inquiry, Mr Dunion has made public statements as recently as 12 July 2000, from which it is clear that he remains opposed to the grant of planning permission. As will be apparent from my observations when I consider the question of irrationality, it is essential to distinguish between the respondents' obligations in terms of the planning legislation and their obligations under the Directive. The objection to the reference to SNH must be seen as being confined to the planning process. Having regard to the history of the involvement of SNH in the application and subsequent planning procedures and of Mr Scott and Mr Dunion it must appear to the petitioners that in the context of the planning process SNH cannot bring an impartial judgment to bear upon the matter and justice would not be seen to be done. It is well settled in our law that the appearance of injustice is as offensive as the reality. In that regard I would refer to R v Kent Police Authority and Others ex parte Godden 1971 2 Q.B. 662. In my opinion this is sufficient to justify a declarator that the Minister has acted ultra vires. However, I should also deal with a supplementary submission relating to another aspect of alleged procedural impropriety.

(ii) Contravention of the Rules

[18] The other aspect of procedural impropriety relied upon by the petitioners relates to an interpretation of the Rules. The Rules govern the procedure prior to, during and after the inquiry. Rule 12(3) regulates the procedure where the Minister differs from the Reporter on a finding of fact or wishes to take account of any new evidence. It was submitted that the necessary procedure had not been followed in this case. The response on behalf of the respondents was that it is clear from the Parliamentary answer that the Minister required further information and had not reached the stage of disagreeing with the Reporter.

[19] Having considered these competing submissions I am of the opinion that although there is no specific provision in the Rules for the Minister to undertake investigations, it is not unreasonable for her to cause inquiry to be made to inform her decision as to whether she disagrees with findings in fact. Accordingly had the alleged contravention of the Rules been the only basis upon which procedural impropriety was alleged, I would not have concluded that the Minister was acting ultra vires.

Irrationality

[20] Counsel for the petitioners also submitted that the decision of the Minister was irrational and accordingly ultra vires. In considering this particular aspect of the case it is essential, in the context of the Minister having a number of different responsibilities, to determine the purpose of the reference to SNH. In this regard counsel for the respondents emphasised that the Environment Department of the Scottish Executive (hereinafter referred to as "the Environment Department") was separate from and operated independently of the Planning Department, even although the Minister was responsible for both functions. Officials within the Environment Department were responsible for advising the Minister on the implementation of the Directive. They had no interest in the planning process associated with the application. Although officials in the Environment Department had seen and checked the factual accuracy of the environmental section of Part 1 of the Report, they had no other involvement in the consideration by the Minister of the application.

[21] The first question to be considered thus becomes one of whether the reference to SNH by the Minister was solely connected with the fulfilment by the Minister of her obligations under the Directive. If the answer to that question is in the affirmative, I consider that it cannot be maintained that the reference was irrational. In determining this question a number of issues required to be considered. In the first place, what significance is to be attached to the departure in this case from the normal procedure for the identification of cSACs. I am of the opinion that there is nothing improper or irrational in the Minister's departure from the procedure normally followed in the identification of cSACs. Although the initiative is usually taken by SNH in evaluating sites and identifying possible cSACs for submission to the Minister for her consideration as an initial step in the process, it would be unreasonable to preclude a third party, including the Minister, from suggesting sites to SNH for evaluation which the third party considered to be significant. In the present case the Minister was aware that the Commission's view that the deficiency in the sites submitted by the United Kingdom and other Member States is related to the under-representation of certain botanical species. The Minister was also aware that some of these species are present on the application site and that the Reporter concluded that the bryophyte flora are of national and international importance. In these circumstances it would be totally unrealistic to expect the Minister to refrain from asking SNH to include this site for the purpose of its evaluation of potential cSACs. Indeed it might even be argued, with some merit, that if the Minister did not refer the matter to SNH she would be failing in her duty under the Directive.

[22] The second question to be considered is whether the Minister could have determined the planning application without preventing her from considering the classification of the site as a cSAC. Obviously if planning permission were refused by the Minister, she would not be precluded from considering whether the site or any part thereof should be proposed as a cSAC. The issue thus becomes whether the grant of planning permission would preclude the subsequent classification of the site as a cSAC. It was conceded by counsel for the respondents that from the point of view of the protection of the site there would be no prejudice in granting planning permission. In my opinion that concession was appropriate and could not properly have been withheld particularly when it is appreciated that following the grant of planning permission there would be a period of about four years before any development of the site can proceed. That period is required to enable the petitioners to obtain other licences and permissions associated with ancillary works outwith the application site. The Minister could also utilise that period to enable advice to be obtained concerning the need to classify the site as a cSAC. If the site were ultimately classified as a cSAC following the grant of planning permission, Regulation 50 of the Regulations provides for the review of planning permission as soon as reasonably practicable after the date on which the site becomes a European site. In order to secure the protection of a cSAC, planning permission may be revoked or modified in terms of sections 65 - 69 inclusive of the 1997 Act. Section 76 of the 1997 Act provides for the payment of compensation when planning permission is revoked or modified. Thus the scheme of the Regulations and the 1997 Act envisages the grant of planning permission for a site which later becomes a cSAC. In that situation the cSAC would be protected from development by the revocation or modification of planning permission. The provisions for compensation ensure that all the legitimate interests are balanced and appropriate protection is given to each of these interests. In these circumstances there is no need in the present case to defer the determination of the planning application pending advice from SNH as to whether the site should be proposed as a cSAC. If Parliament had considered that to be a proper approach, the Regulations could have been framed accordingly. I also consider that if the deferral of the decision on the application is to secure the avoidance of a potential liability to pay compensation, that is an improper consideration in the context of the Regulations and the statutory provisions to which I have referred.

[23] It is clear from a fair reading of the Minister's statement (No.11/2 of process) that the Minister intends to defer determination of the application pending receipt of advice from SNH about the inclusion of the site as a cSAC. I have reached the conclusion that there is no justifiable reason to defer consideration of the planning application pending the receipt of such advice. If the site merits such a designation and the protection following such a designation that can be achieved before any planning application is implemented. In all the circumstances I am of the opinion that the decision of the Minister is irrational and as such is ultra vires.

Article 6

[24] The petitioners also seek a declarator that the respondents have acted in breach of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as "the Convention"). Counsel for the respondents invited me to conclude that Article 6 did not apply because there is no dispute or "contestation" as to the petitioners' civil rights and obligations and that until the respondents determine the application it could not be asserted that there will be a "contestation". It was accepted by counsel for the respondents that if Article 6 applied in this case, the European jurisprudence is the same as our own jurisprudence in relation to partiality.

[25] The petitioners have a heritable right in the form of a 99 year lease of the site and have indicated a willingness to enter into an agreement in terms of section 75 of the 1997 Act, formerly section 50 of the 1972 Act. They also have the right to anorthosite and other minerals on the site. These property rights of the petitioners are clearly a civil right within the meaning of Article 6(1) of the Convention. Reference is made to the opinion of the Commission in Bryan v United Kingdom (1995) 21 E.H.R.R. 342 at p.351 para.38.

[26] The only remaining question is whether the call in of the application by the respondents and the resulting proceedings can be described as being directly concerned with the way in which the petitioners may use the land in which they have an interest. Counsel for the respondents accepted that if the local planning authority had refused the petitioners planning permission, any appeal to the respondents in terms of the planning legislation would constitute a dispute about the petitioners' civil rights and obligations and the planning appeal would be governed by Article 6(1). Similarly in terms of Bryan v United Kingdom, if the petitioners proceeded to develop the superquarry without planning permission and appealed against any enforcement notice served upon them, such appeal proceedings would be proceedings which determined a civil right in terms of Article 6. In either of these circumstances the petitioners would be entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. It is difficult for me to comprehend why in that situation the present proceedings before the respondents should be treated in any different manner. The approach of the respondents' counsel was, in my opinion, unduly restrictive. If an appeal against a refusal of planning permission is protected by Article 6, it seems astonishing that the proceedings resulting from the call in of an application which WIIC was minded to grant should be afforded any less protection. It is even more astonishing when one recalls that the procedure adopted in respect of applications called in for determination by the respondents is identical to the procedure in appeals against refusal of planning permission and appeals against the serving of enforcement notices. I am of the opinion that there is a dispute about the exercise of the petitioners' civil rights, evidenced by the desire of the local planning authority to grant the petitioners the necessary planning permission and the call in by the respondents of the application for their determination after a public local inquiry. Moreover, the consideration of objections to the grant of planning permission and the hearing of evidence from witnesses in support of and against the application clearly points to the existence of a dispute. I have concluded that the submissions for the respondents should be rejected and that Article 6 is applicable in the present case.

[27] Having regard to my conclusions concerning the delay in this case, and to Santilli v Italy (1991) 14 E.H.R.R. 421, I am of the opinion that there has been a breach of Article 6(1). In addition, having regard to the views which I have already expressed about partiality, I have concluded that there is also a breach of Article 6(1) in that regard. Accordingly I shall pronounce the declarator sought that the respondents are in breach of Article 6 of the Convention.

Result

[28] I was advised by senior counsel for the respondents that it would be sufficient for me to pronounce declarators to secure a decision from the Minister within a reasonable time. Upon being pressed concerning the meaning of "a reasonable time" in this context, senior counsel was unable to be more precise other than to assure me that the Minister and her officials were aware that the timescale contemplated by me was of the order of 21 days from the date of my interlocutor. In these circumstances I consider that it is unnecessary for me to pronounce any further order at this stage to secure a determination of the application by the respondents. I shall accordingly pronounce a declarator (1) that the respondents are in breach of their statutory duty by failing to determine the application within a reasonable time; (2) that the decision by the respondents to refer the classification of the site to SNH for advice in the context of the determination of the planning application was ultra vires and (3) that the respondents have acted in breach of Article 6 of the Convention in respect of the delay in determining the application and the reference to SNH in the context of the planning process.

 

24 October 2000

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