This is an early draft of [2005] 2, Environmental Law Review, p. 85. Please refer to printed article.

PLANNING DELAYS, HUMAN RIGHTS AND DAMAGES

By Dr Jean-Jacques Paradissis*

According to the latest figures released by the Government,[1] in the first 9 months of 2004, 76% of all planning applications submitted to district planning authorities have been determined within the statutory 8 weeks period provided for in s. 78(2) of the Town and Country Planning Act 1990 (TCPA 1990).

Although this figure is much higher than the 1994 one of 65%, it still is a fact that the determination of almost one third of all planning applications is subject to delays beyond what the letter of the law permits.

Of course, when the statutory 8-week period for a determination of a planning application has passed (or for applications which are accompanied by an Environmental Impact Assessment the 16 week’s period), then section 78(2) of the TCPA 1990 provides that the applicant can appeal to the Secretary of State against this deemed refusal. However, in practice in such cases of non-determination of planning applications this remedy offers little solace, as usually appeals take several months to be decided and there is then no statutory period within which the Secretary of State must reach a decision.

This situation is doubly unsatisfactory. First, because this creates uncertainty in the total length of the planning process, and second, because it might lead to a breach of the applicant’s human rights. According to article 6 of the European Convention on Human Rights (ECHR) “In the determination of his civil rights and obligations … everyone is entitled to a fair and public hearing within a reasonable time”. It is now established case-law of the European Court of Human Rights that administrative proceedings for obtaining planning permission do fall within the scope of this article.[2] Section 6 of the Human Rights Act 1998 (HRA 1998) makes it unlawful for any public authority to act in a way that is incompatible with ECHR rights and section 8 of the same Act creates what is virtually a new public law tort of damages for breaches of human rights.

Thus, when the planning process takes too long, beyond the “reasonable time” permitted by article 6 of the ECHR, then liability in damages might arise on the basis of the HRA 1998.

There are two British cases in which it was held that long delays in the planning process can amount to a breach of article 6 of the ECHR, but no damages were awarded.

First, in the Court of Sessions case of Lafarge Redland Aggregates Ltd v Scottish Ministers[3] the court found that a 9 year delay in determining a called-in planning application by the Scottish Ministers (now the Scottish Executive) was of “scandalous proportions” and that article 6 of the ECHR was applicable and had been breached because the planning application had not been determined within a reasonable time, even if one took into account the special factors of this case that led to delays. The Court did not award damages but issued a declaration that the ECHR had been breached.

Second, in the High Court case of UK Coal Mining Ltd v the Secretary of State for Local Government, Transport and the Regions[4] Ouseley J. held that a 4 year delay in determining a planning application called-in by the Secretary of State was so long as to amount to a breach of the applicant’s human rights under article 6 of the ECHR. The court held that “first in the notable absence of a specific explanation as to why the process took so long despite the point clearly being raised well in advance of the hearing, second in view of the fact that the Inspector's report distilled matters within a short space of time in a not particularly complex case even with the two consultations, I consider that the delay was inordinate, unreasonable and involved a breach of the human rights of the claimant “.[5] However, the court did not grant a quashing order on this ground as the judge accepted that it would have been pointless in these circumstances. Instead, the court held that in similar situations, there would be a sufficient remedy to the claimant if the judgement recorded that the human rights of the applicant had been breached by virtue of the excessive time taken by the Secretary of State to reach a decision.

The problem with these two British cases, is that although they go in the right direction of recognising a violation of human rights whenever planning delays are so long as to amount to a violation of the “reasonable time” requirement, no award of damages was made, because the plaintiffs had not made such a claim. Nevertheless, as explained before, this is now possible under section 8 of the HRA 1998. Also, according to section 8(4) of this Act, in determining whether to award damages and the amount of any award, the courts must take into account the principles applied by the European Court of Human Rights (ECtHR) in relation to the award of compensation for ECHR breaches.

The recent ECtHR case of Urbańczyk v. Poland[6] seems to indicate how an award of damages will now have to be made by UK courts when faced with planning delays that breach human rights. In this case, the ECtHR found that the length of the proceedings for obtaining a building permit in Poland (6 years), was excessive and did not satisfy the “reasonable time” requirement of article 6. It is important to note that the ECtHR accepted that the period to take into consideration when assessing the reasonableness of planning procedures is the time when the applicant submitted a request for a final building permit at the competent local authority.[7]

The ECtHR held that in assessing the reasonableness of the length of proceedings, they “must be assessed in the light of the particular circumstances of the case and having regard to the criteria laid down in the Court’s case-law, in particular the complexity of the case and the conduct of the applicant and of the relevant authorities”.[8] The Court then found that the applicant had suffered non-pecuniary (moral) damages on account of the length of the planning proceedings and awarded him on an equitable basis 5,000€ as compensation. Non-pecuniary damages are assessed by the Court on a case by case basis so as to award a compensation that would be just taking into account all of the circumstances of the case, in accordance with article 41 of the ECHR which provides that the “Court, shall, if necessary, afford just satisfaction to the injured party”. It should be noted that in some cases the ECtHR has held that the finding of a violation of the ECHR might in itself constitute “just satisfaction” and has refused to award any further damages. In the present case, the ECtHR did not award any pecuniary damages, as it found no causal link between the damage sustained and the human rights’ violation. The ECtHR also awarded the costs of the applicant.

In conclusion, these three similar cases demonstrate that today applicants for planning permission who face excessive and unreasonable planning delays are not left without remedy, as was the case before the coming into force of the HRA 1998. It seems from what has been demonstrated above, that they can now, using section 8 of the HRA 1998[9] and in the light of the latest case law of the ECtHR, bring proceedings against planning authorities and seek damages for unreasonable planning delays. It would also be interesting to observe whether such a threat speeds up the decision-making process.

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* Associate Lecturer, Department of Law, University of Surrey. The author would like to thank Rosalind Malcolm for her assistance.

[1] See Planning applications July to September 2004, http://www.odpm.gov.uk/stellent/groups/odpm_planning/documents/page/odpm_plan_033359.hcsp

[2] See the case-law referred in R. (on the application of Alconbury Developments Ltd) v. Secretary of State for the Environment, Transport and the Regions, [2001] JPL 920 (HL) and also the ECtHR case of Urbańczyk v. Poland discussed below.

[3] [2000] S.L.T. 1361 (OH)

[4] [2001] EWHC Admin 912

[5] Ibid. at par. 15.

[6] Application no. 33777/96, 1/9/2004.

[7] Ibid. see par. 33 and par. 59. However, the Court did not take into account the period starting after this date, but only the period after the date on which Poland ratified the declaration recognising the competence of the ECtHR to hear individual applications for breach of ECHR rights.

[8] Ibid. at par. 69.

[9] For the correct procedure to be followed in damages claims arising under the HRA 1998 and on how damages have to be assessed under this Act, see the Court of Appeal case of Anufrijeva and another v Southwark London Borough Council; R (on the application of N) v Secretary of State for the Home Department; R (on the application of M) v Secretary of State for the Home Department, [2003] EWCA Civ 1406.