Adlard and others v. S/S Transport Local Government and the Regions (1); LB Hammersmith and Fulham (2); Fulham Stadium Ltd. (3)

Transcript date:

Thursday, January 17, 2002

Matter:

Court:

High Court

Judgement type:

Substantive

Judge(s):

Collins J

Case No: 1934/2001

Neutral Citation Number: [2002] EWHC 7 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEENS BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand,

London, WC2A 2LL

Thursday 17 January 2002

B e f o r e:

THE HON. MR JUSTICE COLLINS

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The Queen on the Application of:

William ADLARD Claimant

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Secretary of State for the Environment, Transport & The Regions Defendant

(1) Fulham Stadium Ltd. Interested Parties

(2) LB of Hammersmith & Fulham

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(Transcript of the Handed Down Judgment of

Smith Bernal Reporting Limited, 190 Fleet Street

London EC4A 2AG

Tel No: 020 7421 4040, Fax No: 020 7831 8838

Official Shorthand Writers to the Court)

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Mr. R. H. J. McCracken & Mr. G. Jones (instructed by Richard Buxton, Solicitors for the Claimant)

Ms Natalie Lieven (instructed by The Treasury Solicitors for the Defendant)

Mr. Tim Straker Q.C. & Mr. A. Tabachnik (instructed by Linklaters, Solicitors for the First Interested Party)

Mr. K. Lindblom Q.C. & Mr. Russell Harris & Mr. Craig Howell Williams (instructed by the LB Hammersmith & Fulham Legal Department for the Second Interested Party).

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Judgment

As Approved by the Court

Crown Copyright ©

Mr Justice Collins:

1. This claim attacks the refusal by the Secretary of State to call in and to set up a public inquiry to consider applications for planning permission and listed building and conservation area consents which the local planning authority, the London Borough of Hammersmith and Fulham (LBH), have decided in principle to grant. The effect of the Secretary of State 's refusal is to permit the grants to be made and so the proposed development can go ahead. The development in question involves the demolition and rebuilding of the Fulham football ground to increase its capacity and to include housing. Although a claim against the LBH was threatened, it has not materialised. However, both the LBH and Fulham Stadium Limited, the applicants for planning permission and the consents, have properly been served as interested parties and have appeared by counsel before me.

2. There are 11 claimants. Most of them live near to the football ground and will, they say, be adversely affected by the proposed development. In particular, their use and enjoyment of their homes will be seriously damaged. Six of the claimants are members of the Fulham Alliance, an umbrella group for local residents concerned about the development which has been very active in putting objections to the proposals before the LBH. Others have a particular concern about the impact of the proposed development on the River Thames, both in respect of the wildlife which take advantage of it and its use for recreational purposes. There is also concern about the impact of the development both visually and in terms of traffic congestion and parking problems likely to be caused by the increased number of fans going to matches at the ground beyond the immediate vicinity and beyond the boundary of the LBH.

3. The ground was opened in 1896. By then, there had been considerable residential development in the area. In 1905, the stand on Stevenage Road, which is listed Grade II as an early surviving example of a football grandstand, was constructed together with a building known as Craven Cottage (which gave its name to the ground itself) which contained changing rooms, a flat and a director's balcony from which matches could be viewed. Craven Cottage is also listed Grade II. The ground itself is in the Fulham Reach Conservation Area, one of a number of contiguous conservation areas along the banks of the River Thames. As is perhaps obvious, the site is hardly ideal for a football club which aims to attract a large number of fans and plays in the Premier League. It is surrounded by houses, mainly late Victorian and Edwardian two storey terraced and semi-detached and modern blocks of flats. To the south of the ground is Bishops Park, a large public park extending to Putney Bridge the other side of which is the nearest underground station. Buses run along Fulham Palace Road, which runs from Putney Bridge to Hammersmith Broadway. Putney Bridge station is some 15 minutes and Hammersmith Broadway some 25 minutes walk from the ground. The houses do not on the whole have garages and so residents depend on street parking which is limited. On match days, it is almost impossible to park a car within the immediate vicinity of the ground and so walks of 2 kilometres or more will be necessary for most who choose to travel by car to the ground. However, Craven Cottage has been the home of Fulham Football Club for well over 100 years and its departure would create a major change in the area and constitute what many would regard as a real loss. Indeed, the retention of the Club at Craven Cottage is regarded as of considerable importance in terms of both planning policy and the benefit it brings to the community in economic and other ways.

4. In 1989 the site was acquired by a property development company which applied for permission for a development that would have meant that it ceased to function as a football ground. Prior to that in the 1990s various applications which would have upgraded the ground and involved housing and office development were refused. The LBH decided to acquire the site compulsorily and to put forward its own proposals for development which would retain the ground. There was a public inquiry to consider the Compulsory Purchase Order and the development proposals by the Council and by the property development company. All applications were refused. Following this, in January 1991 the LBH approved a set of planning guidelines, pending a Unitary Development Plan (UDP), which included the retention of the listed buildings in association with what was described as an appropriate field-based spectator sport.

5. In 1992 the deposit version of the UDP included a specific policy requiring retention of the listed buildings, use of part of the site for spectator sports, residential use of the remainder of the site and (by a subsequent addition) the provision of a Riverside walk. In June 1992 there was a public inquiry following the LBH's refusal of planning permission and listed building consent for a development which included the demolition of the Stevenage Road stand and alterations to Craven Cottage. The development was largely residential and included a Riverside walk. The appeal was dismissed on the ground that, although it would generally enhance the appearance of the conservation area to demolish the unsightly buildings and the floodlighting towers, the removal of the listed buildings could not be justified. Following a public inquiry held between January and March 1993 at which arguments very similar to those raised at the earlier inquiry in June 1992 were deployed in relation to the football ground, the UDP was adopted in December 1994. It included Site Policy 19, which reads: -

"(a) Retention and enhancement of listed buildings in association with football or other spectator sport or entertainment as appropriate in the location;

(b) Provision of a public Riverside walk with links inland as appropriate;

(c) Residential development reasonably necessary to enable the achievement of these objectives and in accordance with normal housing and environment policies."

As is made clear in the UAP, the site was considered to contain a rare group of listed buildings and there was need for a use (preferably the sports use for which they were defined) that would preserve them largely intact and in an appropriate setting.

6. Meanwhile, in March 1994 Fulham Football Club submitted an application for planning permission and listed building consent which involved in its final form retention of the listed buildings, the erection of substantial buildings on the three other sides of the ground to provide all-seater accommodation for 15,000 spectators and 142 residential units. A Riverside walk was part of the proposals. In June 1995 the Council resolved to grant permission subject to conditions but the Secretary of State exercised his powers to call in the proposals. His powers in that respect are set out in Section 77 of the Town and Country Planning Act 1990 as amended. So far as material, that reads: -

"(1). The Secretary of State may give directions requiring applications for planning permission ... to be referred to him instead of being dealt with by local planning authorities.

(2). A direction under this section -

(a) may be given either to a particular local planning authority or to local planning authorities generally; and may relate either to a particular application or to applications of a class specified in the direction".

S. 77(5) requires that there should be an inquiry if either the applicant or the local planning authority so wish following a call in direction. Applications for listed building and conservation area consents are included within this call in power; Planning (Listed Buildings and Conservation Areas) Act 1990. S.12. Local Planning Authorities must notify the Secretary of State of applications which they do not propose to refuse which are not in accordance with the relevant development plan and which include more than 150 houses or flats or more than 5000 square metres of gross leisure floor. In addition, the Secretary of State may decide to exercise his powers following representations made by interested parties. In a letter dated 9 August 1995 directing a call in, the Secretary of State said this: -

"2. On the information before him, the Secretary of State is of the opinion that the application is one which he ought to decide himself in order to assess the proposed housing density impact on car parking in the area and the impact of the proposed development on the River Thames".

Following a public inquiry, the Secretary of State decided in August 1996 to grant permission. That decision was challenged by Lady Berkeley, one of the present claimants. The proposals included a riverside walk on an embankment which would encroach on the river and would, according to a body of expert evidence, adversely affect the wildlife of the river. There was no environmental impact assessment and the question whether there should be provision of such an assessment had not been properly considered by the Secretary of State. Lady Berkeley eventually won her case in the House of Lords on 6 July 2000 (see Berkeley v Secretary of State for the Environment [2000] 3 W.L.R. 420) and the grant of permission was quashed.

7. In March 2000 the present applications were submitted. They involved the erection of a 30,000 all-seater stadium with ancillary facilities, a new riverside walk and a 7-storey apartment block containing 30 residential units. The existing buildings, including the listed buildings save for the brick façade to the Stevenage Road stand, were to be demolished. In October 2000, the scheme was modified in that the residential block was lowered to 5 storeys and the units reduced to 16 and there was some reduction to the proposed length of the building. There were some modifications to the design of the riverside walk. The application had been accompanied by a full environmental statement which was supplemented in October 2000. That statement was submitted for review and grading to the Institute of Environmental Management and Assessment and overall it was considered to be a good statement, containing only minor omissions and inadequacies (which were identified), and in some respects was excellent. In addition, the LBH gave the proposals extensive publicity and carried out comprehensive consultation. That exercise was also carried out in relation to the similar proposal lodged in July 1999. This was overtaken by the March 2000 applications largely because the LBH in September 1999 required the applicants to produce an Environmental Impact Assessment which was to and did include the following: -

"(i). The impact of the physical scale of the development in relation to surrounding land uses and occupiers.

(ii) The impact of the use of development on match days, including how other uses within the site operate during that time, how people would arrive at and depart from the site and the impact and extent this would have on the surrounding area including adjoining Boroughs, in terms of noise, disturbance, litter and transport (including issues such as traffic generation, on and off street parking, existing/potential public transport provision, pedestrian movements etc). Also any additional impact connected with the emergency evacuation of the stadium.

(iii) The impact of the use of the development on non-match days, the type, frequency and hours of use of all the proposed activities and the numbers likely to be involved and the impact of this on the surrounding area in terms of noise, disturbance, litter and transport.

(iv) The impact of the development on the historical and architectural interest of the remaining listed buildings, the character and appearance of the conservation areas and the justification for the demolition of the listed buildings. The impact of the development on Bishops Park as a landscape of historical/cultural/archaeological interest.

(v) The impact of the development on the ecology of Bishops and Stevenage Park.

(vi) The impact of the development on the archaeology of the application site which includes the foreshore of the River Thames.

(vii) The visual impact on the development on the River Thames from the river, from riverwalks on both banks, from Hammersmith and Putney Bridges and from other points across the river.

(viii) The impact on the ecology of the River Thames.

(ix) The impact of the development on the hydrology and flood defences of the River Thames.

(x) The impact of the development on the recreational, leisure and commercial uses of the River Thames.

8. The responses to the consultation exercises are summarised in the very full and detailed report which was prepared for the Committee which considered the applications on 27 February 2001. It runs to 115 pages together with a further 191 pages of annexes. Annex 2 (145 pages) contained the consultation responses which were summarised in the body of the report in Annex 1. It is not nor could it be suggested that the report failed fairly to identify the objections which had been put forward or to set out all relevant considerations which the committee must take into account, including the fact that the proposals were not in accordance with the UDP in the respects to which I have already referred. The report recommended that the applications should be approved and planning permission granted subject to a satisfactory s.106 agreement and to a number of conditions to ensure that there should be as much compliance as possible with the relevant policies in the UDP and that the adverse impact of the development on local residents should be kept as small as possible. In particular, it was proposed (and the committee agreed) to include the following conditions:-

"7. The stadium's primary purpose shall be for the playing and watching of Association Football and the playing area and terracing and seating overlooking the playing area shall only be used for the following purposes: -

(a) The home matches of only one professional club for the playing of Association Football.

(b) Events within Use Class D2(e) for children and educational establishments.

To ensure that the development does not result in conditions prejudicial to the amenities of the surrounding area from additional traffic, noise and disturbance which may be generated by the development contrary to UDP policies. EN21, TN14 and TN15 as a consequence of more frequent crowd-generating or noise than one club's football matches.

9. On non-match days the total number of patrons using all the facilities of the stadium shall not exceed 150 at any one time unless it is for an event under Use Class D2 (e) for children and educational establishments".

There were other conditions (such as a prohibition use of the stadium between 11pm and 9 am and that the restaurant must only be used as such and the café must not be used after 8pm except on match days) which were designed to keep disturbance to a minimum, including restrictions applicable to the demolition and construction involved.

9. It is to be noted that there were a large number of responses which supported the applications. Overall in terms of numbers more responses in support were received than in opposition. However, many letters in support were what are described as standardised. But it is clear that there is considerable support for the proposals as well as objection to them. Furthermore, it is important to bear in mind that the development will not bring a new football ground to a residential area where none existed before. Those who live nearby either came to or have spent all their lives close to a football ground which, depending on the future of the club, has attracted a more or less substantial number of fans. The problems of parking and congestion on match days have always existed. In addition, there have been recent concerns, reflected in correspondence, about the loutish behaviour of fans which has intimidated local residents and which the police have not seemed either willing or able to control. One of the matters to be covered by the s.106 agreement involves the installation of CCTV in the streets immediately adjoining the stadium. It is convenient to set out the brief summary of the matters raised against and in support of the proposals. These are in Paragraphs 4.13 to 4.15 of the officer's report, which read:-

"4.13. The main representations put forward by objectors are: -

(i) The demolition of the listed buildings, involving the loss of Craven Cottage in its entirety and the demolition of all but the façade of the Stevenage Road stand is unacceptable and unjustified.

(ii) The scale and design of the Stadium is unacceptable in relation to the site and the surrounding area.

(iii) The proposals would fail either to preserve or enhance the character and appearance of the conservation areas within the site lies and adjoins. The site lies within the Fulham Reach Conservation Area and adjoins the Bishops Park and Crabtree Conservation areas.

(iv) The height, massing and visual appearance of the proposal, because of the site's prominent position on the River Thames, would have an unacceptable impact.

(v) The development would be detrimental to residential amenity by reason of its visual impact, traffic generation and associated affects upon air quality.

(vi) The proposed development is contrary to UDP policies, particularly Site Policy 19.

(vii) The highways impact on the proposals would be unacceptable. The use of the existing stadium puts pressure on the highway network and upon parking. The redevelopment proposals have the potential to more than double the attendance. The impact of the additional cars would be felt in Fulham and outside the Borough. There would be 26,000 HGV movements during the construction period which would adversely impact on residential amenity and highway network.

(viii) The public transport system would be incapable of adequacy catering for the increase in passenger movements.

(ix) The development would severely prejudice the function of the River Thames as an ecological resource and as a recreation facility.

(x) The stadium might become a "white elephant" if the football club either fail to achieve promotion to the Premier League or fail to maintain Premier League status if promotion is attained.

(xi) The applicants have failed to consider all alternatives to the proposals, including the feasibility of the football group being redeveloped as a phased programme which would have different environment impacts.

(xii) The need case for a new stadium of 30,000 capacity has not been proven nor has the need for the housing block.

(xiii) There would be unacceptable encroachment on to the River Thames which is public open space and should be protected from development. Any development should be contained within the site.

4.14 Additionally objectors criticised the Environment statement. They contend that it is deficient in its assessment of a number of key issues including highways and transportation, Impact on the river and consideration of alternatives.

4.15 The main points made by supporters of the development are as follows:

(i) The proposal would be an improvement visually over what is on the site at present.

(ii) The stadium has to be brought in line with safety requirements and football guidelines and this is an opportunity to provide a well designed and up to date new stadium.

(iii) It is important to retain the club on the site as it is part of the Borough's heritage.

(iv) The development would introduce a valuable new section of river walk and enhanced river views.

(v) The football club makes a significant contribution to the local community and the development would enable this contribution to continue and to be enhanced by securing Fulham Football Club's future at its historic home.

(vi) The development would bring employment to the area".

10. The Fulham Alliance had submitted a fully reasoned objection to the proposals through expert advisers. There was a further reasoned objection from Thamesbank, which dealt with the social and environmental damage which would be caused by the proposals, particularly to the River Thames. The Fulham Alliance document made the point that it was ‘not convinced that the football club have fully explored the possibility of pursuing a smaller all seater stadium, for example accommodating 20,000 - 25,000 spectators'. The present capacity of the ground is 25,000, but that is because it is not all seat and it will not be approved by the Football Association unless it is. That follows the recommendations made in the Taylor Report on the Hillsborough disaster. Fulham Stadium Ltd. assert that a ground with a capacity of 30,000 is the minimum which will be financially viable in the long term. In the report, the officers have said that they are not convinced of this or that a development with a smaller capacity ground would necessarily mean that the Club would not have a future. But they say in Paragraph 15.22:-

"What is apparent is that, if the proposed stadium were built, Fulham Football Club would be likely and probably more likely to remain on its historic site into the foreseeable future. Additionally, it is likely that the existence of the new stadium would contribute towards future sporting success though, of course, it would in no way guarantee it""

11. The meeting of the Committee on 27 February 2001 attracted a full house: some 600 people apparently attended it. There were complaints made that the Committee seemed to have made their minds up in advance and that objectors were not able to make any representations. English heritage, whose views on the listed buildings consent were of great importance, had stated that their support for the proposal:-

"... has been and continues to be made on the basis that the Council shall have properly satisfied itself that the size and capacity of the proposed stadium is the minimum to ensure the viability of the Football Club development and the provision of the benefits referred to in the supporting documentation".

At the meeting, the Assistant Director (Development Services) told the Committee that the officers had concluded that, because of the intangibles surrounding the financing of football clubs and a scheme such as the one proposed, it was most unlikely that any conclusive evidence could ever be forthcoming. Officers, he said, therefore took the view that notwithstanding the qualification contained in the English heritage letter, the visual, historic and aesthetic qualities of the proposals remained unchanged and the recommendations to approve the applications should stand. There can be no doubt that English Heritages' concerns were properly put before the Committee which was, in the exercise of its judgment, entitled to decide that the scheme could nevertheless be approved.

12. So far as the complaints about an inability to make representations at the meeting are concerned, it is said by LBH that standing orders prohibited oral representations and that no application was made to dispense with standing orders. It seems likely that such an application could not have been made. But whether or not it could is in my view immaterial since no challenge is made to the manner in which the LBH dealt with the applications. As I have said, the only decision in issue is that of the Secretary of State not to call in the applications. He is not an alternative to judicial review in the sense that he should consider such matters as alleged procedural improprieties in deciding whether to exercise his call in powers. In any event, the objectors had submitted full written representations. Procedural propriety does not require that oral representations must be permitted: see R(Vettorlein) v Hampshire County Council CO/0253/2001 14.06.01 per Sullivan, J.

13. Following the meeting, the Fulham Alliance wrote a long letter to the Secretary of State dated 28 February setting out its case against the proposals and asking him to call in the application. On 15 March the claimant's solicitor, Mr. Richard Buxton, wrote a letter stating that his clients expected that the applications would be called in because the normal criteria for call in ‘in terms of being of more than local importance etc' were met. He also drew attention to the previous call in decision, stating:-

"it seems to us beyond argument that if it was thought right to give the opportunity for objectors to be heard previously, then our client and other local people are entitled to the same opportunity in relation to the new application and proper decision-making process".

On 28 March the Secretary of State replied saying that he had decided not to call in the application. The letter continued: -

"The Secretary of State's policy on call-ins is to be very selective. It is right that in almost all cases the initial decision on whether a development should proceed should be taken by the local planning authority.

Therefore, planning applications are in general only called-in if planning issues of more than local importance are involved, and if those issues need to be decided by the Secretary of State rather than at local level. Each case is considered on its individual merits. However, we have given as examples of cases where the Secretary of State might consider call in appropriate those which, in his opinion, may conflict with national policies on important matters; could have significant effects beyond their immediate locality; give rise to substantial regional or national controversy; raise significant architectural and urban design issues; or may involve the interests of national security or of foreign Governments.

After very careful consideration, the Secretary of State has concluded, from the information before him that it is right in this case to leave the decision to be taken by the planning authority".

On 6 April Mr. Buxton wrote again saying that the points he had raised in his letter of 15 March had not been met and it was important that the Secretary of State provided ‘full and cogent reasons for his decision'. He added: -

"One also notes that by failing to call the matter in, the Secretary of State is, in effect, negating the rights of people affected by the development to a hearing, contrary to the Human Rights Act 1998. This is unlawful and I trust you will address this issue too. A similar point arises in relation to the lack of hearing in relation to departure from the development plan, which had been subject to inquiry""

On 25 April the Secretary of State replied stating that there was no requirement to give reasons and effectively repeating what he had said in his previous letter. This claim was instituted on 15 May 2001. Permission was granted on the papers by Forbes, J on 18 June 2001.

14. Refusals by the Secretary of State have been the subject of at least two other recent claims each of which relied on an alleged breach of Article 6 of the European Convention on Human Rights (E C H R). These have had to consider the decision of the House of Lords in R(Alconbury Developments Ltd and Others) v Secretary of State for the Environment, Transport and the Regions [2001] 2 WLR 1389. That case involved a challenge to inter alia a decision to call in an application for planning permission on the ground that the decision was contrary to Article 6 of the ECHR. The first of those claims was decided by Forbes J on 16 October 2001 and I have been provided with a transcript of his judgment: see R(Friends Provident Life Office) v Secretary of State for the Environment, Transport and the Regions CO/0510/2001. That claim also relied on a failure to give reasons. Since I reserved judgment, Ouseley J has given judgment in R(Cummins and others) v Secretary of State for the Environment, Transport and the Regions CO/2003/2001. One part of this claim concerned an alleged breach of Article 6 of the ECHR in the failure to call in. Ouseley J gave judgment on 21 December 2001 and again I have been provided with a transcript. I have not sought any further submissions from counsel since Ouseley J, in a lengthy and detailed judgment, gives his views on the matters which have been fully argued before me. I have found his analysis helpful and, as will become apparent, it accords with my views on the relevant points.

15. In addition to the Article 6 argument, Mr. McCracken has relied on an alleged failure to give reasons and has submitted that the refusal to call in was inconsistent with the Secretary of State's own policy and with the previous decision to call in the application in 1995. He prayed this previous decision in aid to support his submission that reasons were required and that this and the involvement of ECHR rights meant that the decisions relied on by the Secretary of State which held that there was no duty to give reasons could not be relied on.

16. The alleged inconsistency with the previous call in decision is more apparent than real. The absence of an environmental statement had meant that there had been no detailed consideration of the impact on the River Thames in particular and on car parking in the area. This had been covered by the time the current applications were before the Committee. There was not only a full environmental statement but a lengthy and detailed officers' report. Further, the representations made by the objectors had set out all arguments very fully. The Secretary of States' policy in relation to call in was clearly stated in the letter; it is a power which is very sparingly used. The evidence in the Alconbury case was that of some 500,000 planning applications made annually about 130 were called in. The present case is a proposed development which had given rise to considerable local feeling and, since it is at the edge of the LBH area, it inevitably will have some impact outside the area. In addition, there is the effect on the River Thames and on parking and traffic. But that is not in itself a reason to call in; it is simply a reason to consider whether to call in. the Secretary of State is not only entitled but is in my judgment correct to base his decision on the facts of the particular case and the decision of his predecessor on different facts cannot be determinative.

17. There is a consistent line of authority that reasons need not be given for a decision not to call in. Mr. McCracken has submitted that that line of authority cannot survive the Human Rights Act. While it is true that the courts have been more inclined to impose a duty to give reasons, all will depend on the circumstances and it is clear that there is no general duty to give reasons for every administrative or discretionary decision. In Alconbury a reasons argument was deployed. This was dealt with by the Divisional Court at Paragraph 112 of the judgment (see [2001] 2 All ER 929 at p.962g) as follows:-

"In our view, it is important to bear in mind that under s.77 of the 1990 Act, the Secretary of State is given a very wide discretion whether or not to call in an application for his own decision. Furthermore, there is no statutory requirement for him to given reasons for his decision whether or not to call in an application".

Since he has to identify the matters which should be dealt with in any inquiry, namely when he does call in he will identify what was concerning him and by that means give his reasons. That is apparent from the letter of 9 August 1995. But if he is not calling the application in he need not explain why. The approach of the Divisional Court in Alconbury was not the subject of leave to appeal to the House of Lords and there was no criticism. In the Friends Provident case, Forbes J rejected the argument that there was any obligation to give reasons. I am content to adopt what he said at Paragraph 103 of his judgment, namely:-

"In my view, ... the short answer to this issue is that it is well established that the Secretary of State is ordinarily under no duty to give reasons for his refusal to call in a planning application and that, in any event, he did give reasons for his decision in his letter of 18 June 2001 ... In that letter, [he] indicated that it was his general policy only to call in applications which raised more than local planning issues and that this particular application do not do so. I agree with Mr. Sales [counsel for the Secretary of State] that those were sufficient reasons in the circumstances and that this case is indistinguishable from the decision of the Divisional Court in Alconbury on this point ..."

The letter of 18 June 2001 was in very similar terms to those of 28 March 2001 and 25 April 2001 in the present case. Thus here the reasons are implicit, namely that the Secretary of State has decided that the circumstances do not fall within his policy on calling in applications. The additional factors relied on by Mr. McCracken do not create an obligation to give further reasons or require the Secretary of State to give what Mr. Buxton suggested was needed. The suggestion that he should, once permission was given for this claim to proceed, have given detailed reasons is misconceived. If there is no duty to give reasons, the Secretary of State cannot be obliged to give them if proceedings are brought, although no doubt he can, if he so desires, give any further reasons in any evidence he decides to submit to the Court. If the position were otherwise, a duty to give reasons could be created by the institution of proceedings and that is clearly wrong. I note that the Secretary of State has recently announced that he will give reasons for refusing to exercise his call in powers. That cannot affect the position, but is to be applauded.

18. I now come to the Article 6 argument. Article 6.1 reads, as far as material, as follows:-

"In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law ..."

It is not immediately obvious from the language used that any of the claimants' civil rights are being determined by the decisions made on the planning application. However, the Strasbourg jurisprudence has given a more extended meaning to the language, adopting, as it always will, a purposive approach to the reach of the Article. And, as the House of Lords has made clear in Alconbury the courts in this country should follow established Strasbourg jurisprudence even though it may appear to extend the scope of any Article beyond that which would otherwise be considered appropriate. Miss Lieven has submitted that Article 6 is not engaged in the circumstances of this case. Mr. Lindblom and Mr. Straker have not pursued that argument but have submitted in common with Miss Lieven that, if it is engaged, there is no breach in the refusal of the Secretary of State to call in.

19. There is no doubt that Article 6 can be engaged by a planning or licensing decision which affects a third party. In Zandor v Sweden [1993] 18 EHRR 175 the applicant's land adjoined a waste tip and his water supply had been polluted by waste. A subsequent licence was granted to dump further waste and the applicant's request that any licence should be conditional on precautionary measures being taken to avoid pollution was rejected. His only appeal was to the government and this was dismissed. The Court decided that there had been a breach of Article 6.1. The applicant's rights were affected because he had standing in the licensing application and conditions were attached to the dumping permit of which he was beneficiary. There was a genuine dispute which was decisive for the applicant's right to protection against pollution of his water and the ability to use water on one's own land for drinking was one facet of the property right which was clearly a civil right. The Swedish government raised the spectre of the need for a multitude of court remedies where there might be exposure to potential not just actual risks of damage. This was met by the proximity of and direct effect on the applicant's land of any pollution of his water.

20. The need for the effect of any decision to be direct was spelt out in Dalmer-Schafroth v Switzerland [1997] 25 EHRR 597. The applicants in that case lived within 5 kilometres of a nuclear power station and were challenging a decision to permit a 10 percent increase in production and the extension of the operating licence for the power station. It was accepted that Article 6.1 could apply but only if the applicants were able to show that the operation of the power station exposed them to a danger which was specific, serious and imminent. Only if the outcome of the proceedings in issue (the grant of the licence) were directly decisive of the right in question could Article 6 be involved. In Athanassoglov v Switzerland [2001] 31 EHRR 372, a case involving the same power station, the Court confirmed its previous decision and made the further point (at paragraph 54 on p.345) that how best to regulate nuclear power was a policy decision for each Contracting State to take according to its democratic processes. The Court did not need to decide whether the existence of civil remedies for damage were established was sufficient to comply with Article 6.1.

21. It is necessary to identify a civil right which is directly affected. It is said that the right to use and enjoy one's own property is engaged and that that is a civil right. Reliance is placed on what Lord Hoffmann in particular said in Alconbury ([2001] 2WLR at p.1410). It must be remembered that the claimants in the Alconbury cases were applicants who were challenging the decision to call in or to ‘recover' an appeal or to acquire land which was owned by them. Thus the rights of individuals to use, enjoy and own their land were the subject of the decisions in issue. A decision to grant planning permission to A will often affect B's enjoyment of his property. For example, his view may be affected or his garden or house may be overlooked or the sunlight entering his garden or his house may be diminished. But I do not think that Lord Hoffmann or the House in Alconbury was considering or was intending to consider the effect on third parties and was not as it seems to me, using the expression ‘use and enjoy' in that wide context. Thus I am far from persuaded that the rights asserted by the claimants are civil rights within the meaning of Article 6. I accept that if a direct effect on the value of the property can be demonstrated civil rights may be engaged. The civil right in question is the right of property which, following Zander v Sweden, clearly is a civil right. Oltenberg v Austria [1995] 19 EHRR 524 is another example of an objector who was able to establish a violation of Article 6.1 where the noise generated by a grant of planning permission directly affected the market value of her own land and her right to enjoy it. But the right is a civil right because of the direct effect on the value of the land, and there is no evidence in the present case of any diminution in value of a property. Further, it is very difficult if not impossible to identify any civil right which could even arguably be affected in respect of the claimants who do not live sufficiently close to the ground to be directly affected by the additional numbers and behaviour of fans, the problems of parking or the direct impact of the size of the new stadium.

22. However, I am prepared to assume the engagement of Article 6.1, at least in the case of some of the claimants. The absence of a public inquiry does not mean Article 6.1 will be violated. The judicial review powers of the Court may and in most planning cases will provide the necessary compliance with Article 6.1.

23. In Alconbury the distinction between findings of primary fact and matters of policy or expediency was identified to be of fundamental importance. Only in the case of disputes of fact could it be said that judicial review might not be adequate to comply with Article 6.1. Lord Hoffmann was clearly thinking in terms of the distinction between enforcement action and other planning decisions. In the case of the former, there might be an issue whether a breach of control had occurred and an inspector's decision on that issue would be regarded as truly independent. In the case of the latter, such considerations would rarely apply. In the Friends Life cases, Forbes J said this (at Paragraph 93):-

"In my judgment, however these issues are characterised, the assessment of such maters as the likely impact of the proposed development on Norwich City Centre and its associated traffic issue is clearly very different from findings ‘of facts, or the evaluation of facts such as arises on the question of whether there has been a breach of planning control': see Lord Hoffmann at Paragraph 117 of his speech in Alconbury. As it seems to me, this is a reference by Lord Hoffmann to the type of dispute which requires the making of findings of primary and immediate fact by the administrative decision maker - findings which are needed to resolve substantial issues of fact in the dispute in question, which issues have to be resolved in order to make the decision which will determine that dispute".

I entirely agree.

24. One can I think go further. I do not think it is generally possible in a planning decision to isolate out findings of fact from questions of judgment and policy. In reality, the decision is a composite one based necessarily on a substratum of fact, which is rarely in issue, and of planning judgment and the assessment of the accuracy, reliability of survey material or of effects of a development which will usually be in issue. Mr. McCracken has had to trawl through the officer's report to find what he submits are issues of fact whose determination is of importance and should therefore require an inquiry. He particularly relies on parking issues. How many cars can be parked within a given radius of the ground is, he says, a matter of fact which is in issue. Similarly, how many people on average would be expected to travel in one vehicle is equally a question of fact. These are not in my view the sorts of factual issues which can mean that judicial review is inadequate. The evidence is given by experts who have their own opinions and the final decision involves a judgment based on all the material put before the decision-maker. It is quite impossible sensibly to divide the decision making process up in this fashion and I am sure that the House of Lords in Alconbury did not contemplate that this sort of exercise should be carried out.

25. In Paragraph 117 of Alconbury, Lord Hoffmann said this ([2001] 2 WLR at p.1424):-

"If therefore the question is one of policy or expediency, the ‘safeguards' are irrelevant. No one expects the inspector to be independent or impartial in applying the Secretary of State's policy and this was the reason why the Court said that he was not for all purposes an independent or impartial tribunal. In this respect his position is no different from that of the Secretary of State himself. The reason why judicial review is sufficient in both cases to satisfy Article 6 has nothing to do with the ‘safeguards' but depends upon the Zumtobel principle [Zumtobel v Austria 1993 17 EHRR 116] of respect for the decision of an administrative authority on questions of expediency. It is only when one comes to findings of fact or the evaluation of facts, such as arise on the question of whether there has been a breach of planning control, that the safeguards are essential for the acceptance of a limited review of fact by the appellate tribunal".

It is important to see that Lord Hoffmann was not there saying that the existence of a factual issue meant that judicial review was necessarily inadequate. The Zumtobel case indeed supports that view. Every decision on a question of expediency must be based on fact or the evaluation of fact but that does not, as Lord Hoffmann makes clear, mean that it is nonetheless to be regarded as requiring an independent fact finding tribunal where there are factual disputes involved.

26. While I do not rule out the possibility of a need for a factual review in the form of an inquiry in a decision whether or not to grant planning permission, such a need will be very rare and certainly does not exist on the facts of this case. All in all, I agree with, although I need not repeat, what Ouseley J said in Cummins at Paragraph 346 in particular.

27. Mr. McCracken submitted that there was a civil right involved because Article 8 of the ECHR applied. That argument I reject. Article 8 (Right to respect for private and family life) is subject to 8.2 which permits interference with the right inter alia for the protection of the rights and freedoms of others. Planning decisions will usually involve a conflict between the rights of landowners to use and to enjoy their land and the rights of their neighbours who may be adversely affected. Provided the decision-maker has regard to the relevant issues, there can be no breach of Article 8. That is the situation here.

28. Finally, I am satisfied that the Secretary of State has no duty to consider whether the procedures would be compliant with Article 6 in deciding whether or not to call in. It is a matter for the Court to decide whether overall the procedures were compliant and fair. I am satisfied in this case that they were. But the challenge should in my view have been made to the LBH's decision, not the Secretary of State's. Mr. McCracken suggests that is unreasonable since, if the call in power is exercised, judicial review will not be needed. The answer to that is to notify the LPA in question that proceedings will be brought if no call in is directed and to pursue them immediately the Secretary of State's decision is known. But, as is clear from this judgment, I have not found against the claimants on this ground but have considered the merits of their claims.

29. In the circumstances, this claim is dismissed.