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Cite as: [2011] ECHR 102

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11 January 2011

FOURTH SECTION

Application no. 38663/08
by William YOUNG
against the United Kingdom
lodged on 21 June 2008

STATEMENT OF FACTS

THE FACTS

The applicant, Mr William Young, is a British national who was born in 4 May 1961 and lives in Belfast.

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

On 2 August 2000, outline planning permission was granted for the applicant to construct a dwelling house. Outline planning permission is a form of planning permission whereby the general proposal for a development is approved, subject to subsequent approval of certain “reserved matters”. An application for full planning permission was made on 23 December 2002, but no decision had been issued after nine months had elapsed, resulting in a “deemed refusal” in terms of section 33 of the Planning (Northern Ireland) Order 1991. The applicant lodged an appeal and full planning permission was issued on 8 March 2002. The full planning permission was subject to a number of conditions, such as a requirement that the house be located where indicated on the site plan.

The applicant began construction in May 2003 and the property was occupied in November 2003. The Planning Service for Northern Ireland (“PSNI”) issued a letter outlining breaches of the planning conditions on 22 July 2003 – the applicant says that the main issue was that the dwelling house was alleged to have been constructed a number of metres from the approved position, although the document is not reproduced with the application - and an Enforcement Notice was issued in January 2004, requiring the removal of the house. The applicant sought retrospective planning permission to allow the retention of the house. Again, PSNI failed to provide a decision within the time limit and the applicant appealed the deemed refusal to the Planning Appeals Commission (“PAC”) on 14 March 2005.

The reporting Commissioner, Commissioner Farrington, recommended that the appeal be dismissed. The Commissioner’s report is not produced with the application, although it appears that the reasons for dismissal were based upon a consideration of the facts and planning legislation, rather than any procedural technicalities. On 9 September 2005 the PAC wrote to the applicant dismissing his appeal (“the First Decision”). The applicant complained to the PAC in relation to eight issues and, on 1 November 2005 the PAC replied, rejecting all but one of the complaints but acknowledging that Commissioner Farrington had sought additional information from the Department of the Environment without the knowledge of the parties and had visited comparable developments without making reference to them in his report to the PAC. The PAC stated that these actions had been in clear breach of their procedure and lacked openness and fairness. In light of these considerations, the PAC could not be certain as to whether or not they would have reached the same decision had the additional information been included in the report. There was subsequently an application for judicial review and the First Decision was quashed by the High Court on 16 December 2005.

Thereafter, there appears to have been some misunderstanding as to the way forward; the PAC was awaiting input from the applicant, whereas the applicant was awaiting consultation from the PAC. A letter sent to all parties by the PAC on 15 February 2006 “informing them of the position” as to proceedings was not sent to the applicant as a result of an administrative error. On 14 March 2006 the PAC informed the applicant that the appeal would proceed by way of informal hearing. Following an exchange of correspondence, the applicant informed the PAC that he would not participate in the appeal process due to severe financial and emotional strain caused by various financial, family and personal problems. At the judicial review hearing it was advanced that the applicant refused to participate as he was aggrieved that the PAC had not consulted him as to the conduct of the subsequent appeal and was not satisfied that he could expect a “proper hearing”.

In the second planning appeal, Commissioner Allen was appointed to prepare the report for the PAC. Commissioner Allen had been present at the meeting that had voted to accept Commissioner Farrington’s report in the First Decision. Commissioner Allen recommended that the appeal should be dismissed and this decision was adopted by the PAC on 10 July 2006 (“the Second Decision”).

The applicant sought judicial review of the Second Decision on four grounds, namely that: (1) Commissioner Allen had already voted to reject the applicant’s appeal in the First Decision; (2) Commissioner Allen failed to attach weight to other developments in the vicinity; (3) Commissioner Allen’s prior involvement was unfair and contrary to Article 6 of the Convention; and (4) the Second Decision had taken into account objections which were made in relation to the previous appeal, despite the objectors having been written to but not having replied. Some factual complaints were also made, but were rejected on the basis that these were not amenable to judicial review, which is generally concerned with policy and procedure.

The High Court found against the applicant in three of the four issues. The Court held that Commissioner Allen’s prior involvement was to be treated as an issue of access to previous information. The undisclosed information, which had resulted in the quashing of the First Decision, although not notified to the parties, was available to anyone who exercised the right of access. Had the applicant chosen to take part in the second proceedings, this issue would have been cured. In relation to the question of the Commissioner’s failure to attach weight to other developments in the vicinity, the High Court was of the opinion that the Commissioner was entitled to take the view he took. The fourth issue, as to the taking into account of objections from the previous appeal process was also found to be acceptable. Whilst the First Decision was quashed, the appeal remained extant and so the Commissioner was entitled to consider these objections. The objectors could have requested their objections to be altered following the invitation to take part in the second procedure, but had not done so.

The High Court did, however, agree with the applicant’s submissions in relation to the alleged breach of Article 6. The Court found that Commissioner Allen’s involvement as a member on the panel in the First Decision and as the reporting commissioner in the second procedure could create an appearance of bias in the mind of on informed and objective observer. The Second Decision was therefore quashed on the basis of apparent bias. This decision of the High Court was given on 30 March 2007.

An appeal was lodged with the Court of Appeal in Northern Ireland by the PAC. The applicant states that he sought permission to cross-appeal on the three grounds rejected by the High Court. He states that he was initially granted permission to cross-appeal on 21 June 2007, but that on the day of the hearing, 25 June 2007, he was informed that he had missed the deadline for the cross-appeal and that permission had been granted in error. No mention of the proceedings in relation to the cross appeal is made in the transcript of the Court of Appeal’s judgment.

On 6 September 2007 the Court of Appeal reversed the decision of the High Court. The Lord Chief Justice, Lord Kerr found that the case for apparent bias had not been made. He concluded that: (1) Commissioner Allen had no motive or incentive to decide against the applicant, as he had not committed himself to the approach adopted by Commissioner Farrington and could be forgiven for being concerned that he had been misled by him; and (2) the case differed from the situation in, for example, Procola v. Luxembourg, 28 September 1995, Series A no. 326, in that Commissioner Allen had not expressed an opinion on the law before making a decision; rather, he was responsible for preparing a report that would be subject to the scrutiny and, ultimately, the endorsement or rejection of the panel of commissioners.

On 9 November 2007 the Court of Appeal refused leave to appeal to the House of Lords and on 19 May 2008 the House of Lords refused permission to appeal on the basis that the petition did not raise an arguable point of law of general public importance.

B. Relevant domestic law and practice

1. Planning Permission and the Appeals Process

In Northern Ireland, building control is governed principally by the Planning (Northern Ireland) Order 1991 (“the 1991 Order”), which provides that, inter alia, “...building operations...on, in, over or under land” require planning permission from the Planning Service for Northern Ireland. The PSNI is an Executive Agency of the Department of the Environment of Northern Ireland, part of the devolved administration of Northern Ireland pursuant to section 21 of the Northern Ireland Act 1998.

In the present case, the PSNI failed to determine the application within the time period allowed and so, in accordance with section 33 of the 1991 Order, PSNI was deemed to have refused planning permission. The applicant was therefore entitled to appeal to the Planning Appeals Commission by virtue of section 32 of the 1991 Order. The Planning Appeals Commission is a statutory body established under section 110 of the 1991 Order, which describes itself as being independent from the Department of the Environment and whose members are appointed by the First Minister and Deputy First Minister of Northern Ireland, acting jointly.

Section 110 reads as follows:

“110 The Planning Appeals Commission

(1) There shall continue to be a Planning Appeals Commission (in this Part referred to as the “appeals commission”).

(2) The appeals commission shall consist of the following persons appointed by the First Minister and deputy First Minister acting jointly

(a) a chief commissioner and deputy chief commissioner; and

(b) such number, if any, of other commissioners as the Department [of the Environment] may, with the consent of the Department of Finance and Personnel, determine.

(3) A commissioner shall not engage, whether directly or indirectly, or be a partner of any person who engages, in a gainful profession, occupation or business if to do so would in any way be incompatible with his functions under this Order.

(4) There shall be paid to a commissioner such remuneration and allowances and to him, or in respect of his services, such pensions, allowances or benefits as the Department [of the Environment] may determine with the approval of the Department of Finance and Personnel.

(5) The Department [of the Environment] may appoint persons to assist the appeals commission in the performance of its functions, and there shall be paid to persons so appointed such remuneration and allowances and to, or in respect of the service of, those persons such pensions, allowances or benefits as the Department [of the Environment] may determine with the approval of the Department of Finance and Personnel.”

By virtue of section 111 of the 1991 Order, the Department of the Environment is entitled to make rules for the proceedings of an appeal and, subject to the 1991 Order and any such rules, the procedure is to be as determined by the Commission. According to the Court of Appeal judgment, the procedure which was adopted in the Second Decision was the “Informal Hearing Procedure”.

The PAC’s “Procedures for Planning and Water Appeals” describe this procedure as follows:

“[27] Informal Hearing Procedure

Stage 1 - The PAC normally gives parties eight weeks notice of the hearing date and sets out arrangements for submission and exchange of Statements of Case between relevant parties.

Stage 2 - Statements of Case are submitted by all participating parties at least two weeks prior to the hearing and circulated by the PAC to be read by all parties in preparation for the hearing.

Stage 3 - The hearing is conducted by the Commissioner

Stage 4 - The case is considered by the Commissioner who visits the site with or without the attendance of the parties and issues a decision on the appeal or reports to the PAC normally within four weeks of the hearing.

Stage 5 - [If applicable] the PAC considers the case and normally issues its decision no later than two weeks from the presentation of the report to the PAC meeting.

....

The PAC Decision

[46] After the appeal hearing and/or the appropriate site visit has taken place, the Commissioner considers the evidence. If the decision is by an individual Commissioner, that Commissioner prepares a decision which is issued by the PAC to all parties. If the decision is collective the Commissioner prepares a report with a recommendation which is copied to a panel of Commissioners. They study the report and recommendation and may visit the site, if that has been agreed to by the parties at the hearing. After this a decision will be taken by the panel, of no fewer than four commissioners, at a meeting at which reports and recommendations are discussed.

[47] Since collective appeal decisions are taken by the Commission, the recommendation of the appointed Commissioner may not be accepted. Where the PAC reaches a different conclusion, the decision of the PAC sets out clearly the full reasoning which gave rise to the decision. The PAC decision and not the Commissioner’s report is the appeal decision. The PAC decision (individual or collective) is final. There is no further appeal except on a point of law to the High Court.”

In the present case, the collective procedure was adopted, as per the Court of Appeal judgment.

COMPLAINTS

The applicant complains that his rights under Articles 6 and 8 of the Convention have been infringed by the decision of PSNI and the subsequent proceedings before the PAC and the appellate courts.

The applicant complains that his rights under Article 6 § 1 have been breached because he was not afforded a fair hearing before an independent and impartial tribunal. The applicant accepts that the procedural improprieties in the First Decision may have been remedied by the subsequent quashing of that decision by the High Court, but argues that these procedural irregularities were not remedied in the second appeal process and that there was thus a breach of Article 6 in the proceedings which led to the Second Decision. In addition, the applicant alleges that there were further “...breaches of procedure [and] factual inaccuracies within the report...” It is not clear whether or not these further procedural irregularities and factual inaccuracies are limited to those disclosed in the grounds of appeal to the High Court.

The applicant reiterates that he believes that Commissioner Allen’s involvement as, firstly, a Commissioner in the panel which issued the First Decision and, secondly, as the reporting Commissioner in the second appeal process, created an appearance of bias. Commissioner Allen could not be said to be impartial and, so, the proceedings leading up to the Second Decision were not compatible with Article 6 § 1.

Fair hearing/access to court

The applicant complains that he was misdirected by the Court of Appeal with regard to permission to cross appeal. The applicant states that he had prepared his case on the basis that all facts would be revisited and so was “seriously disadvantaged” when only the matter of apparent bias was considered. The applicant states that, during the hearing, he was continually interrupted and eventually stopped from giving evidence by the trial judge. He alleges that senior counsel for the PAC was able to provide irrelevant evidence uninterrupted. The applicant states that the decision of the Court of Appeal was based upon areas in which he had been prevented from leading evidence and was based upon findings which were “factually incorrect.” As a result, the applicant believes that the proceedings were unfair.

In a related complaint, the applicant notes that he was unrepresented, acting as a party litigant. He states that he was unable to obtain legal aid and complains that his applications for legal assistance were not adjudicated by the set procedures of the Legal Services Commission. He complains that the lack of legal assistance contributed to his error in failing to apply for the cross-appeal timeously.

Article 8 complaint

This complaint is not fully expressed by the applicant, but essentially derives from the complaints under Article 6 § 1. This complaint was not raised before the Court of Appeal and so is inadmissible due to non-exhaustion of domestic remedies.

QUESTIONS TO THE PARTIES

Did Commissioner Allen’s involvement in the proceedings in the first and second planning appeals in different capacities give rise to legitimate doubts as to the impartiality of the Planning Appeals Commission which dealt with the applicant’s second appeal ?

Has there been a breach of Article 6 § 1 of the Convention ?