Scottish Human Rights Law Group

This was a petition for judicial review by a developer of a decision by the Scottish Ministers to call in an application for listed building consent, and to appoint a reporter to hear a public inquiry in relation to that application following the notification of opposition to the proposed development by Historic Scotland, an executive agency of the Scottish Ministers.   It was argued on behalf of the petitioners that these decisions were not compatible with the petitioners’ Convention rights to a hearing before an independent and impartial tribunal and hence ultra vires the Scottish Ministers since reporters in planning inquiries were insufficiently independent of the Executive as to meet the requirements of Article 6(1) ECHR.  In finding in favour of the petitioners, Lord MacFadyen found that the reporter (unlike an inspector in the English system) did not establish the facts after a planning inquiry; that the primary objector in the inquiry was an executive agency of the Scottish Ministers and hence there was an identity between participant and ultimate decision maker such as to contravene the principle of nemo iudex in causa sua; and that the statutory appeal on points of law to the court would be insufficient since “matters of aesthetic and planning judgement will form a major part of what has to be decided” and consequently the court’s ability to “interfere with the respondents’ planning judgment is even more restricted than the scope for review of matters of pure fact.”

In the absence of any access by the petitioners to a court with full jurisdiction to review and decide upon the substantive planning issues in the case, there was said to be a breach of Article 6(1).   This decision was overturned on appeal by the Inner House allowing the appeal and dismissing the petition, that the principles laid down by the House of Lords in Alconbury [1] were applicable, and in accordance with those principles there was no inevitable incompatibility with Article 6(1) of the 1998 Act in the decisions challenged as the powers of the court to deal with genuinely justiciable issues arising in the administrative procedures were sufficient to ensure compatibility.

Full report available here.