Advice to No Night Flights
Back to listEnquiry
- From
- No Night Flights
- Date advice given
- 8 March 2018
- Enquiry type
I was relieved to receive your confirmation that there are no provisions in the Planning Act which would prevent you from acting compatibly with the Convention Rights.
I would also, respectfully, agree that the Examining Authority will be bound to consider the various human rights issues, should this application get to that stage.
My point is that the decision to accept the application for examination is also an act to which section 6 of the Human Rights Act applies.
It follows that you are bound to consider whether your decision to accept this application may infringe upon the Convention rights and, if so, whether that infringement is justified.
The law does not appear to give you the option of simply deferring consideration of these issues until the Examination stage. Acting compatibly with the Convention rights means not infringing on people's rights if that can be avoided – and it means striving to find ways to avoid harming the rights of others if at all possible.
In this instance you can avoid harming the rights of others, and indeed the rights of the owners of the airfield, by not accepting this application for Examination.
We are asking you to look at the facts regarding the impact of your decision upon the property rights of the airfield's owners and upon people in the affected area in the light of the justification that will need to be made in terms of the national interest.
Whilst one might ordinarily expect such issues to be deferred to the Examination stage, there are special considerations surrounding this application which require substantive attention now if you are not to act incompatibly with the Convention rights. The key point here is that it ought already be plain to you that this application could not reasonably be regarded as likely to justify incursion on people’s rights because the project is in the national interest.
For example, it is plain now from the weight and quality of evidence from multiple sources, that the applicant will not be able to supply the Secretary of State with plausible evidence of national economic benefit. We say that it cannot be lawful under s6 of the 1998 Act to harm people’s rights by accepting the application without at least a plausible prospect that the applicants will be able to meet the basic test in terms of Article 8.
You have also been made aware of the incorrigibly flawed basis for the applicant's economic case. This case has now been dismissed as mistaken by the authors of the source on which the applicants purport primarily to rely. The applicant’s economic case has been exposed by multiple credible sources as demonstrably very seriously defective in methodology and as regards its evidential base. You are already aware that this hopeless material is at the heart of the application. How could it be right to harm people’s basic rights by proceeding to the next stage on the basis material which it is already clear is so lacking in merit?
We say that it is relevant, at the stage where you decide whether or not to intrude upon people’s rights, to consider what evidence you have that this proposal meets any identified national need. The fact is that neither the Government nor any of its advisers appointed to review aviation needs has identified Manston as required as part of any national strategy. The significance here is that you as the public authority begin with no indication whatsoever of a national interest against which you could reasonably contemplate sacrificing the rights of others. What you have are the opinions offered by an offshore investment company, of uncertain identity and motivation.
The serious problems we identify constitute real and immediate reasons why it is not reasonable in human rights terms to accept the application for examination. These should be viewed in the context of recent rulings from the Court of Justice of the European Union and the European Court of Human Rights regarding the plight of victims of aviation development and regarding the Courts’ interpretation of human rights and European law so as to provide effective protection and remedies.
You will also be aware of the criticisms made by the local authority (and by this organisation as well as by many others) of the inadequacy of the statutory consultation carried out by the applicant. This matter is also relevant to your immediate obligations regarding human rights because you would, by accepting the application, allow the applicant to escape some of his preliminary responsibilities regarding the environmental impact information rights bestowed upon us by the European Union.
Finally, we are confused by your comment about the effectiveness of the remedies available under the 2008 Act in respect of harm ensuing from a decision to accept this application for examination. What compensation would be available to individual residents of Thanet for a fall in the property values following such a decision? Who would be liable to pay it?
Advice given
Sections 37 and 55 of the Planning Act 2008 (PA2008) set out what can be taken into account at the Acceptance stage. Neither section makes reference to the consideration of human rights. The consideration of human rights is part of the decision-making process at the Examination stage (and later when the relevant Secretary of State makes his or her final decision). In order for the decision-making process to comply with human rights law, an appointed Examining Authority (ExA) needs to be fully appraised of the details of the Proposed Development and to seek the views of all Interested Parties, including the Applicant. There is no mechanism in the PA2008 by which this can be achieved at or before the Acceptance stage, which is prior to the appointment of the ExA and the start of the Examination.
On that basis the Planning Inspectorate does not consider that it is bound by the PA2008 to consider the provisions of the Human Rights Act 1998 at the Acceptance stage.
You imply that there are ‘special considerations’ surrounding the emerging application by RSP. The Planning Inspectorate does not agree with this statement as all applications received by the Planning Inspectorate involve development which has impacts, to a greater or lesser degree, which need to be taken into account before a decision is made. The proposed application by RSP is, and will in future, be treated in the same way as all other applications for development consent.
The ‘national economic benefit’ and ‘viability’ of the Proposed Development (and any other matters which relate to the merits of the application) will also be considered by the appointed ExA during the Examination stage. Part of the decision-making process at Examination is to assess the effects a proposed development might have on individuals who make representations and to weigh these against the wider public interest. The balancing of the rights of these individuals and the wider public interest cannot be carried out without a full consideration of the facts and circumstances, taking into account the views of all parties. That is why the PA2008 provides for the Examination stage which affords everybody the opportunity to make representations to an ExA about the merits of a proposed development.
In consideration of your comments about ‘national need’ I can only reiterate my previous advice that development which constitutes an NSIP is a matter of fact, as set out in Part 3 of the PA2008. It is not prerequisite for an ‘national strategy’ (or indeed a National Policy Statement) to be in place in order for an application for development consent to be made, examined and decided. In respect of the adequacy of the Applicant’s Pre-application consultation, as you will be aware host and boundary authorities will be invited to make an Adequacy of Consultation Representation (AoCR) if/ when the application is submitted. The Planning Inspectorate (on behalf of the Secretary of State) must have regard to any AoCRs received in taking its decision about whether an application can be accepted for examination.
I apologise that my statement in respect of the compensation provisions in the PA2008 was confusing. You stated in your email of 24 February 2018 that: “We understand the points that you make about the statutory provisions for dealing with some aspects of property blight. However, and as you yourself concede [my emphasis], these provisions are of limited scope and certainly do not constitute an effective remedy for the infringements that would be bound to take place if you proceed to the acceptance stage with this application.” The intention of the statement in my response dated 1 March 2018 “We do not consider that the compensation provisions in the PA2008 provide an ineffective remedy where applications are made under the PA2008 for NSIPs” was to establish that nowhere have I conceded that the blight provisions in the PA2008 are an ineffective remedy.
In respect of the impact of any proposed development on property values, I refer you to the guidance on planning in general: Planning Practice Guidance ‘Determining a planning application’; in particular paragraph: 008 Reference ID: 21b-008-20140306: https://www.gov.uk/guidance/determining-a-planning-application