Analysing this case provides an opportunity also to give some information on one of my on-going areas of research – the imposition of human rights onto property law structures, when property law is conceived of as being both a private law and public law phenomenon. I will be discussing this at the ALPS conference in Athens, Georgia, USA, in May 2015 (http://www.law.uga.edu/association-law-property-society-alps). In my paper, entitled ‘Human Rights and European Property Law: Integration or Imposition’, I will be considering whether it is possible to integrate human rights into the structures of property law, or, whether, they must be imposed on top of such structures. In part, the answer to this depends upon whether we can see property as a construct of state/ citizen relationship, and thus whether we can talk of an administrative property law.
It is therefore interesting to consider the “human rights question” in relation to planning law, as the High Court was required to do in Moore. The case required examination of DCLG policy in relation to pitches for caravans within the Greenbelt for the traveller community, and in particular, the policy of the Secretary of State to recover all such applications to himself, thus causing significant delays. There were numerous grounds of complaints, not least that the SSCLG was acting irrationally and in contravention of the Equality Act 2010 – the judgment is commensurately lengthy - but for the purposes of this note, I am going to focus on the discussion of articles 6 and 8.
Commencing with article 6, the requirement of this article is that determination of civil rights be made by an independent and impartial tribunal.
The allegation lodged at the SSCLG was that by calling the applications to himself, the applicants were denied a hearing in front of an impartial inspector and also that significant delays had resulted. In so-arguing, some challenge was posed to the leading decision in R (Alconbury Developments) v Secretary of State for the Environment, Transport and the Regions  UKHL 23 where the House of Lords had concluded that determination by the Secretary of State was compliant with article 6 thanks to the availability of judicial review. After citation of the arguments given in Alconbury itself, and consideration of subsequent case law concerning the meaning of “independent” (including R (Anderson) v Secretary of State for Home Department  UKHL 46). The judge concluded that he could not depart from Alconbury, and also held that the SSCLG had not shown any lack of impartiality in making his decisions. However, the court went on to hold that the decisions had not been made in a reasonable time, and that the delay was not, as a result, proportionate. It is worth citing his response to this issue in full since it is instructive:
Having reached this conclusion, the judge then held that article 8 did not add anything to the matter before him:
In considering article 8 in this way, the judge sees the delay as relevant not only to article 6, but also as an aspect of protection of the substantive right to a private life.
Finally, in relation to article 6, the judge commented that:
This in itself is a significant comment, demonstrating, as other judges have in other contexts, that the protection afforded by the ECHR is nothing more than an explicit statement as to what the common law already requires, and as such, adds nothing to those foundational principles of the common law system – rule of law, and equality before the law. As a matter of historical fact this may be untrue, but it is perhaps worth noting the rhetoric in terms of proposals to reform human rights protection in the UK.
In the other elements of the case, the court held that the SSCLG was also in breach of the Equality Act 2010 for failing to follow the correct statutory procedures, and was therefore in breach of section 19 and section 149 of that Act.
Further guidance was then given by the court as to what should happen next:
Thus, the outcome of the case for DCLG was that they would be unable to recover for determination all planning permission applications involvement pitches for caravans in the Greenbelt as this was a breach of their equality duties, and also, given the sheer number of decisions required as a result, a breach of article 6 ECHR due to delay. Whilst it is possible, and no doubt useful, to think of the outcomes of this decision in terms of planning law, and in terms of equality in relation, in particular, to traveller communities, it is also possible to turn the decision on its head and think of this in terms of an owner of land applying for a planning permission. It tells us not only how such decisions should be made where there is a potential for unlawful discrimination, but in cases where there is no such potential.
Delay, is itself, a disproportionate interference with human rights when deciding questions of land use. This fact is one which should be of note in general to planning authorities, and to housing authorities in relation to decisions made in relation to housing. The discussion of article 8 in this case confirms this. We can therefore draw a parallel between the attitude of the courts to planning appeals, and to decision-making in relation to the allocation of local authority housing stock. Drawing this kind of link in terms of the effect of human rights on the public elements of property entitlements, is crucial, and something which is underplayed by taking a narrow approach, focusing on the public on the one hand, the private on the other.
This decision is therefore highly significant in terms of planning law, and for the DCLG in terms of its policy. But it is also significant in terms of the structural impacts of human rights on the way in which decisions about proprietary entitlements are made. It is this aspect of the legal system which I will be considering in my paper at ALPS, and which has the potential to have long-reaching (but perhaps hidden) effects within the common law.