Pelling, R (on the application of) v Newham London Borough Council

The background to this application is set out clearly in the judgment of Blake J, against which the applicant, Dr Pelling, seeks permission to appeal to this court.

In brief, a neighbour of Dr Pelling complained to the defendant local authority under Part 8 of the Antisocial Behaviour Act 2003 that the reasonable enjoyment of his property was adversely affected by the height of a high hedge on land owned or occupied by Dr Pelling. The statute makes provision inter alia for the local authority to decide whether the height of the high hedge is adversely affecting the complainant's reasonable enjoyment of the property and, if so, what action, if any, should be taken to that hedge, in pursuance of a remedial notice, with a view to remedying the adverse affect or preventing its recurrence.

Dr Pelling brought judicial review proceedings to challenge the procedure by which the council proposed to consider the complaint. The council nevertheless went ahead with the issue of a remedial notice when plainly it should not have done so. It belatedly recognised its mistake and had withdrawn the notice by the time the matter came before Blake J.

Because of the way things happened, the full statutory procedure did not run its course. Where a remedial notice is issued there is a statutory right of appeal, regulated in turn by the High Hedges (Appeals) (England) Regulations 2005. The appeal is to a planning inspector and proceeds on the basis of written submissions and documents, without an oral hearing but with the possibility of a site visit. The inspector's decision on such an appeal is then open to review by the court by way of an application for judicial review.

Blake J ruled on the procedure that needed to be adopted by the council in investigating a complaint and reaching a decision on it. This was the main focus of Dr Pelling's judicial review application. The judge held that various requirements of procedural fairness at common law needed to be read into the statutory procedure, supplementing the bare bones set out in the statute with such measures as are set out in extra-statutory guidance issued in 2005 by the Office of the Deputy Prime Minister. There is no challenge to that part of the judge's decision.

Dr Pelling argued before the judge that more was required; that the decision to be reached by the council on a complaint under Part 8 was a determination of civil rights or obligations within the meaning of Article 6 of the European Convention on Human Rights and was subject of itself, as the judge put it, to the full panoply of Article 6, in much the same way as the procedure before a county court judge deciding a claim for damages in nuisance. What Dr Pelling particularly seeks is a public hearing of the matter at the stage of the council's investigation into a complaint, with the opportunity for attendant publicity, cross-examination of witnesses and the like.

Blake J rejected that argument. He rejected the analogy with the determination of a nuisance claim in the county court. He held that the statute confers a public law power on the council and that what is required is in essence the exercise of a public law judgment, with the council acting as guardian of the public interest, rather than the taking of a quasi-judicial decision. The procedure can be better compared with those relating, for example, to planning enforcement notices and noise abatement notices.

The judge did acknowledge that the council's decision had the potential to engage the civil rights and obligations of land owners, but he held that even if Article 6 applied to it as an administrative decision, it still did not require an oral hearing and related procedures. He held, in effect, that if the decision was reached in accordance with the common law rules of fairness, that would be sufficient for the purpose. That is the aspect of the judgment in relation to which Dr Pelling seeks permission to appeal.

In substantial grounds of appeal and a detailed skeleton argument, and again in his oral submissions today, he contends that Article 6 is engaged at the stage of decision-making by the council and that the procedures envisaged by the judge do not satisfy the requirements of Article 6. He says that there is no basis for half measures in satisfaction of Article 6.

Sir Richard Buxton, refusing permission on the papers, agreed in robust terms with Blake J's decision, stating that the judge was right to characterise the process under Part 8 of the 2003 Act as administrative in nature rather than the determination of civil rights such as attracts the protections of Article 6, and observing that the judge was quite right to regard the process contended for by Dr Pelling as exorbitant.

I will not quote the full terms of Sir Richard's reasons, but I note that Dr Pelling's efforts at this renewal stage have been directed in part, at least in written submissions, to challenging those reasons, which are said to go even beyond those of Blake J. I think it unnecessary to enter into the additional area of dispute engendered by Sir Richard's reasons. It is sufficient for me to focus on those given by Blake J.

As to the challenge to Blake J, there is, as it seems to me, a serious danger of being drawn into points which, at this stage at least, the court should not be drawn into. Much of the discussion of Article 6 strikes me as being premature and hypothetical.

It was certainly appropriate for the judge to consider what procedural requirements the council needed to follow in reaching a decision on a complaint, and his guidance on that will have served the useful purpose. Taking that stage by itself, I am satisfied that the judge was right to hold for the reasons he gave that this is an administrative procedure of an altogether different character from a judicial determination or adjudication and that it cannot be said to be subject of itself to the full panoply of Article 6, including requirements such as that of a public hearing with cross-examination of witnesses.

I would by no means exclude the possibility that the decision to issue a remedial notice does engage Article 6, but if it is engaged then the question whether the requirements of the article are satisfied must be answered by reference to the nature of the decision involved and by examining the process as a whole, including not only the original decision-making stage but also what happens on an appeal to a planning inspector, and, if there is a further challenge by way of judicial review, the way in which the matter is then dealt with by the court. It simply does not follow that at the stage of the administrative decision the matter must be approached procedurally in the same way as if it were a judicial determination of a legal dispute, so that the full panoply of Article 6 requirements have to be adhered to at that stage.

I appreciate that Dr Pelling seeks to encompass all the various potential stages, including an appeal and possible judicial review challenge, within his submission that there is here a breach of Article 6. He looks at the composite process and submits that that process does not comply with Article 6. But that brings me back to my concern about prematurity. It must be borne firmly in mind that there is not even an extant remedial notice in this case. One was issued through a chapter of unfortunate errors and was withdrawn. The council will have to go through the decision-making process afresh in the light of the judge's ruling as to the common law requirements of claimants if the matter is still a live issue. Having gone through that process it may decide against a remedial notice, in which case Dr Pelling will have nothing further to complain about, subject to the possibility of an appeal by his neighbour. If the council issues a remedial notice, Dr Pelling himself would have the right of appeal. It remains to be seen how any appeal will be dealt with, albeit the 2005 Regulations apparently impose limitations upon the way in which it can be conducted. It also remains to be seen whether there is any live issue following an appeal and, if so, whether there is a judicial review challenge and how that is dealt with.

In my judgment it is unhelpful and unwise to seek to determine whether the process as a whole meets the requirements of Article 6, unless and until one has a concrete case against which to assess the issue. One needs to see how, in particular, the relevant issues of factual dispute and other matters have been dealt with at each stage of the process in order to form a proper view on the application and satisfaction of Article 6. It would be wholly inappropriate, in my judgment, to allow Dr Pelling in this case to canvas matters going beyond the immediate question of the procedures to be adopted by the council at the initial decision-making stage.

As to those procedures, taken by themselves, I repeat that I see nothing wrong with the judge's conclusion. It cannot be said that the council will be acting in breach of Article 6 by following procedures of the kind read into the statute by the judge, rather than by adopting the kinds of procedural approach applicable to a judicial determination of a nuisance claim in court proceedings.

In my judgment, an appeal against the judge's conclusion on that issue, which I stress is the only live issue in this case, would have no real prospect of success.

For those reasons, the application for permission to appeal is refused.