Fred Wigg Tower case: decision of HHJ Haddon-Cave

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The Guardian’s Olympic updater is reporting that the tenants have lost their judicial review of the MOD’s decision to place missiles on Fred Wigg tower:

“A group of council tenants have lost their high court battle to prevent surface-to-air missiles being stationed on the roof of their tower block during the Olympics. More details soon …”

“Mr Justice Haddon-Cave said the residents of the Fred Wigg tower had expressed “shock, anxiety and worry” over the prospect of missiles being stationed on top of their building, but they had been under “something of a misapprehension” about the nature of the equipment to be deployed and the risks deployment would bring.”

I understand that HHJ Haddon-Cave accepted that there was no consultation but found that there was no need to consult, as there was simply no alternative site for the missiles.

I will report more as I know it; the decision is not yet on Bailii, and as well as the actual judgment there may be developments in terms of appeals, etc.

UPDATE (Weds, 12.20) The decision is still not on Bailii, but Lawtel provides the following details:

R (on the application of HARROW COMMUNITY SUPPORT LTD) v SECRETARY OF STATE FOR DEFENCE (2012)

QBD (Admin) (Haddon-Cave J) 10/07/2012

ADMINISTRATIVE LAW – HUMAN RIGHTS – GOVERNMENT ADMINISTRATION – CIVIL PROCEDURE
CONSULTATION : COURTS’ POWERS AND DUTIES : DELAY : JUDICIAL REVIEW : NATIONAL SECURITY : OLYMPIC GAMES : PEACEFUL ENJOYMENT OF POSSESSIONS : PREROGATIVE POWERS : PUBLIC SECTOR EQUALITY DUTY : RIGHT TO RESPECT FOR PRIVATE AND FAMILY LIFE : WEAPONS : SECRETARY OF STATE’S DECISION TO LOCATE GROUND BASED AIR DEFENCE SYSTEM ON TOWER BLOCK FOR OLYMPIC GAMES : EUROPEAN CONVENTION ON HUMAN RIGHTS 1950 art.8, Protocol 1 art.1 : TOWN AND COUNTRY PLANNING ACT 1990 : TOWN AND COUNTRY PLANNING (GENERAL PERMITTED DEVELOPMENT) ORDER 1995 art.3

Residents of a tower block were refused permission to apply for judicial review of a decision of the Secretary of State for Defence to locate a ground based air defence system on the roof of their block during the Olympic games.

The applicant residents’ group (H) applied for permission to apply for judicial review of a decision of the respondent secretary of state to locate a ground-based air defence system, which included missiles, on the roof of the tower block.

H’s tower block was located in east London and had an unobstructed view of the Olympic park. Senior government officials had identified it as the only site suitable for the ground-based air defence system due to its proximity to the Olympic park and the vantage point that it offered. It intended to station the missiles on the tower block roof. No consultation took place and H were notified by leaflet in April 2012. The leaflet explained that the tower block was the only suitable site, the area would be permanently manned by armed guard and police, thus increasing security in the area, and that the missiles were safe. H made the instant application in June 2012.

H submitted that there had been (1) a failure to consult adequately; (2) a failure to comply with the public sector equality duty; (3) a breach of their rights under the European Convention on Human Rights art.8 and Protocol 1 art.1.

HELD: (1) A duty to consult arose in four limited circumstances: (i) where there was a statutory duty to consult; (ii) where there had been a promise to consult; (iii) where there had been an established practice of consultation; (iv) where in exceptional cases a failure to consult would lead to conspicuous unfairness, R. (on the application of Cheshire East BC) v Secretary of State for the Environment [2011] EWHC 1975 (Admin), [2011] N.P.C. 92 applied. Absent those circumstances, no duty to consult arose. The law would be slow to require a public body to engage in consultation where there was no obligation or promise to consult, R. (on the application of Niazi) v Secretary of State for the Home Department [2008] EWCA Civ 755, Times, July 21, 2008 applied. That was especially the case where there were military deployments under the discretionary powers of the Crown for the purposes of national security and defence of the realm. No statutory power to consult had been identified. The only other applicable regime affecting military deployments was the possible requirement for planning permission under the Town and Country Planning Act 1990, which did not require a duty to consult. Even if the temporary use of the tower block constituted a material change of use and required planning permission, which the secretary of state did not accept, planning permission was automatically granted by the Town and Country Planning (General Permitted Development) Order 1995 art.3 and schedule 2. None of the four factors present in Chesire had been identified, Cheshire applied. (2) The secretary of state had complied with the public sector equality duty; an environmental and disability impact assessment was carried out during the decision making process and had been taken into account. (3) The first duty of the government was to defend the realm and protect national security, R. (on the application of Marchiori) v Environment Agency [2002] EWCA Civ 3, [2002] Eu. L.R. 225 applied. The Crown had an obligation to protect the public’s art.2 rights, R. (on the application of Middleton) v HM Coroner for Western Somerset [2004] UKHL 10, [2004] 2 A.C. 182 followed. The purpose of the military deployment was to deter attacks. Article 2 considerations prevailed even if any interference substantially impacted on H’s other Convention rights, as the interference was necessary in the interests of national security. Article 8 and Art 1.Protocol 1 were qualified rights; their engagement did not mean that they had been breached. In order for there to be an actionable interference, a serious breach had to be shown, Gomes v Spain App no 4143/02, Dennis v Ministry of Defence [2003] EWHC 793 (QB), [2003] Env. L.R. 34 and Powell and Raynor v UK (1990) EHRR 355 considered. The proposed deployment would not affect H’s ability to use their properties, it was for a limited time and had been carried out in accordance with the law. (4) H had known about the deployment decision two months before making the instant application. Applications had to be made promptly, R v Director of Passenger Rail Franchising [1996] CLC 589 applied. That requirement was even more pertinent in the instant case. It had been incumbent upon H to make the application promptly, notwithstanding the funding difficulties encountered. H’s failure to do so had seriously prejudiced the secretary of state and public interest. (5) The Ministry of Defence’s voluntary engagement with the community over the plans had been immaculate. Had H properly understood the facts, the instant application would not have been brought. The missiles had been rigorously tested and judged safe, and were essential to the air defence plan. Further, H had been notified that their tower block was the only suitable site and the plan had been approved by senior government officials. H’s fears were unfounded: the presence of missiles would not make them a target for terrorists, nor did they interfere with their use of the tower block. (6) In matters involving national security and deployment of armed forces, the courts would be slow to review prerogative powers, R. v Jones (Margaret) [2006] UKHL 16, [2007] 1 A.C. 136 applied. The court recognised that there were aspects of decision-making which lay solely with the executive, namely national security, defence and foreign relations. The courts were ill-equipped to make such decisions, and they lay within the exclusive province of the executive.

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2 responses »

  1. When decisions like placing Rapier missiles or High Velocity Missiles(HVM) on buildings or in strategic areas a Risk Assessment needs to be conducted. In the Risk Assessment potential threats have to be listed and then weighted from 0-5 where 0 is no threat and 5 is a definite. During the risk assessment all threats have to be written down, and mitigations put in place to reduce or eliminate the threat. Where any members of the residential blocks part of the risk assessment (they have to be as they are affected)? The Risk Assessment needs to be published for approval… was this Risk Assessment done, was it published, where can we read it and add comments……..

    • No health and safety assessment as far as I can see (although I am only 90% sure of this) and certainly no involvement of the residents in any assessment (I am 100% certain on that). If you go back to my post yesterday about the limited security for the missiles, you make get a sense that the health and safety concerns are far from fanciful.

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