The Act will have a significant and wide-ranging impact upon property issues. Corporate and individual property owners, as well as public authorities, will need to undertake a fundamental review of their approach to property matters in the context of Convention rights. Why should this be?
Firstly, the Human Rights Act will open up traditionally understood common law rules and statutory provisions relating to property matters to challenge and review to ensure that they are enjoyed, exercised and applied in a manner that is fully compatible with Convention rights.
Secondly, the continuing fragmentation of the public sector means that private sector companies are increasingly involved in the management of property and the delivery of services associated with public functions (whether under the PPP/PFI or otherwise). The trend towards outsourcing and joint ventures will significantly increase the range of private companies that will in future be treated as public authorities under the Act. All such bodies may become public authorities with specific obligations to act in accordance with the Act. Ignorance of the Act's requirements will affect a companies ability to win public sector contracts.
Thirdly, the Act creates both rights and responsibilities. This could benefit property companies and landowners whose enjoyment of their asset is affected by the actions of another including the failure of a public authority to take any or sufficient action to intervene. It will also mean that the management of planning and environmental issues (particularly where there may be an impact on health) will become more lengthy and complex to deal with – and for rights to challenge being extended beyond those narrowly defined in legislation. Land owners and managers who are applicants or who are affected by proposals should reappraise their rights and responsibilities.
Fourthly, the fact that an organisation is not a public authority will not save it from challenge. Victims can raise Human Rights in any case before the Courts and the Courts are required to give effect to those rights.
Examples of how Human Rights issues will affect commercial and other property interests include:
- Land pollution issues – the condition or use of land (not necessarily adjacent) is or may give rise to noise, smell, pollutants or otherwise affect the ability of others to enjoy or occupy their property and the quality of their private lives. This is as much about contaminated land or toxic emissions as bonfires and hedges.
- Land security issues – the case of Albany Homes Ltd v Massey [1997] underlines the Court's power to invoke Convention points in matters involving private parties. Here the Court refused to grant an eviction order against a co-mortgagee whilst the other was entitled to remain in possession. Levying of distress by a landlord without court process interferes with a tenant's civil right to enjoy his property and thus may fall foul of the right to a fair trial under Article 6.
- Compulsory Purchase – the expropriation of property without fair compensation or on an arbitrary basis have been struck down for exceeding the margin of appreciation. The operation of any consultation and objection procedure associated with the acquisition would need to be reassessed in the context of equality of arms – did the party have sufficient time to consider and prepare its case?
- Construction issues – whilst an individual may consent to arbitration rather than Court process, the provisions of the Housing Grants Construction and Regeneration Act 1996 provide for adjudication in all but limited circumstances. The provisions allow a claimant to invoke the process by short notice (7 days) with a decision within 28 days. This may breach one party's right to a fair opportunity to consider and respond to the claim.
- Planning and licensing issues – for those seeking consents and licenses as well as those that might be affected by their grant. The process by which these are granted will need to reflect a fair procedure with proper opportunity being given to all parties. For example, in the case of Guerra v Italy [1998] the Court found that failure by the authority to give local people essential information that would allow them to assess the risks of continuing to live in an area if an event or accident occurred at a factory was a breach of Article 8.
- Regulatory issues – there are a range of such matters that will affect the full use and enjoyment of property and which may be challenged in their own right or in terms of the process by which the regulatory powers were exercised. Examples include the impact of traffic control measures or the approval of public marches and demonstrations. In the latter instance, the authorities will need to balance the individuals right to assembly and expression with that of enjoyment of the property affected by the demonstration or march.
- Property management and housing issues – from the management of information held by public housing bodies to housing allocation and fitness of property both in terms of its physical condition and its appropriateness for a particular family unit. Inappropriate allocation, repair or other policies may also give rise to discrimination claims under Article 14. The use of CCTV cameras or other surveillance associated with anti-social behaviour and provision for emergency access to property will need to be reviewed both from the perspective of privacy and use of material in any process.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
