BROADVIEW ENERGY DEVELOPMENTS LTD v (1) SECRETARY OF STATE FOR COMMUNITIES & LOCAL GOVERNMENT (2016)

An energy company appealed against a decision that the fact that the local MP had lobbied against its proposed wind farm did not render the refusal of planning permission by the first respondent secretary of state unlawful.

Permission had initially been refused in 2011. The application was not finally determined until December 2014, when, after calling in the matter for determination by himself, the secretary of state refused permission. In April 2014, following a public inquiry, the planning inspector had recommended that permission be granted. He concluded that while the matter was finely balanced, the adverse impacts would not significantly outweigh the benefits of the scheme. The secretary of state agreed that the matter was finely balanced but he disagreed with the inspector’s overall conclusion. The local MP (L) had campaigned against onshore wind farms generally. She expressed opposition to the company’s proposal throughout. Among other things, she wrote to the secretary of state and Kris Hopkins, the Housing Minister to whom the secretary of state had delegated the decision, both before and after the planning inspector’s decision. The company had argued that L’s intervention rendered the ministerial decision unlawful as the secretary of state had failed to inform it of the correspondence and, further, the correspondence showed that Mr Hopkins had allowed L to speak to him about the matter in the House of Commons tea room and lobby. The judge found that there was nothing unlawful in Ministers being lobbied by an MP on a constituency planning matter so long as they acted fairly and consistently with the standards of propriety set by the Planning Inquiries Rules, the Ministerial Code and the planning propriety guidance. He concluded that the decision was not unlawful, either through unfairness, bias or a material breach of planning propriety standards.

HELD: There had been no breach of the Rules. The secretary of state had not differed from the planning inspector on any question of fact material to the inspector’s conclusion nor did he take into account any new evidence or fact. L’s correspondence had not raised any new matters. The obligation to notify any such difference or new evidence to interested parties and permit fresh representations did not therefore arise. To the extent that the guidance reflected that requirement of the Rules, it was not contravened. However, the guidance also stated that privately made representations should not be entertained unless other parties had been given the chance to consider and comment on them. That was an obvious application of the fundamental principle that a decision-maker must listen to and take into account both sides of an argument. The principle had to be applied sensibly: if representations were merely repetitive of matters already raised at the inquiry there should be no obligation to inform other parties of the contents. The guidance drew no difference between written and oral representations. However, any judge was acutely aware of the difference oral advocacy could make, particularly if it occurred in the absence of the other side. In those circumstances, it was incumbent on a Minister taking a planning decision to make clear to any person who tried to make oral representations to him that he could not listen to them. If the inquiry had concluded, he could add that anything that such persons wanted to say could be put in writing and sent to the Planning Casework Division. L’s letter following the tea room conversation asserted that she had made several points to Mr Hopkins and finished by saying that she appreciated he could not comment on individual applications. However, there was no evidence that Mr Hopkins had said that he could not listen to what she was saying. He ought to have done so. The court did not endorse the judge’s finding that the lobbying of Ministers by MPs was part and parcel of the representative role of a constituency MP with its implication that such lobbying was permissible even when the Minister was making a quasi-judicial decision in relation to a planning application. However, it was impossible to conclude that the conversation played any part in Mr Hopkins’ decision-making process. He did not have to make his decision until nearly a year after the conversation took place. The breach of natural justice in failing to cut off the conversation was at the most a technical breach which could not have made any difference to his ultimate decision. Further, a well-informed observer would not consider that there was a real possibility of bias on the part of Mr Hopkins. Nevertheless, the accusation of bias showed how important the principle was that Ministers who made planning decisions should not allow themselves to be lobbied by parties to the planning process or by local MPs (see paras 25-37 of judgment).

Appeal dismissed.

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