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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Broadview Energy Developments Ltd v The Secretary of State for Communities and Local Government & Ors  EWCA Civ 562 (22 June 2016)
Cite as:  EWCA Civ 562
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ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
THE HONOURABLE MR JUSTICE CRANSTON
Strand, London, WC2A 2LL
B e f o r e :
THE RIGHT HONOURABLE LORD JUSTICE LEWISON
THE RIGHT HONOURABLE LORD JUSTICE McCOMBE
| BROADVIEW ENERGY DEVELOPMENTS LIMITED
|- and -
|THE SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT
SOUTH NORTHAMPTONSHIRE DISTRICT COUNCIL
HELMDON STUCHBURY & GREATWORTH WIND FARM ACTION GROUP
Mr Dan Kolinsky QC (instructed by Government Legal Department) for the First Respondent
Mr Richard Honey (instructed by Public Access) for the Third Respondent
The Second Respondent did not appear and was not represented
Hearing dates: 19th May 2016
Crown Copyright ©
Lord Justice Longmore:
"29. [T]he Secretary of State agrees with the Inspector … that the benefits and disadvantages of the proposal are finely balanced. However, he disagrees with the Inspector as to where the balance falls. The proposal would not accord with the [development plan]. Although there are some material considerations which weigh in favour of the proposal including the [renewable energy] benefits, the Secretary of State finds that those benefits are not sufficient to outweigh the likely adverse impacts, in particular the identified harm to the [heritage assets] as well as the character and visual amenity of the area.
30. The Secretary of State disagrees with the Inspector's judgment … and considers that the likely harm from the proposed development would not be outweighed by the [renewable energy] benefits. He agrees that the proposal conflicts with the development plan and there are elements of the [National Planning Policy] Framework which do not support the scheme. He considers that there would be harm to a range of heritage assets which, while not being substantial, merits considerable importance and weight in the planning balance in line with section 66 of the [Planning (Listed Buildings and Conservation Areas) Act 1990].
31. Having weighed up all relevant considerations, the Secretary of State concludes that the factors which weigh in favour of the proposed development do not outweigh its shortcomings and the conflicts identified with the development plan, statutory requirements and national policy."
i) 29th October 2013: A letter to the Secretary of State thanking him for "calling in" the planning application;
ii) 4th November 2013: A letter to the Secretary of State enclosing correspondence from HSGWAG and informing him of their firm views against the proposal;
iii) 2nd December 2013: A letter to Mr Hopkins which referred to a recent conversation in the House of Commons tea room regarding the application and setting out several points in opposition to the proposal. She ended the letter by saying that she appreciated that Mr Hopkins could not comment on individual applications;
iv) 9th January 2014: A letter to the Secretary of State expressing concern regarding the additional consultation being undertaken by the planning inspector;
v) 31st March 2014: A letter to the Secretary of State reiterating staunch local opposition to the application;
vi) 2nd July 2014: An email to Mr Hopkins attaching an email from a constituency resident raising concerns over the impact of the wind farm on village traffic and listed buildings;
vii) 21st July 2014: A reply from Mr Hopkins to the above, explaining that no decision had been made due to the delay caused by consultation on the effect of Barnwell Manor;
viii) 28th July 2014: A letter to the Secretary of State attaching representations from constituents regarding the impact of the wind farm on listed buildings;
ix) 5th August 2014: A letter to the Secretary of State attaching representations from a constituent regarding the impact of the wind farm on the Sulgrave Manor, the home of George Washington's ancestors;
x) 8th October 2014: An email to Mr Hopkins chasing a decision on the application and stressing the depth of local opposition; and
xi) 5th December 2014: An email to Mr Hopkins referring to numerous previous correspondences and "badgering you in the lobby" yet no decision having been taken. The minister's private office responded that, given his quasi-judicial role in determining planning applications, Mr Hopkins could not comment on individual cases but the planning department was working hard to issue a decision.
"288(1) If any person-
(a) is aggrieved by any order to which this section applies and wishes to question the validity of that order on the grounds –
(i) that the order is not within the powers of this Act, or
(ii) that any of the relevant requirements have not been complied with in relation to that order; or
(b) is aggrieved by any action on the part of the Secretary of State to which this section applies and wishes to question the validity of that action on the grounds –
(i) that the action is not within the powers of this Act, or
(ii) that any of the relevant requirements have not been complied with in relation to that action,
he may make an application to the High Court under this section."
"3(1) The Secretary of State may, if he thinks fit, direct that an appeal which would otherwise fall to be determined by an appointed person shall instead be determined by the Secretary of State."
It is this provision which makes the Secretary of State the primary decision maker rather than a reviewer of the planning inspector's decision.
"17(4) When making his decision the Secretary of State may disregard any written representations, evidence or any other document received after the close of the inquiry."
"17(5) If, after the close of an inquiry, the Secretary of State –
(a) differs from the inspector on any matter of fact mentioned in, or appearing to him to be material to, a conclusion reached by the inspector; or
(b) takes into consideration any new evidence or new matter of fact (not being a matter of government policy),
and is for that reason disposed to disagree with a recommendation made by the inspector, he shall not come to a decision which is at variance with that recommendation without first notifying in writing the persons entitled to appear at the inquiry who appeared at it of his disagreement and the reasons for it; and affording them an opportunity of making written representations to him or (if the Secretary of State has taken into consideration any new evidence or new matter of fact, not being a matter of government policy) of asking for the reopening of the inquiry."
"4. Planning ministers are under a duty to behave fairly ("quasi-judicially") in the decision-making procedure. They should therefore act and be seen to act fairly and even-handedly. For example, to demonstrate even-handedness all evidence which is material to any decision which has been the subject of a planning inquiry, and which the decision-maker ultimately takes into account, must be made available to all parties with an interest in the decision. Privately made representations should not be entertained unless other parties have been given the chance to consider them and comment. This part of the requirement to act fairly is also reflected in the statutory rules for inquiries, which require the Secretary of State to give the parties a further opportunity to make representations if, after the close of an inquiry, the Secretary of State differs from the inspector about any relevant matter of fact or proposes to take into account any new evidence or new matter of fact. A challenge will succeed if a court is satisfied that Planning Ministers have acted procedurally unfairly – for example by giving a developer an opportunity to put forward his case which has not been granted to other interested parties.
Representations on call-in decisions and appeals
11. Although planning cases decided directly by the Secretary of State are a tiny proportion of the number of planning applications and appeals handled each year, they are naturally high profile and interested parties, including MPs and pressure groups, will want to make representations. Those seeking to make representations to Planning Ministers in relation to whether an application should be called-in should be directed to the relevant planning casework official in the Planning Directorate of DCLG. Ministers' decisions should have regard to the published call-in policy. Those seeking to make representations in relation to the actual determination of called-in applications and recovered appeals should be advised to write to:
- the Planning Inspector, if the inquiry has not been completed; or
- where relevant official in the Planning Casework Division if the inquiry has concluded.
12. Where representations are made by whatever means, including letters, telephone and email, whether direct to a Planning Minister or to the relevant official, it should be made clear that they can only be taken into account if they can also be made available to all interested parties for comment."
Grounds of Appeal
i) the learned Judge was wrong to conclude that the conduct of the respondent was not in breach of his duty of abide by the rules of natural justice and common law fairness;
ii) the learned Judge was wrong to conclude that the conduct of the respondent was not vitiated by actual or apparent bias; and
iii) the learned Judge was wrong to conclude that the conduct of the respondent did not fail to have regard to, and was not in breach of, the respondent's own guidance on propriety in planning decision-making.
i) the judge was wrong to accept that lobbying of Ministers by MPs was normal and acceptable when quasi-judicial planning decisions were being made and there was no basis for the judge's conclusion that the tea room conversation was not of any length or importance;
ii) it was the fact that Mrs Leadsom made representations to Mr Hopkins in person rather than the content of those representations that mattered. Broadview was refused direct access to the Minister while Mrs Leadsom was able to meet him in the tea room and the lobby of the House of Commons and remind him of her views and those of her constituents who objected to Broadview's application, as well as writing to him in person on several occasions. Although those representations may have been largely repetitive of matters aired in the inquiry and although Broadview knew, as a result of a freedom of information request responded to in July 2014, that representations up to that time had been made, it was unfair of Mr Hopkins to have dealt with and to continue to deal directly with Mrs Leadsom while not affording the same facility to Broadview; and
iii) there was in any event a breach of para 12 of the Planning Propriety Guidance because it was not made clear to Mrs Leadsom that her communications could not be taken into account without making them available to Broadview for comment nor were they in fact made available as that Guidance (by implication) and, in any event, the common law required.
The Rules and the Planning Guidance and their relation to the rules of natural justice at common law
Applications of these principles to the facts
Lord Justice Lewison:
Lord Justice McCombe: