MR JUSTICE STUART-SMITH :
Introduction
- This is an application pursuant to Section 288
of
the Town & Country Planning Act 1980 (as amended). The appeal is brought against a decision
of
the
Secretary of State
made by letter dated 3 October 2011 by which he disagreed with the recommendation made by Mr Richard Clegg, the inspector appointed pursuant to Section 78
of
the Town & Country Planning Act 1990. The inspector had recommended that the claimant's appeal against the decision
of
Brentwood Borough Council refusing planning permission should be allowed and that planning permission should be granted subject to conditions. These proceedings were issued on 10 November 2011.
- The claimant's application
for
planning permission was brought by an application dated 20 April 2009. The land to which the application applies is known as Plot 3, Oak Tree Farm, Chelmsford Road, Blackmore, Essex. The site is located in the Green Belt. The claimant's application was
for
permission to use the site
for
residential purposes and proposed to locate six plots on the site, on which would be positioned mobile homes and caravans and other provisions to provide permanent bases
for
gypsy families.
- The provision
of
more or less permanent establishments
for
gypsy and traveller families is frequently controversial both at a
local
and at a national level. It is therefore necessary to keep in mind from the outset that the House
of
Lords in R (Alconbury)
v Secretary of State for
the Environment, Transport and the Regions [2003] 2 AC 295 emphasised the importance in the planning system
of
democratically elected persons, namely the
Secretary of State
and planning ministers, being in overall charge
of
the planning system and planning policy: see [48] per Lord Slynn, [60] per Lord Nolan and [141] and [159] per Lord Clyde. Those who make planning decisions, from councillors up to and including the
Secretary of State
, must have regard to all material considerations; but, provided they do not approach their task with a closed mind, they are not required to cast aside views on planning policy that they may have formed when seeking election or when having achieved it: see R (Lewis)
v
Redcar and Cleveland Borough Council [2009] 1 WLR 83 at [62-63], [71] and [95], which also set out the approach to be adopted by the Court to the question whether a decision maker had a closed mind. It is also prudent to bear in mind from the outset that in Alconbury the House
of
Lords, while accepting that neither an inspector nor the
Secretary of State
constitutes an independent tribunal in regard to Article 6
of
the European Convention, held that the powers to call in and recover appeals were Article 6 compliant.
The Factual Background
- National political considerations form part
of
the essential context to this action. In the run up to the last general election the Conservative party published a document called "Open Source Planning" as a Green paper on 22 February 2010. That document set out the Conservatives' policy intention to maintain National Green Belt protection and, in relation to travellers stated:
"The Labour
government
has used the regional planning system and top-down targets to force
local
planning authorities to build new traveller camps, often on Green Belt land and, if necessary, use their compulsory purchase powers to obtain land
for
these new traveller sites. Conservatives disagree with top-down building targets, be it
for
traveller camps or new houses. As part
of
the abolition
of
regional planning and the regional spatial strategies, targets
for
the provision
of
traveller camps will be scrapped. In addition we will also scrap John Prescott's controversial 'Guidance on Travellers'."
- After the election, the Coalition Agreement in May 2010 stated:
"We will maintain the Green Belt, Sites
of
Special Scientific Interest (SSSIs) and other environmental protections, and create a new designation – similar to SSSIs – to protect green areas
of
particular importance to
local communities
."
- At this stage it is only necessary to mention in passing the purported revocation by the
Secretary of State
on 6 July 2010
of
the Regional Spatial Strategies ("RSS") and the subsequent successful challenge to that revocation through the courts by Cala Homes. I return to that episode when considering the legal framework below.
- One
of
the consequences
of
the change
of government
and change
of
policy upon the field
of
planning was that Mr Eric Pickles MP became
Secretary of State for Communities
and
Local Government
on 12 May 2010. A further consequence was that various reports which had been held up during the general election purdah period came to be released, including the report
of
Mr Clegg on this case. His draft decision was submitted on 13 May 2010. A third consequence was that around forty cases which were potentially controversial were considered
for
recovery by the Planning Inspectorate. The criteria
for
recovery were established by the new Parliamentary Under-
Secretary of State
, Mr Bob Neill MP: the criteria were whether the cases were sited on the Green Belt or other statutorily designated landscape areas. Once Mr Neill had decided the criteria, the planning inspectorate and officials applied those criteria, taking into account that recovery is generally reserved to those cases where there would otherwise be a grant (whether temporary or permanent) so that the
Secretary of State
can more closely scrutinise the proposals and decide whether a grant should be made.
- As a result
of
the application
of
the criteria established by Mr Bob Neill MP five cases from the thirteen concerning gypsies or travellers which had been the subject
of
consideration
for
possible recovery were recovered, including the present case.
- The present action arises because Mr Pickles, as well as being the
Secretary of State
in the new
government
, is the Member
of
Parliament
for
Brentwood and had, before the election, expressed clear and forthright opposition to the granting
of
permission when it was being considered by the inspector. The claimant relies upon a letter dated 15 January 2010 from Mr Pickles to Mr Clegg "c/o Mr S. Gough, Director
of
Planning, Brentwood Borough Council". That letter was written in his capacity as constituency MP and was written on his MP's notepaper. He placed the text
of
the letter on the "News" page
of
his website, where it has remained up to the time
of
this hearing. The claimant initially asserted that Mr Pickles had himself joined as a party to the inquiry in opposition to the development and that he was represented at the public inquiry
for
at least part
of
the hearings. This assertion was wrong: it appears that he was not joined as a party to the inquiry and that, although someone may have attended some
of
the hearings on his behalf, they did so without taking any formal part in them. However, the claimant is correct to observe that, as constituency MP, "he had chosen the course
of
campaigning opposition".
- To avoid potential problems where a minister is also a constituency MP, there is a Ministerial Code
of
Conduct, which provides safeguards to ensure that the decision taken in any given case is lawful: see the Redcar case at [102] per Longmore LJ. In addition to the guidance under the Ministerial Code there was at the material time Guidance on Planning Propriety Issues, issued by DCLG in October 2008. The guidance cross-refers to the Ministerial Code and includes the following:
a) "Constituency Interests
6.4 Where Ministers have to take decisions within their departments which might have an impact on their own constituencies, they must take particular care to avoid any possible conflict
of
interest. Within departments, the Minister should advise their Permanent
Secretary
and, in the case
of
junior Ministers, their
Secretary of State of
the interest and responsibilities should be arranged to avoid any conflict
of
interest.
6.5 Ministers are free to make their views about constituency matters known to the responsible Minister by correspondence, leading deputations or by personal interview provided they make clear that they are acting as their constituents'' representative and not as a Minister.
6.6 Ministers are advised to take particular care in cases relating to planning applications in their constituencies or other similar issues. In all such cases, it is important that they make clear that they are representing the views
of
their constituents, avoid criticism
of Government
policies and confine themselves to comments which could reasonably be made by those who are not Ministers. Once a decision has been announced, it should be accepted without question or criticism."
b) "The Ministerial Code
2. …
Of
particular importance in relation to the handling
of
planning casework is that Ministers "must ensure that no conflict arises, or appears to arise, between their public duties and their private interests". They must also "keep separate their role as Minister and constituency Member"."
c) "General Principles
10. It follows that a Planning Minister should take no part in a planning decision in which he or she has, or might be perceived to have, a private or constituency interest. That includes decisions in respect
of
planning matters with which he or she has previously been associated, as an MP or in a private capacity. Nor should the Planning Minister do anything calculated to influence such a decision.
…
12. A Planning Minister should not discuss a planning case with any interested party to a decision. This advice applies, in particular, to decisions on recovered planning appeals and called-in planning applications (see paragraphs 13 to 19 below). Ministers should decline requests
for
meetings from MPs, delegations
of local
people, parties to an appeal or a called-in application, pressure groups or any other party who wish to make representations about a particular planning matter. The same principle applies to other forms
of
contact with interested parties, including telephone calls."
e) "
Communities
and
Local Government
Ministers' constituency interest in planning cases
29. In their role as Members
of
Parliament with constituency interests, Planning Ministers may wish to express their opinions on regional or
local
plans, and planning applications, to a Regional Assembly,
local
planning authority, an Inspector or another Planning Minister as appropriate. Specific advice on this is contained in the Ministerial Code (para 6.6: see also the final sentence
of
this paragraph). Planning Ministers are not precluded from making representations on matters affecting their constituents' interests. But they must make clear that they are acting as their constituents' representative and expressly not as a Planning Minister, and that they will not take part in any subsequent decision on the matter. In dealing with relevant
local
planning authorities on planning matters in their constituencies, Planning Ministers should not do anything to influence the decision, and they should take particular care not to give any impression
of
wielding Ministerial influence. They are quite free to make representations therefore, so long as these are made openly and on the basis that they will be made available to all interested parties
for
comment. The Permanent
Secretary
should be advised
of
any such interest."
- The Guidance reflects the constitutional reality that it is inevitable that members
of
the House
of
Commons who are also ministers may either need or wish to represent a constituency interest in relation to a case falling
for
decision by the ministry
of
which they are part. The principle applied by the guidance is that a minister having a constituency interest in planning cases should take no part in the decision making process; but he is not precluded from making representations in his role as constituency MP provided that he does not do anything to influence the decision or give any impression
of
wielding ministerial influence.
- Following the appointment
of
the new ministers after the election, the DCLG ministers had agreed that the majority
of
recovered appeals and called-in planning applications would be determined by Mr Bob Neill MP. In accordance with that approach, and there being no reason
for
the present case to be determined by a minister other than Mr Neil, the present case was earmarked
for
determination by him. Documentation relating to the case was provided to him, which included the letter dated 15 January 2010 from Mr Pickles to which I have already referred. The papers provided to Mr Neill included the following text:
"MP and other interest
The Right Hon Eric Pickles, who is the MP
for
the constituency in which the appeal site lies, wrote to the Inspector to oppose the development….given his interest in this appeal, it would be particularly inappropriate
for
Mr Pickles to have any involvement in its determination, so please do not discuss the case with him…." [Emphasis in the original]
- Casework officials attended meetings with Mr Neill during September 2010 to discuss the present case and the four other gypsy and traveller appeal cases. Consideration
of
the present case was then interrupted by the receipt
of
a pre-action protocol letter dated 22 September 2010 which was the precursor to an attempt by the claimant to seek to judicially review the decision to recover the present appeal. Permission was refused by the Court after an oral hearing on 14 July 2011, after which officials prepared a further submission on the case
for
Mr Neill on 1 September 2011. In that submission the officials recorded that, when he had previously considered the case, Mr Neill had indicated that he wished to dismiss the appeal and refuse planning permission on both a permanent and a temporary basis. The officials gave further advice on the case. Mr Neill then made the decision which was communicated to the claimant by the letter
of
3 October 2011.
- A witness statement from Mr Steve Quartermain, the Chief Planner at the DCLG
states
:
"
For
the avoidance
of
doubt, to the best
of
my knowledge and belief as the senior civil servant responsible
for
managing the team tasks with processing all called-in planning applications and recovered appeals (therefore including the recovered appeal pertaining to the site) the
Secretary of State
had no involvement in the decision to recover the appeal nor the substantive decision in relation to the site."
- Mr Quartermain gives evidence in relation to the other four appeals which had been recovered and decided by Mr Neill. In one
of
them the minister granted temporary permission
for
a period
of
2 years in place
of
permanent permission; in one
of
them the minister refused permission altogether where the inspector had recommended a grant
of
temporary permission, and in two
of
them, where the inspectors had recommended temporary permission, the minister curtailed the period
of
the temporary permission.
- The initial decision to recover the claimant's appeal generated correspondence in and from July 2010. In response to a letter dated 12 July 2010 from Green Planning Solutions ["GPS"], who were acting on behalf
of
the claimant, the Planning Inspectorate wrote on 29 July 2010 informing GPS that, in addition to the claimant's case, other similar cases had been considered
for
recovery and that
of
over forty cases so far considered, thirteen were directly related to gypsy and traveller cases. The letter also informed GPS that:
"Gypsy cases specifically were looked at according to whether they were sited in the Green Belt and/or any other statutorily designated landscape area. Those cases that met these criteria were recovered while those that did not were not recovered."
- In response to a telephone call on 20 August 2010 requesting information the DCLG wrote on 16 September 2010 to GPS:
"You asked which CLG minister is responsible
for
taking the decision on this case. It is not our practice, prior to the issue
of
a decision letter, to
state
which minister is responsible
for
taking a decision. However we are willing to make the information available after the decision has been published.
For
the avoidance
of
doubt, we can confirm that the
Secretary of State
, in whose constituency the appeal site lies and who submitted a written representation on the appeal, will not take the decision himself."
- On 22 September 2010 solicitors acting
for
the claimant wrote to Mr Pickles in his capacity as
Secretary of State
:
"We submit that given that it is well known that you oppose the site being granted planning permission, this appeal should not have been recovered by the
Secretary of State
, as there is a clear risk
of
perceived bias. We believe therefore that the decision to recover is unreasonable within the meaning
of
the Wednesbury case and would ask that the decision be revoked and the matter remitted to the planning inspectorate, so that the original inspectors report available on 13th May should be published and treated as the decision as to whether or not to grant our client's planning permission."
- The Treasury Solicitor responded on 29 September 2010:
"21. The decision to recover Mr
Ball
's appeal, and the other similar appeals, was not taken by the
Secretary of State
. The Parliamentary Under-
Secretary of State
, Mr Bob Neill MP decided the criteria on which cases would be considered
for
recovery but he did not decide that this particular case should be recovered. The decision to recover was taken by officials operating within the criteria set by the Parliamentary Under-
Secretary of State
. Moreover, the decisions on these recovered appeals will, as has already been explained to Mr
Ball
's planning consultant (see the letter dated 16 September 2010 referred to above), not be determined by the
Secretary of State
precisely because the appeal is in his constituency and he submitted a written representation on the appeal.
22. It has been explained to the Minister who has been asked to determine the case that he should not discuss it with the
Secretary of State
.
23. In these circumstances there is no appearance
of
bias and the decision to recover cannot be said to be Wednesbury unreasonable."
- The claimant issued his judicial review proceedings challenging the decision to recover the appeal on 5 October 2010. The allegation
of
actual or perceived bias was central to those proceedings. By his Acknowledgment
of
Service the
Secretary of State
submitted detailed grounds
of
resistance which included, at paragraph 33:
"As to the allegation
of
the appearance
of
bias the
Secretary of State
says that the fair-minded and reasonable observer would not regard there as being a real possibility
of
the appearance
of
bias having regard to the following:
i) The decision to recover the claimant's appeal, and the other similar appeals, was not in fact taken by the
Secretary of State
. The Parliamentary Under
Secretary of State
, Mr Bob Neill MP decided the criteria on which the cases would be considered
for
recovery but he did not decide that this particular case should be recovered. The decision to recover was taken by officials operating within the criteria set by the Parliamentary Under
Secretary of State
;
ii) The Ministerial Code (Cabinet Office May 2010) expressly allowed ministers to make representations on planning applications in their constituencies, see paragraph 6.6;
iii) ...[The grounds referred to and set out paragraphs 3 and 29
of
the 2008 DCLG Guidance on Planning Propriety Issues];
iv) Moreover, the decisions on these recovered appeals will, as was explained to the claimant's planning consultant (see the letter dated 16th September 2010 referred to above) not be determined by the
Secretary of State
precisely because the appeal is in his constituency and he submitted a written representation on the appeal;
v
) It has been reiterated to the minister who has been asked to determine the case that he should not discuss it with the
Secretary of State
."
- On the evidence before the Court today there is nothing to suggest that Mr Pickles MP took any part in the decision making process that led to the issuing
of
the letter
of
3 October 2011. Furthermore, apart from the fact that, in his capacity as constituency MP, he had opposed the granting
of
permission in the ways outlined above, there is nothing to suggest that he did anything to influence the outcome
of
the decision making process. The evidence is to the contrary and I accept it: Mr Pickles took no part in the decision making process and did nothing to influence the outcome
of
the process other than taking the steps outlined above in his capacity as constituency MP in accordance with the Ministerial Code and the DCLG guidance.
The Legal Framework
- When making a planning decision, the
Secretary of State
is obliged to make it in accordance with the relevant development plan unless material considerations indicate otherwise: see s 38(6)
of
The Planning and Compulsory Purchase Act 2004 ["the PCPA 2004"]. Thus it is to be expected that a decision will identify any relevant development plan and any material indications which may tend towards a decision that is not in accordance with the relevant development plan. The development plan does not have absolute authority. S. 38(6) creates a presumption in favour
of
the development plan so that, if an application accords with the development plan and there are no material considerations indicating that it should be refused, permission should be granted: see R (ex p Cala Homes (South) Limited)
v Secretary of State for Communities
and
Local Government
and Anr (No 2) 2011 [EWCA] Civ 639 at [6], citing City
of
Edinburgh Council
v Secretary of State for
Scotland [1997] 1 WLR 1447 (HL).
- During the present hearing, reference has been made to the East
of
England Plan, the Regional Spatial Strategy, and Circular 01/2006. In the period to the change
of government
, the East
of
England Plan formed part
of
the relevant development plan. The current relevant iteration
of
the East
of
England Plan was a document entitled "Accommodation
for
Gypsies and Travellers and Travelling Showpeople in the East
of
England" which was "a revision to the Regional Spatial Strategy
for
the East
of
England" and which was issued by the
Government
in July 2009. The document was the final outcome
of
a review
of
the RSS
for
the East
of
England and addressed "the accommodation needs
of
Gypsies and Travellers and Travelling Showpeople in accordance with the requirements
of Government
policy in Circular 01/2006…". As such, it formed part
of
the strategic planning framework
for
the East
of
England. Section 2 set out "RSS policies on provision
of
accommodation
for
Gypsies and Travellers and Travelling Showpeople" and set out Policy H3, stating that "
Local
authorities should make provision through Development Plan Documents
for
at least 1,237 net additional residential pitches
for
Gypsy and Traveller Caravans by 2011…". Brentwood was to make provision
for
a minimum 15 additional pitches by 2011.
- ODPM circular 01/2006, entitled "Planning
for
Gypsy and Traveller Sites", was not part
of
the development plan as such but was a material consideration within the meaning
of
s. 38(6)
of
the PCPA 2004. And, as the East
of
England Plan stated, the RSS was formed by reference to circular 01/2006 and was formulated taking it into account. The circular highlighted the need
for
increased provision, giving a number
of
reasons, including that "gypsies and travellers are believed to experience the worst health and education status
of
any disadvantaged group in England. Research has consistently confirmed the link between the lack
of
good quality sites
for
gypsies and travellers and poor health and education. This circular should enhance the health and education outcomes
of
gypsies and travellers." Its stated intentions included to reduce the number
of
unauthorised encampments and developments; to increase significantly the number
of
gypsy and traveller sites in appropriate locations with planning permission; to promote more private gypsy and traveller site provision in appropriate locations through the planning system; and to help to avoid gypsies and travellers becoming homeless through eviction from unauthorised sites without an alternative to move to.
- When the inspector was preparing his report, Brentwood Council was preparing a
Local
Development Framework (LDF) which was to include a Gypsies and Travellers Development Plan Document (DPD). In December 2010 Brentwood Council decided to cease work on this draft DPD: the
Secretary of State
's advisers informed him that the Council "plans instead to consider the issue
of
sites
for
gypsies and travellers within its Core Strategy." Information at the time
of
the Decision Letter from the Council's website suggested that the emerging Core Strategy was still at an early stage. What was not in doubt either when the inspector produced his report or at the time
of
the
Secretary of State
's Decision Letter was that Brentwood had not produced a policy document on the provision
of
gypsy accommodation. However, both the inspector (at paragraphs 82-87) and the
Secretary of State
(at paragraph 22) recognised a clear need
for
gypsy accommodation in Brentwood.
- By the time that the inspector delivered his report, the
Secretary of State
had purported to revoke the RSS. That revocation was challenged successfully: see R (ex p Cala Homes (South) Limited)
v Secretary of State for Communities
and
Local Government
and Anr (No 1) [2011] EWHC 2866 (Admin). Consequently, policy H3 became part
of
the development plan again and, because the purported revocation was unlawful, should be treated as always having been in place.
- There has at all material times been a general presumption against inappropriate development in the Green Belt: this was recognised and was not affected by circular 01/2006: see paragraph 49
of
the circular. Very special circumstances have to be demonstrated in order
for
development within the Green Belt to be permitted. "Very special circumstances" will only exist when the material considerations relied upon by an applicant or appellant clearly outweigh the harm by way
of
inappropriateness to the Green Belt and any other harm identified. That will be so even if the circumstances viewed individually or in combination could be described as commonplace: it is not the intrinsic nature
of
the circumstances that must be "very special" but the fact that they must clearly outweigh the harm by way
of
inappropriateness to the Green Belt and any other harm identified.
- It was common ground before the inspector, as recorded at paragraph 19
of
his report, that the appeal proposal constituted inappropriate development in the Green Belt. The issue
for
the inspector and
for
the
Secretary of State
was therefore whether the material considerations relied upon by the claimant clearly outweighed the harm from the inappropriate development
of
the Green Belt which was proposed.
- The principles to be applied where the Court is asked to overturn a decision
of
the
Secretary of State
are well established and may be shortly summarised here. The five numbered principles set out by Forbes J in Seddon Properties Ltd and Anr
v Secretary of State for
the Environment and Anr (1981) 42 P&CR 26 apply and do not need to be set out again in this judgment. At page 28
of
Seddon Forbes J added that planning judgment and the weighing
of
various issues are entirely
for
the decision maker and not
for
the court. This was emphasised by the House
of
Lords in Tesco Stores
v
Environment
Secretary
[1995] 1 WLR 759, 780 where Lord Hoffmann said:
"The law has always made a clear distinction between the question
of
whether something is a material consideration and the weight which it should be given. The former is a question
of
law and the latter is a question
of
planning judgment, which is entirely a matter
for
the planning authority. Provided that the planning authority has regard to all material considerations, it is at liberty (provided that it does not lapse into Wednesbury irrationality) to give them whatever weight the planning authority thinks fit or no weight at all. The fact that the law regards something as a material consideration therefore involves no view about the part, if any, which it should play in the decision-making process.
This distinction between whether something is a material consideration and the weight which it should be given is only one aspect
of
a fundamental principle
of
British planning law, namely that the courts are concerned only with the legality
of
the decision-making process and not with the merits
of
the decision. If there is one principle
of
planning law more firmly settled than any other, it is that matters
of
planning judgment are within the exclusive province
of
the
local
planning authority or the
Secretary of State
."
- When the court is asked to review a decision, the Decision Letter must be read fairly and as a whole without an unduly legalistic or critical approach, in a down to earth manner, and not as if it were a legal instrument; and it should be read as if by a well informed reader who understands the principal controversial issues in the case: see in particular the observations
of
Sir Thomas Bingham MR in Clarke Homes
v Secretary of State for
the Environment (1993) 66 P&CR 263@271.
The Issues
for
Determination
- By this appeal, the claimant challenges the determination by the
Secretary of State
on 3 October 2011. He does not challenge the legality
of
the decision to recover the appeal; nor could he, given the fact that permission to bring Judicial Review proceedings challenging that decision was refused on 14 July 2011 after a renewed application and that no appeal was brought against that refusal. Although not itself subject to challenge, the decision to recover the appeal remains potentially relevant to the legality
of
the decision delivered on 3 October 2011 if and to the extent that it illuminates the thought processes (or lack
of
them) on the part
of
the
Secretary of State
in making the decision that is now subject to challenge.
- By his pleaded Details
of
Claim and Skeleton Argument submitted
for
the hearing, the claimant challenges the decision
of
the
Secretary of State
on five grounds as follows:
a) That in reaching his decision the
Secretary of State
has acted in a manner that demonstrates bias or perception
of
bias;
b) In reaching his decision the
Secretary of State
has failed to take into account relevant matters and taken into account irrelevant matters;
c) The
Secretary of State
has failed to give the parties the opportunity to make further representations in circumstances where there has been a material change in planning policy since the conclusion
of
the inquiry;
d) The
Secretary of State
has acted in a manner inconsistent with other very similar and relevant recovered appeals;
e) The
Secretary of State
has failed to give reasons which are proper, adequate, clear and intelligible and which deal with all the substantive points raised.
- However, when presenting the appeal, Lord Carlile
of
Berriew QC presented his arguments in a different order, leaving bias and the perception
of
bias to the end
of
his submissions in accordance with his written speaking note. I shall therefore consider the issues in the order in which they were presented at the hearing, always bearing in mind that there is a degree
of
cross-fertilisation between the various grounds
of
challenge and that, ultimately, the grounds
of
challenge must be weighed both individually and cumulatively.
- The claimant's starting point is to allege that the
Secretary of State
misdirected himself as to the material policy considerations to an extent that must be considered unlawful. He points to the fact that the inspector's Report refers to the "revoked" and "former" RSS and submits that the inspector did not apply the current policy even when finding in favour
of
the claimant. Turning to the
Secretary of State
's Decision Letter, he submits that it offends more dramatically and that "in reality the decision letter gives the Regional Strategy no weight at all. It is brushed aside."
- Turning first to the inspector's Report, it is plain that he treated the RSS as having been revoked: see, in particular, paragraphs 14 and 86-87. It is equally plain that the inspector took into account the claimant's case, which had been based upon the provisions
of
the RSS. The inspector made findings in accordance with the claimant's case on the need
for
gypsy sites and the failure
of
Brentwood's policy to make adequate provision
for
gypsy sites; and he gave them weight as the claimant submitted that he should: see paragraphs 26, 29, 84, 85 and 87. If this were a challenge to the lawfulness
of
a decision made by the inspector in the terms
of
his report, there would be a significant issue
for
decision, namely whether the inspector's reliance on and findings in accordance with the substance
of
the RSS was a sufficient answer to his adopting the formal position that it had been revoked. But that is not the issue here: the decision under challenge here is the
Secretary of State
's. I therefore turn to the Decision Letter.
- The Decision Letter referred expressly to the purported revocation
of
the RSS and to the decision in Cala (No 1) as follows:
"7. As set out by the Inspector at IR14 Regional Strategies (RSs), including the East
of
England Plan, which formed part
of
the development plan at the time
of
the inquiry, were revoked by the
Secretary of State
on 6 July 2012. However, following the decision
of
the Court on 10 November 2010 in Cala Homes (South) Limited
v Secretary of State for Communities
and
Local Government
([2010] EWHC 2966 (Admin)), the East
of
England Plan (which is the RS
for
the area) has been re-instated and is therefore part
of
the development plan in this case.
8. Notwithstanding this, the
Secretary of State
has clearly stated his intention to revoke RSs and the provisions
of
the Localism Bill which is now before Parliament reflect this intention. Whilst he has taken this matter into account in determining this case, the
Secretary of State
gives it limited weight at this stage
of
the parliamentary process."
- Paragraph 7 expressly recognises that the EEP has been re-instated and is therefore part
of
the development plan in the case. At paragraph 8 the
Secretary of State
refers, as he was entitled to do, to his intention to revoke the RS by the Localism Bill, but he gives that matter "limited weight". The fact that, despite the necessary legislation being now on the statute book, the revocation is not yet effective takes the matter no further. What is apparent from paragraph 25
of
the Decision Letter is that the
Secretary of State
gave weight to Brentwood's policy failure,
of
which the failure to complete the DPD was a part.
- Returning to policy H3, the Decision Letter refers expressly on numerous occasions to the policy in terms which make plain that the
Secretary of State
remains conscious
of
the relevance and applicability
of
the policy. There are express references to policy H3 at:
i) Paragraphs 13 and 14, which speak the language
of
s. 38(6)
of
the PCPA 2004. Paragraph 13 refers to policy H3 as one
of
the policies "most relevant" to this appeal, while circular 01/2006 is introduced in paragraph 14 as one
of
the "relevant" material considerations;
ii) Paragraph 16, which
states
that the
Secretary of State
has had regard to the development plan, "in particular the policies set out at ... EEP Policies H3 ...";
iii) Elsewhere, the
Secretary of State
expressly refers to policy H3 when considering the general need
for
gypsy accommodation (at paragraphs 21-22, where he adopts the claimant's case on need), policy failure (at paragraph 25) and when concluding (at paragraph 35) that the claimant's scheme gains support from the policy.
- On the face
of
the Decision Letter, therefore, the claimant's submission that the
Secretary of State
has failed to take into account the relevant policy (H3) or the contents
of
the RSS or circular 01/2006 cannot succeed. The claimant must therefore establish that although the Decision Letter is in terms unimpeachable on this ground, the
Secretary of State
has "in reality" given the RSS no weight at all. Since the
Secretary of State
's thinking is usually to be determined by reference to the terms
of
his decision, this is an ambitious submission. To establish it, the claimant must show that the
Secretary of State
, while adopting a legitimate form
of
words has in fact acted illegally and in a way that is not reflected in the terms
of
the Decision Letter. The claimant attempts to make good his submission by demonstrating that the
Secretary of State
's decision is in fact irrational and that it contradicts the conclusions
of
the inspector and the advice
of
his officials without there being any rational reason
for
doing so. The submission that the
Secretary of State
has failed to take properly into account the terms
of
the applicable policy therefore moves towards the claimant's second main line
of
attack, which is to submit that the decision is irrational.
- The claimant accepts that the
Secretary of State
is not bound by the advice either
of
the inspector or
of
his advisers. His submission is that, taking into account the contributions
of
the inspector and the advisers, there is no rational basis
for
the conclusion and decision reached by the
Secretary of State
. He relies upon two main arguments. The first is that the advisers left open no rational basis
for
concluding that permission should be refused altogether. The second is that comparison
of
the advice given by the advisers with the outcome arrived at by the
Secretary of State
shows that the
Secretary of State
's landing point was irrational. In support
of
these arguments, the claimant submits that the
Secretary of State
's approach to the disclosure
of
information and documents after the dispute arose and in the course
of
these proceedings leads to an inference
of
bias which supports a finding
of
irrationality. In the course
of
oral submissions there was at least a suggestion that the materials available to the Court show that Mr Neill approached the question with a closed mind. This too is relied upon in support
of
the submissions
of
irrationality and bias.
- The first argument relies mainly upon the terms
of
the initial advice by the advisers to Mr Neill, which was provided on 8 September 2010. At paragraph 3
of
that advice, the advisers stated:
"This is a difficult case, and we have no easy solution to offer you. Dismissal
of
the appeal, given the absence
of
alternative sites, may well see these families forced onto the road, or setting up unauthorised encampments elsewhere. This would shift their accommodation problems, but seems unlikely either to resolve them or alleviate the associated public concerns. On balance, given the site's GB location and its scale, we recommend that you refuse permanent permission, but allow the appeal and grant a temporary planning consent
for
3 years."
The advisers then set out various considerations at paragraphs 10 to 16, some
of
which tended to support the grant
of
permission (such as personal need, lack
of
alternative accommodation, and personal circumstances) and others
of
which tended to oppose it (such as the fact that the families had moved onto the site when there were known to be enforcement notices in place and the need
for
very special circumstances to justify inappropriate development). They identified a potential flaw in the inspector's logic at paragraphs 21-22, which said:
"21. We think the Inspector makes a fair case
for
allowing a permanent permission, but this is based on an assumption that a temporary permission is not permissible in the circumstances
of
this case. His reason
for
taking this view is that the sites identified in the emerging DPD "by virtue
of
identifying existing temporary sites, would not make provision
for
the occupants
of
the appeal site". However, national policy makes clear that temporary permission may be justified where it is expected that planning circumstances will change in a particular way at the end
of
the temporary period.
22. Whilst the Inspector's statement about DPD provision is true, we note that the DPD is still a draft and we think we can reasonably conclude in our decision letter that we do expect planning circumstances to change
for
the site occupants. As the Council is still developing its DPD on gypsy and traveller sites, the families living on the appeal site still have the opportunity (which they should be encouraged to take) to engage with the Council to ensure that their accommodation needs are taken into account in the final document. Furthermore, Brentwood's draft DPD includes a criteria based policy, and it seems reasonable to expect the families on this site to use the stability offered by a temporary planning consent to search
for
a site which meets the criteria set out in the emerging policy. The Inspector also acknowledges this by referring to the fact that current policies would not prevent other sites coming forward. With a temporary permission, both the site occupants and the Council have an incentive to secure a more suitable site by the end
of
the temporary period. In line with the Inspector, we consider that three years would be a reasonable period
for
a temporary consent. Finally, if you agree with us that planning circumstances are likely to change
for
the site occupants and there is a reasonable expectation that other sites will come forward by the end
of
the temporary period, we recommend, in line with Circular 1/2006, that you give substantial weight to the unmet need in the district
for
gypsy and traveller sites."
- Having concluded their review and given their advice, the advisers concluded:
"23. On balance, we think that granting a 3 year temporary permission is a better option than either allowing a permanent permission, as recommended by the Inspector, (which would result in ongoing harm to the GB), or dismissing the appeal (which seems likely, to result in the families having to quit the site with no settled base to move to). Do you agree?"
- On this material it is not, in my judgment, possible to assert that the advisers left no rational basis
for
a refusal
of
permission. While it is true that the advisers came down in favour
of
granting a 3 year temporary permission, the starting premise, which was set out at paragraph 3, was that outright rejection was a realistic and rational option. The observation that rejection may well see the families forced onto the road, which might shift their accommodation problems but not resolve them or alleviate the associated public concerns was correctly expressed as a factor to be taken into consideration; but it was not advanced as the basis
for
a suggestion or advice that it would be irrational to refuse permission altogether. This is clear from the fact that the recommendation in paragraph 23 to allow temporary planning consent was given "on balance" and was expressed to be a "better option" than either permanent permission or outright refusal. The balance referred to by the advisers was not just being struck between temporary and permanent consent but included the rational possibility
of
outright rejection as well.
- The supplementary advice given to Mr Neill in September 2011 concluded that, although the argument set out in paragraph 22
of
the 2010 advice was no longer applicable, the planning balance had not materially altered since that advice. That necessarily implies that rejection remained a rational option. The supplementary advice referred to the
Secretary of State
's indication
of
his view when he had previously considered the case and stated that the Decision Letter had been drafted with that indication in mind. The Court has not seen the draft letter and does not know whether it was changed as a result
of
the reconsideration by the minister in 2011. The end result
of
the process was,
of
course, the Decision Letter
of
3 October 2011.
- On this material and
for
these reasons, I reject the submission that the advice from the minister's advisers left no possibility
of
a rational rejection
of
the application. While it is true that there were arguments which could have led the
Secretary of State
rationally to allow the application, it does not follow that the granting
of
permission was the only rational outcome. The terms
of
the inspector's report and the advice from officials showed that there was a balancing exercise to be carried out. In those circumstances it is necessary to see whether it can be said that the
Secretary of State
carried out no balancing exercise at all or that the balancing exercise carried out by the
Secretary of State
was irrational.
- Review
of
the Decision Letter indicates that, on its face, the minister identified and then balanced the major considerations which had been raised by the inspector and the advisers. In some cases he agreed with the quantification
of
weight to be attributed to the factor suggested by the inspector and his advisers; in others he did not. The identification
of
factors and the weight to be attributed can be summarised in tabular form: see Table 1. It provides no support
for
an argument that the
Secretary of State
failed to consider the main factors that were relevant to be brought into the balance. Where the
Secretary of State
disagreed with the quantification
of
weight to be attributed to a factor, his position was explained rationally in the Decision Letter.
Table 1: Comparison
of
Factors and Weightings in the Present Appeal
Issue |
Inspector |
First Briefing |
Second Briefing |
Decision Letter |
General Need |
[83-87] "Significant" |
[14-15] "Significant" |
[10-11] As before |
[22] "Significant" |
Personal Need |
[88-92] "Considerable" |
[16] "Considerable" |
Silent |
[23] "Moderate" |
Alternative accommodation |
[93-95] "Important" |
[17] "Important" |
Silent |
[24] "Important" |
Policy Approach |
[96] "Limited" |
Silent |
Silent |
[25] "Weight" |
Personal Circumstances |
[97-99] "Significant" |
[18] "Important" |
Silent |
[26] "Important" |
Special Circumstances |
[101-104] |
[19-23] |
[13] |
[27-30] |
- The claimant submitted that the
Secretary of State
reached a view on the damage to the Green Belt which was substantially at variance with that
of
the inspector, the implication being that the
Secretary of State
's view was irrational. The claimant generally accepted the characterisation that the inspector "finds the scheme would have a significantly adverse effect on the openness
of
this part
of
the Green belt and that it would encroach into the countryside" – his disagreement being with the use
of
the word "this". The claimant's general acceptance was correct, given the references in the inspector's report to the dispersal
of
the development across the site which the inspector found would "damagingly detract from the openness
of
the Green Belt", the fact that the site lay in a generally open landscape and that there would be localised visual intrusion: see paragraphs 70, 73, 76 and 100
of
the inspector's report. The
Secretary of State
identified (at paragraph 28
of
the Decision Letter) that he attached great importance to Green Belts, as he was entitled to do, and (at paragraph 30) concluded that the harm that the scheme would cause to the Green Belt was "severe". This was a planning judgment which was
for
the
Secretary of State
to make, and the materials before the court do not entitle the court to conclude that the judgment was made unlawfully. In particular, there is no substance in the claimant's assertion that the inspector and the
Secretary of State
wrongfully assumed that a mound and a fence formed part
of
the proposed development: in paragraph 74
of
the inspector's report, he correctly identified that the mound and fence were "alongside" the boundary
of
the development and not part
of
it. There is no evidence to suggest or prove that the
Secretary of State
fell into unlawful or vitiating error on this point.
- Having laid the ground
for
a balancing exercise, the
Secretary of State
carried out what appears to be a balancing exercise at paragraphs 27-30
of
the Decision Letter as follows:
"Consideration
of
whether very special circumstances exist
27. The
Secretary of State
has given careful consideration to the Inspector's balancing
of
considerations at IR100-104. As set out at paragraph 17 above the
Secretary of State
has concluded that the development constitutes inappropriate development in the Green Belt. In addition, he has found that the development would encroach into the countryside, and that it is thus contrary to one
of
the purposes
of
including land within the Green Belt (paragraph 17 above). He has found that the appeal would have a significantly adverse effect on the openness
of
this part
of
the Green Belt (paragraph 18 above), and that it would cause localised harm to the character and appearance
of
the area, including the visual amenities
of
this part
of
the Green Belt (paragraph 19 above).
28. As set out in PPG2, the
Secretary of State
attaches great importance to Green Belts, which remain an essential element
of
planning policy. He observes that the fundamental aim
of
that policy is to prevent urban sprawl by keeping land permanently open, and that the most important attribute
of
Green Belts is their openness. In accordance with national policy, the
Secretary of State
has attributed substantial weight to the harm which arises by reason
of
the scheme's being inappropriate development (paragraph 17 above). He takes the view that, in addition to the harm arising from inappropriateness, the loss
of
openness, the encroachment into the countryside, and the harm to the character and appearance
of
the area which would arise if the appeal proposal were implemented weigh heavily against a grant
of
planning permission.
29. Turning to factors advanced in support
of
allowing the appeal and granting planning permission, the
Secretary of State
has concluded that there is a clear need
for
additional gypsy accommodation in the Borough and he has attributed significant weight to this issue (paragraph 22 above). He has also found that the occupants
of
the appeal site have a need
for
a settled base and he has attributed moderate weight to their personal need
for
accommodation (paragraph 23 above). He has also concluded that the absence
of
an available alternative site is a matter attracting further important weight in the scheme's favour (paragraph 24 above). The
Secretary of State
has given weight to the failure
of
policy as set out at paragraph 25 above, and he has also weighed in the scheme's favour the function
of
the appeal site in facilitating access to education and healthcare services (paragraph 26 above).
30 The
Secretary of State
has carefully weighed up these matters.
For
the reasons given in paragraphs 27 and 28
of
this letter, he concludes that the harm which the scheme would cause to the Green Belt is severe. Whilst he considers there are a number
of
factors weighing in support
of
the scheme, he is not satisfied that those matters, either individually or cumulatively, outweigh the harm he has identified, and he concludes that very special circumstances to justify this development in the Green Belt do not exist."
- The claimant submitted that this did not amount to a lawful balancing exercise or that it did not give sufficient reasons or give them with sufficient clarity. Viewed in the context
of
the Decision Letter as a whole, that is a submission which must be rejected. The
Secretary of State
has identified the factors which he proposes to take into account, has expressly weighed them in the balance, and has found that the factors advanced in favour
of
the scheme do not outweigh the harm to the green belt which he has identified. This conclusion is supported by the claimant's reference to the form
of
balancing exercise carried out in the appeal
of
Crawt, which related to land near Guildford, and which (according to the claimant) provided the type
of
balancing exercise which an applicant was entitled to expect and described how the decision had been reached. That exercise was expressed as follows:
"30. In his balancing
of
the factors weighing
for
and against a permanent permission, the
Secretary of State
has also taken into account the personal circumstances
of
the site occupiers. He attaches some weight to their health needs and has taken account
of
the specific needs
of
two
of
the site occupiers. He also attaches some weight to the benefits to some
of
the occupiers in terms
of
access to education should permission be granted.
31. The
Secretary of State
has concluded (at paragraph 25 above) that dismissal
of
the appeal may result in an interference with the occupiers' rights under Article 8
of
the ECHR. He has weighed that interference against the harm to the Green Belt which he has identified above and he is satisfied that the interference which would be caused by a refusal
of
permanent planning permission is a necessary and proportionate response when balanced against the wider public interest. He concludes that the protection
of
the public interest cannot be achieved by means which are less interfering.
32. In conclusion, having weighed the factors he has identified as being in favour
of
a permanent permission against the considerable level
of
harm he has identified, the
Secretary of State
considers that harm is not clearly outweighed and he concludes that very special circumstances do not exist in order to justify the development in the Green Belt on a permanent basis."
- There is no significant difference in terms
of
form, scope or clarity between the balancing exercise in Crawt,
of
which the claimant approves, and the balancing exercise in this case, which the claimant seeks to challenge. In each case, the
Secretary of State
sets out the features which he is taking into account on either side
of
the balance and provides a concise statement
of
the outcome
of
the balancing exercise, applying the correct legal criteria
for
reaching his decision. Applying the approach outlined in Clarke Homes, a well informed reader who understood the principal controversial issues in the case and who read the Decision Letter as a whole could not be left in any doubt about the
Secretary of State
's decision or the reasons underlying it; and the reasoning underlying the decision, as expressed in the Decision Letter, included a balancing
of
the principal contentions and a clear statement
of
the outcome
of
the balancing exercise that the
Secretary of State
stated had been carried out. On the face
of
the document, the submission that no balancing exercise had been carried out fails, though it will remain necessary to stand back and to take stock
of
the effect
of
all
of
the evidence viewed as a whole before reaching any final decision on this issue or on the case as a whole.
- The claimant identifies three factors which are alleged to be material and not to have been taken into account by the
Secretary of State
. The first is the mound and fence, to which I have already referred. The second is that the
Secretary of State
is alleged to have failed to give consideration to the argument that all future gypsy and traveller pitch provision in Brentwood would also be situated in the Green Belt. The third is that the
Secretary of State
reduced the weight to be given to the personal need
of
the occupiers
of
the appeal site on the basis that they moved onto the site in knowledge
of
an existing enforcement notice.
- In my judgement there is nothing in either the second or the third point. The appeal was site specific and the question to be answered by the inspector and the
Secretary of State
was whether the damage to this part
of
the green belt was clearly outweighed by other factors. The same question would have to be answered in relation to any other planning proposal relating to any other proposal to develop the green belt. Each green belt proposal would be different in terms
of
the disposition
of
the site, the layout and content
of
the proposed development, and the impact
of
the development on the site. The fact that any other proposal would have to meet the same test does not alter the test to be applied in this case. Turning to the third point, the
Secretary of State
was entitled to take into account the lawful status
of
the land and the fact that it had been determined expedient in the public interest to enforce against the use
of
the site. The fact that the enforcement notice had not been enforced did not alter the fact
of
its existence.
- The claimant's next line
of
attack is to submit that the
Secretary of State
's conclusion is irrational because it differs from the views that the inspector reached and his advisers would have reached. I reject this submission
for
a number
of
reasons that can be stated shortly. First, the mere fact that the
Secretary of State
disagreed with the inspector's ultimate conclusion and the conclusion that the advisers would have reached if they had been charged with decision making is not
of
itself evidence
of
irrationality. It is fundamental that the
Secretary of State
is required to make his own decision and not slavishly to follow the views
of
others. It is therefore necessary to look at the content
of
the Decision Letter (or external factors to which I shall turn later) to found an argument
of
irrationality. Second, when the briefings produced by the advisers are reviewed, it is apparent that they presented three choices on the basis that each
of
the potential outcomes could be reached rationally. The terms
of
the briefing notes therefore do not support a finding
of
irrationality. Third, once the content
of
the Decision Letter is reviewed, it is apparent that the
Secretary of State
accepted much
of
the raw material presented to him but attributed different weight to some elements when compared with the weight attributed by others. In particular, he attributed greater importance to the protection
of
the green belt and gave greater weight to the fact
of
the enforcement notice. Neither
of
these differences was irrational or otherwise not properly open to the
Secretary of State
. The emphasis on the importance
of
protecting the green belt is unsurprising given the statements
of
the Conservatives before and the Coalition
Government
after the election, and fell well within the range
of
what was legitimate bearing in mind the guidance in Redcar.
- Simply on the face
of
the information provided by the inspector's report, the briefing notes and the Decision Letter, I would therefore conclude that the claimant's challenge to the
Secretary of State
's decision fails. But it remains necessary to consider whether there is any extrinsic material that casts doubt upon the lawfulness
of
the decision.
- The claimant alleges inconsistency, relying upon alleged inconsistency in support
of
a submission that Mr Neill's decision in the present case is tainted by bias or the perception
of
bias. During the hearing the claimant concentrated upon alleged differences between the treatment
of
the present appeal and the treatment
of
the appeal in Crawt, although the Court was asked to read other decisions as well. Having done so, I find that the challenge based upon inconsistency fails. It is convenient to start with the decision to recover the appeal in the first place because, although not under challenge in the present proceedings, Lord Carlile referred to it more than once in the course
of
his submissions. There is in fact no material to support any suggestion
of
inconsistency
of
treatment in relation to the decision to recover this appeal. As set out above, the criteria were set by Mr Neill and applied by others. Five out
of
thirteen cases relating to gypsies and travellers were recovered and there is no evidence to suggest that the treatment
of
any
of
those five was exceptional.
- In response to the claimant's assertion
of
inconsistency by comparison with the decision in Crawt, counsel
for
the Defendant made a telling submission based upon the detail
of
the two decisions. The submission, which I accept, is summarised in Table 2 below and shows that there is no material inconsistency in the manner in which the decision was approached in the present case and in Crawt.
Table 2: Comparison
of
Ball
and Crawt
Issue |
Ball |
Crawt |
General Need |
[29] "Significant" |
[29] "Considerable" |
Personal Need |
[29] "Moderate" |
No mention |
Alternative Sites |
[29] "Important" |
[29] "Some weight" |
Failures of Policy |
[29] Weight |
[29] "Considerable" |
- It is to be noted that the issue
of
failure
of
policy had been highlighted in the Crawt inspector's report to a much greater extent than it had in the inspector's report in the present case. It can reasonably be said that the
Secretary of State
in the present case upgraded the significance
of
failures
of
policy from the level
of
its treatment in the inspector's report, to the claimant's advantage.
- Viewed overall, comparison
of
the two decisions does not disclose any significant difference in approach. I accept the Defendant's submission that there is no clear inconsistency which suggests that the
Secretary of State
in the present case was simply not doing his job or approached it with a closed mind. In reply, Lord Carlile submitted that, parse the decisions as one will, there is no material difference in the facts
of
the two cases and that the same language is used save in one respect: Crawt was in Guildford, whereas the present case was in Mr Pickles' constituency
of
Brentford. To my mind, this submission fails to recognise the fact that each case is inevitably fact specific and that it is simply not possible to demonstrate in a quasi-mathematical way that the facts are congruent or virtually so. Standing back, viewed either on its own or in combination with the other evidence in the case, the claimant has not demonstrated any inconsistency between the treatment
of
the present case and either Crawt or any other case which either vitiates the present decision or supports a submission
of
bias or perceived bias.
- There is no material dispute between the parties on the principles to be applied on the issue
of
bias or perceived bias. The relevant test
for
apparent bias was established by the House
of
Lords in Porter
v
McGill [2002] 2AC357. The test is:
"…whether the fair minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased…"
- The relevant observer is "a reasonable member
of
the public neither unduly complacent or naïve nor unduly cynical or suspicious, and adopting a balanced approach…": see R
v
Gough [1993] AC646.
- The decision as to a perception
of
bias is to be made on the basis
of
the facts and circumstances in the individual case. In Flaherty
v
National Greyhound Racing Club [2005] EWCA Civ 1117 at paragraph 27, Scott Baker LJ said:
"The test
for
apparent bias involves a two stage process. First the court must ascertain all the circumstances which have a bearing on the suggestion that the tribunal is biased. Secondly it must ask itself whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility that the tribunal was biased…an allegation
of
apparent bias must be decided on the facts and circumstances
of
the individual case…the relevant circumstances are those apparent to the court upon investigation; they are not restricted to the circumstances available to the hypothetical observer at the original hearing…"
- Although it is correct, as the claimant observes, that neither the inspector nor the
Secretary of State
constituted an independent tribunal in regard to Article 6
of
the European Convention, the fact that the system (including the role
of
the inspector and the
Secretary of State
) is Article 6-compliant,
for
the reasons given in Alconbury, means that the reasonable and informed observer would not consider that the exercise by the
Secretary of State of
that role will, without more, give rise to a perception
of
bias. It is therefore clearly
for
the claimant to establish that, on the facts
of
this case, there was either actual bias or there may exist a reasonable perception
of
bias, applying the principles to which I have referred above.
- Given that Mr Pickles took no part in the decision making process and did not influence it otherwise than in his capacity as a constituency MP in accordance with the Ministerial Code, the claimant has to establish either that Mr Neill was subconsciously and improperly influenced by the views
of
his superior minister or that he approached the present case with a closed mind.
- The main, if not the sole, material upon which the claimant now relies in support
of
the allegation that Mr Neill was biased or that his conduct gives rise to a perception
of
bias is the approach that has been adopted by the Defendant on the question
of
disclosure in this case. It is therefore necessary to set out the Defendant's obligations and the relevant chronology in some detail.
- It is well known that CPR 31 is not generally applicable to Judicial Review proceedings. Instead, defendant departments and litigation case handlers are subject to a duty
of
candour which is intended to ensure that the court is assisted with full and accurate explanations
of
all the facts relevant to the issue the court must decide. In R
v
Lancashire County Council ex p. Huddleston [1986] 2 All ER 941 Lord Donaldson MR referred to a partnership between the courts and those who derive their authority from public law, which is based upon a common aim, namely the maintenance
of
the highest standards
of
public administration; and he described the process as being one which falls to be conducted with all the cards face upwards on the table. Paragraph 1.2
of
the Treasury Solicitor's Departmental Guidance on discharging the duty
of
candour accepts and asserts that a public authority responding to an application
for
judicial review is under an obligation "to set out fully and fairly all matters that are relevant to the decision that is under challenge, or are otherwise relevant to any issue arising in the proceedings." On the basis
of
high authority, that is an accurate statement
of
the duty
of
candour as it applies in Judicial Review proceedings. It follows that the scope
of
the information to be provided by a public authority defendant in such proceedings will be determined by the issues in the case which the court has to decide.
- In these proceedings, the Court has been told by the Defendant that briefing notes to ministers are not normally considered relevant to s. 288 challenges and are not, as a matter
of
course, provided under the duty
of
candour. The Court has also been told that the Defendant is not aware
of
judicial criticism
of
this general approach. That may be so, but as a matter
of
principle it does not seem appropriate that there should be a general approach in all cases. As the Treasury Solicitor's guidance makes clear, the scope
of
the information to be provided should be driven by the issues which the court has to decide. While it may be that briefing notes are irrelevant in many cases, if a briefing note is relevant to the issues in a particular case, the duty
of
candour requires that it be provided subject,
of
course, to any proper reservations on grounds
of
legal professional privilege or
for
other proper reasons.
- In this case the claimant made an application to the DCLG by letter dated 4 November 2011, which was stated to be made under the Freedom
of
Information Act 2000 and which was subsequently treated as being made under the Environmental Information Regulations 2004. The request was
for
"any information … that touch or concern the decision making process, and the decision itself, made by or passing between the
Secretary of State
and any Minister or civil servant, or any employee
of
the Planning Inspectorate … produced after 5 May 2011." After requesting an extension
of
time on 1 December 2011, DCLG replied substantively on 6 February 2012. The letter provided some information, including documents with redactions. DCLG explained that it relied upon Regulation 12(4)(e) as permitting it to withhold information consisting
of
recommendations to the minister and some other internal communications provided that the public interest in disclosure is outweighed by the public interest against disclosure. The effect
of
relying on this exception was that briefing notes to the minister were disclosed, but they had been redacted to remove anything that could be regarded as advice to the minister. The justification
for
these redactions was said to be that "we believe that the ability to exchange views and brief Ministers in a "safe space" in order to promote a decision-making process in which all candidly expressed views and advice can be considered in the round should be paramount, and supersedes the public interest in disclosure
of
these pieces
of
correspondence and advice."
- On 10 February 2012 the claimant's solicitors replied, requesting DCLG to provide a clear explanation
of
the decision-making process undertaken when considering the information to be provided, and that to be withheld. And they asked DCLG to reconsider and review its position, arguing that DCLG's position in relation to internal communications should not be applied in a blanket way. DCLG responded on 12 March 2012 stating that it had carried out an internal review. The reviewer rejected the suggestion that the question
of
the public interest had been applied in a blanket way to internal communications. On 23 April 2012 a further bundle
of
documents was provided: the briefing notes were still redacted to exclude the advice given to the minister. The claimant's solicitors wrote to the Treasury Solicitors' Department on 17 July 2012, referring to the requests it had made
of
DCLG and urging the Treasury Solicitor's client to comply with its duty
of
candour. The solicitors wrote again, this time to DCLG on 14 August 2011 challenging the redactions and, in the absence
of
a substantive further reply, asked the Treasury Solicitor to agree to an adjournment
of
the hearing
of
the present proceedings. The Treasury Solicitor's response was that it was inappropriate to link the request
for
information under the FIA to the proceedings being brought pursuant to s. 288 and that, accordingly, it was instructed to oppose any application
for
an adjournment. On 17 October 2012 the claimant therefore issued an application
for
disclosure and an application to adjourn the hearing.
- The application was heard by Leggatt J on 14 November 2012. He had before him the witness statement
of
Mr Quartermain, which referred to meetings between the minister and advisers. He made a limited order requiring the Defendant to disclose any documents relating to such meetings and ordered the Defendant to review the documents that had previously been provided in redacted form and to disclose any which contained information
of
such a nature as adversely affected the Defendant's case or adversely affected another party's case or supported another party's case.
- The main result
of
Leggatt J's order was that the
Secretary of State
disclosed the briefing notes with the redacted advice to the minister reinstated. A disclosure statement said that no notes
of
meetings with the minister existed.
- The first question is whether the unredacted documents should have been disclosed pursuant to the duty
of
candour. The
Secretary of State
submits that he was entitled to follow the general practice
for
s. 288 appeals, and not to disclose those parts
of
the redacted documents which contained the internal advice to ministers. On the facts
of
this case, I do not agree. One
of
the issues in these proceedings was whether Mr Neill had acted in a manner that demonstrated bias or gave rise to a reasonable perception
of
bias. Documents showing the development
of
the decision making process, including the advice given by advisers to the minister, could be relevant to that issue by showing,
for
example, that the advisers had been incorrectly influenced by the view
of
Mr Pickles, or that the minister had followed advice from advisers that could be seen to be unimpeachable, or that the minister had departed from the advice he had received in a way which called
for
an explanation to dispel any suggestion
of
bias. On the facts
of
this case, in my judgment, the redacted advice supported the
Secretary of State
's case because, taken in conjunction with the Decision Letter, it shows both that the
Secretary of State
took a different view from his advisers on the planning judgment he was required to make, and that the advisers regarded the decision as difficult and susceptible to more than one possible answer. I would accept the claimant's submission that the fact
of
the unredacted documents being provided pursuant to Leggatt J's order supports the conclusion that they should have been provided previously pursuant to the duty
of
candour.
- On a number
of
occasions during the hearing Lord Carlile, drawing on the authority
of
his parliamentary experience, asserted that meetings with the minister must have been minuted and pointed to the absence
of
such minutes as suspicious. He did not, however, seek to challenge the disclosure statement which said that none exists, either by calling
for
a verifying witness statement or otherwise. While the court may share a sense
of
surprise that no such minutes exist, it is not open to the claimant to insinuate that the absence
of
minutes is a ground
for
suspicion when he has not sought to challenge the disclosure statement. I therefore draw no conclusions one way or the other from the absence
of
minutes
of
meetings with the minister.
- The second question is whether the fact
of
the late disclosure supports the claimant's case that Mr Neill was biased or that there are reasonable grounds
for
a perception
of
bias. In my judgment this question must be answered in the negative. Although I have held that the document should have been disclosed earlier pursuant to the duty
of
candour, the failure to disclose the advice to the minister was the result
of
the blanket application
of
a policy not to disclose such information in s. 288 appeals and does not indicate a wish to conceal a biased decision-making procedure. This conclusion is also supported by the facts that (a) the documents are, in my judgment, supportive
of
the
Secretary of State
's case and (b) they do not contain any material which indicates either a biased approach, or a closed mind, or an approach that can reasonably be perceived as biased.
- Standing back and reviewing the case as a whole, I accept that it would have been open to the
Secretary of State
to take a different decision from that which he took; but the evidence as a whole demonstrates that the safeguards provided by the Ministerial Code and the DCLG guidance were properly adhered to and Mr Neill came to a decision which cannot properly be challenged on any
of the grounds advanced by the claimant.
- This appeal therefore fails.