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||Neutral Citation Number:  EWHC 3590 (Admin)
||Case No: CO/10891/2011
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
||Royal Courts of Justice
Strand, London, WC2A 2LL
||13 December 2012
B e f o r e :
THE HONOURABLE MR JUSTICE STUART-SMITH
Lord Carlile QC and Michael Rudd (instructed by FBC Manby Bowlder) for the Claimant
David Forsdick (instructed by The Treasury Solicitor) for the Defendant
Hearing dates: 21 and 22 November 2012
HTML VERSION OF JUDGMENT
Crown Copyright ©
MR JUSTICE STUART-SMITH :
- 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  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  per Lord Slynn,  per Lord Nolan and  and  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  1 WLR 83 at [62-63],  and , 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  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 , citing City of Edinburgh Council v Secretary of State for Scotland  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)  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  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 ( 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
||[10-11] As before
- 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
|| "Some weight"
|Failures of Policy
- 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  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  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  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  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.
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