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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Stephenson v Secretary of State for Housing And Communities And Local Government (Rev 1) [2019] EWHC 519 (Admin) (06 March 2019) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2019/519.html Cite as: [2019] EWHC 519 (Admin), [2019] WLR(D) 132, [2019] PTSR 2209 |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
Claire Stephenson |
Claimant |
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- and - |
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Secretary of State for Housing and Communities and Local Government |
Defendant |
____________________
Rupert Warren QC and Heather Sargent (instructed by Government Legal Department) for the Defendant
Hearing dates: 19th/20th December 2018
____________________
Crown Copyright ©
See Judge's note
Mr Justice Dove:
Introduction
"209. Minerals planning authorities should:
a) recognise the benefits of on-shore oil and gas development, including unconventional hydrocarbons, for the security of energy supplies and supporting the transition to a low-carbon economy; and put in place policies to facilitate their exploration and extraction."
The Facts
"The national need to explore our shale gas and oil resources
Exploring and developing our shale gas and oil resources could potentially bring substantial benefits and help meet our objectives for secure energy supplies, economic growth and lower carbon emissions.
Having access to clean, safe and secure supplies of natural gas for years to come is key requirement if the UK is to successfully transition in the longer term to a low-carbon economy. The Government remains fully committed to the development and deployment of renewable technologies for heat and electricity generation and to driving up energy efficiency, but we need gas- the cleanest of all fossil fuels- to support our climate change target by providing flexibility while we do that and help us to reduce the use of high-carbon coal.
Natural gas is absolutely vital to the economy. It provides around one third of our energy supply.
Meanwhile events around the world show us how dangerous it can be to assume that we will always be able to rely on existing sources of supply. Developing home-grown shale resources could reduce our (and wider European) dependency on imports and improve our energy resilience.
There are also potential economic benefits in building a new industry for the country and for communities.
We do not yet know the full scale of the UK's shale resources nor how much can be extracted technically or economically.
Shale gas can create a bridge while we develop renewable energy, improve energy efficiency and build new nuclear generating capacity. Studies have shown that the carbon footprint of electricity from UK shale gas would likely to be significantly less than unabated coal and also lower than imported Liquefied Natural Gas [9].
The Government therefore considers that there is a clear need to seize the opportunity now to explore and test our shale potential."
"The implications for greenhouse gas emissions of shale gas exploitations are subject to considerable uncertainties, both regarding the size of any future industry and the emissions footprint of production. This uncertainty alone calls for close monitoring of developments. The Committee will report back earlier than its next statutory deadline five years from now should this be necessary.
The UK regulatory regime has potential to be world-leading but this is not yet assured. The current regime includes important roles for the Health and Safety Executive and the relevant environmental regulators (e.g. the Environment Agency in England), which will need to be managed seamlessly. Onshore petroleum exploitation at scale would have unique characteristics in the UK. This may ultimately necessitate the establishment of a dedicated regulatory body. It certainly requires that a strong regulatory framework is put in place now.
Our assessment is that exploiting shale gas by fracking on a significant scale is not compatible with UK climate targets unless three tests are met:
- Test 1: Well development, production and decommissioning emissions must be strictly limited. Emissions must be tightly regulated and closely monitored in order to ensure rapid action to address leaks.
- Test 2: Consumption- gas consumption must remain in line with carbon budgets requirements. UK unabated fossil energy consumption must be reduced over time within levels we have previously advised to be consistent with the carbon budgets. This means that UK shale gas production must displace imported gas rather than increasing domestic consumption.
- Test 3: Accommodating shale gas production emissions within carbon budgets. Additional production emissions from shale gas wells will need to be offset through reductions elsewhere in the UK economy, such that overall effort reduce emissions is sufficient to meet carbon budgets."
"12.50 Nonetheless, there has been no correction to the WMS issued by the Government in the light of the Chancellor's announcement in relation to the CCS. Neither has there been any statement from the Government since the Paris Agreement to suggest that its position in relation to shale gas, as stated in the WMS, has changed. It seems to me that the way in which the Government chooses to respond and adapt its various energy policies in the light of these two events is a matter to be considered by it and, if thought to be necessary, addressed through policy development. It is inappropriate and unhelpful in the context of these planning appeals to speculate as to what the eventual outcome of such national policy development might be in the future. There is nothing from the Government to indicate that the WMS no longer represents its position in relation to the need for shale gas exploration. I have given careful consideration to the evidence of Professor Anderson on behalf of FoE as to the weight to be given to the Government's view as set out in the WMS. However, I do not consider that the factors identified by FoE undermine or materially reduce the weight to be attributed to the WMS."
Furthermore, in the Inspector's assessment of the submissions made in particular by Friends of the Earth through their witness Professor Anderson the Inspector concluded as follows:
"12.677 I have already given consideration to the weight to be attached to the WMS in the light of the Paris Agreement and the Chancellor's announcement in relation to CCS. As indicated above, I consider that the way in which the Government chooses to respond and adapt its various energy policies in the light of these two events is a matter it would need to consider and, if thought necessary, addressed through policy development. At present, the WMS represents the Government's position in relation to the need for shale gas exploration and the need for gas to support its climate change target. I agree with the Appellants that the issues raised by Professor Anderson as to how shale gas relates to the obligations such as those set out in the Paris Agreement, and the Intergovernmental Panel on Climate Change (IPCC) carbon budgets, are the matter for future national policy and not for these appeals. (2.19-2.21)"
"28. The Secretary of State has considered the weight that should be attached to the need for shale gas exploration and the WMS. For the reasons given at IR12.34-12.52, he agrees with the Inspector at IR12.50 that the factors identified by Friends of the Earth do not undermine or materially reduce the weight to be attributed to the WMS. He further agrees that the need for shale gas exploration is a material consideration of great weight in these appeals, but that there is no such Government support for shale gas development that would be unsafe and unsustainable (IR12.52). The Secretary of State also considers that the need for shale gas exploration set out in the WMS reflects, among other things, one of the Government's objectives in the WMS, in that it could help achieve secure energy supplies.
29. How the Government may choose to adapt its energy polices is a matter for possible future consideration. If thought necessary, this could be addressed through future national policy. These are not matters that fall to be considered in these appeals."
"204. Minerals planning authorities should:
a) recognise the benefits of on-shore oil and gas development, including unconventional hydrocarbons, for the security of energy supplies and supporting the transition to a low-carbon economy; and put policies to facilitate their exploration and extraction."
"Topic of this consultation: This consultation seeks views on the draft text of the National Planning Policy Framework. The text has been revised to implement policy changes.
Scope of the consultation: The Ministry of Housing, Communities and Local Government is consulting on the draft text of the National Planning Policy Framework. It also seeks views on new policy proposals."
The Introduction to the document went on to describe the process as follows:
"The draft new Framework implements the Government's reforms to planning policy. Subject to this consultation, the Government intends to publish a final Framework before the summer. In developing the draft Framework the Government has incorporated:
- Proposals from the previous consultations listed at the start of this document, taking into account the views raised in the response to them;
- Changes to planning policy implemented through Written Ministerial Statements since publication of the first Framework in 2012 (Annex A);
- The effect of caselaw on the interpretation of planning policy since 2012; and
- Improvements to the text to increase coherence and reduce duplication.
The Government welcomes comments on the ways in which the draft Framework implements changes to planning policy on which the Government has previously consulted, and on the merits of the new policy proposals that it includes it now challenges developers, local authorities, communities, councillors and professionals to work together to ensure that great developments in line with the Framework are brought forward and to enable more people to meet their aspiration for a home of their own."
"Chapter 17 Facilitating the sustainable use of minerals
The revised text proposes these policy changes:
This chapter has been shortened slightly, the intention being to incorporate the deleted text in guidance. Additional text on on-shore oil and gas development is included at paragraph 204, which builds on the Written Ministerial Statement of 16 September 2015 to provide clear policy on the issues to be taken into account in planning for and making decisions on this form of development.
As planning for minerals is the responsibility of minerals planning authorities, the Government is interested in views on whether the revised planning policy for minerals that we are consulting on would sit better in a separate document, alongside the Government's planning policy for waste. In addition, we would welcome views on whether the use of national and sub-national guidelines on future aggregates provision remains a relevant approach in establishing the supply of aggregates to be planned for locally.
Q37 Do you have any comments on the changes of policy in Chapter 17, or on any other aspects of the text of this chapter?
Q38 Do you think that planning policy on minerals would be better contained in a separate document?
Q39 Do you have any views on the utility of national and sub-national guidelines on future aggregates provision?"
"3. Talk Fracking considers that it is inappropriate and irrational to include within the NPPF policies previously in the WMS, and if anything to give them greater status in relation to planning applications in England, given material developments since the
adoption of the WMS, including:
3.1 Scientific developments suggest that the climate impact of fracking was underestimated at the time of the WMS;
3.2 Wales, Northern Ireland and Scotland have implemented bans on fracking or a presumption against it;
3.3 The Government has failed to show that the WMS is compatible with its existing domestic obligations to reduce greenhouse gas emissions ("GHG") under the Climate Change Act 2008 ("the 2008 Act");
3.4 Specifically, it has failed to demonstrate whether and how it can meet the three tests that the Committee on Climate Change ("CCC") consider must be met if fracking is to compatible with meeting the targets under the 2008 Act.
3.5 The Government has recently asked the CCC to review whether the existing commitments under the 2008 Act are consistent with the level of ambition of the Paris Agreement: a process that is all but certain to lead to a tightening of the UK's current GHG reduction targets (as the CCC has already made clear).
Since there is no evidence that fracking is compatible even with existing targets, it would be deeply irresponsible to pursue it at a time when targets are being tightened."
"Developments in the science
10. Since 2015 there have been significant and material developments in the understanding of the GHG emissions arising from fracking (summarised in a report commissioned by Talk Fracking by Paul Mobbs, "How The Government Has Misled Parliament And The Public On The Climate Change Impacts Of Shale Oil And Gas Development In Britain", May 2017 "Mobbs Report") for example:
10.1 Methodological improvements in measuring emissions: The ability to measure the emissions from oil and gas infrastructure has been limited by the accuracy and reliability of mobile gas monitoring equipment. As a result, two general forms of environmental sampling have arisen in order to produce an estimate of emissions from the industry: 'bottom-up' or 'inventory' analysis; and 'top-down' or 'instrumental' analysis. As set out in the Mobbs Report, the debate on fugitive emissions "has tended to be over the numerical results of individual studies, not the difference in numerical results which is the inevitable consequence of using two different analytical methods. Thus the 'quality' or 'accuracy' of each approach is ignored" (Mobbs Report, p 9). The WMS is based upon a 2013 report by Professor David MacKay and Dr Tim Stone, commissioned by the Department of Energy and Climate Change (DECC) ("MacKay/Stone report"). The MacKay/Stone report was based primarily on inventory analysis and relied upon data from another report ("the Allen report"), which has since been shown to have been inaccurate, with growing concern about the accuracy of this method and its tendency to under-estimate emissions (see Mobbs Report, [49]).
10.2 Global warming potential and methane: The Mackay/Stone report assumes that methane is 25 times more potent a greenhouse gas than carbon dioxide over a 100 year period (abbreviated, 'GWP100'). This is not the approach taken within Howarth's calculations, which considers both 20-year ('GWP20') and 100-year 'global warming potentials' (GWPs). Methane is more significant in the short term because is exacerbates the progress of climate change towards tipping points, meaning limiting the release of methane is essential. In 2014, Howarth later updated his earlier papers and outlined how
the case for higher methane emissions had become more certain as a result of further 'top-down' environmental sampling and considered research released in the interim from the Intergovernmental Panel on Climate Change (IPCC) which had made the case that studies should use the GWP20 in assessments, as well as GWP100, to reflect the time-sensitive impact of emissions (Mobbs Report, [56]-[59])."
In a footnote to paragraph 10.1 of the consultation response a link was provided to the Mobbs Report.
"34. Give the importance of the issues set out above, it is unacceptable that the Government is seeking to reinforce existing policy on fracking without carrying out any meaningful consultation.
35. This failure is particularly stark given that astonishingly there has never been any public consultation in England about the benefits and disbenefits of fracking. The WMS was not the product of any form of consultation."
"My Rt. Hon. Friend James Brokenshire, the Secretary of State for Housing, Communities and Local Government, and I wish to reiterate the Government's view that there are potentially substantial benefits from the safe and sustainable exploration and development of our onshore shale gas resources and to set out in this statement to Parliament the actions we are taking to support our position. This joint statement should be considered in planning decisions and plan-making England.
Planning policy and guidance
This Statement is a material consideration in plan-making and decision-taking, alongside relevant policies of the existing National Planning Policy Framework (2012), in particular those on mineral planning (including conventional and unconventional hydrocarbons).
Shale gas development is of national importance. The Government expects Mineral Planning Authorities to give great weight to the benefits of mineral extraction, including to the economy. This includes shale gas exploration and extraction. Mineral Plans should reflect that mineral resources can only be worked where they are found, and applications must be assessed on a site by site basis and having regard to their context. Plans should not set restrictions or thresholds across their plan area that limit shale development without proper justification. We expect
Mineral Planning Authorities to recognise the fact that Parliament has set out in statute the relevant definitions of hydrocarbon, natural gas and associated hydraulic fracturing. In addition, these matters are described in Planning Practice Guidance, which Plans must have due regard to. Consistent with this Planning Practice Guidance, policies should avoid undue sterilisation of mineral resources (including shale gas).
The Government has consulted on a draft revised National Planning Policy Framework (NPPF). The consultation closed on 10 May 2018. In due course the revised National Planning Policy Framework will sit alongside the Written Ministerial Statement."
"There were 975 responses to this open question. Points raised include:
Respondents from most sectors supported the need to facilitate security of supplies, but there were concerns about the dropping of the word 'essential' to describe minerals. They highlighted the need to safeguard not only minerals reserves, but also the infrastructure needed to distribute them, and sought amendments to wording on landbanks.
Individuals and some environmental organisations considered that more emphasis should be placed on renewables.
Individuals and some interest groups disagreed with policies relating to oil and gas development, including unconventional hydrocarbons. These groups considered that these polices should be omitted due to disagreement with the principle of fossil fuels, shale development, and fracking.
Some individuals considered policy to be unbalanced towards the economic benefits of mineral development and stated that equal weight should be given to economic, social and environmental considerations. There were some calls to provide a clear position on coal.
There were calls for references to underground exploration and extraction operations to be omitted from paragraph 205, as ensuring their integrity and safety was the remit of the regulators, principally the Health and Safety Executive, rather than mineral planning authorities.
Government response
There was limited support for the inclusion in the Framework of policies for the exploration and extraction of oil, gas and unconventional hydrocarbons (which includes shale), with most responses objecting to potential shale development as a matter of principle. However, shale gas, which plays a key role in ensuring energy security, is of national importance. The Government is committed to explore and develop our shale gas resources in a safe and sustainable way. We have therefore carried forward this policy in the Framework, which would apply having regard to the policies of the Framework as a whole."
As set out above the final text of the policy, which reflected the policy text of the consultation draft, was contained in paragraph 209(a) of the final version of the Framework.
"22. This text was drafted in discussion with the shale policy team in the Department to reflect the high-level policy in the 2015 Written Ministerial Statement, and beyond this do no more than carry it forward into a consequential (and logical) expectation that authorities should develop their own policies to facilitate exploration and extraction. In doing so, authorities would, as explained above, need to take into account all relevant aspects of the revised NPPF, including its chapter on meeting the challenge of climate change and various environmental safeguards set out elsewhere in the minerals chapter (at paragraphs 200 and 201 of the draft revised NPPF). As with the original NPPF, the draft policy referred to on-shore oil and gas development as a whole, including unconventional hydrocarbons, as the considerations that it sets out were felt to be equally applicable to other (non-shale) forms of on-shore oil and gas development.
23. Because paragraph 204(a) of the draft revised NPPF reiterated, at a high level, an important and long-established policy position (the relevance of which had been reaffirmed in the manifesto for the incoming Government), I understand that officials in the Department's shale policy team did not review detailed evidence relating to the merits of shale gas development as part of its drafting, as they felt that this was unnecessary.
24. More generally, in the context of revising the NPPF as a whole, detailed reviews of evidence relating to the policies that are led elsewhere in government would have been inappropriate as well as impractical. For example, the Department for Business, Energy and Industry Strategy ("BEIS") has led responsibly for national policy on shale, while the range of matters covered by the revised NPPF means that it would not have been feasible for all of the evidence behind wider government policies to be explored afresh as part of the NPPF's drafting. Close contact was, however, maintained with officials in other Government departments as drafting progressed to ensure that its content reflected wider government policy positions where it was appropriate to do so, such as the Clean Growth Strategy published by BEIS in October 2017. This took place both through bilateral conversations between relevant policy leads and a series of roundtable discussions with other departments as the drafting progressed."
"35. The Claimant's representations on the draft revised NPPF asserted that a number of reports produced since the 2015 Written Ministerial Statement showed that the climate change impacts of shale gas development had been underestimated, and for this reason (and others) it was not appropriate to reflect the Written Ministerial Statement in the revised NPPF. The representations placed particular emphasis on the report that Talk Fracking had themselves commissioned from Paul Mobbs (the "Mobbs Report"). I understand that the team in the Department with shale gas policy had not been aware of the Mobbs Report when preparing the draft revised NPPF, nor of the other detailed research studies cited in the Claimant's representations as having been referred to the Mobbs Report. This is unsurprising: as noted in paragraph 24 above, in revising the NPPF it would have been both impractical and inappropriate to review detailed evidence relating to policy priorities established elsewhere in Government.
36. Due to the volume of responses to the consultation, officials from across the planning directorate logged consultation responses and converted those not sent via the website using the 'survey monkey' platform into the same format. This enabled the analysts to view the information in one platform, and for the quantitative analysis to be completed digitally rather than manually. The lead for the logging process delivered training to all staff, including the need to include all information. Unfortunately, as with all manual processes there is the potential for human error. The person logging the Talk Fracking response did not include the footnote containing the link to the Mobbs Report when transferring information to the Survey Monkey format.
37. In considering the representations, I understand that the shale policy team in the Department considered that the references to the Mobbs Report had limited bearing on the high-level policy contained in paragraph 204(a). It was clear from the representations that it dealt with a contested area of science, and was taking a view based on various detailed academic studies. It was not feasible for the team to assess the veracity of the range of work referred to or the conclusions drawn, but nor was it necessary given the limited purpose of paragraph 204(a) i.e. to carry forward existing policy at a high level, as a framework for plans and decisions at the local level (which would, necessarily, have to take into account any other material considerations identified as appropriate). I understand that in the context of this limited purpose of paragraph 204(a), it was also considered unnecessary to revisit the Government's previous assessment of three tests set by the Committee on Climate Change, in the light of the representations received."
"Trade Associations/ Interest Groups/ Voluntary or Charitable Organisations
There were 62 comments, of which 1 was no comment. There is minimal support for the changes. The majority of disagreement was from interest groups who cited concerns to the policy on environmental and climate change grounds. In general, respondents indicated that the text should be omitted, stating that the NPPF should instead presume against the extraction of fossil fuels or should be revised to include further regulations to prevent perceived local impacts of developments. It was explained by some trade associations that further clarification was needed to make clear the role of regulators when dealing with the technical aspects concerning subsurface issues.
Others
There were 30 comments from others. There is minimal support from others, which included campaign and local resident groups. The majority of disagreement to changes to the policy is on environmental and climate change grounds. Many believe that text should not be included to NPPF should instead presume against any extraction of fossil fuels. About a third of respondents believed that emphasis should instead be placed on the prioritisation of renewable energy.
Individuals
There were 414 comments. There is minimal support on the changes made in the oil, gas and coal exploration and extraction section of Chapter 17. The majority of disagreement to changes to policy is on environmental and climate change grounds. Many believe that text should not be included to support the planning for or extraction of oil, gas and coal. Many also believed that the NPPF should instead presume against any extraction of fossil fuels. About a third of respondents believed that emphasis should instead be placed on the prioritisation of renewable energy. Comments were also made highlighting views that technology for underground gas and carbon storage were not appropriate and possibly dangerous, therefore Mineral Planning Authorities should not encourage this activity. It was commonly suggested that when planning for on-shore oil and gas development, clearly distinguish between, and positively for, the full life cycle of well site rather than the 3 phases of development suggested.
Concluding summary
975 responses were received to Q37, of which 433 related to aggregated and industrial minerals; and 569 comments related to the oil, gas and coal exploration and extraction section in Chapter 17.
- Most sectors supported the need to facilitate security of supplies; more objected to the dropping of the word 'essential' to describe minerals; most highlighted the need to safeguard not only minerals reserves but also the infrastructure needed to distribute; and sought amendments to wording on landbanks.
- Individuals and some environmental organisations felt more emphasis should be placed on renewables.
- Individuals and some interest grounds disagreed with policies relating to oil and gas development, including unconventional hydrocarbons. These groups believed that these policies should be omitted due to disagreement with the principle of fossil fuels, shale development and fracking.
- Some individuals considered policy to be unbalanced towards the economic benefits of mineral development; equal weight should be given to economic, social and environmental considerations.
- References to underground exploration and extraction operations should be omitted from paragraph 205, as ensuring their integrity and safety was the remit of the regulators, principally the Health and Safety Executive, rather than mineral planning authorities."
It was against the background of these summaries presented to Ministers that the decision to approve the revised Framework was made.
The Law
"(2) In preparing a development plan document or any other local development document the local planning authority must have regard to-
(a) national planning policies and advice contained in guidance issued by the Secretary of State."
"(5) The purpose of an independent examination is to determine in respect of the development plan document-
(a) whether it satisfies the requirements of sections 19 and 24 (1), regulations under section 17 (7) and any regulations under section 36 relating to the preparation of development plan documents;
(b) whether it is sound, and
(c) whether the local planning authority complied with any duty imposed on the authority by section 33A in relation to its preparation."
"35. Local plans and spatial development strategies are examined to assess whether they have been prepared in accordance with legal and procedural requirements, and whether they are sound. Plans are 'sound' if they are:
a) Positively prepared- providing a strategy which, as a minimum, seeks to meet the area's objectively assessed needs; and is informed by agreements with other authorities, so that unmet need from neighbouring areas is accommodated where it is practical to do so and is consistent with achieving sustainable development;
b) Justified - an appropriate strategy, taking into account the reasonable alternatives, and based on proportionate evidence;
c) Effective - deliverable over the plan period, and based on effective joint working on cross-boundary strategic matters that have been dealt with rather than deferred, as evidenced by the statement of common ground; and
d) Consistent with national policy - enabling the delivery of sustainable development in accordance with the policies in this Framework."
"33. As we have said, in making planning policy the Secretary of State is exercising power given to the Crown not by statute but by the common law. In R v (Sandiford) v Secretary of State for Foreign and Commonwealth Affairs [2014] 1 WLR 2697 Lord Sumption said this at paragraph 83: "A common law power is a mere power. It does not confer a discretion in the same sense that a statutory power confers a discretion. A statutory discretionary power carries with it a duty to exercise the discretion one way or the other and in doing so to take account of all relevant matters having regard to its scope. Ministers have common law powers to do many things, and if they choose to exercise such a power they must do so in accordance with ordinary public law principles, ie fairly, rationally and on a correct appreciation of the law. But there is no duty to exercise the power at all. There is no identifiable class of potential beneficiaries of the common law powers of the Crown in general, other than the public at large. There are no legal criteria analogous to those to be derived from an empowering Act, by which the decision whether to exercise a common law power or not can be assessed. It is up to ministers to decide whether to exercise them, and if so to what extent. It follows that the mere existence of a common law power to do something cannot give rise to any right to be considered, on the part of someone who might hypothetically benefit by it. Such a right must arise, if at all, in other ways, usually by virtue of a legitimate expectation arising from the actual exercise of the power "
34. Mr Drabble relies upon this reasoning for the proposition that in exercising his common law power to make planning policy the Secretary of State was not obliged to have regard to this or that consideration, as he would be if his power were derived from a statute which told him what to consider; if he chose to make new policy he was bound, of course, by the core values of reason, fairness and good faith, but beyond that his choice of policy content was very much for him to decide.
35. Mr Forsdick's response is to insist that while the source of the Secretary of State's power is the common law, the context in which it is being exercised is a carefully drawn statutory regime; so that, for proper planning purposes, the considerations which the judge held were left out of account were indeed "obviously material".
36. We would certainly accept that the statutory planning context to some extent constrains the Secretary of State. It prohibits him from making policy which, as we have put it in dealing with the principal issue in the case, would countermand or frustrate the effective operation of s.38(6) or s.70(2). It would also prevent him from introducing into planning policy matters which were not proper planning considerations at all. Subject to that, his policy choices are for him. He may decide to cover a small, or a larger, part of the territory potentially in question. He may address few or many issues. The planning legislation establishes a framework for the making of planning decisions; it does not lay down merits criteria for planning policy, or establish what the policy-maker should or should not regard as relevant to the exercise of policy-making."
"Although any administrative decision-maker is under a duty to take all reasonable steps to acquaint himself with information relevant to the decision he is making in order to be able to make a properly informed decision (Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1997] AC 1014), the scope and content of that duty is context specific; and it is for the decision-maker (and not the court) to decide upon the manner and intensity of inquiry to be undertaken into any relevant factor (R (Khatun) v London Borough of Newham [2004] EWCA Civ 55; [2005] QB 37 at [35]). That applies to planning decision-making as much as any other (see, e.g., R (Hayes) v Wychavon District Council [2014] EWHC 1987 (Admin) at [31] per Lang J, and R (Plant) v Lambeth London Borough Council [2016] EWHC 3324 (Admin); [2017] PTSR 453 at [69]-[70] per Holgate J). Therefore, a decision by a local planning authority as to the extent to which it considers it necessary to investigate relevant matters is challengeable only on conventional public law grounds."
"23. A public authority's duty to consult those interested before taking a decision can arise in a variety of ways. Most commonly, as here, the duty is generated by statute. Not infrequently, however, it is generated by the duty cast by the common law upon a public authority to act fairly. The search for the demands of fairness in this context is often illumined by the doctrine of legitimate expectation; such was the source, for example, of its duty to consult the residents of a care home for the elderly before deciding whether to close it in R v Devon County Council, ex parte Baker [1995] 1 All ER 73. But irrespective of how the duty to consult has been generated, that same common law duty of procedural fairness will inform the manner in which the consultation should be conducted.
24. Fairness is a protean concept, not susceptible of much generalised enlargement. But its requirements in this context must be linked to the purposes of consultation. In R (Osborn) v Parole Board [2013] UKSC 61, [2013] 3 WLR, 1020, this court addressed the common law duty of procedural fairness in the determination of a person's legal rights. Nevertheless the first two of the purposes of procedural fairness in that somewhat different context, identified by Lord Reed in paras 67 and 68 of his judgment, equally underlie the requirement that a consultation should be fair. First, the requirement "is liable to result in better decisions, by ensuring that the decision-maker receives all relevant information and that it is properly tested" (para 67). Second, it avoids "the sense of injustice which the person who is the subject of the decision will otherwise feel" (para 68). Such are two valuable practical consequences of fair consultation. But underlying it is also a third purpose, reflective of the democratic principle at the heart of our society. This third purpose is particularly relevant in a case like the present, in which the question was not "Yes or no, should we close this particular care home, this particular school etc?" It was "Required, as we are, to make a taxation-related scheme for application to all the inhabitants of our Borough, should we make one in the terms which we here propose?"
25. In R v Brent London Borough Council, ex p Gunning, (1985) 84 LGR 168 Hodgson J quashed Brent's decision to close two schools on the ground that the manner of its prior consultation, particularly with the parents, had been unlawful. He said at p 189: "Mr Sedley submits that these basic requirements are essential if the consultation process is to have a sensible content. First, that consultation must be at a time when proposals are still at a formative stage. Second, that the proposer must give sufficient reasons for any proposal to permit of intelligent consideration and response. Third, that adequate time must be given for consideration and response and, finally, fourth, that the product of consultation must be conscientiously taken into account in finalising any statutory proposals."
Clearly Hodgson J accepted Mr Sedley's submission. It is hard to see how any of his four suggested requirements could be rejected or indeed improved. The Court of Appeal expressly endorsed them, first in the Baker case, cited above (see pp 91 and 87), and then in R v North and East Devon Health Authority, ex parte Coughlan [2001] QB 213 at para 108. In the Coughlan case, which concerned the closure of a home for the disabled, the Court of Appeal, in a judgment delivered by Lord Woolf MR, elaborated at para 112: "It has to be remembered that consultation is not litigation: the consulting authority is not required to publicise every submission it receives or (absent some statutory obligation) to disclose all its advice. Its obligation is to let those who have a potential interest in the subject matter know in clear terms what the proposal is and exactly why it is under positive consideration, telling them enough (which may be a good deal) to enable them to make an intelligent response. The obligation, although it may be quite onerous, goes no further than this."
The time has come for this court also to endorse the Sedley criteria. They are, as the Court of Appeal said in R (Royal Brompton and Harefield NHS Foundation Trust) v Joint Committee of Primary Care Trusts [2012] EWCA Civ 472, 126 BMLR 134, at para 9, "a prescription for fairness"."
"(ii) Significant to a matter required to be taken into account
25. A decision-maker who is bound to have regard to a particular matter is not bound to bring to mind all the minutiae within his knowledge relating to the matter. The facts to be brought to mind are the salient facts which give shape and substance to the matter: the facts of such importance that, if they are not considered, it could not be said that the matter has been properly considered.
The Department and the Minister's knowledge
The Department does not have to draw the Minister's attention to every communication it receives and to every fact its officers know. Part of a Department's function is to undertake an analysis, evaluation and precis of material to which the Minister is bound to have regard or to which the Minister may wish to have regard in making decisions. The press of ministerial business necessitates efficient performance of that departmental function. The consequence of supplying a departmental analysis, evaluation and precis is, of course, that the Minister's appreciation of a case depends to a great extent upon the application made by the Department. Reliance on the departmental appreciation is not a tantamount to an impermissible delegation of ministerial function. A Minster may retain his power to make a decision while relying on his Department to draw his attention to the salient facts. But if his Department fails to do so, and the validity of the Minister's decision depends upon his having regard to the salient facts, his ignorance of the facts does not protect the decision. The Parliament can be taken to intend that the Minister will retain control of the process of decision-making while being assisted to make the decision by departmental analysis, evaluation and precis of the material relevant to that decision.
Although the Minister is the repository of the power conferred by s 11(1) of the Act and although he may not delegate that power to his departmental officers, the Minister cannot be regarded in his exercise of power as unaware of information possessed by his Department. As Lord Diplock said in Bushell v Environment Secretary at p 95: "To treat the minister in his decision-making capacity as someone separate and distinct from the department of government of which he is the political head and for whose actions he alone in the constitutional theory is accountable to Parliament is to ignore not only the practical realities but also Parliament's intention. Ministers come and go; departments, though their name may change from time to time, remain. Discretion in making administrative decisions is conferred upon a minister not as an individual but as the holder of an office in which he will have available to him in arriving at his decision the collective knowledge, experience and expertise of all those who serve the Crown in the department of which, for the time being, he is the political head. The collective knowledge, technical as well as factual, of the civil servants in the department and their collective expertise is to the treated as the minister's own knowledge, his own expertise."
"26. In my judgment, and with great respect to Crane J, this part of his decision is unfounded in authority and unsound in law. It is also, in my respectful view, antithetical to good government. It would be an embarrassment both for government and for the courts if we were to hold that a minister or a civil servant could lawfully take a decision on a matter he or she knew nothing about because one or more officials in the department knew all about it. The proposition becomes worse, not better, when it is qualified, as Crane J qualified it and as Mr Cavanagh now seeks to qualify it, by requiring that the civil servants with the relevant knowledge must have taken part in briefing or advising the minister. To do this is to substitute for the Carltona doctrine of ordered devolution to appropriate civil servants of decision-making authority (to adopt the lexicon used by Lord Griffiths in Oladehinde [1991] 1 AC 254) either a de facto abdication by the lawful decision-maker in favour of his or her adviser, or a division of labour in which the person with knowledge decides nothing and the decision is taken by a person without knowledge.
27. In contrast to Carltona, where the court gave legal authority to the practical reality of modern government in relation to the devolution of departmental functions, the doctrine for which Mr Cavanagh contends does not, certainly to my knowledge, reflect the reality of modern departmental government. The reality, subject no doubt to occasional lapses, is that ministers (or authorised civil servants) are properly briefed about the decisions that they have to take; that in the briefings evidence is distinguished from advice; and that ministers take some trouble to understand the evidence before deciding whether to accept the advice. I will come later in this judgment to the critical question of how much of the evidence the minster needs to know; but I cannot believe that anybody, either in government or among the electorate, would thank this court for deciding that it was unnecessary for a decision-maker to know anything material before reaching a decision.
37. The serious practical implication of the argument is that, contrary to what the decided English cases take for granted, ministers need know nothing before reaching a decision so long as those advising them know the facts. This is the law according to Sir Humphrey Appleby. It would covertly transmute the adviser into the decision-maker. And by doing so it would incidentally deprive the adviser of an important shield against criticism where the decision turns out to have been a mistake.
38. The only authority Mr Cavanagh was able to produce which appeared to chime with his argument was a decision of Lord Clyde, sitting in the Outer House of the Court of Session, in Air 2000 v Secretary of State for Transport (No 2) [1990] SLT 335. Advice from the Civil Aviation Authority which by statute the Secretary of State was required to consider had been seen not by him but by an interdepartmental working party which advised him. Lord Clyde cited Carltona for the uncontroversial proposition that "what is done by his responsible official is done by [the minister]". However, while rejecting as "too extreme" a submission that the mere physical delivery of the advice to the department was sufficient, Lord Clyde accepted that "if it is given to an official who has responsibility for the matter in question, that should suffice". If by this Lord Clyde meant that such receipt would amount in law to consideration by the Secretary of State, I would respectfully disagree. For the reasons I have given, it would be incumbent on such an official to ensure that either the advice or a suitable precis of it was included in the submission to the minister whose decision it was to be."
"67. We are also satisfied on the evidence, however, that there was one matter raised in the consultation responses relating to Merton that was not discussed or considered at the meeting. This was the proposal advanced by the Merton Liberal Democrats that it was premature to take a decision to close Wimbledon police station, and that any decision to do so should be postponed pending an evaluation of the impact of new technology. That was a clear theme of the document, as appears from paragraphs 2,6 and 7. It undoubtedly fell within the scope of the consultation exercise, and it has not been suggested otherwise. The questions asked invited comments about the opportunities to contact the police as an alternative to via a front counter and asked about the extent to which those responding agreed with the proposed changes of location for five front counters.
69. The summary of consultation responses did not refer to that proposal or suggestion. On the evidence, we cannot be satisfied that the deputy mayor herself read the Merton Liberal Democrats' submission. The three options relating to alternative sites were discussed at the meeting. Whilst there are general references to discussing the feedback, there is no evidence that this proposal was specifically discussed. This is in contrast to the options relation to alternative sites, where the evidence does not establish that those matters were discussed. We conclude, therefore, that this aspect of the claimant's consultation response was not addressed by the deputy mayor in the course of making her decision. And we are in no doubt that it ought to have been. This amounts, in our view, a clear error of law."
"6(8) Each party shall ensure that in the decision due account is taken of the outcome of the public participation."
Submissions and Conclusions
"Q37- Do you have any comments on the changes of policy in chapter 17, or in any other aspects of the text of this chapter?"
The text of question 37 itself makes clear that all aspects of paragraph 204(a) are within the scope of the consultation and matters about which the Defendant wished to receive views in order to inform his proposals. I am unable to find any support for Mr Warren's proposition that the reasonable reader considering the Consultation Proposals Document would have been clear that the Defendant had no interest in observations on the merits of paragraph 204(a) and all that was being undertaken was an extremely narrow consultation solely on the question of whether or not the 2015 WMS should in substance be copied across into the Framework. Indeed, the report on the Consultation exercise describes question 37 as "this open question".
"However, shale gas, which plays a key role in ensuring energy security, is of national importance. The Government is committed to explore and develop our shale gas resources in a safe and sustainable way. We have therefore carried forward this policy in the Framework, which would apply having regard to policies of the Framework as a whole."
This response reads quite plainly as a response addressing the substance of the policy, as well as its incorporation into the Framework. It does not suggest that the arguments in principle in relation to shale gas development were not intended to be any part of the consultation process.