In Broadview Energy Developments Ltd v Secretary of State for Communities and Local Government [2015] EWHC 1743 (Admin), the claimant applied to quash the decision of the secretary of state, on a planning appeal recovered by him, to refuse planning permission – contrary to the recommendations of his inspector – for a five-turbine wind farm. (As he was entitled to, the minister for housing had made the decision on behalf of the secretary of state.) In one of its grounds, the claimant contended that the decision was taken in breach of natural justice, in circumstances that gave rise to actual or apparent bias.
The constituency MP had a record of campaigning against onshore wind farms, and the claimant’s proposed development became a matter of particular concern to her. She had corresponded from an early stage with both the secretary of state and PINS, and had urged the former to recover the planning appeal for his own determination. She continued to do so after the public inquiry, on some occasions attaching comments from her constituents, and writing at the same time to the minister for housing. Evidence was also given to the effect that she had “badgered” the minister for housing in a House of Commons lobby, and had also discussed the matter with him in the House of Commons tea room. These were the principal circumstances on which the claimant relied.
As is well known, the test where apparent bias is alleged involves asking the question: “Would the fair-minded and informed observer, having considered the facts, conclude that there was a real possibility that the tribunal was biased.” (The facts are those apparent to the court on subsequent review, not merely those of which the hypothetical observer would have been aware at the original time.)
The court first dismissed the argument that there had been actual bias, pointing out that it is rare and difficult to prove and stating that there was simply no evidence to support the contention in this case.
It then held that a fair-minded and informed observer would not conclude that there was a real possibility of ministerial bias. Such an observer would be aware that lobbying of ministers by a constituency MP is part and parcel of his or her representative role. Equally, it would be wrong for a court to conclude that there was anything improper with it, as a matter of law. Furthermore, the House of Lords had recognised judicially that, while ministers must act fairly, their decisions are not to be seen as judicial decisions and their role is not a judicial one.
John Martin is a planning law consultant
