Town and country planning – Planning appeal – Natural justice – Apparent bias – Appellant applying to quash decision of first respondent refusing planning permission for wind farm development – Whether that decision reached in breach of natural justice because of lobbying by member of Parliament – Whether giving rise to apparent bias – Appeal dismissed
The appellant was an independent renewable energy company which developed and operated wind farms throughout the UK. The second respondent council refused the appellant’s application for planning permission for a five-turbine wind farm at a site known as Spring Farm Ridge, on a site lying between Greatworth and Helmdon in south Northamptonshire. Although the first respondent’s planning inspector granted planning permission for the development on appeal following a public inquiry, that decision was quashed in proceedings brought by the second respondents and the third respondent action group; the planning appeal was according remitted for redetermination.
The first respondent decided to recover the appeal for his own determination on the grounds that it involved a renewable energy development. A further public inquiry was held before a different inspector, who, in a report issued in April 2014, indicated that the matter was finely balanced but recommended that planning permission be granted.
Following a delay of several months caused by further consultations, a decision letter was issued in December 2014 refusing planning permission for the development. The letter was issued by a minister to whom the first respondent had delegated the decision.
The appellant brought proceedings to quash that decision pursuant to section 288 of the Town and Country Planning Act 1990. Its chief ground was that the minister’s decision had been unlawfully influenced by alleged lobbying activities of the local MP for the constituency in which the development site lay, giving rise to a breach of natural justice and an appearance of bias. It relied on correspondence throughout the period of the first and second inquiry and decision, including a letter of December 2013 that referred to a recent conversation between the MP and the minister in the House of Commons tea room.
Dismissing the claim, the judge held that lobbying of ministers by MPs was part and parcel of the representative role of a constituency MP and did not involve any impropriety: see [2015] EWHC 1743 (Admin); [2015] PLSCS 189. The appellant appealed.
Held: The appeal was dismissed.
(1) There had been no breach of the Town and Country Planning (Inquiries Procedure) Rules 2000 in the instant case. Nor was the decision unlawful by reason of any breach of para 4 of the Guidance on Planning Propriety Issues, produced by the department for communities and local government in February 2012, so far as it placed a duty on ministers to act and be seen to act fairly and even-handedly in the decision-making process. Para 4 said that privately made representations should not be entertained unless other parties had been given the chance to consider them and comment on them. That was a fundamental principle of the common law, which required a decision-maker to listen to and take into account both sides of an argument. Nonetheless, the principle had to be applied sensibly. If a party to an inquiry, or an objector, sought to bombard a minister with post-inquiry representations that were merely repetitive of the representations made at the inquiry itself, and if the minister were obliged every time to circulate the representations for comment, then the decision-making process could easily be subverted. That was effectively what had happened in the instant case so far as the MP’s written correspondence and representations were concerned. The written representations added nothing to what had already been ventilated at the inquiry and there was nothing new that the appellant could say in response. In those circumstances, the minister had not “entertained” privately made representations; he had merely made his decision in the light of all the evidence given and representations made to the inspector which were known to all parties. Although there could be said to be a technical breach of para 4 of the Guidance, there was no breach of the rules of natural justice: Fox Land & Property Ltd v Secretary of State for Communities and Local Government [2014] EWHC 15 (Admin); [2014] PLSCS 37 applied.
(2) Para 4 of the Guidance drew no distinction between private representations made in writing and those made face-to-face and the same principle therefore applied; if oral representations were merely repetitive of matters already ventilated at the inquiry, there should be no obligation to inform other parties of the contents of such representations and invite comment. However, oral advocacy could make a difference particularly if it occurred in the absence of the other side. Moreover, while it was easy enough to assess whether written representations were merely repetitive of earlier representations, it was not possible to be so sure in the case of oral representations. In those circumstances, it was incumbent on a minister taking a planning decision politely to make clear to any person who tried to make oral representations to him that he could not listen to them.
Accordingly, it was not possible to endorse that part of the judge’s judgment in which he said that lobbying of ministers by MPs was part and parcel of the representative role of a constituency MP, with its implication that such lobbying was permissible even when the minister was making a quasi-judicial decision in relation to a controversial planning application. MPs should not be in any different position from other interested parties. It followed that the tea room conversation between the minister and the MP should not have occurred.
(3) Nonetheless, no breach of the rules of natural justice, or apparent bias, had arisen in the instant case by reason of the failure of the minister to say that he could not listen to the MP. It was relevant that the tea room conversation had occurred at a time when it was unlikely to have been decided whether the secretary of state or his minister was to take the necessary decision and, in any event, well before the inspector made his report in April 2014. Further, the minister’s decision had come nearly a year after the tea room conversation had taken place. In those circumstances, it was not possible to conclude that the tea room conversation had played any part in the minister’s decision-making process. The breach of natural justice in failing to cut off the conversation with the MP was, at most, a technical breach which could not have made any difference to the ultimate decision and was not such as to justify quashing the minister’s decision.
Jeremy Pike (instructed by Eversheds LLP) appeared for the appellant; Daniel Kolinsky QC (instructed by the Government Legal Department) appeared for the first respondent; Richard Honey (instructed by direct access) appeared for the third respondent; the second respondents did not appear and were not represented.
Sally Dobson, barrister
