In Broadview Energy Developments Ltd v Secretary of State for Communities and Local Government and others [2016] EWCA Civ 562; [2016] PLSCS 177 the Court of Appeal has ruled that ministers should not permit themselves to be lobbied by local MPs when making planning decisions, even where such lobbying occurred informally in a tea room.
The renewable energy company Broadview Energy Developments Ltd applied for planning permission to build an onshore wind farm in Northamptonshire. Permission was initially refused in November 2011 by South Northamptonshire District Council, which Broadway successfully appealed to the Planning Inspectorate. A local action group then challenged that decision in the High Court, which quashed and resubmitted the appeal to the Planning Inspectorate for redetermination.
Following a public inquiry, the secretary of state for communities and local government refused planning permission in November 2014 contrary to the planning inspector’s recommendations. Broadview applied to judicially review the secretary of state’s decision on grounds that it breached natural justice and common law fairness, principally due to alleged lobbying activities by MP Andrea Leadsom. Broadview relied on Leadsom’s various letters and e-mails to the secretary of state and the minister to whom the secretary of state had delegated the decision, as well as two instances of conversations in the House of Commons tea room and in a lobby.
In the High Court, Cranston J dismissed the challenge, holding that the lobbying of ministers by members of parliament was part and parcel of the representative role of a constituency MP. The judge also dismissed the allegation of bias, finding that there was no evidence to support the contention that the decision was vitiated by actual bias.
However, the Court of Appeal acknowledged the principle that a decision maker must not entertain representations from one party without finding out what other parties have to say on the matter, albeit that the principle must be applied sensibly in order to prevent the decision-making process being easily subverted. On that basis, the court disregarded Leadsom’s written representations from its analysis.
The court also disagreed with the first instance ruling that it was part of a constituency MP’s representative role to lobby ministers in the context of a quasi-judicial decision in relation to a controversial planning application.
On the facts, there was no evidence that Leadsom’s oral representations during those conversations were discouraged. However, as a result of the factual chronology of these events, neither of the oral representations was held to have made a difference to the decision. This was a technical breach and not enough to justify quashing the secretary of state’s decision. The court also rejected Broadview’s allegation of bias as ministers make difficult decisions about controversial projects, some of which would be finely balanced, and a decision in favour of a vocal body of local objectors did not evidence partiality.
Martha Grekos is a partner and head of planning at Irwin Mitchell
