June 23rd, 2016 by James Goudie KC

Ministers making planning decisions (such as an application for planning permission for a wind farm) should not allow themselves to be lobbied, by parties to the planning process, or by local MPs: Broadview Energy Developments Ltd v SoS for CLG and South Northamptonshire District Council [2016] EWCA Civ 562, considering the duty to act and to be seen to act fairly and even-handedly owed by political decision-makers (such as a decision by the SoS on a “recovered”, i.e. called in, planning application).  The Court of Appeal drew attention (para 16) to the February 2012 Guidance on Planning Propriety Issues from the SoS’s own Department.  Longmore LJ relied (para 25) on the “fundamental principle of the common law” which requires a decision-maker to listen to and take into account both sides of an argument, and continued:

“26.      To a 21st century public lawyer this is a stark and obvious application of 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. Nevertheless the principle has to be applied sensibly. If a party to an inquiry or an objector seeks to bombard a minister with post-inquiry representations which are merely repetitive of the representations made at the inquiry itself and every time that happened the Minister was obliged to circulate the representations for comment, the decision-making process could easily be subverted. That is effectively what has happened in this case so far as the written correspondence and representations are concerned. In these circumstances the Minister has not “entertained” privately made representations; he has 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 it could be said that there was a technical breach of para 4 of the Guidance, there was no breach of the rules of natural justice, see Fox Land v SSCLG [2014] EWHC 15 (Admin) paras 22-5 per Blake J. No doubt that is the reason why Mr Pike concentrated on the fact that Mrs Leadsom had the advantage of face to face meetings with Mr Hopkins in the House of Commons tea room and the lobby. It is those occasions which are said to be unfair since Broadview had no comparable advantage.

  1. Para 4 of the Guidance draws no distinction between private representations made in writing and those made face to face and the same principle should therefore apply; if oral representations are 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 comments. But one has to pause, because any judge is acutely aware of the difference oral advocacy can make particularly if it occurs in the absence of the other side. Moreover in the case of written representations it is easy enough to assess whether they are merely repetitive of earlier representations whereas with oral representations one cannot be so sure. That is particularly so in cases like the present in which there is no evidence from the Minister himself but merely hearsay statements from two of his civil servants that Mr Hopkins told them he had no recollection of any meetings with Mrs Leadsom. In these circumstances it was not open to the Secretary of State to rely on rule 17(4) of the Rules and say that he disregarded Mrs Leadsom’s representations and Mr Kolinsky QC on behalf of the Secretary of State did not seek to do so.

  2. In these circumstances it is, in my judgment, incumbent on a Minister taking a planning decision to make clear to any person who tries to make oral representations to him that he cannot listen to them. He can add (if the inquiry has concluded) that anything such persons want to say can be put in writing and sent to the Planning Casework Division. Although such refusal to listen is not in terms mandated in the Guidance it is effectively the thinking behind paras 11 and 12 of that Guidance when those paragraphs say that those seeking to make representations should be advised to write to the relevant official in the Planning Casework Division if the inquiry has concluded and that it must be made clear that any representations “made by whatever means” can only be taken into account if they are also made available to interested parties for comment.

  3. Mrs Leadsom’s letter following the tea room conversation asserts that she made several points to Mr Hopkins and finishes by saying that she appreciates he cannot comment on individual applications. There is no evidence, however, that Mr Hopkins said he could not listen to what she was saying. For the reasons I have given he ought to have so said and, for my part, I would not 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 is making a quasi-judicial decision in relation to a controversial planning application. MPs should not, with respect, be in any different position from other interested parties. Whether the failure of the Minister to say (politely) that he could not listen to what Mrs Leadsom had to say constitutes, on the facts of this case, a material breach of the rule of natural justice or gives rise to the appearance of bias is, of course, a somewhat different matter.”

Applying the principles to the facts, Longmore LJ said:

“30.      Once it is clear that the written representations added nothing to what had already been ventilated at the inquiry and there was nothing new that Broadview could say in response, Broadview is left with relying on the tea room and the lobby conversations. The question is whether the fact that Mr Hopkins did not state at the beginning of the conversation that it should not continue amounts to a material breach of the “audi alteram partem” principle. Here the chronology is important. The second (and relevant) inquiry took place between 8th and 24th October 2013; on 11th October 2013 during the inquiry the Secretary of State called in the application for determination by himself. The tea room conversation with Mr Hopkins took place shortly before 2nd December 2013 at a time when it was unlikely to have been decided whether it would be Mr Pickles or Mr Hopkins was to take the necessary decision and, in any event, well before the inspector made his report on 14th April 2014. There were then the additional consultations referred to above and it was not until 7th November 2014 that the Planning Casework Division in the Department (which, of course, had had no tea room, or other, conversation with Mrs Leadsom) sent its memorandum to Mr Hopkins recommending refusal of permission. It was thus at this stage (November 2014) that Mr Hopkins had to make up his mind on the application (as he did on 11th November 2014) nearly a year after the tea room conversation had taken place. In these circumstances I find it impossible to conclude that the tea room conversation played any part in his decision making process. The breach of natural justice in failing to cut off the conversation and letting the conversation continue in circumstances in which both parties knew that the Minister could not comment on individual applications is, at the most, a technical breach which cannot have made any difference to the ultimate decision.

  1. Nor do I think it arguable that a well informed observer would consider that there was a real possibility of bias on the part of Mr Hopkins. The well-informed observer would know that it was the responsibility of the relevant Minister to make difficult decisions about controversial projects such as on-shore wind farms. He would also know that sometimes such decisions are, as this one was, finely balanced. He would not think that a Minister’s decision in favour of a vocal body of local objectors supported by their local MP showed any bias against the promoter of the wind farm project. He would accept that the Minister had to make a decision one way or the other and think that the parties should accept the outcome.

  2. Nevertheless the accusation of bias made in this case shows how important the principle is that Ministers making planning decisions should not allow themselves to be lobbied by parties to the planning process or by local MPs. If they do allow it, accusations of bias are all too easily made however unjustified they may be once the proper principles exemplified by Magill v Porter [2002] 2 AC 357 are applied.”

Lewison LJ agreed, as did McCombe LJ, who added:

41.      It seems to me that there was undoubtedly a breach of paragraph 4 of the Guidance by what appears to have occurred in the “tea room conversation” between Mr Hopkins and Ms Leadsom. On the facts of this case (in particular in the light of the chronology and the factors set out in paragraph 30 of my Lord’s judgment), however, this breach was not of sufficient moment to call for the quashing of the Secretary of State’s decision on the grounds of a breach of the principles of natural justice. Had the chronology been otherwise, and if the conversation had been more closely proximate in time to the decision taken, then it seems to me that the lawfulness of the decision might well have been in peril.

  1. I agree with what my Lord says in paragraph 28 as to the need for Ministers to eschew conversations such as the one in issue in this case when they are seised of quasi-judicial decisions of the present nature. For my part, I would hold that such conversations are clearly a contravention of the clear purpose of paragraph 4 of the Guidance, which needs to be construed broadly as opposed to rigidly, and a breach of ordinary principles of fairness in our law. If a Minister gives an opportunity to a developer to put to him a case in way that is not afforded to objectors and this can lead to a successful challenge to a subsequent decision (as envisaged in paragraph 4), such an opportunity given to an objector (including an MP) can equally lead to such a challenge.
  2. I would not wish to leave this case without stating my emphatic disagreement with the approach adopted by the judge in paragraphs 33 to 35 of his judgment. Constituency matters are one thing, but quasi-judicial decisions to be made by Ministers are another. Once a planning issue falls to be decided by a Minister, as part of the statutory planning appeal process, then representations by anyone (including an MP for the relevant constituency) can only take place lawfully in compliance with proper standards of fairness. One party should not be permitted to have access to the decision-maker in order to make representations in a manner not afforded to his opponent.

  3. I disagree, in the present context, with the judge’s statement in the final sentences of paragraph 35 when he says that lobbying of Ministers is part and parcel of the representative role of a constituency MP and that it would be wrong for a court to conclude that there was anything improper with it as a matter of law. The statements would be clearly correct in respect of “ordinary” constituency matters but, for my part, I consider that they are incorrect if applied to “lobbying” of a Minister when he is charged with making an appeal decision of the present character. Indeed, the Guidance issued by the Minister’s own Department, envisages correctly the risk of successful legal challenges to decisions if Ministers do not adhere to the ordinary principles of fairness and natural justice in the context of decision-making functions in planning cases.”

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