Material Facts:

The appellant, Broadview sought to construct a five turbine wind farm on a

site known as Spring Farm Ridge, located between the villages of Helmdon
and Greatworth within the jurisdiction of the South Northamptonshire District
Council (the Council). The Council refused permission in November 2011.
Broadview processed an appeal with the planning inspectorate that was
reviewed at a public inquiry and granted in May 2012 but the inspectorates
decision for granting the appeal was challenged in the High Court by a local
action group known as Helmdon Stuchbury and Greatworth Wind Farm Action
Group (HSGWASG). In January 2013, His Honour Judge Mackie QC upheld
the challenge, quashing the original decision and resubmitted the appeal to
the planning inspectorate for reconsideration, leading to a second public
inquiry which was held between 8th and 24th October 2013 in which
Broadview, HSGWAG and others made representations. In due course on
11th October 2013 the Secretary of State, then Mr. Eric Pickles elected
himself to determine the matter on the grounds that the appeal involved a
development for renewable energy. Dated, 14th April 2014, the second
inspector also recommended in favor of the planning permission to construct
the wind farm as he considered the benefits obtained from the generation of
renewable energy, to surpass the adverse effects that construction might
have on the buildings that formed part of the heritage assets.

Before concluding the Secretary of State consulted the Court of Appeals

decision in East Northamptonshire District Council v Secretary of State for
Communities and Local Government (the Barnwell Manor case) [2014] in
which the court stated that section 66 (1) of the Planning (Listed Buildings
and Conservation Areas) Act 1990 required the decision-maker to give
considerable importance and weight to the preservation of buildings when
balancing between the benefits and the disadvantages of the proposed
development. During the process, on 7th November 2014, the Department for
Communities and Local Government recommended for the refusal of
planning permission and on 11th November2014, Parliamentary Under
Secretary of State Kris Hopkins MP (Mr Hopkins), to whom Mr Pickles had
delegated the decisions, accepted the recommendation. Therefore, on 22nd
December 2014, through his decision letter, the Secretary of State refused
the planning permission contrary to the inspectors recommendation by
communicating the reason for his decision stating, that although the benefits
obtained by the renewable energy go in favor of the development plan but it
cannot surpass or outweigh the likely adverse impact to heritage assets
which must be given weight in line with the statutory requirements and
national policy.

On 28th January 2015, Broadview applied to quash the decision relying mainly
on the grounds that Mrs Andrea Leadsom, a local MP for South
Northamptoshire (Mrs Leadsom), had engaged in communications and
interactions with Mr Pickles and Mr Hopkins throughout the planning inquires.
Mrs Leadsome had been an active participant in campaigning against
onshore wind farms throughout her career and therefore, the proposed
development in her constituency became a matter of concern for her. As a
matter of fact, she had been successful in advocating for the Secretary of
State to take notice of the application and continued to oppose the proposal.
In support of the evidence for judicial review to quash the decision,
Broadview relied on particular interactions that took place between the
parties on different occasions. These interactions include a chain of
communications which begin with Mrs Leadsoms letter to the Secretary of
State, appreciating him for taking notice of the planning application dated,
29 October 2013. Again a letter to the Secretary of State enclosing
correspondence between her and HSGWAG and notifying him of their views
against the proposal dated, 4th November 2013. Another letter was sent on
the 2nd of December 2013, referring to their recent interaction in the House
of Commons tea room regarding the application and it also mentioned
several points against the proposal though, appreciating that Mr Hopkins
could not comment on individual applications. Between 9th January 2014 and
8th October 2014, additional letters and emails were sent expressing her
concern of the issue at hand and the views and concerns of the local
opposition against the proposal. On 5th December 2014, the last interaction
via email to Mr Hopkins, referred to their previous correspondence and
badgering him in the lobby. In response, the ministers private office stated
that due to his quasi judicial role in determining planning applications, the
minister could not comment on individual cases but the planning department
was trying to resolve the matter.

In due course, the appellant had itself attempted to speak with various
members of the planning department at the Ministry. Broadview had written
to the chief planner to arrange a meeting to discuss the timing and process
of the three appeals which it had before the Secretary of State. The meeting
was refused on the basis that it would be contrary to planning propriety
guidance. Further request was made by Broadview to discuss the process
rather than the substance of the planning appeal and it also referred to Mrs
Leadsoms lobbying activities. Therefore, pursuant to the appellants request,
a meeting was arranged to only discuss the process of the planning appeal
and not the merit of the impending decision. The appellant then made a
freedom of information request and therefore, obtained the correspondences
of Mrs Leadsome uptill late July 2014 as evidence in support of their
application to quash Mr Hopkins decision presented before Cranston J in the
planning court on 9th June 2015.

Question of Law:

Decision:

The Court of Appeal dismissed the appeal.

Longmore LJ:

The Statutory Rules were not breached because the minister did not disagree
from the inspector on any question of fact material to the inspectors
conclusion neither did he take into account any new evidence or new matter
of fact and therefore Rule 17 (5) does not apply. However, Para 4 of the
Planning Propriety Guidance states that privately made representations
should not be entertained unless other parties have been given a chance to
consider them and comment on them. This being a fundamental principle of
the common law known as audi alteram partem requires a decision maker
to hear and take into consideration both sides of an argument. In Errington
v Minister of Health [1935], in which a sum clearance order was quashed
because the owner of the property was not given an opportunity to make any
representation for the explanation given by the minister. A decision maker
should not therefore entertain representations from one party without giving
an opportunity to the other party to explain. The principle has to be applied
sensibly despite its general application because otherwise the decision
making process could be undermined by the ministers obligation to circulate
the representations for comment that are only repetitive of what was said at
the inquiry. The minister did not entertain privately made representations as
he based his decision on the evidence provided and on the representations
that were made to the inspector of which the parties were aware of. It can
be stated that there was a technical breach of para 4 of the Guidance but
there was no breach of the rules of natural justice Fox Land v SSCLG
[2014].
As para 4 of the Guidance does not distinguish between private
representations made in writing and those made orally then the same ruling
applies because if oral representations are repetitive of the matters already
made known at the inquiry itself then the minister should not be under any
obligation to inform other parties and invite comments. On the other hand,
oral advocacy can make an impact if it is made in the absence of the other
party. It is not easy to determine if the statements were repetitive as the
only evidence is hearsay due to which Rule 17 (4) cannot be relied on to say
the Secretary of State disregarded Mrs Leadsoms representations. A minister
must therefore make it clear to anyone that tries to make oral representation
that he cannot listen to them and advise them to put it in writing and send it
to the relevant official in the Planning Casework Division once the inquiry had
concluded as indicated in para 11 of the Guidance and it should also be
made clear that any representations can only be taken into consideration if
they are also made available to the interested parties for comment as stated
in para 12 of the guidance. There is no evidence that Secretary of State told
Mrs leadsom that he cannot listen to her. Longmore LJ disagrees with the
planning courts judgment that lobbying of Ministers by MPs was a part of the
representative role of a constituency MP and so the lobbying was permissible
because MPs should not be in any different position from other interested
parties.

The written representations that Mrs Leadsom made added nothing to what
had already been known during the inquiry and because of this Broadview is
only left with relying on the tea room and the lobbying conversation. By not
stating at the beginning of the conversation that he cannot continue with it,
did Mr Hopkins materially breach the audi alteram partem principle. On
11th October 2013 the Secretary of State called in the application for
determination by himself. The tea room conversation with Mr Hopkins took
place 2nd December 2013 when it was unlikely to have been decided whether
Mr Pickles or Mr Hopkins would decide the application. Mr Hopkins had to
make his decision much later (November 2014) around the time he received
the recommendation from the Planning Casework Division and he made his
decision on 11th November 2014, a year after the tea room conversation. The
tea room conversation therefore could not have an impact on the actual
decision. There was no breach of natural justice by continuing the tea room
conversation and not ending it but in which both of the parties were aware
that the Minister cannot comment on individual applications is therefore, at
the most, a technical breach that could not have made a difference to the
final decision.
An important principle which should be availed in any given circumstances is
that justice must not only be done but surely be seen to be done R v Sussex
Justices ex parte McCarthy [1924] in which Lord Hewart stated that once
it is established that the decision maker has received representations from
one side behind the back of the other, the court will not enquire into the
likelihood of prejudice Kanda v Government of the Federation of
Malaya [1962] in which a police constable was alleged of fabricating
evidence and inducing witnesses to commit perjury at a criminal trial. He
was dismissed without given a chance to defend himself or comment on it.
The Privy Council did not inquire whether the constable was prejudice or not
and stated that it was enough that he may have been. However where
representations are repetitive of submissions already made, the court has
the discretion to decide whether the repetition made a material contribution.
In July 2014, Broadview had gotten all correspondences between Mrs
Leadsom, Mr Hopkins and Mr Pickles and if Broadview had gone to the court
to prevent the Secretary of State from making a decision, to whom the
Parliament had entrusted the decision to, would not have gotten the remedy.
The Lobby conversation did not affect the decision because the conversation
happened around 5th December 2014 and by then Mr Hopkins had already
made his decision even though Mrs leadsom was not aware of it. The lobby
conversation was about the process and the time of the decision and not
about the content of the decision. The tea room conversation should not
have happened and should have been cut off more firmly by Mr Hopkins but
this does not justify quashing the Secretary of States decision. There was no
bias on the part of Mr Hopkins as it is the responsibility of the relevant
Minister to make difficult decisions about controversial projects which are
finely balanced. The well informed observer would not think that a Ministers
decision in favour of local objectors supported by local MPs showed any bias
against the promoter of the project and would accept that the Minister had to
make a decision one way or the other and so the parties should accept the
outcome. It is very important and crucial principle that Ministers making
planning decisions should not allow themselves to be lobbied by parties to
the planning process and by local MPs because if they do allow it then
accusations of bias are easily made Magill v Porter [2002].

M Combe LJ agree with judgment given by Longmore LJ for dismissing the

appeal but disagrees with parts of the overall approach of the judge.
Undoubtedly, there was a breach of Para 4 of the Guidance by the tea room
conversation between Mrs leadsom and Mr Hopkins but since the
conversation did not happen close to the time of the decision it was not
severe enough to quash the Secretary of States decision on the grounds of a
breach of the principles of natural justice. If, however the event was closer to
the time the decision was made then it could have been a serious breach of
lawfulness.