In a recent decision, 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 Court disagreed with the first instance finding that lobbying of Ministers was “part and parcel of the representative role of a constituency MP” in the context of quasi-judicial decision-making.

Facts

This case concerned an application by renewable energy company Broadview Energy Developments Ltd (“Broadview“) for planning permission to build an onshore wind farm in Northamptonshire. The chronology of how this matter came before the Court of Appeal is somewhat convoluted: 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 (the “Secretary of State“), who had elected to decide the appeal himself pursuant to powers under the Town and Country Planning Act 1990, refused planning permission in November 2014 contrary to planning inspector 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 Andrea Leadsom MP. Broadview relied on, among other things, Mrs Leadsom’s various letters and emails 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.

First instance

Cranston J, dismissing the challenge, held that the lobbying of Ministers by MPs was part and parcel of the representative role of a constituency MP. He attached weight to the fact that the representations made by Mrs Leadsom were repetitive and had been a common theme in the various inquiries that had already taken place. Broadview had known the case being advanced by Mrs Leadsom and conceded that Broadview would not have added anything in response that it had not already said in its submissions to the inquiry. 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“.

Decision by the Court of Appeal

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“. However, that principle must be applied sensibly in order to prevent the decision-making process being easily subverted, for example by requiring Ministers to circulate repetitive representations made post-inquiry. On that basis, the Court disregarded Mrs Leadsom’s written representations from its analysis.

This left the two oral representations in the tea room and the lobby. Importantly, the Court held that “it is 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.” The Court 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 Mrs 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 merely a technical breach and therefore not enough to justify quashing the Secretary of State’s decision.

The Court also rejected Broadview’s allegation of bias because it was clear that Ministers made 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. However, the mere allegation of bias showed “how important the principle is that Ministers making planning decisions should not allow themselves to be lobbied by parties in the planning process or by local MPs.” Doing so could allow for allegations of bias to made “all too easily“.

Comment

This case helps to clarify the muddy constitutional relationship between Ministers and MPs and the role of lobbying in “quasi-judicial” decisions such as this one. Although its analysis is restricted to “quasi-judicial” decisions, if not only planning decisions, the Court of Appeal is clear in its message that MPs should not be in a different position from other interested parties, and that Ministers should not allow one party to put its case forward without offering that same opportunity to the “other side”, not least to avoid allegations of bias. Indeed, although the appeal was dismissed, the lawfulness of this particular decision may have been questioned had the chronology of events been different. On that basis, these findings may well lead to heightened caution by MPs and local government in their engagement with Ministers on controversial issues.

Case: Broadview Energy Developments Ltd v The Secretary of State for Communities and Local Government & Ors [2016] EWCA Civ 562