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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Broadview Energy Developments Ltd v Secretary of State for Communities and Local Government & Ors [2015] EWHC 1743 (Admin) (19 June 2015) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2015/1743.html Cite as: [2015] EWHC 1743 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		19/06/2015

Mr Justice Cranston:

Introduction

1. What are the boundaries to Ministers being lobbied by an MP about a matter affecting her constituency if their subsequent decision is not to be tainted by unlawfulness? That is the issue in this case where an MP was involved in a successful campaign against a proposed wind farm in her constituency. The claimant/developer of the wind farm seeks to quash the Secretary of State's dismissal of its appeal and the refusal of its application for planning permission by this application under section 288 of the Town and Country Planning Act 1990. It contends that that decision is unlawful because, before taking his decision (1) he failed to provide the claimant with copies of correspondence concerning the appeal between the MP, himself and the Minister in the Department for Communities and Local Government ("the Department") who made the decision; (2) he failed to provide it with an opportunity to comment on that correspondence; and (3) the MP lobbied the Minister face to face in the House of Commons. As a consequence, the claimant contends that the decision was taken in breach of natural justice, in circumstances which gave rise to actual or apparent bias on the part of the Secretary of State and in breach of his own guidance.

Background

2. The claimant, Broadview Energy Developments Limited, is an independent renewable energy company which develops and operates wind farms throughout the United Kingdom. As one of its projects it sought planning permission for a five-turbine wind farm at a site known as "Spring Farm Ridge" on land to the north of Welsh Lane, between Greatworth and Helmdon, in the area of the second defendant, the South Northamptonshire District Council ("the Council"). The Council refused permission in November 2011 and the claimant lodged an appeal with the planning inspectorate. The appeal was considered by a planning inspector at a public inquiry in May 2012 and the claimant was successful. That decision was then subject to challenge in this court by the Council and a member of the third defendant, a local action group, the Helmdon Stuchbury and Greatworth Wind Farm Action Group ("HSGWAG"). HH Judge Mackie QC upheld the challenge on one of the grounds in January 2013.
3. On 6 June 2013, the Secretary of State made a Ministerial Statement setting out changes for onshore wind farm developments. It said:

"We will amend secondary legislation to make pre-application consultation with local communities compulsory for the more significant onshore wind applications… We are looking to local councils to include in their Local Plans policies which ensure that adverse impacts from wind farms developments, including cumulative landscape and visual impact, are addressed satisfactorily. Where councils have identified areas suitable for onshore wind, they should not feel they have to give permission for speculative applications outside those areas when they judge the impact to be unacceptable.

To help ensure planning decisions reflect the balance in the [National Planning Policy] Framework, my Department will issue new planning practice guidance shortly to assist local councils, and planning inspectors in their consideration of local plans and individual planning applications. This will set out clearly that:

the need for renewable energy does not automatically override environmental protections and the planning concerns of local communities;

decisions should take into account the cumulative impact of wind turbines and properly reflect the increasing impact on (a) the landscape and (b) local amenity as the number of turbines in the area increases;

local topography should be a factor in assessing whether wind turbines have a damaging impact on the landscape (i.e., recognise that the impact on predominantly flat landscapes can be as great or greater than as on hilly or mountainous ones); and

great care should be taken to ensure heritage assets are conserved in a manner appropriate to their significance, including the impact of proposals on views important to their setting."

4. After the first planning inspector's decision was quashed, the appeal was resubmitted to the planning inspectorate for redetermination. Another planning inspector was appointed and he conducted a public inquiry between 8 and 24 October 2013. The claimant, HSGWAG and others made representations. On 14 April 2014 the inspector recommended the grant of planning permission. Meanwhile, on 11 October 2013 the first defendant, the Secretary of State for Communities and Local Government ("the Secretary of State") had "recovered" (called in) the matter for determination by himself on the grounds that the appeal involved a renewable energy development. Ultimately, on 22 December 2014, the Secretary of State refused planning permission. It is his decision which the claimant seeks to quash in this action.
5. Andrea Leadsom MP was elected as the Conservative MP for the constituency of South Northamptonshire in 2010 and became a Treasury minister in 2014. She was re-elected in the 2015 general election and is now a Minister of State in the Department of Energy and Climate Change. Early in her career as an MP she became a strong advocate of what became the Localism Act 2013 to enable (as she put it) local communities a greater say on how their area looks. She also campaigned against onshore wind farms. In February 2011 she secured a debate in the House of Commons, where she argued that the benefits of onshore wind had been largely exaggerated and that other sources of renewable energy needed much closer examination. She continued to raise the issue of onshore wind farms as a backbencher through parliamentary questions and other avenues.
6. The proposed Spring Farm Ridge wind farm in her constituency became a matter of particular concern for Mrs Leadsom. She expressed satisfaction when the Council refused planning permission and dismay when the first planning inspector reached the opposite conclusion. She wrote a number of letters to both the Secretary of State and the chief executive of the Planning Inspectorate. After appointment of the second planning inspector, she wrote objecting to the proposal and, in the inspector's words, "urging that the Localism Act be taken into account, and stating that Northamptonshire has already provided more than its fair share [of renewable energy]". She campaigned for the Secretary of State to call in the planning application. Her correspondence about this and the ministerial response were released to the claimant by the Planning Inspectorate.
7. When the application was called in, Mrs Leadsom wrote to the Secretary of State on 29 October 2013 to thank him and stated that his decision was "hugely welcomed by my constituents and me". She reiterated the very strong feeling among her constituents against the proposal. She also welcomed the ministerial statement earlier in the year. That letter was posted on her constituency website. I return to her further lobbying in a moment.
8. In his report of April 2014 the planning inspector set out his conclusions on what he identified as the main planning issues. He said that the proposed wind farm would have a major adverse effect on the local landscape in its immediate setting and on many local views. However, it would not result in an overwhelming and oppressive impact on the outlook from nearby dwellings, and adverse noise impacts could be addressed through imposing planning conditions on its operation. The planning inspector concluded that the minor and moderate adverse effects on heritage assets would result in less than substantial harm. As to local concerns, that the proposal would distract drivers and have implications for highway safety, the inspector gave substantial weight to the absence of any objection from the Highway Authority. Weighing heavily in favour of the proposal, he said, was the renewable electricity generation which would result. In striking the planning balance, he assessed that it was "not a case where the adverse impacts I have identified would significantly and demonstrably outweigh the benefits of the scheme". The inspector's overall conclusion was as follows:

"The proposal would result in some harm… in my judgment the likely harm from the wind farm would be outweighed by the [renewable energy] benefits of the proposal. However, in this case the matter is finely balanced. The scheme would conflict with the development plan, but gains support from [National Planning Policy Framework]. National policy and guidance is a consideration in this case which indicates that the appeal should be determined other than in accordance with the development plan. Taking all of these considerations into account, I consider that the proposed wind farm should be acceptable in this location".

9. In October 2013, after the planning application had been called in, there was a delay as the Secretary of State waited for the inspector's report. That itself took time because the planning inspector conducted additional consultations, after the public inquiry in October, following the publication of an important report on wind farm-related noise and the official Planning Practice Guidance. There was further delay after his report was received when the parties were consulted in July 2014 about the implications of a recent Court of Appeal decision on wind farms, East Northamptonshire District Council v. Secretary of State for Communities and Local Government [2014] EWCA Civ 137, [2015] 1 WLR 45 ("the Barnwell Manor decision"). There the Court of Appeal interpreted section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 as requiring the decision-maker to give "the desirability of preserving the building or its setting" not merely careful consideration but considerable importance and weight when balancing the advantages of the proposed development against any such harm.
10. After the public inquiry, Andrea Leadsom MP continued to write both to Sir Eric Pickles MP, who was the Secretary of State until the 2015 election, and to Kris Hopkins MP, who became Minister of Housing in the Department in October 2013 and who also continued in that post until the election. Thus, on 4 November 2013 she wrote to Sir Eric Pickles MP enclosing correspondence from HSGWAG and informing him of their firm views against the proposal. The Planning Inspectorate replied on 26 November that that letter, and the earlier one of 29 October, would be passed to the Secretary of State for consideration once the inspector's report was available.
11. Mrs Leadsom wrote to Kris Hopkins MP on 2 December 2013:

"Further to our recent conversation in the [House of Commons] tea room regarding the Spring Farm Ridge wind farm application, I wanted to set out in writing the points you kindly allowed me to make".

The letter then referred to the local opposition to the wind farm, asserted that approval would be inconsistent with the localism agenda and stated that the proposal's impact for the local community was compounded by the impact of the proposed HS2 railway line. She finished in this way:

"I appreciate that you can't comment on individual applications but I do hope you will take these views into account".

12. On 9 January 2014, Mrs Leadsom wrote to Sir Eric Pickles MP expressing her concern regarding the additional consultation being undertaken by the planning inspector. She attached an email to that effect from a Mr Ken Christy. Another letter of 31 March 2014 to Sir Eric reiterated the points about the staunch local opposition to the wind farm and that the local village was also affected by HS2. An email to Kris Hopkins MP on 2 July 2014 attached an email from a local resident, Veronica Ward. This dealt with the impact of the proposed wind farm on village traffic and listed buildings.
13. On 21 July 2014, Mr Hopkins replied to Mrs Leadsom, explaining that a decision had not been made by the target date due to need for further consultation on the implications of the Court of Appeal Barnwell Manor decision. Mrs Leadsom wrote again to Mr Hopkins on 28 July 2014, attaching representations from her constituents Veronica and Nicholas Ward regarding the impact of the proposed wind farm on listed buildings. There was another letter on 5 August 2014, attaching a letter from Mr Ward, regarding the specific impact on Sulgrave Manor. An email to Mr Hopkins on 8 October 2014 chased a decision on the application and stressed the depth of local feeling. A relatively short, urgent email to Mr Hopkins on 5 December 2014 began by referring to numerous previous letters and emails, "me badgering you in the lobby", yet still no decision having been taken. The minister's private office responded that, given his quasi-judicial role in determining planning applications, Mr Hopkins could not comment on individual cases. However, planning colleagues had assured the private secretary that they were working hard to issue a decision.
14. The claimant, too, had not been idle. On 21 October 2013 Jeffrey Corrigan, the managing director, had written to the Chief Planner seeking a meeting to discuss the timing and process of three appeals in which it was involved, which had all been called in by the Secretary of State. The head of planning casework in the Department, Richard Watson, replied on behalf of the Department on 21 November 2013 as to the timing of the appeals, but he refused a meeting since it would be inappropriate in light of the planning propriety guidance. A fourth of the claimant's planning applications was called in and, on 12 March 2014, Mr Corrigan renewed his request for a meeting. He made clear that he did not expect to discuss the specifics of the appeals but rather the policy behind them, the process involved and the timing of a decision. Mr Corrigan also drew attention to the lobbying behind the call-ins which Andrea Leadsom MP stated on her constituency website had occurred. He was not privy to that lobbying but hoped it was in keeping with the planning propriety guidance.
15. In his witness statement, Mr Watson describes the meeting Mr Corrigan held with him and the Chief Planner. At the start of that meeting, it was agreed that the specifics of any of the claimant's planning appeals could not be discussed and the focus would be on the procedures for handling the call-ins.
16. Following freedom of information requests under the Environmental Information Regulations 2004, SI 2004 No. 3391, by late July 2014 the claimant had obtained copies of Mrs Leadsom's letters to Sir Eric Pickles MP dated 29 July 2013, 29 October 2013, 4 November 2013, 9 January 2014 and 31 March 2014 and to Kris Hopkins MP dated 2 December 2013 and 2 July 2014. It had also gained access to the replies from Mr Hopkins of 14 October 2013 and 21 July 2014, and from the Planning Inspectorate of 26 November 2013, 27 December 2013 and 16 April 2014.
17. On 7 November 2014 officials in the Department had sent a minute to Kris Hopkins MP, recommending that he disagree with the planning inspector and refuse planning permission for the Spring Farm Ridge wind farm. The minute summarised the planning considerations backing that course of action. The proposed points of disagreement with the Planning Inspectorate were on the way the planning inspector had balanced the conflict with the development plan and the supporting considerations, the weight he placed on the absence of an objection from the highway authority, and his conclusion that the "finely balanced" overall planning assessment favoured the grant of planning permission. The minute also proposed a refinement in the inspector's approach in the light of the Barnwell Manor decision on the weight to be placed on the harm to heritage assets.
18. Four days later, on 11 November 2014, Mr Hopkins's private office confirmed that he had accepted his officials' recommendation to disagree with the planning inspector, dismiss the appeal and refuse planning commission. As he was entitled to, he had taken the decision on behalf of the Secretary of State.
19. On 22 December 2014 the Secretary of State formally dismissed the claimant's appeal against the decision of the Council to refuse planning permission. In his decision letter, the Secretary of State agreed with the planning inspector's assessment of the main planning issues, his analysis of the impacts on the character and appearance of the area and amenity issues, his assessment of the adverse impacts on the heritage assets identified, and his conclusion that the minor to moderate adverse effects of the proposed development would result in "less substantial harm". He said that he had given "considerable importance and weight to the harm identified and the desirability of preserving the setting of the listed buildings". He further agreed that the main considerations to be weighed in the planning balance were the adverse effects of the proposed wind farm on the character and appearance of the area and on heritage assets against which the renewable energy benefits had to be weighed. He then said:

"29. … [T]he Secretary of State agrees with the Inspector… that the benefits and disadvantages of the proposal are finely balanced. However, he disagrees with the Inspector as to where the balance falls. The proposal would not accord with the [development plan]. Although there are some material considerations which weigh in favour of the proposal including the [renewable energy] benefits, the Secretary of State finds that those benefits are not sufficient to outweigh the likely adverse impacts, in particular the identified harm to the [heritage assets] as well as the character and visual amenity of the area.

30. The Secretary of State disagrees with the Inspector's judgement… and considers that the likely harm from the proposed development would not be outweighed by the [renewable energy] benefits. He agrees that the proposal conflicts with the development plan and there are elements of the [National Planning Policy] Framework which do not support the scheme. He considers that there would be harm to a range of heritage assets which, while not being substantial, merits considerable importance and weight in the planning balance in line with section 66 of the [Planning (Listed Buildings and Conservation Areas) Act 1990].

31. Having weighed up all relevant considerations, the Secretary of State concludes that the factors which weigh in favour of the proposed development do not outweigh its shortcomings and the conflicts identified with the development plan, statutory requirements and national policy."

Legal and policy framework

20. The Secretary of State is empowered to decide planning appeals made under section 78 of the Town and Country Planning Act 1990 ("the 1990 Act"): s.79. Under the Town and Country Planning (Determination of Appeals by Appointed Persons) (Prescribed Classes) Regulations 1997, SI 1997 No 420, appeals are heard by planning inspectors on his behalf. That is what happens in most cases but under the 1990 Act the Secretary of State has a power to "recover" (call-in) an appeal and determine it himself: Schedule 6, paragraph 3(1). The Secretary of State is then the primary decision-maker and is not reviewing or conducting an appeal against an inspector's decision following a planning inquiry. In Wind Prospect Developments Limited v. Secretary of State for Communities and Local Government [2014] EWHC 4041 (Admin), Lang J said that the planning inspector's report is the starting-point for the Secretary of State's deliberations. However, it is his statutory function to make a planning judgment and whilst he should give due consideration to the inspector's planning judgment, because of the latter's knowledge of the particular case and his planning expertise, he is not required to follow it: [24]-[25].
21. There are statutory rules which address specifically the extent to which the Secretary of State can consult on new matters or matters upon which he intends to differ from a planning inspector. Rule 17 of the Town and Country Planning (Inquiries Procedure) (England) Rules 2000, SI 2000 No. 1624 ("the Planning Inquiries Rules") is headed "procedure after inquiry". Rule 17(4) provides that, when making his decision, the Secretary of State may disregard any written representations, evidence or any other document received after the close of the planning inquiry by the inspector. Rule 17(5) reads:

"(5) If, after the close of an inquiry, the Secretary of State –

(a) differs from the inspector on any matter of fact mentioned in, or appearing to him to be material to, a conclusion reached by the inspector; or

(b) takes into consideration any new evidence or new matter of fact (not being a matter of government policy),

and is for that reason disposed to disagree with a recommendation made by the inspector, he shall not come to a decision which is at variance with that recommendation without first notifying in writing the persons entitled to appear at the inquiry who appeared at it of his disagreement and the reasons for it; and affording them an opportunity of making written representations to him or (if the Secretary of State has taken into consideration any new evidence or new matter of fact, not being a matter of government policy) of asking for the reopening of the inquiry."

22. Rule 17(5) was considered in Fox Land & Property Ltd v. Secretary of State for Communities and Local Government [2014] EWHC 15 (Admin), where the Secretary of State for Communities and Local Government had rejected a recommendation of a planning inspector that planning permission should be granted for residential development on green belt land. On appeal the Court of Appeal endorsed Blake J's decision that green belt policies applied: [2015] EWCA Civ 298. In the course of his judgment, Blake J considered another issue, not raised on appeal, concerning the failure to disseminate a letter from the local MP. Following the conclusion of the inquiry, to which she had made representations, the local MP had written to both the Secretary of State and the Planning Minister voicing her opposition to the development. At the outset of the decision letter the Secretary of State considered the relevance of the MP's representations and concluded that they carried little weight. Blake J said:

"[24]… [R]ule 17 (5) only required the Secretary of State to afford the claimant an opportunity to make representations on them if he 'is for that reason disposed to disagree with a recommendation made by the inspector'. It is apparent from the decision letter read as a whole and in good faith that Ms Harris's representations were not the reason why the Secretary of State disagreed with the inspector.

[25] Even if common law principles of fairness apply a less exacting test there is no reason to believe either that the representations made any difference to the decision or that the claimant has been unfairly deprived of the opportunity to make any particular response to them. The MP's views were known at the inquiry and the claimant was able to address them then. Consequently, this ground also fails."

23. The Department issued its Guidance on Planning Propriety Issues in February 2012 ("the planning propriety guidance"). Paragraph 4 states that Planning Ministers are under a duty "to behave fairly ("quasi-judicially")" in the decision-making procedure and should therefore act and be seen to act fairly and even-handedly. To demonstrate even-handedness:

"all evidence which is material to any decision which has been the subject of a planning inquiry, and which the decision-maker ultimately takes into account, must be made available to all parties with an interest in the decision. Privately made representations should not be entertained unless other parties have been given the chance to consider them and comment. This part of the requirement to act fairly is also reflected in the statutory rules for inquiries…"

24. The section in the guidance dealing with representations on call-in decisions and appeals recognises that although planning cases decided directly by the Secretary of State are a tiny proportion of the number of planning applications and appeals handled each year, they are high profile and interested parties, including MPs and pressure groups, will want to make representations. The planning propriety guidance states:

"[11]… Those seeking to make representations to Planning Ministers in relation to whether an application should be called-in should be directed to the relevant planning casework official in the Planning Directorate of [the Department]. Ministers' decisions should have regard to the published call-in policy. Those seeking to make representations in relation to the actual determination of called-in applications and recovered appeals should be advised to write to:

the Planning Inspector, if the inquiry has not been completed; or

the relevant official in the Planning Casework Division if the inquiry has concluded.

[12] Where representations are made by whatever means, including letters, telephone and email, whether direct to a Planning Minister or to the relevant official, it should be made clear that they can only be taken into account if they can also be made available to all interested parties for comment."

25. The section in the guidance on the impact on day to day performance of ministerial duties provides that, where an appeal is made, or application called in, Planning Ministers are much more exposed to the risk of legal challenge if they agree to meet interested parties. They are therefore advised to decline requests for visits involving meetings with interested parties at this stage, and where a meeting is unavoidable (e.g., because an application is part of a wider agenda), they should not discuss the particular planning case, and should explain the propriety concerns to those present: 13(c). In any case where a meeting is held, a note of the meeting should be kept, which in some cases may need to be circulated to interested parties: [15].

The claimant's case

26. The claimant's case is that the Secretary of State's decision to refuse planning permission was unlawful because before taking it he failed to inform the claimant of correspondence passing between Andrea Leadsom MP on the one hand and Sir Eric Pickles MP, the Secretary of State, and Kris Hopkins MP, the Housing Minister, on the other. The claimant did not have an opportunity to comment on it, when Mrs Leadsom was both an objector to the proposed wind farm and also wrote on behalf of other objectors. The Minister also allowed private meetings with Mrs Leadsom, when she was able to make representations concerning the proposed wind farm, namely the meetings in the House of Commons tea room and the lobby. The tea room meeting was the most significant. Not only was the claimant not notified of these meetings or their content, but that meant that it did not have an equal opportunity to put its case in person to the Minister. In Mr Pike's submission, the ability to advance a case in person can swing a decision. The upshot was that the Secretary of State acted in breach of natural justice and common law fairness.
27. Secondly, the claimant's case is advanced on the basis that the decision is vitiated by actual, or apparent, bias. As is well known, apparent bias arises where the fair-minded observer, having considered the facts, would conclude that there was a real possibility that the decision-maker was biased: Magill v. Porter [2001] UKHL 67, [2002] 2 AC 357, at [103] per Lord Hope of Craighead. By taking into account correspondence from Andrea Leadsom MP and her constituents, and by allowing her to make oral (and subsequent written) representations, Mr Pike submitted that the decision-making minister, Kris Hopkins MP, displayed apparent bias against the claimant. A fair-minded observer, having considered the facts of the correspondence was being disclosed to it, and the private meeting and other conversations between Mrs Leadsom and Mr Hopkins, would conclude that there was a real possibility that the latter was biased or that he was not impartial: see Fox v. Secretary of State for the Environment [1993] JPL 448, Cottrell v. Secretary of State for the Environment [1991] JPL 1155; De Smith's Judicial Review 6^th Edition, (Thompson, Sweet & Maxwell), paragraph 10.058.
28. By allowing the tea room and lobby meetings and conversations to take place, Mr Pike submitted, Kris Hopkins MP also demonstrated actual bias against the claimant since the only person who, as far as the claimant is aware, had the opportunity of a face to face meeting with him was Andrea Leadsom MP. The claimant would have wished to have a similar meeting to put its case directly, and in person, but it was not afforded the opportunity.
29. Thirdly, Mr Pike contends, the Secretary of State failed to have regard to, and acted in breach of, his own planning propriety guidance. There was no evidence that Mrs Leadsom's correspondence and meetings with Mr Hopkins were not material to the decision so they should have been made known to all parties, including the claimant. Again in breach of the guidance the claimant was not given the chance to comment so the letters should not have been taken into account. Contrary to the guidance, there is no evidence that Sir Eric Pickles MP or Kris Hopkins MP ever advised Mrs Leadsom to write to the relevant officials in the planning casework division. Mr Hopkins should have declined the meetings with Mrs Leadsom in the tea room and lobby, and if they were unavoidable she should have been told about the propriety concerns. Given Mrs Leadsom's letters about those meetings he clearly did not do so. Her letter about the tea room meeting indicates that it was not a fleeting conversation. Again, in breach of the guidance, Mr Hopkins did not make a note of what occurred.
30. In the course of his submissions, Mr Pike refuted the suggestion that what Mrs Leadsom said in her letters, and what was said in the letters she enclosed from constituents, were matters which had been raised by objectors during the public inquiry, and so the claimant was aware of the generality of what was being said. The claimant did not know the details or that the decision-taking Minister was Mr Hopkins. The claimant would have liked a face to face meeting with him as well. Just as under their code of conduct planning inspectors do not have private meetings with a party, that was also the position for Ministers under the planning propriety guidance. Mr Hopkins's private secretary, Peter Fenn, said in his witness statement that Planning Ministers actively discourage lobbying but the facts are against that in this case.
31. Mr Pike also submitted that it was no answer to the claimant's case that some of the letters written by Mrs Leadsom were published on her website. This suggests that if a person makes representations to a decision-maker and they are published in a way which might be discoverable by other parties, no unfairness or illegality arises. Mr Pike submitted that it cannot be the case that it is the responsibility of an interested party to monitor the internet to discern whether a decision-maker might be receiving representations. Planning inspectors, who determine the vast majority of appeals, make known to all parties all representations they receive as a matter of course.
32. In advancing the claimant's case, Mr Pike was critical that there has been no evidence from either Kris Hopkins MP or Andrea Leadsom MP. Instead, Mr Hopkins's private secretary, Mr Fenn, offered hearsay evidence that Mr Hopkins has no recollection of the meetings. Mr Pike submitted that it is implausible that Mr Hopkins does not recall meeting Mrs Leadsom in the tea room or being "badgered" in the lobby. Evidence of these matters from civil servants, even if it is admitted, can carry little or no weight. Mr Pike would have wanted both Mrs Leadsom and Mr Hopkins to give evidence to the court. Given that Mr Hopkins had not given evidence, Mr Pike submitted that I should draw adverse inferences against him.

Analysis

33. The legal analysis of what occurred in this case requires an understanding of the operation of important aspects of our political system. First, to state the obvious, MPs in our system represent individual constituencies and secondly, Ministers are members of Parliament, most being members of the House of Commons. As elected representatives of individual constituencies, one of the functions of the modern MP is to take up constituency issues. These may be issues facing one constituent, a group of constituents or the constituency as a whole. Companies based in an MP's constituency will approach her just as will individuals. A constituency issue could relate to a planning matter. In some cases constituency issues will have a greater resonance with the MP because of her political or personal interests. A constituency issue may form the basis of a sustained campaign.
34. Usually the MP's first step with a constituency issue will be to write to the relevant Minister or the relevant official at local or national level. That may produce an immediate, positive result, but there may be a need for further correspondence. The MP will want to demonstrate her efforts by sending any reply to her constituent(s), even if she has been unsuccessful. Depending on the nature of the issue, the MP's actions and the response from the relevant decision maker may be more widely publicised for example, on her constituency website or through the local press.
35. In some cases the MP will pursue constituency issues by meeting with the relevant decision-maker – for example, the head of housing in her local authority, the chief executive of the NHS hospital trust, and possibly the Minister of the relevant department. Depending on the issue it may be convenient to approach a Minister informally in the Palace of Westminster - in one of the lobbies, in the busy members' tea room of the House of Commons, in another common area, or elsewhere on the parliamentary estate. Ministers are MPs and they will need to spend periods in Parliament, attending to Parliamentary business, alongside other MPs. The advantage to the MP in approaching Ministers in this way is that formal meetings might be difficult to arrange (Ministers are busy both with official and constituency commitments) and there is the immediacy of a face to face meeting with the Minister; the disadvantage is that the encounter is likely to be relatively brief and the Minister needs to recall and act later on what has been said. This lobbying of Ministers by MPs is part and parcel of the representative role of a constituency MP. It would be quite wrong for a court to conclude that there was anything improper with it as a matter of law.
36. A further aspect of our political arrangement is that Parliament has created a system where planning decisions are made by politicians, at the local level by elected councillors on local authority planning committees, and at national level by Ministers. In some areas Ministers have shed their decision making role completely (e.g., setting interest rates) but that has not been done with planning. The role of Ministerial decision-making was considered in R (Alconbury) v. Secretary of State for the Environment, Transport and the Regions [2001] UKHL 23; [2003] 2 AC 295, where the House of Lords held that while Planning Ministers must act fairly, their decisions are not to be seen as judicial decisions and their function is not a judicial one. As Lord Slynn put it, there is "nothing unusual or sinister" in the system of Ministerial decision-making with planning: at [47]. See also [60], [69], [139], per Lords Nolan, Hoffmann and Clyde respectively.
37. The upshot of this is that MPs may contact Ministers about constituency planning matters being considered by them. It is unavoidable that Ministers should receive those written representations on behalf of constituents. As well, a Minister who is buttonholed in the tea room or in the lobby by an MP cannot avoid being on the receiving end of oral representations about a constituency matter. It would be quite wrong for a court to set unworkable limits on the ability of the Ministers to carry out their business as MPs. Ministers are bound by the Ministerial Code which requires them to behave in a way which upholds high standards of propriety. Planning Ministers are briefed about the planning propriety guidance, its importance and the need to discourage conversations about particular planning cases. Absent any material breach of these provisions I simply cannot see how any claim can get off the ground. Mr Pikes's reference to the position with planning inspectors is not a relevant comparison.
38. With this as background the facts of this case fall into place. Andrea Leadsom MP was acting perfectly properly, as a diligent constituency MP, although in this case it just so happened that her political judgment aligned with her constituents' interests. She wrote to Ministers in the usual way. The correspondence was sent by the Ministers' private office to the case officer leading on the appeal to see if they raised new issues. The claimant concedes that none of the correspondence raised any new issue. In most cases Ministers did not respond, and the replies came from the Planning Inspectorate. When on 21 July 2014 Mr Hopkins did write it was to explain that a decision had not been made by the target date due to the need for further consultation. I note in passing the reality that the claimant had the bulk of the correspondence by July 2014 as a result of the freedom of information request, so it knew about her lobbying well before the decision was made.
39. As to the so-called "private meetings" in the House of Commons tea room and the lobby, they go nowhere. The meeting in the busy tea room is unlikely to have been of any length and Mrs Leadsom's letter probably makes it appear more elaborate and structured than it was. The conclusion of that letter – "I appreciate that you can't comment on individual applications" – is strong evidence that both parties were aware of the propriety boundaries of what Mr Hopkins could say or do in response to Mrs Leadsom's lobbying. In any event that meeting came some 12 months before the decision which is challenged in this application and it is not surprising that in evidence from Mr Fenn, which I accept, Mr Hopkins has no recollection of it. Mr Hopkins was likely to have been buttonholed by MPs on many occasions as a housing and planning minister. As I have said, the complainant knew of the meeting by July 2014 since they had Mrs Leadsom's letter of 2 December 2013 through the freedom of information request. It did nothing about it.
40. The character of the meeting in the lobby is obvious from the content of Mrs Leadsom's email of 5 December – she was badgering Mr Hopkins about the fact that the decision had still not been made. In fact it had, although Mr Hopkins kept that from Mrs Leadsom since it had yet to go through the formal stages. That is further evidence of compliance with the planning propriety guidance. Importantly, that meeting had no consequence for the decision since it came after it had been made.
41. Turning to the legal basis on which the claimant's challenge is made, in my judgment there is nothing in the first line of attack – breach of natural justice and common law fairness – and it fails on general principles. Jackson LJ summarised these in the context of planning in Secretary of State for Communities and Local Government v. Hopkins Developments Ltd [2014] EWCA Civ 470, [2014] PTSR 1145:

"[62] (1) Any party to a planning inquiry is entitled (i) to know the case which he has to meet and (ii) to have a reasonable opportunity to adduce evidence and make submissions in relation to that opposing case. (2) If there is procedural unfairness which materially prejudices a party to a planning inquiry that may be a good ground for quashing the Inspector's decision."

Beatson LJ added that the "right to be heard" limb of the common law principles gives the individual the opportunity to puts its case and that to do that the authorities in the planning context show that what is needed is knowledge of the issues in fact before the decision-maker: [87]-[88], [90]. Christopher Clark LJ agreed with both judgments.

42. In this case the claimant knew the case being advanced by the objectors to the development, including Andrea Leadsom MP, and the issues they relied upon. None of the matters raised in her correspondence were new; all had been made in material before the public inquiry. The tea room and lobby meetings were of no consequence. The claimant had a reasonable opportunity to adduce evidence and make submissions in relation to this opposing case. They were matters which it dealt with in its evidence and submissions to the inquiry. In these circumstances, there can be no procedural unfairness.
43. In any event, the claimant's submissions do not address rule 17(5) of the Town and Country Planning (Inquiries Procedure) (England) Rules 2000 and the decision of Blake J in Fox Land and Property Ltd v. Secretary of State for Communities and Local Government [2014] EWHC 15 (Admin). None of the letters received after the close of the inquiry contained material which fell within the provision in rule 17(5) so as to require further consultation. Their contents did not add to the material planning considerations which had been canvassed at the inquiry on behalf of objectors to the proposal. In fact, Mr Pike accepts that the claimant would not have said anything in response to the letters which it had not already said in its submissions to the inquiry. Moreover, the Secretary of State did not rely upon the contents of the correspondence in reaching his decision as a basis for disagreeing with the planning inspector so as to trigger the requirements of rule 17(5)). The decision turned on a fine balance of factors and on ministerial consideration the outcome was different from where the planning inspector ended up.
44. Regarding apparent bias, the question is whether a fair-minded and informed observer would conclude that there was a real possibility that the decision-maker was biased. The court approaches the question from the vantage point of a fair-minded and informed observer "with knowledge of the relevant circumstances": AWG Group Ltd v. Morrison [2006] EWCA Civ 6; [2006] 1 WLR 1163, at [20] per Mummery LJ; Competition Commission v. BAA Limited [2010] EWCA Civ 109, at [13], per Maurice Kay LJ. In Helow v. Secretary of State for the Home Department [2008] UKHL 62; [2008] 1 WLR 2416, Lord Hope spelt out what it meant to be an informed observer as follows:

"[3] Then there is the attribute that the observer is 'informed'. It makes the point that, before she takes a balanced approach to any information she is given, she will take the trouble to inform herself on all matters that are relevant. She is the sort of person who takes the trouble to read the text of an article as well as the headlines. She is able to put whatever she has read or seen into its overall social, political or geographical context. She is fair-minded, so she will appreciate that the context forms an important part of the material which she must consider before passing judgment."

Further, in National Assembly for Wales v. Condron [2006] EWCA Civ 1573; [2007] 2 P&CR 4 (CA) Richards LJ said that the court will look at "all the circumstances as they appear from the material before it, not just at the facts known to the objectors or available to the hypothetical observer at the time of the decision", and he also referred to as the "wider picture" and "totality of circumstances": [50], [55].

45. In my judgment, fair-minded and informed observers defined in this way would conclude that there was no real possibility of ministerial bias in this case. First, they would know that when recommending the grant of planning permission the planning inspector considered that the matter was finely balanced. Secondly, they would also know that in this case Andrea Leadsom MP was lobbying assiduously, and openly, against the Spring Farm Ridge proposal on behalf of her constituents. Consequently they would anticipate (1) that she would be writing to Ministers, forwarding her constituents' correspondence against the proposal; (2) that when the issues had been extensively canvassed in this case at two public inquiries it was unlikely that there would be anything new to say; (3) that so long as the decision was outstanding, she would need to continue the lobbying, and be seen to be doing that by her constituents; and (4) that she would use every opportunity, including the inevitable encounter with Ministers on the Parliamentary estate, to advance the case. They would also know (1) that Ministers are constantly lobbied by MPs; (2) that Planning Ministers are bound by the Ministerial Code and receive specific guidance on propriety requirements; and (3) that Ministers receive a briefing from officials as to how they should decide a matter of this nature.
46. In fact in this case the claimant was aware that Mrs Leadsom MP was writing to Ministers through searching the constituency website and later the freedom of information requests. Moreover, we now have all the correspondence and it was making the same basic points primarily of widespread local opposition to the proposal. Indeed, the claimant does not suggest that any new points were raised in it. Further, in this case we know Mr Hopkins MP received a minute from his officials proposing that planning permission should be refused, he agreed with the proposed approach, and the Secretary of State's decision records the basis of disagreement with the planning inspector. It is telling, in my judgment, that there is no criticism of the basis upon which the Secretary of State disagreed with the planning inspector's recommendation on planning grounds.
47. Actual bias is rare and difficult to prove (Locabail (UK) v. Bayfield Properties Ltd [2000] QB 45 at [3]) and there is simply no evidence to support the contention that this decision is vitiated for that reason.
48. Finally, as regards the planning propriety guidance, the need for consultation under paragraph 4 with further correspondence depends upon its nature ("which is material"), in particular when it post-dates the receipt of the planning inspector's report, whether it raises issues which influence the decision ("which the decision-maker ultimately takes into account"). Paragraph 4 states explicitly that it must be read consistently with the Planning Inquiries Rules, including rule 17(5). Thus paragraph 4 does not require representations which simply repeat points already made to be circulated for a further round of consultation. That was the case here with Mrs Leadsom's letters, which raised no new matters and were not treated by the Secretary of State as the basis for his disagreement with the planning inspector. Paragraphs 11, 12, 13(c) and 15 of the propriety guidance recognise that contact with MPs might happen and set boundaries as to how the situation should be handled if it does. In my judgment, the claimant has not established that there were any material breaches of what, after all, is only guidance, in how Ministers dealt with Mrs Leadsom's lobbying.

Conclusion

49. Ministers are lobbied by MPs about constituency issues. That takes place through correspondence and other avenues. Because Ministers are Parliamentarians, MPs use the opportunity to lobby them in person through informal encounters on the Parliamentary estate. This is part of our Parliamentary democracy and generally there can be no lawful objection to it. Planning is an area where Ministers are sometimes the primary decision-maker. There is nothing unlawful in their being lobbied by an MP on a constituency planning matter so long as Ministers act fairly and consistently with the standards of propriety set by the Planning Inquiries Rules, the Ministerial Code and the planning propriety guidance. In this case the claimant has failed to establish that the ministerial decision against planning permission for its proposed wind farm was unlawful, through unfairness, bias or material breach of planning propriety standards. I dismiss its application to quash the Secretary of State's decision.