Permission to speak freely?

Parliament iStock 000002379030XSmall 146x219Sue Chadwick reviews two recent court cases – including one involving an MP and a minister – where accusations of bias were made in relation to planning decisions.

As the summer unfolds into a heady combination of sport, sunshine and corporate hospitality, some of us will be fortunate enough to leave overheated desks behind for a few hours and enjoy both indoor and outdoor social events. Two recent and timely rulings have explored the extent to which conversations taking place in a social context can be used as evidence of bias in the context of planning decisions.

The case of Broadview Energy Development Ltd v Secretary of State for Communities and Local Government & Ors [2015] EWHC 1743 (Admin) (19 June 2015) involved a proposal for a five-turbine wind farm in Northamptonshire. Permission was granted following an appeal against the Council’s initial refusal, but quashed in January 2013 following an application for judicial review, and resubmitted to the Planning Inspectorate for reconsideration. This was recovered by the Secretary of State and permission was refused, against the recommendation of the inspector reporting on it.

The Local MP Andrea Leadsom (now a Minister of State at the Department of Energy and Climate Change) campaigned against wind farms as a back bencher and objected to this development throughout the planning process, including direct representations to Kris Hopkins MP - the then Minister of Housing, and Eric Pickles, the Secretary of State.

The core of Broadview’s case was that: (1) the Secretary of State’s decision was unlawful as not all correspondence was disclosed and because Mrs Leadsom was allowed private meetings with Mr Hopkins - notably in the House of Commons tea room and lobby (though Mr Hopkins private secretary said that he had no recollection of them); (2) the private correspondence and meetings combined with the documents publicly available amounted to actual or apparent bias; (3) there was a breach of the Secretary of State’s own Guidance on Planning Propriety issued in February 2012.

Justice Cranston did not agree. He ruled that it was a normal part of an MP’s function to take up constituency issues, some of which could have "greater resonance" because of political or personal interests. It was "part and parcel" of the MP’s role and to take these issues up with the relevant Minister or official and this might include meetings in the members' tea room. Indeed, the judge specifically noted that "Mr Hopkins was likely to have been buttonholed by MPs on many occasions as a housing and planning minister". None of the issues raised by Mrs Leadsom in her letters were new, and no procedural unfairness arose from their non-disclosure, nor was there any breach of the planning propriety guidance in terms of consultation. Adopting the required position of the fair-minded and informed observer with knowledge of the relevant circumstances, Justice Cranston concluded that there was no real possibility of ministerial bias.

The case of Trump International Golf Club Scotland Ltd & Anor v The Scottish Ministers [2015] ScotCS CSIH_46 (05 June 2015) also raised the issue of bias arising from conversations in a social setting as part of the case as a whole, and was concerned with a consent granted in March 2013 by the Scottish Minister for Energy, Enterprise and Tourism, under section 36 of the Electricity Act 1989 for the construction and operation of 11 offshore wind turbines. The proposal was opposed by Trump International because of its perceived financial impact on the Menie Links golf course and club house.

One of the grounds of the challenge to this decision was that in making the decision the respondents acted in breach of natural justice by having pre-determined the issue and displaying bias in favour of the applicant.

They raised a number of different incidences, the most entertaining of which centred on a conversation between the Minister and other guests in the hospitality tent at the Scottish Open – described in the judgment as ‘the mise en scène’ – at Castle Stuart in August 2012. According to the writer of A Travel Golf Blog the parties were having “an amazing lunch” during the course of which the blogger – referred to in the judgement as ‘the American colleague’ – the First Minister said that the wind farm would definitely be built, commenting in addition that his energy policies should not be “dictated by Mr Trump”. 

The claimants submitted that though each incident could be assigned an individually innocent interpretation, together they would create the impression, for the fair-minded and impartial observer, that the decision-making process was unfair.

The Lords of the Inner House were no more sympathetic to this assertion than Justice Cranston in Broadview. They ruled that Ministers could legitimately favour particular types of project, or even particular projects but this was not the same as predetermination. There was nothing suspicious in an official remarking, in a meeting under Chatham House rules that the Government was keen for the project to proceed. The decision maker could legitimately decide for himself whether or not to meet with a developer or an objector and if a site visit would add anything to his knowledge and it was for him to decide what weight should be given to an objection made from a landowner more than 3km from the development. The promptness of the decision did not support the contention that the decision was pre-determined given the breadth of the Minister’s existing knowledge.

The Lord President was singularly unimpressed by the allegations in relation to the conversation at the Scottish Open, commenting that: “It is difficult to take a remark of that kind, if it was made, as a considered statement of the Scottish Ministers’ intentions". His overall conclusion, supported by the other two judges, was that none of the allegations in themselves supported the contention that there was any element of bias in the decision-making process, and aggregation did not make the claim that the decision was biased any more valid.

In both of these cases, the particular circumstances and the lack of substance protected the participants from successful allegations of bias. Nevertheless, it is still worth being aware that the rules of bias, predetermination and codes of conduct will still apply, even when the sun is shining, and the champagne is flowing.

Sue Chadwick is a solicitor and Corporate Growth Manager at Cambridge City Council. She can be contacted on 01223 457445 or This email address is being protected from spambots. You need JavaScript enabled to view it..