Ball v Secretary of State for Communities and Local Government

A planning decision is not vitiated by apparent bias merely because officials formulate reasons after a minister has indicated a provisional view. The constitutional division between civil servants advising and ministers deciding is unobjectionable where the applicable propriety code is followed and the minister forms an independent planning judgment.

In decisions affecting children, their best interests must be treated as a primary consideration, although they need not determine the outcome. The decision-maker must read and assess the decision letter as a whole and in a common-sense manner. A reduction in the weight given to the adults’ accommodation needs does not necessarily blame the children or disregard their distinct need for a settled base.

The appellant challenged the Secretary of State’s dismissal of an appeal against refusal of planning permission for six residential gypsy pitches and associated facilities in the green belt. The planning inspector had recommended permanent permission, but the appeal was recovered for determination by the Secretary of State. Because the Secretary of State had objected to the proposal as constituency MP, a junior planning minister decided the appeal under departmental conflict-of-interest procedures.

Stuart-Smith J dismissed the appellant’s application under Town and Country Planning Act 1990, section 288: [2012] EWHC 3590 (Admin). The appeal concerned whether the decision gave rise to a perception of bias and whether proper regard had been paid to the best interests of the children living on the site.

1. Appeal dismissed. The minister’s decision was not vitiated by a perception of bias. The applicable code was designed for conflicts arising where a minister has expressed a view as constituency MP, and it was accepted that the code had been followed. Where officials advise permission and the minister disagrees, officials may draft a decision letter setting out the reasons understood to support refusal. That sequence reflects the constitutional position that civil servants advise and ministers decide. It does not itself create apparent bias (paras [21]–[28]).
2. The absence of minutes recording the minister’s reasons at the earlier meeting did not invalidate the decision. The later draft decision letter was expressly prepared in line with the minister’s earlier view, and the final letter followed it. The minister was entitled to form his own planning judgment. The decision letter, read as a whole, showed that he refused permission because he attached greater weight to the severe green-belt harm and was not satisfied that the supporting considerations amounted to very special circumstances (paras [26]–[33]).
3. The best interests of the children were treated as a primary consideration, though not as determinative. The inspector separately identified the children’s educational and healthcare needs and recognised the importance of a settled base, particularly where no alternative site was available. The Secretary of State agreed with those findings and therefore treated the children’s need for a settled base as an important factor in the overall balance (paras [34]–[45]).
4. The Secretary of State was entitled to give less weight than the inspector to the occupants’ general accommodation need because the adults had moved to the site despite knowing of the enforcement notice. That assessment concerned the adult occupiers. It did not blame the children or reduce the distinct weight given to their need for a settled base. The decision letter had to be read in context and in a common-sense way; its conclusion that the children’s best interests were important but not determinative disclosed no error of law (paras [40]–[48]).

Lord Justice McFarlane and Lord Justice Lewison agreed with Lord Justice Sullivan. The appeal was dismissed.

• Court of Appeal (Civil Division): Appeal dismissed. The court upheld the order of Stuart-Smith J dismissing the application to quash the planning decision: [2014] EWCA Civ 372.
• High Court, Queen’s Bench Division: Stuart-Smith J dismissed the application under section 288 of the Town and Country Planning Act 1990: [2012] EWHC 3590 (Admin).