Broadview Energy Developments Ltd v The Secretary of State for Communities and Local Government & Ors

In a quasi-judicial planning decision, a minister must observe ordinary standards of fairness. A minister should not receive private oral representations from a party, including a constituency MP, when equivalent access is not given to the opposing party. Any further representations should be directed to the relevant planning officials for disclosure and response.

A technical breach does not automatically require a decision to be quashed. Where representations merely repeat matters already ventilated at an inquiry, the court may assess whether they materially contributed to the decision and may refuse relief if they did not. The mere fact that a minister decides against a development supported by local objectors and their MP does not establish apparent bias.

Broadview sought permission for a five-turbine wind farm. Following a second public inquiry, the appeal was recovered for determination by the Secretary of State. The inspector recommended permission, but the delegated minister refused it after further consultation, giving considerable importance and weight to harm to heritage assets under section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990.

Broadview applied under section 288 of the Town and Country Planning Act 1990 to quash the decision, alleging procedural unfairness, actual or apparent bias, and breach of departmental planning-propriety guidance. The High Court dismissed the application. The central issues on appeal were the effect of private representations made by the local MP, the significance of the minister’s failure to stop an oral conversation, and whether the decision was thereby unlawful.

1. Appeal dismissed. The minister’s tea-room conversation with the local MP should not have occurred. Once a planning matter is being decided quasi-judicially by a minister, an MP has no special position. Representations by any interested person must comply with ordinary standards of fairness and natural justice.
2. The common-law principle illustrated by Errington v Minister of Health [1935] 1 KB 249 requires a decision-maker to hear both sides. The written representations here added nothing material to matters already ventilated at the inquiry. The court therefore distinguished between considering the inquiry evidence and entertaining undisclosed new representations.
3. Ministers should make clear to anyone seeking to make oral representations that they cannot listen to them. After an inquiry has concluded, the person should be directed to send anything further in writing to the Planning Casework Division, so that it can be made available to interested parties for comment. Rule 17(5) did not require further consultation because the minister neither differed from the inspector on a material fact nor relied on new evidence or a new matter of fact. Rule 17(4) could not be relied upon to assert that the oral representations had been disregarded.
4. The tea-room conversation occurred shortly after the inquiry but well before the inspector’s report and the minister’s decision. The lobby conversation occurred after the decision had already been made and was directed to obtaining a decision rather than influencing its merits. Neither materially affected the outcome. As in the distinction explained by Kanda v Government of the Federation of Malaya [1962] A.C. 322, the strict approach to undisclosed material applies most readily where matters unknown to the complainant have been received. Repetitive representations may instead be assessed for materiality, and the court retains discretion as to remedy.
5. Applying the apparent-bias test in Magill v Porter [2002] 2 A.C. 357, a fair-minded and informed observer would not conclude that there was a real possibility of bias. McCombe LJ added that a different chronology, with the conversation closer to the decision, might have placed the decision’s lawfulness in peril.

• Court of Appeal (Civil Division): Appeal dismissed for reasons differing in part from the High Court’s approach: [2016] EWCA Civ 562.
• High Court, Queen’s Bench Division, Planning Court: Cranston J dismissed Broadview’s application under section 288 of the Town and Country Planning Act 1990 to quash the ministerial planning decision.
• Planning appeal: A planning inspector initially allowed the appeal against the Council’s refusal, but that decision was quashed after a High Court challenge and the matter was remitted for redetermination. The second inspector recommended permission; the appeal was then recovered by the Secretary of State, whose delegated minister refused permission.