Friends of the Earth Limited v Secretary of State for Levelling Up, Housing and Communities

In statutory planning challenges, disclosure of a ministerial submission is exceptional. The governing question is whether disclosure is necessary to resolve the matter fairly and justly, rather than merely relevant or capable of shedding light on the minister’s thinking. Where the decision letter, read with an adopted inspector’s report, contains the decision-maker’s reasons, the minister must ordinarily stand or fall by those documents. Later witness statements or supplementary explanations cannot repair inadequate reasoning or introduce a new account of the decision. Disclosure may nevertheless be necessary where a specific issue, such as alleged bias, consideration of particular documents, or a genuinely new factual matter, cannot fairly be resolved from the decision documents. The duty of candour requires a full account of the decision-making process, but does not create a broad disclosure obligation.

The Secretary of State granted planning permission for a coking-coal mine after a public inquiry and substantially adopted the inspector’s report. Friends of the Earth challenged the permission under section 288 of the Town and Country Planning Act 1990 and sought specific disclosure of the departmental ministerial submission made before the decision.

The claimant argued that the submission might show that the Secretary of State misunderstood the proposed carbon offsets, the relevant planning policy and the international effects of the development, or might reveal other grounds of challenge. The Secretary of State contended that the decision letter and adopted inspector’s report contained the reasons by which the challenge had to be judged. The court also considered whether a post-decision witness statement should be admitted at the rolled-up hearing.

1. Specific disclosure dismissed. CPR Part 54 and Practice Direction Annex D 4.42 disapply ordinary disclosure in statutory planning review unless the court orders it. The applicable test, taken from Tweed v Parades Commission for Northern Ireland [2006] UKHL 53, is whether disclosure is necessary for the fair and just resolution of the matter. In this context the test calls for a cautious approach and will rarely be met.

2. The duty of candour is distinct from a general obligation to disclose documents. It requires a full account of the decision-making process and the material considerations taken into account, but the statutory duty to give reasons, as expressed in the decision letter and any inspector’s report adopted by it, ordinarily fulfils that function.

3. The Secretary of State’s defence stands or falls by the reasoning in the decision letter and adopted report. The court cannot be invited to uphold an otherwise inadequate decision by means of a supplementary decision letter, witness statement or later explanation. Nor does the possibility that a ministerial submission might illuminate the Secretary of State’s state of mind justify disclosure where any legal or factual error should be apparent from the decision documents.

4. Disclosure can be necessary where a specific issue cannot fairly be determined from those documents, including an allegation of actual or apparent bias, whether particular documents were considered, or a genuinely new factual issue. Relevance alone, or disclosure merely to search for possible new grounds, is insufficient. The ministerial submission was not necessary for the claimant’s carbon, net-zero or policy arguments, which turned on the meaning of the decision letter, inspector’s report and applicable law.

5. The application to admit the post-decision witness statement was adjourned to the judge hearing the rolled-up challenge. It was not to be included in the core trial bundle.

First-instance decision. The judgment records no prior appellate decision in this matter.