Broadview Energy Developments Ltd v The Secretary of State for Communities and Local Government & Ors, Court of Appeal - Civil Division, June 22, 2016, [2016] EWCA Civ 562

Issuing Organization:Civil Division
Actores:Broadview Energy Developments Ltd v The Secretary of State for Communities and Local Government & Ors
Resolution Date:June 22, 2016
 
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Case No: C1/2015/2642

Neutral Citation Number: [2016] EWCA Civ 562

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT

QUEEN'S BENCH DIVISION

PLANNING COURT

THE HONOURABLE MR JUSTICE CRANSTON

Royal Courts of Justice

Strand, London, WC2A 2LL

Date:

Before:

THE RIGHT HONOURABLE LORD JUSTICE LONGMORE

THE RIGHT HONOURABLE LORD JUSTICE LEWISON

and

THE RIGHT HONOURABLE LORD JUSTICE McCOMBE

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Between:

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Mr Jeremy Pike (instructed by Eversheds LLP) for the Appellant

Mr Dan Kolinsky QC (instructed by Government Legal Department) for the First Respondent

Mr Richard Honey (instructed by Public Access) for the Third Respondent

The Second Respondent did not appear and was not represented

Hearing dates: 19th May 2016

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JudgmentLord Justice Longmore:

Introduction

  1. This appeal raises questions about the duty of fairness owed by political decision-makers in the context of an application for planning permission for a wind farm in Northamptonshire which was called in for decision (or, to use the technical term ``recovered'') by the Secretary of State for Communities and Local Government and, in particular, questions about how the Secretary of State (or, in this case, the Under Secretary of State) should deal with representations from the local Member of Parliament.

    Background Facts

  2. The claimant and appellant, Broadview Energy Developments Limited (``Broadview''), is an independent renewable energy company which develops and operates wind farms throughout the United Kingdom. As one of its projects it has sought to construct a five turbine wind farm on a site known as ``Spring Farm Ridge'' on land between the villages of 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 Broadview lodged an appeal with the planning inspectorate. The appeal was considered at a public inquiry in May 2012 and the appeal was allowed.

  3. The third defendant, the Helmdon Stuchbury and Greatworth Wind Farm Action Group (``HSGWAG''), a local action group, brought a challenge in the High Court against the inspector's decision to allow the appeal. By a decision handed down in January 2013, His Honour Judge Mackie QC upheld the challenge, quashed the decision, and resubmitted the appeal to the planning inspectorate for redetermination. A second public inquiry was held between 8th and 24th October 2013. Broadview, HSGWAG and others made representations. During the course of the inquiry, on 11th October 2013, the Secretary of State, then Mr Eric Pickles, elected to ``recover'' the matter for determination by himself on the grounds that the appeal involved a renewable energy development.

  4. On 14th April 2014 the second inspector recommended the grant of planning permission. He considered the matter was finely balanced but concluded that the ``minor and moderate'' adverse effects on buildings said to constitute heritage assets, in the form of noise and obstruction of views of the landscape, were outweighed by the benefit obtained by the generation of renewable energy.

  5. There were several delays prior to the Secretary of State's decision owing to additional consultations, which included a consultation on the Court of Appeal's decision in East Northamptonshire District Council v Secretary of State for Communities and Local Government (the Barnwell Manor case) [2014] EWCA Civ 137. 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 [relevant] building or its setting'' not merely careful consideration but considerable importance and weight when balancing the advantages of the proposed development against the harm it might do.

  6. By his decision letter dated 22nd December 2014, the Secretary of State, contrary to the inspector's recommendation, refused planning permission. This decision had followed a process in which the Department for Communities and Local Government had sent a minute dated 7th November 2014 to the Parliamentary Under Secretary of State, Kris Hopkins MP (``Mr Hopkins''), to whom Mr Pickles had delegated the decision, recommending that he refuse planning permission. On 11th November 2014 Mr Hopkins' private office responded by saying that he had accepted the recommendation to refuse planning permission.

  7. In the course of his decision letter dated 22nd December 2014 Mr Hopkins 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.

  8. The Secretary of State disagrees with the Inspector's judgment ... 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].

  9. 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.''

  10. On 28th January 2015 Broadview applied to quash the decision, relying chiefly on the alleged lobbying activities of the local Member of Parliament, Mrs Andrea Leadsom MP (``Mrs Leadsom''), on various dates throughout the initial and subsequent planning inquiries. Mrs Leadsom had been elected as MP for the South Northamptonshire constituency in 2010. Throughout her career she has been active in campaigning against onshore wind farms. The proposed development in her constituency therefore became a matter of particular concern to her. She had continually objected to the proposal and had successfully campaigned for the Secretary of State to ``call in'' the application.

  11. In the court below, Broadview relied on both oral and written communications passing between Mrs Leadsom, Mr Pickles and Mr Hopkins. They included, inter alia:-

    i) 29th October 2013: A letter to the Secretary of State thanking him for ``calling in'' the planning application;

    ii) 4th November 2013: A letter to the Secretary of State enclosing correspondence from HSGWAG and informing him of their firm views against the proposal;

    iii) 2nd December 2013: A letter to Mr Hopkins which referred to a recent conversation in the House of Commons tea room regarding the application and setting out several points in opposition to the proposal. She ended the letter by saying that she appreciated that Mr Hopkins could not comment on individual applications;

    iv) 9th January 2014: A letter to the Secretary of State expressing concern regarding the additional consultation being undertaken by the planning inspector;

    v) 31st March 2014: A letter to the Secretary of State reiterating staunch local opposition to the application;

    vi) 2nd July 2014: An email to Mr Hopkins attaching an email from a constituency resident raising concerns over the impact of the wind farm on village traffic and listed buildings;

    vii) 21st July 2014: A reply from Mr Hopkins to the above, explaining that no decision had been made due to the delay caused by consultation on the effect of Barnwell Manor;

    viii) 28th July 2014: A letter to the Secretary of State attaching representations from constituents regarding the impact of the wind farm on listed buildings;

    ix) 5th August 2014: A letter to the Secretary of State attaching representations from a constituent regarding the impact of the wind farm on the...

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