Ball v Secretary of State for Communities and Local Government and Another
| Jurisdiction | England & Wales |
| Judge | Sir John Chadwick |
| Judgment Date | 07 June 2013 |
| Neutral Citation | [2013] EWCA Civ 1349 |
| Court | Court of Appeal (Civil Division) |
| Date | 07 June 2013 |
| Docket Number | Case No: C1/2013/0011 |
[2013] EWCA Civ 1349
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(MR JUSTICE STUART-SMITH)
Royal Courts of Justice
Strand
London WC2A 2LL
Sir John Chadwick
Case No: C1/2013/0011
Mr Michael Rudd (instructed by FBC Mandy Bowdler LLP) appeared on behalf of the Applicant
The Respondent did not appear and was not represented
This is a renewed application for permission to appeal from an order made on 13 December 2012 by Stuart-Smith J, dismissing an application under section 288 of the Town and Country Planning Act 1990 for an order that the decision of the Secretary of State for Communities and Local Government dated 3 October 2011 be quashed. In reaching his decision the Secretary of State had disagreed with the recommendation of an Inspector, appointed under section 78 of the Act, that the claimant's appeal against the decision of Brentwood Borough Council refusing planning permission should be allowed and that planning permission should be granted subject to conditions.
The underlying facts are fully set out in the judgment delivered by the judge on 13 December 2012. It is sufficient for the purpose of this present application to refer to the summary at paragraph 2 of that judgment. The judge said this:
"The claimant's application for planning permission was brought by an application dated 20 April 2009. The land to which the application applies is known as Plot 3, Oak Tree Farm, Chelmsford Road, Blackmore, Essex. The site is located in the Green Belt. The claimant's application was for permission to use the site for residential purposes and proposed to locate six plots on the site, on which would be positioned mobile homes and caravans and other provisions to provide permanent bases for gypsy families."
As the judge observed in paragraph 3 of his judgment the provision of more or less permanent establishments for gypsy and traveller families is frequently controversial, both at a local and a national level. And, as he went on to point out in paragraph 4 of his judgment, national political considerations form part of the essential context to this action. Put shortly, the site is located in the constituency for which the Right Honourable Eric Pickles MP is the Member of Parliament. As a consequence of the change of Government in May 2010, Mr Pickles became Secretary of State for Communities and Local Government. In the course of his election campaign, Mr Pickles had made clear his opposition to the grant of planning permission in respect of this site. There was, therefore, plainly scope for an acute conflict of interest between his concern to represent his constituents and his role as Secretary of State responsible for taking decisions in relation to planning matters. That was a conflict which was well recognised within the Department.
The judge identified, at paragraph 32 of his judgment, the five grounds on which the claimant relied to support his challenge to the decision which had been reached by the Secretary of State in October 2011. The grounds were these:
"a) That in reaching his decision the Secretary of State has acted in a manner that demonstrates bias or perception of bias;
b) In reaching his decision the Secretary of State has failed to take into account relevant matters and taken into account irrelevant matters;
c) The Secretary of State has failed to give the parties the opportunity to make further representations in circumstances where there has been a material change in planning policy since the conclusion of the inquiry;
d) The Secretary of State has acted in a manner inconsistent with other very similar and relevant recovered appeals;
e) The Secretary of State has failed to give reasons which are proper, adequate, clear and intelligible and which deal with all the substantive points raised."
The judge rejected each of those grounds of challenge. But in the context of the present application (for reasons which I shall explain), it is necessary only to refer in any detail to the judge's reasons for rejecting grounds (a) and (b). In relation to the challenge The judge found as a fact, on the evidence, that there was nothing before him to suggest that Mr Pickles himself had taken any part in the decision-making process that led to his issuing of the letter of 3 October 2001. He went on to say this at paragraph 21:
"Furthermore, apart from the fact that, in his capacity as constituency MP, he had opposed the granting of permission in the ways outlined above, there is nothing to suggest that he did anything to influence the outcome of the decision making process. The evidence is to the contrary and I accept it: Mr Pickles took no part in the decision making process and did nothing to influence the outcome of the process other than taking the steps outlined above in his capacity as constituency MP in accordance with the Ministerial Code and the DCLG guidance."
The department were, as would be expected, acutely aware of the problems that would arise if Mr Pickles as Secretary of State were himself to be involved in any way with the decision, and were relying upon the input from the Parliamentary Under-Secretary of State, Mr Bob Neill MP, who was it seems effectively the minister in charge in the department for these purposes.
The judge went on to explain at paragraphs 59 to 63 first the law in relation to the relevant test for apparent bias, referring to the well-known decisions in Porter v McGill [2002] 2 AC 357 and Flaherty v National Greyhound Racing Club [2005] EWCA Civ 1117 and concluded at 63:
"Given that Mr Pickles took no part in the decision making process and did not influence it otherwise than in his capacity as a constituency MP in accordance with the Ministerial Code, the claimant has to establish either that Mr Neill was subconsciously and improperly influenced by the views of his superior minister or that he approached the present case with a closed mind."
He explains in following paragraphs why he reached the conclusion that that had not been established.
In relation to the challenge under ground (b), the judge said this at paragraphs 51 and 52 of his judgment:
"51. The claimant identifies three factors which are alleged to be material and not to have been taken into account by the Secretary of State. The first is the mound and fence, to which I have already referred. The second is that the Secretary of State is alleged to have failed to give consideration to the argument that all future gypsy and traveller pitch provision in Brentwood would also be situated in the Green Belt. The third is that the Secretary of State reduced the weight to be given to the personal need of the occupiers of the appeal site on the basis that they moved onto the site in knowledge of an existing enforcement notice.
52. In...
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