Broadview Energy Developments Ltd v Secretary of State for Communities and Local Government (1ST Defendant) South Northamptonshire District Council (2ND Defendant) Helmdon Stuchbury and Greatworth Windfarm Action Group (3RD Defendant)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Cranston |
| Judgment Date | 19 June 2015 |
| Neutral Citation | [2015] EWHC 1743 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/408/2015 |
| Date | 19 June 2015 |
[2015] EWHC 1743 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Cranston
Case No: CO/408/2015
Mr Jeremy Pike (instructed by Eversheds LLP) for the Claimant
Mr Daniel Kolinsky QC (instructed by Government Legal Service) for the 1 st Defendant
Mr Richard Honey (instructed by public access) for the 3 rd Defendant
The 2 nd Defendant did not appear
Hearing dates: 09/06/2015
Introduction
What are the boundaries to Ministers being lobbied by an MP about a matter affecting her constituency if their subsequent decision is not to be tainted by unlawfulness? That is the issue in this case where an MP was involved in a successful campaign against a proposed wind farm in her constituency. The claimant/developer of the wind farm seeks to quash the Secretary of State's dismissal of its appeal and the refusal of its application for planning permission by this application under section 288 of the Town and Country Planning Act 1990. It contends that that decision is unlawful because, before taking his decision (1) he failed to provide the claimant with copies of correspondence concerning the appeal between the MP, himself and the Minister in the Department for Communities and Local Government ("the Department") who made the decision; (2) he failed to provide it with an opportunity to comment on that correspondence; and (3) the MP lobbied the Minister face to face in the House of Commons. As a consequence, the claimant contends that the decision was taken in breach of natural justice, in circumstances which gave rise to actual or apparent bias on the part of the Secretary of State and in breach of his own guidance.
Background
The claimant, Broadview Energy Developments Limited, is an independent renewable energy company which develops and operates wind farms throughout the United Kingdom. As one of its projects it sought planning permission for a five-turbine wind farm at a site known as "Spring Farm Ridge" on land to the north of Welsh Lane, between 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 the claimant lodged an appeal with the planning inspectorate. The appeal was considered by a planning inspector at a public inquiry in May 2012 and the claimant was successful. That decision was then subject to challenge in this court by the Council and a member of the third defendant, a local action group, the Helmdon Stuchbury and Greatworth Wind Farm Action Group ("HSGWAG"). HH Judge Mackie QC upheld the challenge on one of the grounds in January 2013.
On 6 June 2013, the Secretary of State made a Ministerial Statement setting out changes for onshore wind farm developments. It said:
" We will amend secondary legislation to make pre-application consultation with local communities compulsory for the more significant onshore wind applications… We are looking to local councils to include in their Local Plans policies which ensure that adverse impacts from wind farms developments, including cumulative landscape and visual impact, are addressed satisfactorily. Where councils have identified areas suitable for onshore wind, they should not feel they have to give permission for speculative applications outside those areas when they judge the impact to be unacceptable.
To help ensure planning decisions reflect the balance in the [National Planning Policy] Framework, my Department will issue new planning practice guidance shortly to assist local councils, and planning inspectors in their consideration of local plans and individual planning applications. This will set out clearly that:
• the need for renewable energy does not automatically override environmental protections and the planning concerns of local communities;
• decisions should take into account the cumulative impact of wind turbines and properly reflect the increasing impact on (a) the landscape and (b) local amenity as the number of turbines in the area increases;
• local topography should be a factor in assessing whether wind turbines have a damaging impact on the landscape (i.e., recognise that the impact on predominantly flat landscapes can be as great or greater than as on hilly or mountainous ones); and
• great care should be taken to ensure heritage assets are conserved in a manner appropriate to their significance, including the impact of proposals on views important to their setting."
After the first planning inspector's decision was quashed, the appeal was resubmitted to the planning inspectorate for redetermination. Another planning inspector was appointed and he conducted a public inquiry between 8 and 24 October 2013. The claimant, HSGWAG and others made representations. On 14 April 2014 the inspector recommended the grant of planning permission. Meanwhile, on 11 October 2013 the first defendant, the Secretary of State for Communities and Local Government ("the Secretary of State") had "recovered" (called in) the matter for determination by himself on the grounds that the appeal involved a renewable energy development. Ultimately, on 22 December 2014, the Secretary of State refused planning permission. It is his decision which the claimant seeks to quash in this action.
Andrea Leadsom MP was elected as the Conservative MP for the constituency of South Northamptonshire in 2010 and became a Treasury minister in 2014. She was re-elected in the 2015 general election and is now a Minister of State in the Department of Energy and Climate Change. Early in her career as an MP she became a strong advocate of what became the Localism Act 2013 to enable (as she put it) local communities a greater say on how their area looks. She also campaigned against onshore wind farms. In February 2011 she secured a debate in the House of Commons, where she argued that the benefits of onshore wind had been largely exaggerated and that other sources of renewable energy needed much closer examination. She continued to raise the issue of onshore wind farms as a backbencher through parliamentary questions and other avenues.
The proposed Spring Farm Ridge wind farm in her constituency became a matter of particular concern for Mrs Leadsom. She expressed satisfaction when the Council refused planning permission and dismay when the first planning inspector reached the opposite conclusion. She wrote a number of letters to both the Secretary of State and the chief executive of the Planning Inspectorate. After appointment of the second planning inspector, she wrote objecting to the proposal and, in the inspector's words, "urging that the Localism Act be taken into account, and stating that Northamptonshire has already provided more than its fair share [of renewable energy]". She campaigned for the Secretary of State to call in the planning application. Her correspondence about this and the ministerial response were released to the claimant by the Planning Inspectorate.
When the application was called in, Mrs Leadsom wrote to the Secretary of State on 29 October 2013 to thank him and stated that his decision was "hugely welcomed by my constituents and me". She reiterated the very strong feeling among her constituents against the proposal. She also welcomed the ministerial statement earlier in the year. That letter was posted on her constituency website. I return to her further lobbying in a moment.
In his report of April 2014 the planning inspector set out his conclusions on what he identified as the main planning issues. He said that the proposed wind farm would have a major adverse effect on the local landscape in its immediate setting and on many local views. However, it would not result in an overwhelming and oppressive impact on the outlook from nearby dwellings, and adverse noise impacts could be addressed through imposing planning conditions on its operation. The planning inspector concluded that the minor and moderate adverse effects on heritage assets would result in less than substantial harm. As to local concerns, that the proposal would distract drivers and have implications for highway safety, the inspector gave substantial weight to the absence of any objection from the Highway Authority. Weighing heavily in favour of the proposal, he said, was the renewable electricity generation which would result. In striking the planning balance, he assessed that it was "not a case where the adverse impacts I have identified would significantly and demonstrably outweigh the benefits of the scheme". The inspector's overall conclusion was as follows:
" The proposal would result in some harm… in my judgment the likely harm from the wind farm would be outweighed by the [renewable energy] benefits of the proposal. However, in this case the matter is finely balanced. The scheme would conflict with the development plan, but gains support from [National Planning Policy Framework]. National policy and guidance is a consideration in this case which indicates that the appeal should be determined other than in accordance with the development plan. Taking all of these considerations into account, I consider that the proposed wind farm should be acceptable in this location".
In October 2013, after the planning application had been called in, there was a delay as the...
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