Minister Breached Rules in Overruling Inspector

Former DEFA Minister Geoffrey Boot’s refusal to overturn a planning decision was in breach of rules of procedural fairness.

First Deemster Andrew Corlett has order the decision be sent back to DEFA for reconsideration.

The planning application, which was submitted in 2018, was to convert the Liverpool Arms pub into a private house.

That application was refused by the planning committee, but when Heron & Brearley appealed, the matter was referred by the Cabinet Office to planning inspector, Michael Hurley. Mr Hurley advised that the Minister, then Mr Boot, should overturn the planning committee’s decision.

However, instead of doing this, H&B claimed that Mr Boot took advice from an external planning adviser, Kevin Gillespie and his Chief Executive Richard Lole. The decision ruling says that the brewery claimed that ‘Mr Gillespie expressed an opinion which was unfavourable to H&B’s appeal and about which H&B ought to have been but were not given the opportunity to comment’.

Deemster Corlett ultimately agreed and ruled that the decision was ‘unsustainable and unreasonable’.

Gut Feeling

Mr Hurley’s report said that ‘on the balance of probability, the building is now redundant as a pub, and has no realistic prospect of being restored to commercial viability in that use’. As such, he recommended that the refusal be overturned and the appeal granted.

However, when this report was delivered to the Cabinet Office, it was passed onto a civil servant at DEFA who, instead of sending it to Mr Boot, sent it on to Kevin Gillespie. Mr Gillespie had been appointed to provide ‘advice on planning matters to be determined by the Minister’.

Mr Gillespie then wrote to Mr Lole and Mr Boot’s executive assistant that while he agreed with Mr Hurley, his ‘gut feeling is that this decision could be used again and again by Heron Brearley (or any other public house owner) as the ‘precedent’ for similar applications to come forward of which I suspect there could be many’.

He added: ‘This decision in effect establishes the framework and arguments for Heron and Brearley (or any other public house owner) to utilise in any subsequent application and therefore it may ultimately see the loss of the ‘public house’ to large parts of the Island. This is of course my own observation and as I say gut feeling but I thought I should at least raise this with you.’

No Notes Taken

Mr Boot told the court that he did have a Microsoft Teams conference with Mr Gillespie on May 27 2021 but that no notes were take by either side.

The former Glenfaba and Peel MHK said: ‘cannot recollect the detail of the conversation but I was, having considered the papers sent to me, minded to refuse the Claimant’s application for the three main reasons eventually articulated in the decision letter issued on 28 June 2021.’

Mr Boot also said that he hadn’t seen the papers until the court case and was ‘unaware that Mr Gillespie had set out the view he did in his email to the Department’s Chief Executive’.

Deemster Corlett said he found ‘on the balance of probabilities’ that Mr Boot was influenced by Mr Gillespie’s ‘gut feeling’ that the granting of the application could later be used as a precedent for other pubs around the island.

Deemster Corlett added: ‘The Minister may not have seen the email from Mr Gillespie to Mr Lole of 5 May 2021, but he does say in his witness statement that Mr Gillespie’s views may well have been discussed by Mr Lole and him before the Minister discussed the matter with Mr Gillespie. It is also noteworthy that the Minister was concerned “about the policy and community issues that could be presented by closure of public houses per se” and expressed his need to be “absolutely satisfied as to the evidence base” before allowing a change of use.

‘It is clear therefore that the Minister was taking into account an irrelevant matter, namely the alleged wider ramifications of a change of use of this particular pub, in circumstances where this was simply not an issue which had been raised at the Inspector’s inquiry but was only raised by Mr Gillespie.’

Departure

However, Deemster Corlett also had to consider whether or not Mr Boot was entitled to depart from the Inspector’s recommendations.

Having come to the conclusion that he indeed was, Deemster Corlett noted that when doing so, Mr Boot ‘was obliged to notify the parties (and especially H&B) that he was considering reaching a determination which was at odds with a finding of fact made by the Inspector and that he was obliged to give H&B the opportunity to make further representations’.

He added: ‘By failing to do so the Minister failed in his duty to observe the rules of procedural fairness. On this basis alone, his decision must be quashed.’

Deemster Corlett also considered Mr Boot’s reasons as being ‘inadequate’ and that his ‘assessment of the adequacy of the marketing of the property to be objectively flawed’.

He concluded by saying: ‘For the reasons set out above I find that the Minister’s decision dated 28 June 2021 was made in breach of the rules of procedural fairness and was “Wednesbury” unreasonable. To briefly recap, the Minster ought to have sought further representations on the factual issues of viability and redundancy; he failed to provide proper reasons for his decision in that he failed to engage in several respects with the reasoning of the Inspector such amounting to a breach of Article 13(3)(b) of the DPO 2019; he reached a decision which was unsustainable and unreasonable because he took into account irrelevant considerations and gave reasons which lacked sufficient relevance or weight.

‘There was no overriding relevant policy. In fact the Inspector’s decision accorded with planning policy. The appeal must now be remitted to the Department for reconsideration in light of this judgment.’