Planning appeal – Apparent bias – Appellant’s inspector upholding refusal of planning permission – Inspector previously employed by local planning authority – Inspector’s decision overturned on ground of apparent bias – Whether inspector erring in approach to planning policies – Whether apparent bias arising – Appeal dismissed
The first respondent applied to the second respondent council for planning permission to demolish existing buildings on a former bus station site and to erect flats and a retail unit. Permission was refused and the first respondent appealed to the appellant secretary of state. The inspector who heard the appeal had previously worked for the second respondents for many years. He dismissed the appeal on the grounds that: (i) the loss of the bus station would, in the absence of adequate alternative facilities, be contrary to structure and local plan policies on transport; and (ii) the appellant had failed to show that there was no realistic prospect that use of the station might resume in the future.
The inspector’s decision was overturned on an application to the court under section 288 of the Town and Country Planning Act 1990. The judge held that: (i) the inspector had made no valid finding as to the prospects of a resumption of the bus station; and (ii) his decision was vitiated by apparent bias in the light of his former employment with the second respondents.
The appellant appealed. The Court of Appeal admitted further evidence on the bias issue. It considered the practice and policy of the Planning Inspectorate and the nature of the inspector’s work for the second respondents, in which he had been responsible for the formulation of transport policies and their practical application at local level.
Held: The appeal was dismissed.
(1) The inspector had not erred on the issue of the resumption of the bus station use. Having rejected the first respondent’s primary case concerning the availability of adequate alternative facilities, he had been entitled to conclude that the loss of the station would, in the absence of alternative facilities, be contrary to the relevant planning policies. Against that background, it was incumbent on the first respondent to show the presence of matters that outweighed the policy objections, by, for example, demonstrating that there was no realistic prospect of the station use resuming. The first respondent had advanced that case only by way of a bare assertion made in the course of the hearing. The inspector had been entitled to reject that assertion on the ground of lack of evidence.
(2) With regard to the issue of apparent bias, it was necessary to consider whether a fair-minded observer, informed of all relevant matters, including additional evidence made available to the court, would conclude that there was a real possibility of bias. The test of bias was not a mechanistic one; each case fell to be determined on its individual facts by reference to the surrounding factual context. Relevant factors would include the number of years that an inspector had worked for the local planning authority, how many years had passed since that employment, and his or her level of responsibility.
In the instant case, the fact that the inspector had previously worked for the second respondents for many years would be insufficient to give rise to apparent bias, as would the fact that he had been involved at some unspecified level with structure plan policy, including transport policies. However, apparent bias arose from the fact that the inspector had not merely been responsible for formulating transport policies, but had also been actively involved in their implementation and practical application at a local level. The inspector had been hearing an appeal that was concerned with the policy area for which he had been responsible while working for second respondents, namely transport planning. In all the circumstances, a fair-minded observer would have concluded that this inspector, by reason of his particular professional experience with the second respondents, had a real possibility of favouring, albeit unconsciously, the policies upon which he had worked. The judge had correctly quashed the inspector’s decision on that ground.
Paul Brown QC and Richard Honey (instructed by the Treasury Solicitor) appeared for the appellant; Daniel Kolinsky (instructed by Mills & Reeve, of Cambridge) appeared for the first respondent; the second respondents did not appear and were not represented.
Sally Dobson, barrister
