Where issues of apparent bias arise in the determination of a planning application or appeal, the court will apply the test laid down by the House of Lords in Porter v Magill [2001] UKHL 67; [2002] 2 AC 357, a non-planning case.
In his judgment Lord Hope said: “The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.” (The Court of Appeal has subsequently confirmed that the facts are those apparent to the court on subsequent review, not merely those of which the hypothetical observer would have been aware at the original time.)
In Turner v Secretary of State for Communities and Local Government [2015] EWCA Civ 582; [2015] PLSCS 179, the appellant was a member of an amenity group that had objected to the redevelopment of a site covering 3.5 hectares lying on the south side of the River Thames. He had applied, unsuccessfully at first instance, under section 288 of the Town and Country Planning Act 1990 (“the Act”) to quash the decision of the Secretary of State to grant planning permission for the redevelopment, having called in the planning application. One of his grounds of challenge had involved an allegation of procedural impropriety. He contended that not only did he not receive a fair hearing, but also that the inspector displayed an apparent bias against him.
(Following the inquiry, the appellant had written a letter to PINS raising a number of complaints about the conduct of the inspector at the inquiry. They included “counting down” the appellant’s allowed time for speaking, and not doing so for other parties, making unwarranted interruptions that gave the impression that the inspector was hostile to him and generally acting unfairly towards him.)
The Court of Appeal dismissed his appeal, holding that the inspector had done nothing to give the appearance of bias to the notional fair-minded and informed observer.
The appeal judges made the following points in particular: (1) It would not be appropriate to treat the personal views of an objector on whose evidence the appellant relied as equivalent to those of the notional fair-minded and informed observer. (2) The latter would appreciate that the inspector’s role had a strong inquisitorial dimension. (3) Given the expectation that an inspector should be actively managing the inquiry process to ensure that it was efficient, effective and fair to all interested parties, it would be a rare case in which robust inquiry management was found to have given rise to apparent bias.
John Martin is a planning law consultant
