In the context of allegations of bias or predetermination in relation to an application for planning permission, it is important to distinguish between two quite distinct situations. The first is where a member of the planning committee of the local planning authority (LPA) – or an officer – has a personal interest in the outcome. The second is where the LPA has a specific policy that it has resolved to pursue.
In the latter case, the approach of the courts has been simply to ask whether, despite that policy and any actions carried out in respect of it, the LPA genuinely and impartially exercised its discretion when resolving to grant planning permission. (Clearly there will be instances where a planning decision made by a LPA will favour its own interests, but that is to be expected given that a LPA will inevitably have more than one statutory role.) Where the answer is in the affirmative, no further questions – such as what would the fair-minded and informed observer conclude – need to be asked.
The LPA in R (on the application of Khan) v London Borough of Sutton [2014] EWHC 3663 (Admin) was also the waste disposal authority for its area. Having entered into a contract with the interested party for the provision of a waste incinerator, it subsequently granted it the necessary planning permission. The claimant sought judicial review of its decision to do so, one of his grounds being that the decision was driven by contractual considerations and not by planning ones. In other words, the LPA had not assessed the planning application with an open mind.
The court rejected this ground – and dismissed the application – pointing out at the start that the claimant was seeking to argue that the LPA’s discretion had been fettered purely by inference. He had not been able to point to any specific act on the part of the LPA that would demonstrate that its discretion had been fettered. Moreover, that argument ignored the dual role imposed upon the LPA by statute.
But there were other major factors that influenced the court. (1) There was a structure of decision making within the LPA to ensure that it maintained a clear separation of its functions. (2) The LPA had a scrutiny committee that had reported on the waste incinerator contract, and made recommendations as to how the planning application was to be dealt with. (3) The two relevant statutory roles of the LPA were overseen by separate committees made up of different members. (4) Express provisions were inserted into the contract making it clear that by entering into it the LPA was not fettering itself in its capacity as the statutory planning authority.
John Martin is a planning law consultant
