Development — Planning application — First respondent calling in application for consideration — Planning committee granting permission — Comments attributed to committee chairman prior to meeting — High Court finding real possibility of bias predetermining grant of permission — Whether judge entitled to find apparent bias upon basis of chairman making comments alleged — Appeal allowed
The respondent lived close to a large site in respect of which the second appellant developer had applied for planning permission to carry out opencast mining and related removal and reclamation operations.
An inspector appointed to conduct a public inquiry had recommended that planning permission should be granted subject to certain conditions. However, the first appellant called in the application for permission for consideration, under section 77 of the Town and Country Planning Act 1990. Following a meeting to consider, inter alia, the inspector’s report, the planning committee resolved to grant planning permission and the first appellant proceeded to do so.
The respondent applied successfully, under section 288 of the Act, to quash the decision. She alleged, inter alia, that on the day before the meeting, the chairman had informed one of the objectors to the development that he was “going to go with the inspector’s report”. The court concluded that it was likely that the committee’s decision had been biased because the chairman had reached a view as to the merits of the application prior to the meeting: see [2005] EWHC 3007 (Admin); [2006] PLSCS 1.
The appellants appealed. The central issue was whether the judge had erred in finding an appearance of bias on the basis that the chairman had said the words that were attributed to him.
Held: The appeal was allowed.
Viewed in its wider context, the brief remark by the chairman provided an insufficient basis for suggesting that the decision had been approached with a closed mind and without impartial consideration of the planning issues.
The question of whether the committee’s decision had been vitiated by the appearance of bias was a question of law. In deciding whether an allegation of apparent bias had been made out, the court was required to ascertain the circumstances that had a bearing on the suggestion of bias and ask itself whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility of bias, having considered the facts as they were known. The court had to look at the circumstances as they appeared from the material before it, not just at the facts known to the objectors or available to the hypothetical observer at the time of the decision: Porter v Magill [2001] UKHL 67; [2002] 2 AC 259 and Flaherty v National Greyhound Racing Club Ltd [2005] EWCA Civ 1117 applied.
In the instant case, the judge had fallen into error by disregarding relevant circumstances, or in his assessment of their significance, by focusing unduly upon the encounter between the chairman and the objector and how it would have appeared to an observer at the time. Although the words gave rise to the possibility of bias, a fair-minded and informed observer, having considered the facts as they were known, would not have concluded that there was any real possibility that the committee had been biased when deciding to grant planning permission.
Timothy Corner QC and Philip Coppel (instructed by the Treasury Solicitor) appeared for the first appellant; Keith Lindblom QC, Rhodri Price Lewis QC and James Pereira (instructed by DLA Piper LLP, of Leeds) appeared for the second appellant, Miller Argent (South Wales); Charles George QC and Alexander Booth (instructed by Richard Buxton, of Cambridge) appeared for the respondent.
Eileen O’Grady, barrister
