Listed building — Development — Local authority — Members of conservation advisory committee also on planning committee — Whether dual membership giving rise to appearance of bias — Whether planning committee having sufficient information to reach decisions — Claim allowed
The claimant, a local businessman, applied for judicial review of the decision of the defendant council to grant: (i) listed building consent for a change of use of a property into offices and a consulting room; and (ii) planning permission for the erection of a mental health nursing home for up to 60 people within its curtilage, subject to the conclusion of a planning obligation agreement under section 106. The development proposals had been considered and were supported by the defendants’ conservation advisory group (CAG), some members of which were also on the planning committee.
The claimant complained that the council had not taken into account matters raised by one of their officers concerning highways and access matters, and that the fact that some members of the planning committee were also members of the CAG had given rise to the appearance of bias. He also argued that members of the planning committee had not been adequately informed in relation to the issues of need for the proposed scheme and its effect on existing services and with respect to consultation responses.
Held: The claim was allowed.
In dealing with the apparent bias, it was necessary to look beyond pecuniary or personal interests and consider whether, from the point of view of a fair-minded and informed observer, there was a real possibility that the planning committee or their members had been biased in approaching the decision, and that they had done so with a closed mind and without considering impartially all relevant planning issues. That question had to be approached with caution, since it was important not to apply the test so as to render impossible, or unduly difficult, local authority decision making. However, the circumstances of local authority decision making were not such as to exclude the broader application of the test altogether. In the present case, a fair-minded and informed observer would probably have concluded that there had been a real possibility of bias as a result of the support expressed by the CAG to the proposals in the context of the planning committee’s decisions: Porter v Magill [2001] UKHL 67; [2002] 2 AC 357 applied; Bovis Homes Ltd v New Forest District Council [2002] EWHC 483 (Admin) and R (on the application of Cummins) v Camden London Borough Council [2001] EWHC 1116 (Admin) considered.
There had been a failure to adequately inform the committee about the highways and access, and the healthcare need and service impact issues. The concerns could have been met by conditions or outweighed by other considerations, but it was for the committee to form the relevant judgment, and members needed more information than they had been given. Furthermore, on the issue of need, the report to members was materially deficient and misleading: R v Selby District Council, ex parte Oxton Farms [1997] EGCS 60 considered.
David Wolfe (instructed by Bindmans) appeared for the claimant; Toby Davey (instructed by the solicitor to Enfield London Borough Council) appeared for the defendants; Anthony Dinkin QC and Mary Cook (instructed by Beachcroft Wansboroughs) appeared for the interested parties, Cygnet Healthcare Ltd, Rainbow Developments and Mr J and Mr JC Patel.
Eileen O’Grady, barrister
