Planning application – Refusal – Apparent bias – Second defendant local planning authority rejecting application for development of former bus station – Planning inspector dismissing appeal – Inspector previously employed by second defendants – Claimant applying to quash decision – Whether inspector erring in approach to loss of bus station – Whether inspector giving adequate reasons – Whether inspector’s connection with second defendants giving rise to apparent bias – Application granted
The claimant developer applied to the second defendant local planning authority for planning permission to demolish existing buildings on a former bus station facility and erect a mixed-use scheme comprising one retail unit and 12 flats. Since the closure of the bus station in 2006, buses had used on-street stops. The second defendants refused planning permission on the ground that the development of the site would lead to the loss of the bus station in the town centre, contrary to their development plan policy.
The claimant challenged that decision and first defendant secretary of state appointed a planning inspector to hear the appeal. The claimant pointed out that the inspector had previously worked for the second defendants, and, in that capacity, had contact with the claimant’s planning consultant. However, a different inspector was not appointed.
Following a hearing and a site visit, the inspector decided that the appeal should be rejected, concluding, inter alia, that: (i) the existing on-street operation fell short of an adequate replacement for the facilities provided by the former bus station; (ii) no direct evidence had been provided on the circumstances that had led to the closure of the station site or the conditions under which its use could resume; (iii) the site was a beneficial facility for those unfamiliar with local routes; and (iv) the loss of the bus station was contrary to planning policy, which aimed to maximise the potential use of public transport.
The claimant applied to quash the decision pursuant to section 288 of the Town and Country Planning Act 1990 on the grounds that: (i) the inspector had adopted an erroneous approach by taking account of the harm caused by the loss of the bus station without finding any probability of resuming its use if planning permission were to be refused; (ii) the inspector had erred in failing to give adequate reasons for concluding that there was a reasonable prospect that use of the bus station would be resumed; and (iii) there was apparent bias on the part of the inspector because of his previous connection with the second defendants.
Held: The application was granted.
(1) The issue before the inspector fell to be determined on the facts and in the light of all the circumstances. If, on the material before him, the inspector had been justified in concluding that the harm resulting from the loss of the bus station was sufficient in principle to overcome the advantages of the proposed development, any objections to the proposal could and should prevail unless and until there was shown to be a realistic possibility that the use of the site as a bus station would recommence: Westminster City Council v British Waterways Board [1984] 2 EGLR 109; (1984) 252 EG 1279 considered.
(2) The inspector’s reasons for concluding that there was a reasonable prospect that the bus station use would be resumed showed that he had failed properly to take account of the reality of the situation and the issues that had to be determined before a proper decision could be reached. The fact that there might have been insufficient material to ascertain the possibility of the bus station use being resumed could have been relied upon by either side and the inspector had therefore been wrong to reject the claimant’s appeal on that basis. Accordingly, the inspector’s decision could not stand: Nottinghamshire County Council v Secretary of State for the Environment, Transport and the Regions [2001] EWHC 293 (Admin); [2001] 15 EG (CS) 134 considered.
(3) Although there had been no suggestion or allegation of actual bias or impropriety on the part of the inspector, the possibility of apparent bias should have been considered, bearing in mind the inspector’s perceived role as an independent adjudicator. It was possible that he had been involved in the development of planning policies relied upon by the second defendants, such that a fair-minded and informed observer might have formed the view that there was a possibility of bias. In the case of such a possibility, any doubt should be resolved in favour of recusal. Accordingly, the inspector should not have been appointed to consider the appeal: AWG Group Ltd (formerly Anglian Water plc) v Morrison [2006] EWCA Civ 6; [2006] 1 WLR 1163; Porter v Magill [2001] UKHL 67, [2002] 2 AC 357 and Howell v Millais [2007] EWCA Civ 720 applied.
Daniel Kolinsky (instructed by Mills and Reeve, of Cambridge) appeared for the claimant; Richard Honey (instructed by the Treasury Solicitor) appeared for the first defendant; the second defendant did not appear and was not represented.
Eileen O’Grady, barrister
