John Martin comments on a recent case where a councillor’s directorship led to a finding of apparent bias
As the court pointed out in Broadview Energy Developments Ltd v Secretary of State for Communities and Local Government [2015] EWHC 1743 (Admin); [2015] PLSCS 189 (see “Ministerial decisions and natural justice,” EG, 17 October 2015, p83) instances of actual bias in the determination of a planning application or appeal are rare and difficult to prove. More common is an allegation of apparent bias on the part of a member of a local planning authority’s planning committee, where that member is shown potentially to have a pecuniary or personal interest in the outcome. In such an instance, the leading authority is a non-planning case, namely Porter v Magill [2002] 2 AC 357.
The test
This and subsequent decisions establish that the proper approach of the court in such circumstances is as follows:
- The basic test is whether a reasonable member of the public, having considered the facts, would conclude that there was a real possibility that the decision maker was biased.
- The relevant observer is a reasonable member of the public neither unduly complacent or naïve nor unduly cynical or suspicious, and adopting a balanced approach.
- The decision as to a perception of bias is to be made on the facts and circumstances in the individual case, as apparent to the court on investigation.
- They are not restricted to those available to the hypothetical observer at the original hearing.
- The court must then ask itself whether they would lead a fair-minded and informed observer to conclude that there was a real possibility that the decision maker was biased.
Private interests
In R (on the application of Kelton) v Wiltshire Council [2015] EWHC 2853 (Admin), the claimant applied to quash the decision of the local planning authority (“LPA”) to grant outline planning permission for a residential development that would include nine affordable homes. One of his grounds of challenge was that the participation of one of the members of the LPA’s planning committee – Magnus Macdonald – in the determination of the planning application gave rise to an appearance of potential bias. (It was his vote that carried the decision in favour of granting planning permission.) The claimant contended that Macdonald should not have taken part because he was a remunerated director of Selwood Housing Association (“Selwood”) and that Selwood had an interest in the affordable housing element.
The court upheld this ground of challenge, and quashed the LPA’s decision. Despite the fact that Selwood was not the applicant for planning permission, it was plainly in its interest for the planning application to be approved. Even more crucially, Macdonald’s private interests were engaged, not just his interests in the cause of affordable housing. Other providers of affordable housing had expressed an interest in the development, but only Selwood had expressed public support for the scheme and had committed time, resources and expertise to it. A fair-minded and informed observer would have been aware of all of this, and would have concluded that there was a real possibility of bias.
Duty to disclose
The claimant, in parallel with his successful ground of challenge, sought also to rely on section 31 of the Localism Act 2011, titled: “Pecuniary interests in matters considered at meetings or by a single member”. In general terms, this requires a member of a relevant authority to disclose any “disclosable pecuniary interest” that he or she is aware of at a meeting or if acting alone, where any matter to be considered relates to that interest. It then prohibits a member from participating in discussion or voting on any matter relating to his or her interest or, if acting alone, from taking any steps in relation to the matter. (Provision is subsequently made for dispensation from these requirements.) For this purpose, the Relevant Authorities (Disclosable Pecuniary Interests) Regulations 2012 provide that “any employment, office, trade, profession or vocation carried on for profit or gain” constitutes a “disclosable pecuniary interest”.
However, it is clear from the decision in R (on the application of Freud) v Oxford City Council [2013] EWHC 4613 (Admin) that any alleged disclosable pecuniary interest must be an interest in the subject matter of the discussion. There, the committee member in question was employed by the applicant for planning permission – Oxford University – but in a different department from that which was promoting the development. The court concluded that he had nothing that could amount to a disclosable pecuniary interest in the matter.
The claimant in Kelton submitted that, under section 31, Macdonald had a disclosable pecuniary interest in the matter before the planning committee. He was aware that Selwood stood to benefit directly from the grant of planning permission, and accordingly was statutorily disqualified from participation in the meeting and should have withdrawn.
The court, however, concluded that Macdonald had no disclosable pecuniary interest in the matter to be considered. Again, Selwood was not the applicant for planning permission, and at the point of the decision to grant permission it had no contract with the developers. It may have built up goodwill with its advice to them over a period, but at the time of the grant of planning permission the affordable housing part of the development was yet to be tendered. In the result, Macdonald could not be considered to be disqualified under section 31.
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John Martin is a planning law consultant
