Where issues of apparent bias arise in the determination of a planning application or appeal, the court will apply the test laid down by the House of Lords in Porter v Magill [2001] UKHL 67; [2002] 2 AC 357, a non-planning case. In his judgment Lord Hope said: “The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.” The Court of Appeal has subsequently confirmed that the facts are those apparent to the court on subsequent review, not merely those of which the hypothetical observer would have been aware at the original time.
It is less common to encounter allegations of bias in the determination of planning appeals than it is for planning applications, but that is what the Court of Appeal faced in Ortona v Secretary of State for Communities and Local Government [2009] EWCA Civ 863; [2009] PLSCS 195.
In Ortona, a developer had applied to the district council for planning permission to demolish existing buildings on a former bus station in
The developer applied successfully to the High Court, under section 288 of the Town and Country Planning Act 1990, to quash the inspector’s decision, one of the two principal grounds put forward being that of apparent bias. It was shown on the facts that the inspector had until 2003 worked in the county council’s planning department with the responsibility for formulating and applying transport policies. The secretary of state appealed.
The Court of Appeal dismissed the appeal, holding that the first instance judge had correctly quashed the inspector’s decision on the ground of apparent bias. Each case will turn on its own facts. On the facts in Ortona, a fair-minded observer would have concluded that there was a real possibility that the inspector would have favoured – albeit unconsciously – the policies on which he had worked for the county council.
The planning consultant retained by the developer was aware of the inspector’s professional history and had asked the Planning Inspectorate whether it was appropriate for him to determine the appeal. After consulting the inspector, the Planning Inspectorate concluded that it was, and the matter was taken no further at that stage. Perhaps it should have been. Most inspectors are drawn from the ranks of those who have worked in the planning profession, and many will at some point have been employed by a local planning authority.
John Martin is a freelance writer
