The Administrative Court has quashed the grant of planning permission for buildings to store and facilitate the construction of carnival floats because the decision was tainted by bias in The King on the application of CPRE (Somerset) v South Somerset District Council and others [2022] EWHC 2817 (Admin).
The case concerned an application by Ilminster Town Council for planning permission to erect five self-contained buildings for carnival equipment on agricultural land at Ilminster, which was approved by a six-to-five vote by the planning committee of South Somerset District Council in January 2022.
The claimant CPRE Somerset argued that the decision was tainted by apparent bias on the part of the chair and vice-chair of the planning committee.
SSDC’s member code of conduct requires members to avoid actual impropriety and any occasion for suspicion or appearance of improper conduct. Members are required to disclose any personal interest in any business of the council.
Where they have any prejudicial interest – being one which a member of the public would reasonably regard as likely to prejudice their judgement of the public interest, where the business affects the member’s financial position or that of a significant person or relates to determining any approval, consent or licence – they cannot participate in any discussion or any vote relating to the matter and should leave the meeting during such processes.
The code reflects, in part, the legal test for deciding whether the decision of a planning committee is vitiated by bias which is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the committee was biased (Porter v Magill [2001] UKHL 67, [2002] 2 AC 357).
Councillors Jason Baker and Brian Hamilton were chair and vice-chair respectively of SSDC’s planning committee and both supported the planning application. Baker was a member of the Chard Carnival Committee and a close affiliate of the agent for the applicant. Hamilton was deputy mayor of Ilminster and a member of the applicant. Hamilton declared his interest and left the town council meeting in August 2021 when the application was discussed. At the planning committee meeting in January 2022 both Baker and Hamilton declared a personal interest under the code but on the advice of the monitoring officer took the view that they did not have a prejudicial interest.
The court decided that the monitoring officer’s advice was wrong. Hamilton automatically had a prejudicial interest because the business being discussed at the August 2021 meeting involved determining a permission relating to the applicant, which was a significant person. This affected what the fair-minded observer would think about his participation at the planning committee meeting in January 2022.
While he had not promoted the application or voted to make it, he was a member of a small public body whose application he was being asked to consider. Baker had a longstanding association with bodies supporting the application and was pictured in the application documents. A fair-minded observer would conclude that both were tainted by apparent bias so the decision to grant planning permission was unlawful and was quashed.
Louise Clark is a property law consultant and mediator
