Town and country planning – Planning permission – Apparent bias – Defendant’s planning committee granting planning permission for erection of storage buildings on agricultural land – Two members of planning committee declaring personal interest in application under defendant’s code of conduct – Claimant applying for judicial review – Whether decision tainted by apparent bias of committee members – Application granted
In April 2022, the defendant local authority granted an application by Ilminster Town Council for planning permission for the erection of five self-contained buildings to store and facilitate the construction of carnival floats on agricultural land owned by the Dillington Estate at Longforward Lane, Ilminster. That decision followed a six-to-five vote by the defendant’s planning committee which was responsible for considering planning applications relating to the area.
The claimant, which was the Somerset branch of the Council for the Preservation of Rural England, contended that the decision of the planning committee was tainted by apparent bias on the part of its chair and vice-chair and therefore unlawful. Therefore, it brought an application for judicial review to quash the planning permission.
The claimant argued that as the vice-chair was deputy major of Ilminster and a member of the town council which had made the planning application, he was automatically disqualified from participating in the process to determine it or was otherwise tainted by apparent bias. Further, the chair was a member of the carnival committee, in which capacity he publicly supported the planning application. He was also a close affiliate of the South Somerset Carnival Park Committee which acted as agent for the applicant town council. As such he was tainted by apparent bias.
Because of those interests, the councillors approached the planning application with closed minds so that the decision to grant planning permission was predetermined.
Both councillors had declared a personal interest under the defendant’s code of conduct but had been the advised by the monitoring officer that they did not have a prejudicial interest.
Held: The application was granted.
(1) The defendant’s code required council members not only to avoid actual impropriety, but also to avoid any occasion for suspicion or appearance of improper conduct. Paragraph 2.9(1) provided: “Where you have a personal interest in any business of your Council you also have a prejudicial interest in that business where the interest is one which a member of the public with knowledge of the relevant facts would reasonably regard as so significant that it is likely to prejudice your judgment of the public interest and where that business (a) affects your financial position or the financial position of a significant person; or (b) relates to determining any approval, consent, licence, permission or registration in relation to you or any significant person”.
(2) The test for deciding whether the decision of a planning committee was vitiated by bias was whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the committee was biased. The fair-minded observer had full knowledge of the facts and was neither complacent nor unduly suspicious: Porter v Magill [2001] UKHL 67; [2002] 2 AC 357 and Belize Bank Ltd v Attorney General of Belize [2011] UKPC 36 applied.
An earlier line of authorities identified situations in which a judge or other decision-maker whose activities were governed by public law was automatically disqualified on the ground of apparent bias. That was so where the decision-maker was himself a party to the proceeding. Similarly, the decision-maker would be automatically disqualified where he had a personal or pecuniary interest in the outcome, however small. There was no room for fine distinctions if the principle was to be observed that justice should not only be done but seen to be done: Dimes v Proprietors of Grand Junction Canal (1852) 3 HL Cas 759 applied.
Predetermination was a different, though related concept. A decision might be vitiated by predetermination where there was a real risk that minds were closed. In the planning context, the courts had to recognise that councillors were not in a judicial or quasi-judicial position but were elected to provide and pursue policies and would be entitled, and expected, to have and to have expressed views on planning issues: R (on the application of Lewis) v Redcar and Cleveland Borough Council [2008] EWCA Civ 746; [2008] 2 P&CR 21 considered.
(3) The defendant had relied on R (on the application of Taylor) v Maidstone Borough Council [2004] EWHC 257 (Admin); [2004] PLSCS 48 to show that a breach of the code would not necessarily render the resulting decision unlawful. However, Taylor was a case about alternative remedies which did not provide any assistance as to the legal effect of local authority codes of conduct. In the present case, planning permission was granted and there was no alternative remedy. The legal effect of the code therefore had to be considered from first principles: Taylor distinguished.
Although the code could not be determinative, it was a matter which the fair-minded observer would take into account in deciding whether there was a real possibility of bias. Providing that the definition of “prejudicial interest” was a reasonable one, and other things being equal, a fair-minded observer would consider that a member who had no prejudicial interest was less likely to be biased and that a member who had a prejudicial interest was more likely to be biased.
(4) In the present case, the monitoring officer’s advice was wrong. The vice-chair automatically had a prejudicial interest because the business being discussed involved determining a permission relating to the applicant town council, which was a significant person. That affected what the fair-minded observer would think about his participation at the planning committee meeting. 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. The chair had a longstanding association with bodies supporting the application and was personally pictured in the application documents. A fair-minded observer would conclude that both were tainted by apparent bias.
It followed that the decision to grant planning permission was unlawful. Although there were some cases where bias or predetermination on the part of a single member of a large committee had been held not to vitiate the committee’s decision, the vote here was six-five in favour of grant. It was not possible to say what the outcome would have been if the chair and vice-chair had recused themselves, as the law required.
Richard Moules (instructed by Khift Ltd) appeared for the claimant; Annabel Graham Paul (instructed by Bevan Brittan LLP) appeared for the defendant.
Eileen O’Grady, barrister