Development – Planning permission – Bias – Planning committee granting planning permission to appellant in pre-election period – Respondent seeking judicial review of decision claiming bias or predetermination by committee members – High Court quashing grant of permission – Whether judge applying correct test to evidence – Appeal allowed
In 1999, the council adopted a local plan that provided for a common and its surrounding area to be allocated for proposed mixed-use redevelopment. This would encourage tourism and provide sport, recreation, leisure, linked housing and community facilities, including highways and infrastructure works. The scheme had been prepared in 2002 when the council were Labour controlled. The council had appointed the appellant as their development partner. Objections were raised to the scheme. At that stage, control of the council had passed to a coalition of political parties.
The council’s cabinet resolved to enter into written heads of terms with the appellant, and it was contemplated that the planning application would be determined in August 2006. An application for planning permission was made. However, elections were held in May 2003. On the advice of council officers, the planning committee decided that it was appropriate to consider the application during the pre-election period. Despite last-minute concerns about the propriety of determining such a controversial matter during that period, the meeting proceeded, with 13 members being present. The director of area management presented a report to the members, recommending that the development be approved. Following discussions, the application was approved subject to more 40 conditions, with nine members voting in favour.
The respondent, who had objected to the development, challenged the lawfulness of the grant of permission on the ground, inter alia, of an appearance of bias or predetermination on the part of the coalition members of the committee, all of whom voted in favour of the proposal.
The judge concluded that a fair-minded and informed observer would conclude that there was a real possibility of bias or predetermination on the part of the planning committee so that the decision to grant planning permission was unlawful by reason of apparent bias or predetermination. The appellant appealed.
Held: The appeal was allowed.
A decision to quash the planning permission was unjustified. It did not follow from the unanimity of the seven coalition members that any of them had had a closed mind.
The court was assess whether committee members made the decision with closed minds or the circumstances gave rise to a real risk of closed minds such that, in the public interest, the decision ought not to be upheld. Central to such a consideration was the recognition that councillors were not in a judicial or quasi-judicial position but were elected to provide and pursue policies. Members of a planning committee would be expected to express views on planning issues: R v Amber Valley District Council, ex parte Jackson [1985] 1 WLR 298, Georgiou v Enfield London Borough Council [2004] EWHC 779 (Admin); [2004] 2 P&CR 21 and R (on the application of Condron) v National Assembly for Wales [2006] EWCA Civ 1573; [2007] 2 P&CR 4 considered.
The importance of appearances was generally more limited in this context than in a judicial context. Although councillors who had a personal interest should not participate in council decisions, which issue did not arise in the present case, they were not required to cast aside views on planning policy that they would have formed when seeking election or when acting as councillors. It was possible to infer the real risk that a mind was closed from the circumstances and evidence. However, given the role of councillors, clear pointers were required if a state of mind was to be held to have become closed, or apparently closed, at the time of decision.
In the present case, the members of the committee had long experience of the proposed project, its merits, demerits and problems. They had received a detailed report from council officers and received advice as to the timing of the meeting. On the evidence, the court was not persuaded that the imminence of the local elections demonstrated that the minds of those who voted in favour of the planning application were closed to the planning merits of the proposal.
Richard Dabble QC and James Maurici (instructed by Ward Hadaway, of Newcastle upon Tyne) appeared for the appellant; Richard Clayton QC and Gordon Nardell (instructed by Irwin Mitchell, of Sheffield) appeared for the respondent.
Eileen O’Grady, barrister
