Planning application – Hazardous substances consent – Councillors on planning committee attending meeting of objectors without commenting on application – Monitoring officer advising councillors to recuse themselves from voting – Local resident seeking judicial review of planning consent – Whether monitoring officer giving correct advice – Whether recusal based upon wrong advice rendering permission unlawful – Whether site visit prerequisite to voting on application – Application granted
The National Grid had applied to the defendant local authority for planning permission to construct an above-ground installation (AGI) in order to provide a connection from a high-pressure underground pipe into the local gas supply system. It also sought hazardous substances consent.
The claimant and other local residents were concerned about potential traffic and environmental effects on their locality. Four councillors, who were members of the defendants’ planning committee, were invited to attend a meeting to discuss the residents’ objections. They did so, but did not express an opinion on the planning application and later made a written declaration to that effect.
Two of the four councillors failed to attend a site visit for the proposed AGI. The monitoring officer subsequently advised them that although their failure to attend did not preclude them from participating in the decision-making process, their involvement in that process might lead to a challenge to the final decision. Prior to the planning committee meeting to consider the application, the deputy monitoring officer approached the four councillors to enquire whether they would consider making a further declaration concerning their attendance at the objectors’ meeting.
When asked whether it would be preferable for them to leave, the officer left it for them to decide. However, he warned that it was possible that a complaint would be made to the ombudsman and the councillors decided to leave the planning committee meeting. The planning application was approved by 13 votes to 12 and hazardous substances consent was granted.
The claimant applied for judicial review of that decision. The National Grid was an intervening party.It was submitted that the decision by the four councillors to recuse themselves was based upon wrong advice. Since the councillors had declared that they had expressed no opinion on the merits of the application, there could be no question of apparent bias. Furthermore, it could not be said that members of a planning committee should vote only if they had attended a site visit.
Held: The application was granted.
It was important that planning applications should not be predetermined. Councillors should approach the decision-making process with an open mind and be prepared to be persuaded by the arguments. It should not appear to the fair-minded and informed observer that there was any reasonable prospect of bias. However, it was equally important that councillors should not be prevented from carrying out their duties under a democratic system by the advice of overcautious monitoring officers.
In the present case, there was no doubt that the four councillors felt under pressure not to participate, but the advice they had received was incorrect. Since they had clearly declared that they had not expressed any view on the application, there was no reason why they should not have voted on the issue. Moreover, the court was not persuaded that a site visit was so essential as to make it wrong for the councillors who had not attended to participate in the decision-making process: Porter v Magill [2002] 2 AC 357 applied; Chichester District Council v First Secretary of State [2007] JPL 389 distinguished.
If a councillor’s decision not to vote was based upon wrong advice, it could affect the lawfulness of the final decision because it would amount to having regard to immaterial considerations. However, each case would depend upon its individual circumstances.
In the exceptional circumstances of this case, the planning decision should not be allowed to stand. It was plain that the councillors would have attended the meeting were it not for the officer’s warning and, had they done so, the decision might have been different.
David Wolfe (instructed by Richard Buxton, of Cambridge) appeared for the claimant; Anthony Porten QC (instructed by legal department of Neath Port Talbot County Borough Council) appeared for the defendant; Sarah Ford (instructed by legal department National Grid Legal Sevices) appeared for the intervening party.
Eileen O’Grady, barrister
