Town and country planning – Planning appeal – Bias – First respondent secretary of state granting planning permission on appeal for redevelopment of site in central London – Whether first respondent’s planning inspector conducting inquiry in such a way as to give rise to appearance of bias in favour of developer – Appeal dismissed
The appellant objected to an application by the third respondent developer for planning permission to develop the 3.5 ha site of the Shell Centre in central London, on the South Bank of the Thames. The proposals involved the retention of the Shell Tower and the demolition of adjoining buildings and their redevelopment for office, retail and residential uses, along with pedestrian walkways and open spaces. The second respondent council, as local planning authority, referred the application to the mayor of London, the second respondent, who recommended that the first respondent secretary of state call in the application for his own consideration in light of the importance of the site and the impact that it could have on listed buildings, the World Heritage Site covering Parliament Square and views from St James’s Park. The first respondent made a direction under section 77 of the Town and Country Planning Act 1990 calling in the application. Following an inquiry at which the appellant made representations, the first respondent’s planning inspector issued a report recommending that planning permission be granted, and the first respondent accepted that recommendation.
The appellant brought proceedings, under section 288 of the Town and Country Planning Act 1990 and section 63 of the Planning (Listed Buildings and Conservation Areas) Act 1990, to challenge the first respondent’s decision. He contended that the inspector had improperly favoured the developer at the inquiry by too readily acceding to requests to dispense with the usual procedural requirements, including the requirement for statements of case under r 6(3) of the Town and Country Planning (Inquiries Procedure) (England) Rules 2000, and that, overall, the inspector had treated counsel for the developer more favourably than the appellant, so giving rise to an appearance of bias.
In the court below, the judge was critical of the inspector’s behaviour in certain respects but held that his conduct was not such as to give rise to apparent bias. He dismissed the claim accordingly: see [2015] EWHC 375 (Admin); [2015] PLSCS 95. On appeal from that decision, the appellant relied on witness statements from another objector at the inquiry as showing that the inspector’s conduct had created an impression of bias.
Held: The appeal was dismissed.
The test to determine whether there had been apparent bias was whether, having regard to all the circumstances, a notional “fair-minded observer” forming an objective judgment would conclude that there was a real possibility that the inspector was biased. The test was whether there was a “real” possibility of bias, not any possibility, although the test was less rigorous than one of probability. The court had to look at all the circumstances as they appeared from the material before it, not just at the facts known to the objectors or available to the hypothetical observer at the time of the decision: Porter v Magill [2001] UKHL 67; [2002] 2 AC 357, Resolution Chemicals Ltd v H Lundbeck A/S [2013] EWCA Civ 1515; [2014] 1 WLR 1943 and National Assembly for Wales v Condron [2006] EWCA Civ 1573 applied.
The notional fair-minded and informed observer was a legal construct and a court would be very cautious about treating any particular person who attended a hearing in real life as the actual personification of that observer. The objector on whose evidence the appellant relied could not be regarded as wholly neutral and disinterested and it would be inappropriate to treat his personal views as equivalent to those of the fair-minded observer.
An assessment of whether an unlawful appearance of bias had been given has to take into account the nature of the functions and responsibilities of an inspector. The notional fair-minded observer would appreciate that an inspector’s role had a strong inquisitorial dimension, investigating matters in a way which would enable him to report helpfully to the relevant decision-maker. With that end in view, it was fair and appropriate for an inspector to seek to focus debate at an inquiry by making interventions to ensure that he was provided with material to assist him in his task. An inspector had to manage the conduct of an inquiry efficiently within a limited time-frame, which might require robust case management in the interests of all participants. The inspector was entitled to expect, and could legitimately seek to encourage, focused questioning and short and focused answers in the course of cross-examination of witnesses. The inspector was expected to have done a good deal of preparation before an inquiry commenced and was entitled to seek to focus debate on particular issues in the form which was most likely to provide clarity about what was at stake and assistance for him in writing a report. He was entitled to give indications in the course of an inquiry of points which appeared to him to be unrealistic or bad, and to require concentration on what appeared to him to be the real substantive points of contention or those where continued debate would be most helpful to him. Given the expectation that an inspector should be actively managing the inquiry process to ensure that it was efficient, effective and fair to all interested parties, it would be a rare case in robust inquiry management will be found to have given rise to apparent bias: Halifax Building Society v Secretary of State for the Environment [1983] JPL 816; [1983] 2 EGLR 163 considered.
The Planning Inspectorate’s guidance document The Inspector’s Code of Conduct, setting out principles of conduct for inspectors, was designed to promote best practice but did not in itself create the standard by which an appearance of bias was to be judged. For example, a lapse in courtesy or patience on the part of an inspector in the course of an inquiry would not in itself give an appearance of bias in the requisite sense; a good deal more would be required: HCA International Ltd v The Competition and Markets Authority [2015] EWCA Civ 492 applied.
The inspector had done nothing to give any appearance of bias to the notional fair-minded and informed observer. He had treated the objectors to the scheme, including the appellant, fairly both before and during the inquiry. The appeal court did not endorse the criticisms of the inspector made by the judge in the court below. The inspector’s conduct could not be castigated as something equivalent to judicial misconduct.
The inspector’s pre-inquiry decisions did not indicate any hostility towards the appellant, or any objector, and did not create any impression that the inspector had pre-determined the inquiry. None of the parties had objected at the time to the inspector’s decision to dispense with statements of case and, while the provision of such statements was in fact mandatory under the 2000 Regulations and the inspector had no discretion to dispense with them, the inspector’s conduct in that regard was a simple mistake and gave rise to no impression of bias. A similar mistake with regard to the provision of summaries of the parties’ proofs of evidence had been rectified at the request of the appellant and again gave rise to no impression of bias.
No appearance of bias arose from the inspector’s case management decisions in other respects, either before the inquiry in relation to the timetabling of submissions and responses to evidence or at the inquiry itself in relation to compliance with time estimates for the giving of evidence in chief and cross-examination of witnesses. The picture which emerged overall was one of reasonable inquiry management decisions being made by the inspector. So far as the appellant complained of interruptions by the inspector during the presentation of the objectors’ case and their cross-examination of witnesses, that intervention was a legitimate attempt by the inspector to focus the debate, evidence and submissions at the inquiry, and his seeking to do so would not lead a fair-minded observer to think that there was a real risk of bias or pre-determination in the requisite sense. Nor did an appearance of bias arise from the inspector’s refusal to accept a voluminous, unbound document on viability issues from the appellant after the close of the day’s proceedings during the inquiry. In unbound form it would be unwieldy it had been reasonable for the inspector to require the appellant to re-present the report in bound form on a later occasion. Overall, the inspector’s conduct of the inquiry was proper and appropriate and the steps he took to focus debate were legitimate ones, in line with the standards to be expected for managing the conduct of a planning inquiry in an efficient and effective way.
Jonathan Darby (instructed by the Bar Pro Bono Unit) appeared for the appellant; Daniel Kolinski QC and Zoe Leventhal (instructed by the Goverment Legal Department) appeared for the first respondent; Douglas Edwards QC and Caroline Daly (instructed by the legal department of Lambeth London Borough Council and the mayor of London) appeared for the second and fourth respondents; Timothy Corner QC and Paul Brown QC (instructed by Hogan Lovells) appeared for the third respondent.
Sally Dobson, barrister
