PROBITY ISSUES IN PLANNING
Damien Welfare
2-3 Gray’s Inn Square
Introduction
• Disqualification of decision-makers on
grounds of bias and predetermination
• Contentious in relation to elected members
• Cases had appeared to moving in more
rigorous direction, especially on apparent
bias
• New direction in last twelve months
Bias
• Lord Hope in Magill v Weeks & Porter (2001)
UKHL 67:
“The question is whether the fair-minded and
informed observer, having considered the facts,
would conclude that there was a real possibility
that the tribunal was biased”.
• Whether real danger of influence by pecuniary or
personal interest in outcome (Sedley J in Kirkstall
Valley case [1996] 3 All ER 304)
Apparent bias
• Georgiou v LB Enfield and ors [2004]
EWHC 779 (Admin)
• Grants of listed building consent quashed
on grounds of apparent bias on part of
Planning Committee (and because decision
taken with inadequate information).
Interest in decision
• Richardson & Orme v N Yorks CC & First
Sec of State [2003] EWCA Civ 1860
• Paragraph 12 of Model Code
• Any member with prejudicial interest must,
in absence of dispensation, withdraw from
meeting (inc committee of which not a
member)
• May not attend in “private capacity”
Predetermination
• Ouseley J in Bovis Homes v New Forest DC
(2002) EWHC 483 (Admin): “predetermined the
outcome ...by delegation…the adoption of an
inflexible policy…the closing of its mind
…because of a decision already reached or ….a
determination to reach a particular view. It is seen
in a corporate determination to adhere to a
particular view, regardless of the relevant factors
or how they could be weighed”.
Legitimate predisposition
• Ouseley J in R (Cummins) v LB Camden
(2001) EWHC Admin 1735: “a
predisposition, short of predetermination,
arising say from prior consideration of the
issues…..The decision-making structure
…and the democratic accountability of
councillors permit, indeed must recognise,
the legitimate potential for predisposition
towards a particular decision”
Apparent bias – Bluestone case
• Council for National Parks Ltd v Pembrokeshire
Coast Nat Park Auth & ors [2004] EWHC 2907
(Admin) (“Bluestone”)
• Two members of County Council voted in favour
of permission
• Ten matters. Jack J. found none individually
suggested a real possibility of bias. Overall, the
members took a proper approach.
• Bias not pursued in Court of Appeal: [2005]
EWCA Civ 888
Freemasonry - Port Regis
case
• Port Regis School Ltd (R on applic of) v
Nth Dorset DC & ors [2006] EWHC 742
(Admin)
• Freemason was not, by reason of
membership, to be restrained from
participating in decision whenever another
freemason or branch had an interest in the
outcome
Election manifesto – Bridgend
case
• Island Farm Developments Ltd (R on
applic of) v Bridgend CBC [2006] EWHC
2189 (Admin)
• No apparent bias or pre-determination by
newly elected authority in deciding to
discontinue negotiations for sale of land.
• No positive evidence of closed mind
Bridgend case (cont)
• Councillors entitled to have regard to and
apply policies they believed in, particularly
if they formed part of an election manifesto
Careless talk – the Condron
case
• National Assembly of Wales v Condron & or
[2006] EWCA Civ 1573
• Minister for Environment, Carwyn Jones AM, was
“going to go with the Inspector’s report”
• At first instance, Lindsay J found “real possibility
of bias”
• CA held matters have to be set in context, which is
broad
Condron: objective test
• Test: whether fears expressed by the complainant
at the initial stage are objectively justified when
investigated (Richards LJ, per L. Hope in Magill).
• Or: not what the fair-minded and informed
observer would have concluded on the date of the
incident, but what the same observer would
conclude having considered all the facts as they
are now known (Wall LJ)
Condron: legitimate
predisposition
• Words showed a predisposition to follow
Inspectors’ report, rather than closed mind
(Richards LJ)
• “Impartiality consists in the absence of a
predisposition to favour the interests of either side
in the dispute” (quoting L. Hope in Gillies v SofS
Work and Pensions [2006] UKHL 2)
• Legitimate predisposition is consistent with
“preparedness to consider and weigh relevant
factors in reaching final decision”
Condron: legitimate
predisposition (cont)
• Illegitimate predetermination:
“involves a mind that is closed to the
consideration and weighing of relevant
factors”.
Condron: position of Minister
• Nothing surprising in relevant Minister
having predisposition in favour of grant of
planning permission as recommended by
the Inspector
Conclusion
• Changes to Code to remove barriers to
councillors speaking up for constituents, or
public bodies to which appointed, on
planning matters
• Significant easing of constraints
• Guidance from Standards Board will need
to be revised