PROBITY ISSUES IN PLANNING

1
PROBITY ISSUES IN PLANNING

• Damien Welfare
• 2-3 Grays Inn Square

2
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

3
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)

4
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).

5
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

6
Predetermination

• Ouseley J in Bovis Homes v New Forest DC (2002)
  EWHC 483 (Admin) predetermined the outcome
  ...by delegationthe adoption of an inflexible
  policythe 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.

7
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

8
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

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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

10
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

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Bridgend case (cont)

• Councillors entitled to have regard to and apply
  policies they believed in, particularly if they
  formed part of an election manifesto

12
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 Inspectors report
• At first instance, Lindsay J found real
  possibility of bias
• CA held matters have to be set in context, which
  is broad

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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)

14
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

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Condron legitimate predisposition (cont)

• Illegitimate predetermination
• involves a mind that is closed to the
  consideration and weighing of relevant factors.

16
Condron position of Minister

• Nothing surprising in relevant Minister having
  predisposition in favour of grant of planning
  permission as recommended by the Inspector

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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