COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION, ADMINISTRATIVE COURT
MR JUSTICE LINDSAY
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE WALL
LORD JUSTICE RICHARDS
| National Assembly for Wales
|- and -
|(1) Elizabeth Condron
- and -
(2) Miller Argent (South Wales) Limited
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Charles George QC and Alexander Booth (instructed by Richard Buxton Solicitors) for the First Respondent
Keith Lindblom QC, Rhodri Price Lewis QC and James Pereira (instructed by DLA Piper Rudnick Gray Cary LLP) for the Second Respondent
Crown Copyright ©
Lord Justice Richards :
Appearance of bias: introduction
"When I first approached him I spoke in English and I asked him whether I could have a word about the scheme. He asked me whether I was from Merthyr Tydfil and I replied that I was. He did not appear that interested in talking to me. I asked whether he would be willing to continue the conversation in Welsh and he then became more responsive.
It was a reasonably brief conversation but during this I explained that he had two little boys and asked him whether he would be concerned about the proposal being developed close to their school. He agreed that it was a concern but concluded, in English, that he was 'going to go with the Inspector's Report'.
I was disheartened about the discussion and when I returned to our group I explained my conversation to them. I was not surprised to hear that the Planning Decision Committee had approved the Scheme, in my view Mr Jones had already made up his mind. He was also the chair of the group and may have had the opportunity of having the casting vote.
From what Carwyn Jones told me it was absolutely clear that he was not bringing an unbiased properly directed and independent mind to the consideration of the matter. Since he was Chairman of the Planning Decision Committee this was particularly unfortunate" (my emphasis).
The point made in relation to Carwyn Jones's position as Chair of the PDC related not only to a concern that the Chair might have an influence over the debate but also to the fact that the PDC consisted of only four members and if there was an equality of votes the Chair had a casting vote.
"There is a considerable consensus between Jennie Jones and Carwyn Jones AM about the conversation that took place between the two of them on 2 February 2005. Both said that they met entirely by chance … and that the discussion was brief lasting no more than 90 seconds with no witnesses to what was said. Jennie Jones told me that she could see that Carwyn Jones AM was obviously uncomfortable at talking to her and was 'itching to get away'. Both agree that the conversation started in English but switched to Welsh soon after. Both agreed that the planning application in respect of Ffos-y-Fran was touched on and that Carwyn Jones AM referred to the Planning Inspector's Report. However there is disagreement about exactly what Carwyn Jones AM said to Jennie Jones. Jennie Jones claimed that Carwyn Jones AM told her that he was 'going with the Report of the Inspector' – she took this to mean that he was going to accept the recommendations in the Report – whereas Carwyn Jones AM said that as soon as he recognised that Jennie Jones was a part of the demonstration against the Ffos-y-Fran application that was taking place outside the building he reverted to English and told her that he could not discuss the matter and that he had not yet read the Inspector's Report. Both agree that the conversation then ended and he walked out of the Milling Area."
"It is indisputable that Carwyn Jones AM neither sought nor agreed to a meeting with Jennie Jones as clearly demonstrated by the evidence of both Jennie Jones and Carwyn Jones AM. The meeting was wholly accidental and unplanned. There is disagreement about what was said in part of the conversation that resulted from this accidental meeting but Carwyn Jones AM is adamant that as soon as he realised there was a danger he would be discussing the planning application for the Ffos-y-Fran application he terminated the conversation as quickly as was politely possible. Jennie Jones herself said that Carwyn Jones AM was clearly uncomfortable and 'itching to get away'.
The evidence from the Committee Clerk and from the Environment, Countryside and Planning Division official reinforces the claim by Carwyn Jones AM that he did not form a final view on the application until the conclusion of the Planning Decision Committee. The meeting of the Committee was unusually prolonged as Carwyn Jones AM (who chaired the meeting) and the other Assembly Members on the Committee fully explored the many issues and representations about the scheme before coming to a final decision. Carwyn Jones AM is also adamant that any views expressed by Jennie Jones in the brief conversation on 2 February 2005 did not affect his own consideration of the matter the following day" (original emphasis).
"I have considered whether the mere fact of a meeting and a conversation with someone protesting about an application, however brief and unplanned, could constitute a breach of the Code of Conduct for Members of the Planning Decision Panel by Carwyn Jones AM. I have concluded that it could not. In my view the key test is set out in paragraph 5 of the Code … and I have found no evidence that Carwyn Jones AM failed 'to act, fairly and even handedly, by bringing an unbiased, properly directed and independent mind to … consideration of the matter'" (original emphasis).
"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."
The type of bias alleged was described by the judge as "possible predetermination". He adopted a passage in Georgiou v Enfield LBC  LGR 497, where I myself applied Porter v Magill in a planning context and said at para 31 that it was necessary to consider –
"whether, from the point of view of the fair-minded and informed observer, there was a real possibility that the planning committee or some of its members were biased in the sense of approaching the decision with a closed mind and without impartial consideration of all relevant planning issues."
"I accept that the Commissioner did find that there was a 'disagreement' as to what was said but that, of itself, does not oblige the conclusion that Carwyn Jones A.M. had denied that the had said the words which Jennie Jones had attributed to him. So far as one can tell Carwyn Jones A.M. did not say words to the effect, for example, that he could not have said that he would go with the Inspector's Report because he did not at the time know what its conclusion was or that he did not then know what conclusion the Inspector had arrived at or that he had not received the officers' reports summarising the Inspector's Report but merely said that he could not discuss the matter and that he had not read the Report, a 70 page document. Nor did he say that he could not discuss the matter as he had not read the report.
Merely to assert that he had not read the Inspector's Report cannot, in my view, be taken to be even an oblique denial of his saying the words which Jennie Jones had attributed to him, a denial which would have been so easy to make had it been open to him. Of course, if the import of the reference to his not having read the Report was that he was going to go with the Report even though he did not know what it contained, that would in no way weaken the allegation against him of pre-determination …. I reiterate that there has been no evidence from Carwyn Jones A.M. in opposition to Jennie Jones' witness statement of the 6th July, not even after the way the Claimant would put her case to me on 'bias' had become entirely clear, nor has there been an application for Jennie Jones' cross-examination" (original emphasis).
"Having heard the argument I conclude that there was an unacceptable possible pre-determination in the Planning Decision Committee that authorised the grant of planning permission that finally emerged on the 11th April 2005. A fair-minded observer, hearing the words which Jennie Jones attributes to Carwyn Jones A.M., on learning that the Minister was to be Chair of the PDC dealing with the application the next day, and even recognising that the PDC could be expected to follow the Inspector's Report unless there were planning reasons not to, would, in my view, conclude that there was a real possibility that that member of the PDC was biased. He would think the member would be approaching the question of permission with a closed mind and hence also without impartial consideration of all relevant planning issues. His hearing that the Minister had not read the Inspector's Report would not serve to deny the possibility of bias that he would have concluded existed. That Miller Argent's application had excited a good deal of controversy and was far from being such that the balance of its merits and demerits could only possibly point one way made the absence of bias more than usually important."
"In relation to the allegation, as it is now phrased in paragraph 4 of Ms Jones' statement, I can categorically say that I did not say to her, either in English or in Welsh, that I was 'going to go with the Inspector's report' nor did I say anything of the sort which might have conveyed to Ms Jones the impression that I had already made up my mind either way in respect of the planning application which the Planning Decision Committee was due to consider the following day.
In fact, at that stage I had not even read the Inspector's report, as I stated to the Commissioner for Standards when he interviewed me in relation to the complaint … and as is recorded in the Commissioner's decision letter …."
Appearance of bias: grounds of appeal
Ground 1: lack of express finding of fact
"In my judgment it is an important exercise in an 'apparent bias' case to identify with some precision those facts on which the suggestion of bias can be based. The judge did not expressly carry out that exercise in this case. However, the basis for his finding of apparent bias appears by implication to be the material that he has set out in paragraphs 57 to 61 of his judgment."
Ground 3: misinterpretation of Commissioner's decision letter
"However, there is disagreement about exactly what Carwyn Jones AM said to Jennie Jones. Jennie Jones claimed that Carwyn Jones AM told her that he was 'going with the Report of the Inspector' – she took this to mean that he was going to accept the recommendations in the Report – whereas Carwyn Jones AM said as soon as he recognised that Jennie Jones was a part of the demonstration against the Ffos-y-Fran application that was taking place outside the building he reverted to English and told her that he could not discuss the matter and that he had not yet read the Inspector's Report" (my emphasis).
"He noted that the Ffos-y-Fran scheme was discussed, although Mr Jones must have denied saying what he did to me and instead told the commissioner that his comment to me was that he had not yet read the Inspector's report."
Ground 4: whether the judge was right to find an appearance of bias
"The test for apparent bias involves a two stage process. First the Court must ascertain all the circumstances which have a bearing on the suggestion that the tribunal was biased. Secondly it must ask itself whether those circumstances would lead a fair minded and informed observer to conclude that there was a real possibility that the tribunal was biased …. An allegation of apparent bias must be decided on the facts and circumstances of the individual case …. The relevant circumstances are those apparent to the court upon investigation; they are not restricted to the circumstances available to the hypothetical observer at the original hearing …."
"The critical issue is whether the fair-minded and informed observer would conclude, having considered the facts, that there was a real possibility that Dr Armstrong would not evaluate reports by other doctors who acted as [examining medical practitioners] objectively and impartially against the other evidence. The fair-minded and informed observer can be assumed to have access to all the facts that are capable of being known by members of the public generally, bearing in mind that it is the appearance that these facts give rise to that matters, not what is in the mind of the particular judge or tribunal member who is under scrutiny. It is to be assumed … that the observer is neither complacent nor unduly sensitive or suspicious when he examines the facts that he can look at. It is to be assumed too that he is able to distinguish between what is relevant and what is irrelevant, and that he is able when exercising his judgment to decide what weight should be given to the facts that are relevant."
"Overall, I conclude that the scheme would be in accordance with [the] development plan and national policy and that the benefits would far outweigh the objections. Suitable planning conditions would minimise and mitigate any detrimental impacts. For the above reasons and having regard to all matters raised, I conclude that planning permission should be granted for the proposed development."
"66. … Thirdly, it is clear that in his having recourse to representations from Carwyn Jones A.M., from the Committee Clerk and from the official the Commissioner was having access to information quite outside what one could fairly postulate to be available to and to come to the mind of the hypothetical fair-minded and informed observer. Fourthly, the evidence to the Commissioner seems to have included a detailed account of what had occurred at the PDC's meeting, a thing not only likely to have been in breach of the strict confidentiality provisions of SO 17.14 but which would not have been open to the hypothetical observer and which has been denied to the objectors ….
67. … [The Commissioner] had, as I have mentioned, evidence which would not have been open to the hypothetical fair-minded and informed observer. The evidence before him would seem to have included matters which should not have been before him and which not only would have been denied to the hypothetical observer but, as I have mentioned, were denied to the objectors."
"2. The objective is to ensure that every decision is properly taken and to avoid the risk of a successful legal challenge. Our aim is to ensure that the parties involved in planning cases are dealt with fairly, justly and openly; that all the evidence is fully considered and that decisions are based only on material planning considerations to which all the parties have access. The law protects these principles and decisions can be challenged in the Courts if they are not followed.
5. Members of a Planning Decision Committee must: act, and be seen to act, fairly and even handedly, by bringing an unbiased, properly directed and independent mind to their consideration of the matter ...
7. Members of the Planning Decision Panel should avoid commenting on any planning application, or matter that might become the subject of a planning application, in case they might be considered to have pre-judged the matter if it subsequently came before the Assembly. If that were the case, the member could not take part in making the decision ..." (original emphasis).
"… I have to come to my own decision on the evidence before me … as to whether a fair-minded and informed observer, having considered the exiguous facts, would have concluded on the 2nd February that there was a real possibility that the PDC, meeting for the first and only time the next day, had, amongst its members, one who had appeared to have pre-determined the issue with which it had to deal" (my emphasis).
A similar focus on 2 February is apparent from the way in which he expressed his conclusion at para 75:
"… A fair-minded observer, hearing the words which Jennie Jones attributes to Carwyn Jones A.M., on learning that the Minister was to be Chair of the PDC dealing with the application the next day … would, in my view, conclude that there was a real possibility that the member of the PDC was biased …."
Ground 2: the new evidence
"5. The fifth ground of challenge did not refer to my conversation with Jennie Jones. Accordingly, I saw no need to produce a statement dealing with that conversation.
6. Sometime in July 2005, the Appellant's solicitors were served with a number of statements on behalf of the Claimant. One of these was a short Witness Statement from Jennie Jones, dated 6 July 2005. I was not supplied with a copy of the Witness Statements at the time and, in the ordinary course of events, I was not expecting to be provided with a copy of them. That said, having now seen the content of Jennie Jones's Witness Statement, I can see that I should have been supplied with a copy of it at the time of its service and that I should have been given the opportunity to give my account of what took place. Had that occurred, I would have stated (and I would have wanted to state) that I did not utter the words that I was 'going to go with the Inspector's report' or any words to that effect.
7. The first time I was advised that I might need to make a statement was on 19th December 2005. At this time I was returning to the United Kingdom from Dubai.
8. Upon my return to Cardiff on 20th December 2005, I met with a lawyer from the office of the Directorate of Legal Services of the National Assembly for Wales and provided my Witness Statement immediately. This was also the first time that I saw a copy of Jennie Jones's Witness Statement."
"There are, therefore, a number of issues that I need to balance. Doing the best I can to take into account the factors that have been laid before me, and bearing in mind that the court normally does have a strong wish to allow evidence in if it is material, as this evidence would undoubtedly be, nonetheless it seems to me right that using the mechanism now employed for handing down judgments is not intended to give an opportunity for issues otherwise lost to be sought to be recovered and, going back to the passages that I have cited from the Royal Brompton case and the Robinson case, it seems to me right here that one must have regard to the need for finality. Here again I note that no witness statement has been given as to exactly how this deficiency came about, but were applicants generally to feel, after seeing the draft judgment in their cases, that there is evidence that could perhaps have turned the balance one way or another and that without even a witness statement to explain its absence they could then adduce that evidence, there would be a very great demerit and finality would be put even further away."
Appearance of bias: conclusion
The issues raised by the respondent's notice
"4. The residents of Mountain Hare, as they turn their eyes towards the site, see first, a little higher than they are, the A4060(T) trunk road (two lanes width in each direction) and then, running parallel to the road, the boundary of the site, and then, almost immediately inside that boundary, a steep man-made bank to a height of about 15-17 metres above the level of the road. There is no constant distance between the edge of the site and the proposed edge of workings; that distance varies greatly from one part of the site to the other. So far as concerns Mountain Hare, the proposed workings, partly consisting of the shifting of the earth and overburden currently in place and partly, then, of opencast mining, will take place a little short of the top of that steep bank, then moving further away as works progress. At Mountain Hare the closest limit to the proposed working lies at a distance of some 40 metres or so, give or take a few metres, further back from the boundary of the site. One objector, Mr W.T. Evans, at Mountain Hare, whose house faces the trunk road, has the front wall of his house about 37 metres from the site boundary and at perhaps 60-70 metres from the nearest point of the proposed workings. Certainly there will be proposed workings which will lie well within 100 metres of the front wall of his house.
5. 14 dwellings lie in the band of being between 0-100 metres from the proposed workings on the site (12 at Mountain Hare, 2 at Incline Side), some 27 dwellings in the band between 100-200 metres, thus making 41 dwellings within 200 metres of the proposed workings on the site. The Inspector notes there to be 61 dwellings within 200 metres of the site boundary. To judge somewhat crudely from the scale on the plans, no house of the 15 or so at the Mountain Hare cluster north of the roundabout is more than about 150 metres from the proposed workings."
Buffer zones: Minerals Planning Policy Wales
"… Buffer zones have been used by mineral planning authorities for some time to provide areas of protection around permitted and proposed mineral workings where new development which would be sensitive to adverse impact, including residential areas, … should be resisted …. The maximum extent of the buffer zone would depend on a number of factors: the size, type and location of workings; the topography of the surrounding area; existing and anticipated levels of noise and dust; current and predicted vibration from blasting operations and availability of mitigation measures. Buffer zones will of necessity vary in size depending on the mineral being extracted and the nature of the operation, but must be clearly defined and indicated in Unitary Development Plans …. Further guidance on the factors that should be taken into account when defining buffer zones for particular minerals will be provided in Technical Advice Notes."
"Some objectors have drawn attention to the inclusion of a 500 metre buffer zone around opencast sites proposed in the latest draft of Scottish Planning Policy 16, Opencast Coal, and suggest that Wales should follow suit. In fact, MPPW already advocates the use of buffer zones around mineral workings to avoid conflict with residential areas but advises that their size will depend on the nature of the particular operation. In the circumstances at Ffos-y-fran, where reclamation objectives for that particular area of land are also involved, the assessment of the possible impacts themselves is an acceptable approach, as relying on broad-brush guideline distances would take no account of the particular local circumstances."
"On the buffer zone, with reference to Ffos-y-fran, which has raised the temperature this afternoon, let us make one thing clear: there is currently no guidance on this matter. However, the local authority, as the planning authority … could have indicated that it wanted a buffer zone, but it was impossible, as far as I know, according to official guidance, for the planning decision committee to impose such a condition as it was not mentioned in the inspector's report. That is the situation as I understand it."
Buffer zones: the Assembly debate of 16 March 2005
"121. In my judgment a consideration is 'material', in this context, if it is relevant to the question whether the application should be granted or refused; that is to say if it is a factor which, when placed in the decision-maker's scales, would tip the balance to some extent, one way or the other. In other words, it must be a factor which has some weight in the decision-making process, although plainly it may not be determinative. The test must, of course, be an objective one in the sense that the choice of material considerations must be a rational one, and the considerations chosen must be rationally related to land use issues.
122. In my judgment, an authority's duty to 'have regard to' material considerations is not to be elevated into a formal requirement that in every case where a new material consideration arises after the passing of a resolution (in principle) to grant planning permission but before the issue of the decision notice there has to be a specific referral of the application back to committee. In my judgment the duty is discharged if, as at the date at which the decision notice is issued, the authority has considered all material considerations affecting the application, and has done so with the application in mind – albeit that the application was not specifically placed before it for reconsideration.
126. In practical terms, therefore, where since the passing of the resolution some new factor has arisen of which the delegated officer is aware, and which might rationally be regarded as a 'material consideration' for the purposes of s.70(2), it must be a counsel of prudence for the delegated officer to err on the side of caution and refer the application back to the authority for specific reconsideration in the light of that new factor. In such circumstances the delegated officer can only safely proceed to issue the decision notice if he is satisfied that (a) the authority is aware of the new factor, (b) that it has considered it with the application in mind, and (c) that on a reconsideration the authority would reach (not might reach) the same decision" (original emphasis).
"The Planning Decision Committee have reached their decision taking account of all correspondence received after the inquiry had closed and they are satisfied that the correspondence raised no new evidence or new matter of fact which would materially affect their decision."
"They thus were stating that Mr Evans' letter had been taken into account. There is no proof that that was not so. Whereas, on a subject of real significance, it can often be right to assume that a body's failure to mention it indicates a failure by that body to have considered it, for the reasons I have given I cannot see that the existence of a small hitherto undisclosed former tip close to a larger known one and consisting of the same type of tipped material as being so significant that it entitles one to jump from its not being expressly mentioned to a conclusion that it had not been taken into account at all."
"Mr Lindblom says, rightly in my view, that Professor Harrison had in mind the distances between workings and residences both as described in the Newcastle papers and as they would be at Ffos-y-fran. He came to a rational and informed professional conclusion which was not successfully questioned at the Inquiry and the Inspector was entitled to accept his evidence. It is not for me, says Mr Lindblom, now to question Professor Harrison's professional judgment. I accept that argument. The Newcastle Studies were not new material and had been sufficiently taken into account by Professor Harrison on whose conclusions and those of Dr Holman the Inspector was entitled to rely."
Lord Justice Wall :
…. He (the Commissioner) had, as I have mentioned, evidence which would not have been open to the hypothetical fair-minded and informed observer. The evidence before him would seem to have included matters which should not have been before him, and which would not only have been denied to the hypothetical observer but, as I have mentioned, were denied to the objectors.
Lord Justice Ward :
"The relevant circumstances are those apparent to the court upon investigation; they are not restricted to the circumstances available to the hypothetical observer at the original hearing. …".
"He [the auditor] was at pains to point out to the press that his findings were provisional. There is no reason to doubt his word on this point, as his subsequent conduct demonstrates." (Emphasis added by me).
"… unusually prolonged as Carwyn Jones AM (who chaired the meeting) and the other Assembly Members on the Committee fully explored the many issues and representations about the scheme before coming to a final decision."
"Impartiality consists in the absence of a predisposition to favour the interests of either side in the dispute."
Yet there was nothing anywhere to suggest that Carwyn Jones had taken side one way or the other.