COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
MR JUSTICE JACKSON
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE RIX
LORD JUSTICE LONGMORE
| Persimmon Homes Teesside Limited
|- and -
|The Queen on the Application of Kevin Paul Lewis
WordWave International Limited
A Merrill Communications Company
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr Richard Clayton QC and Mr Gordon Nardell (instructed by Messrs Irwin Mitchell) for
Hearing dates : 20 & 21 May 2008
Crown Copyright ©
Lord Justice Pill :
"Proposed mixed use redevelopment to provide new tourism, sport, recreation, leisure, linked housing and community facilities including new highways and infrastructure works".
The redevelopment was to be at Coatham Enclosure, Redcar and was subject to over 40 conditions, reasons for each of which were given.
"1. Actual or apparent bias or predetermination on the part of a decision maker renders his decision unlawful.
2. If a fair minded and informed observer who is neither complacent nor unduly sensitive or suspicious, having considered the facts, would conclude that there was a real possibility of bias or predetermination, then apparent bias or predetermination is established. For the sake of brevity, I shall use the phrase "the notional observer" to denote an observer who is fair minded, informed, not complacent and not unduly sensitive or suspicious.
3. In the context of decisions reached by a council committee, the notional observer is a person cognisant of the practicalities of local government. He does not take it amiss that councillors have previously expressed views on matters which arise for decision. In the ordinary run of events, he trusts councillors, whatever their pre-existing views, to approach decision making with an open mind. If, however, there are additional and unusual circumstances which suggest that councillors may have closed their minds before embarking upon a decision, then he will conclude that there is a real possibility of bias or predetermination.
4. Before the court makes a finding of apparent bias or predetermination, it must first identify with precision the facts which would drive the notional observer to such a conclusion."
"99. Let me now draw the threads together. The following facts are relevant by way of background, but do not by themselves arouse the suspicions of the notional observer.
100. 1. The planning committee was dealing with a scheme promoted by the council itself on council-owned land, where the council had a pecuniary interest in the grant of permission.
101. 2. The fact that coalition councillors had previously expressed support for the scheme and Labour councillors had previously expressed opposition.
102. 3. The fact that Mr Kay was a member of the cabinet which had decided to sign the heads of agreement with Persimmon 14 months before the planning meeting.
103. In my judgment, however, five further facts, when taken in conjunction with the previous facts, would tip the balance and would cause the notional observer to conclude that there was a real possibility of bias or predetermination. These facts are:
104. 1. The merits of the Coatham development project had become a party political issue in the imminent local election. The coalition's support for the project featured in its pre-election literature.
105. 2. Contrary to the council's own guidance and in the face of Labour opposition, the coalition proceeded with the planning meeting during the purdah period.
106. 3. One of the coalition councillors who spoke and voted at the planning meeting was a member of the council's cabinet. The cabinet had not only resolved to sign the heads of agreement on 28th February 2006, but also more recently had made forceful public statements in support of the project.
107. 4. Despite the formidable arguments on both sides, not a single member of the coalition either abstained or voted against the motion.
108. 5. On the 1st May 2007, just two days before the election and also before the Secretary of State had reached a decision about calling in, the council entered into a binding development agreement with Persimmon. The coalition thereby further tied the hands of its successor."
". . . On the other hand, the decision reached was far from inevitable. There were serious issues as to how the development should be structured as between housing and leisure facilities. The opposition to the development project in its current form, as expressed by Vera Baird QC MP and by the Labour Group of councillors, shows that different views could properly be held on the question of granting planning permission."
"In my judgment, having regard to the guidance given in the authorities, a fair minded and informed observer, having regard to the facts identified above, would conclude that there was a real possibility of bias or predetermination on the part of the planning committee."
The judge concluded:
"The Council's decision to grant planning permission for the Coatham Development Project was unlawful by reason of apparent bias or apparent predetermination."
"Pre-election publicity- general principles
Council staff should never use their position to engage in activity which supports, or could be deemed to support, a political party or prospective candidate. However, this is even more important during the publication of a notice of election and polling day.
Do NOT issue publicity which may be seen to affect public support for a political party. Be particularly careful when the publicity:
- refers to a political party
- refers to persons identified with a political party"
"Any meetings or decision-making relating to the 'day-to-day' business of the Council that do not involve controversial local issues should continue to go ahead – including those meetings and decisions involving partners and outside agencies."
Under the heading "Events & Activities", it was stated:
"Do not organise photocalls, public meetings or events or activities designed with the aim of generating publicity in relation to a candidate or political party, or, where there is the potential for public debate regarding controversial local issues.
Do not distribute invites or accept invitations to political meetings."
"The period between the notice of an election and the election itself should preclude proactive publicity in all its forms of candidates and other politicians involved directly in the election. Publicity should not deal with controversial issues or report views, proposals or recommendations in such a way that identifies them with individual members or groups of members. However, it is acceptable for the authority to respond in appropriate circumstances to events and legitimate service enquiries provided that their answers are factual and not party political. Members holding key political or civic positions should be able to comment in an emergency or where there is a genuine need for a member level response to an important event outside the authority's control. Proactive events arranged in this period should not involve members likely to be standing for election."
Mr Clayton submits that the meeting did involve "controversial local issues", and "the potential for public debate regarding controversial local issues" and it should not have been arranged for the pre-election period.
"The statutory guidance does not impose any restriction on the Council's ability to determine planning applications during the pre-election period. The pre-election period does not mean that the normal business of the council ceases, although there is a general presumption as a result of the Code of Recommended Practice against undertaking new campaigns during the pre-election period in any area that might be considered controversial in relation to the election. The Coatham proposal was a very long running scheme and it had to be determined at some point. It was ready to go to the planning committee in March. Since Council business is not suspended during the pre-election period, I considered that to postpone a planning decision because of the forthcoming elections would be bowing to pressure from opponents of the scheme and it would have been improperly delayed for political reasons. The scheme had many supporters as well as opponents and there was in my view no political advantage to be gained by any political party if the application was determined prior to the elections. I considered that the presence of a local election was being used by opponents of the scheme to postpone determination of the application in the hope that leading and vociferous opponents of the scheme would be elected as councillors and could influence the outcome of the application."
Mr Frankland described the proceedings at the meeting and concluded:
"I was satisfied that in making their decision, members addressed themselves to the relevant issues, weighing relevant considerations and ignoring irrelevant considerations."
"The date of a special committee meeting is decided in discussions between Democratic Services and the Chair of the Planning Committee. The deadline for comments on the final round of consultation was 8 March 2007. We therefore proposed various dates from mid-March, factoring in adequate time to produce a committee report and to give the required publicity to the meeting. These dates were not suitable for logistical reasons. Another date towards the end of March was deferred when it was realised that the Director of Legal Services and Monitoring Officer, Richard Frankland, would be on annual leave at the end of March and it was considered necessary that he attend the meeting. The meeting was therefore convened for the first available date when Mr Frankland would be available which was the 3rd of April. The date was fixed simply as the earliest available when all relevant personnel could attend. It happened to be in the pre-election period but that was a consequence of the decision to hold a Special Committee meeting at the earliest time when all relevant officers could be present."
"There is, however, a second element to factor B; namely the battle lines in the imminent local election. The public pronouncements of the coalition in the run up to the local elections were strongly supportive of the Coatham development project and strongly critical of those who opposed the project. The Labour Group, on the other hand, was known to oppose the project, at least in its present form.
The notional observer would begin to fear that coalition councillors might feel constrained to vote in favour of planning permission by reason of the coalition's pre-election public statements in support of the project . . .".
The judge then referred only to the document referring to the "best thing to happen in Redcar", already mentioned.
"In my opinion, no judicial, or quasi-judicial, duty was imposed on the [Minister], and any reference to judicial duty, or bias, is irrelevant in the present case."
Lord Thankerton distinguished the Minister's position from that of those occupying judicial or quasi-judicial office and stated, at page 104:
"But, in the present case, the [Minister] having no judicial duty, the only question is what the [Minister] actually did, that is, whether in fact he did genuinely consider the report [resulting from the inquiry] and the objections."
Lord du Parcq and Lord Normand agreed.
"There was a measure of artificiality about categorising the complaint against the Minister as bias. There is an even greater measure of artificiality about treating the rules of natural justice, and the legislation, as requiring the Minister, in exercising his powers under ss 501 and 502, to avoid doing or saying anything that would create an appearance of a kind which, in the case of a judge, could lead to an apprehension the subject of the apprehended bias rule.
The Minister was obliged to give genuine consideration to the issues raised by ss 501 and 502, and to bring to bear on those issues a mind that was open to persuasion. He was not additionally required to avoid conducting himself in such a way as would expose a judge to a charge of apprehended bias."
"The adoption of planning policy and its application to particular facts is quite different from the judicial function. It is for elected Members of Parliament and ministers to decide what are the objectives of planning policy, objectives which may be of national, environmental, social or political significance and for these objectives to be set out in legislation, primary and secondary, in ministerial directions and in planning policy guidelines. Local authorities, inspectors and the Secretary of State are all required to have regard to policy in taking particular planning decisions and it is easy to overstate the difference between the application of a policy in decisions taken by the Secretary of State and his inspector."
"It is the business of the Secretary of State, aided by his civil servants, to develop national planning policies and co-ordinate local policies. These policies are not airy abstractions. They are intended to be applied to actual cases. It would be absurd for the Secretary of State, in arriving at a decision in a particular case, to ignore his policies and start with a completely open mind."
"My conclusion as to what the evidence shows in this case is that it indicates that the majority of the district council can only be said to be "biased" in the sense that they are as the respondents' counsel contends "politically pre-disposed" in favour of the development in respect of which planning permission is sought. It has become the Labour group's policy to support the development. It is therefore likely that any Labour member of the planning committee will be more ready to grant planning permission than he would be if the Labour group had remained adverse to the development. But does this have the effect of disqualifying the Labour majority from considering the planning application? It would be a surprising result if it did since in the case of a development of this sort, I would have thought that it was almost inevitable, now that party politics play so large a part in local government, that the majority group on a council would decide on the party line in respect of the proposal. If this was to be regarded as disqualifying the district council from dealing with the planning application, then if that disqualification is to be avoided, the members of the planning committee at any rate will have to adopt standards of conduct which I suspect will be almost impossible to achieve in practice."
Woolf J added, at page 308:
". . . while the Labour majority undoubtedly had a policy, there is no evidence before me on which it would be right to hold that they would not (despite the policy) consider the objections to the planning application on their merits. I would make it absolutely clear that they are under a duty to do so."
"The decision-making structure, the nature of the functions and the democratic political accountability of Councillors permit, indeed must recognise, the legitimate potential for predisposition towards a particular decision."
"The references in the amended statement of claim to a real probability or suspicion of predetermination or bias are beside the point in relation to a decision of this nature at this governmental level. Projects of the kind for which the National Development Act is intended, whether Government works or private works, are likely to be many months in evolution. They must attract considerable public interest. It would be naïve to suppose that Parliament can have meant Ministers to refrain from forming and expressing, even strongly, views on the desirability of such projects until the stage of advising on an Order in Council.
In relation to decisions under s 3(3) I think that no test of impartiality or apparent absence of predetermination has to be satisfied. Any other approach would make the legislation practically unworkable. The only relevant question can be whether at the time of advising the making of the Order in Council the Ministers genuinely addressed themselves to the statutory criteria and were of the opinion that the criteria were satisfied. If they did hold that opinion at that time, the fact that all or some of them may have formed and declared the same opinion previously does not make the order invalid. No doubt, if Ministers had approached the matter with minds already made up, the inference would readily be drawn that they could not genuinely have considered the statutory criteria when advising the making of the Order in Council."
"I hold, therefore, that the principle that a person is disqualified from participating in a decision if there is a real danger that he or she will be influenced by a pecuniary or personal interest in the outcome, is of general application in public law and is not limited to judicial or quasi-judicial bodies or proceedings."
"The decision of a body, albeit composed of disinterested individuals, will be struck down if its outcome has been predetermined whether by the adoption of an inflexible policy or by the effective surrender of the body's independent judgment."
"30. It seems to me, however, that a different approach is required in the light of Porter v Magill. The relevant question in that case was whether what had been said and done by the district auditor in relation to the publication of his provisional conclusions suggested that he had a closed mind and would not act impartially in reaching his final decision: see eg the background set out by Lord Hope at pages 491-492 paras 96-98. Thus it was a case of alleged predetermination rather than one in which the district auditor was alleged to have a disqualifying interest. Yet it was considered within the context of apparent bias, and the decision was based on the application of the test as to apparent bias which I have already set out. There is nothing particularly surprising about this. I have mentioned Sedley J's observation in Kirkstall Valley, as quoted in Cummins, that predetermination can legitimately be regarded as a form of bias. Cases in which judicial remarks or interventions in the course of the evidence or submissions have been alleged to evidence a closed mind on the part of the court or tribunal have also been considered in terms of bias: see eg London Borough of Southwark v Jiminez  EWCA Civ 502,  ICR 1176,  IRLR 477 at para 25 of the judgment, where the test in Porter v Magill was accepted as common ground and was then applied.
31. I therefore take the view that in considering the question of apparent bias in accordance with the test in Porter v Magill, it is necessary to look beyond pecuniary or personal interests and to consider in addition 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. That is a question to be approached with appropriate caution, since it is important not to apply the test in a way that will render local authority decision-making impossible or unduly difficult. I do not consider, however, that the circumstances of local authority decision-making are such as to exclude the broader application of the test altogether . . .
36. Having regard to the objective nature of the question of apparent bias, I do not think that any significant weight is to be attached to the members' own witness statements in which they state that they did approach the planning decision with open minds: cf. per Lord Hope in Porter v. Magill."
"The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility the Tribunal was biased."
"We were referred to various cases in which the distinction has been drawn between a legitimate predisposition towards a particular outcome (for example, as a result of a manifesto commitment by the ruling party or some other policy statement) and an illegitimate predetermination of the outcome (for example, because of a decision already reached or a determination to reach a particular decision). The former is consistent with a preparedness to consider and weigh relevant factors in reaching the final decision; the latter involves a mind that is closed to the consideration and weighing of relevant factors."
"The question is, therefore, whether the reasonable, fair-minded and informed observer would conclude that there was a real risk that Carwyn Jones AM was biased because his mind was closed by his predetermination to endorse the Inspector's Report. That judgment must be made looking at the matter objectively balancing his comments to Mrs Jennie Jones against any contrary evidence."
"30. I confess to some doubt as to this approach, and in particular to what he says in paragraph 36. Councillors will inevitably be bound to have views on and may well have expressed them about issues of public interest locally. Such may, as here, have been raised as election issues. It would be quite impossible for decisions to be made by the elected members whom the law requires to make them if their observations could disqualify them because it might appear that they had formed a view in advance. The decision of the Court of Appeal in Baxter's case, of the New Zealand Court of Appeal in the Lower Hutt case and of Woolf J in the Amber Valley case do not support this approach. Nor is it consistent with those authorities that no weight should be attached to their own witness statements. Porter v Magill was a very different situation and involved what amounted to a quasi-judicial decision by the Auditor. In such a case, it is easy to see why the appearance of bias tests should apply to its full extent.
31. The reality is that Councillors must be trusted to abide by the rules which the law lays down, namely that, whatever their views, they must approach their decision-making with an open mind in the sense that they must have regard to all material considerations and be prepared to change their views if persuaded that they should . . . So it is with Councillors and, unless there is positive evidence to show that there was indeed a closed mind, I do not think that prior observations or apparent favouring of a particular decision will suffice to persuade a court to quash the decision."
"It may be that, assuming the Porter v Magill test is applicable, the fair-minded and informed observer must be taken to appreciate that predisposition is not predetermination and that Councillors can be assumed to be aware of their obligations. In this case, the evidence before me demonstrates that each member was prepared to and did consider the relevant arguments and each was prepared to change his or her mind if the material persuaded him or her to do so. I am not therefore prepared to accept that there was apparent bias or predetermination which vitiated the decision."
"In the circumstances I feel entitled, indeed required, to reach a decision on the issue as raised in this appeal by forming a fresh assessment of my own by reference to the various circumstances that I have mentioned."
The assessment was in my judgment essentially the assessment of the court. While reference was made to the fair-minded observer, the court was putting itself in the shoes of that observer and making its own assessment of the real possibility of predetermination. That, I respectfully agree, is the appropriate approach in these circumstances. The court, with its expertise, must take on the responsibility of deciding whether there is a real risk that minds were closed.
Respondent's Notice Issue
"1. A competent authority, before deciding to undertake, or give any consent, permission or other authorisation for, a plan or project which (a) is likely to have a significant effect on a European site in Great Britain (either alone or in combination with other plans or projects), and (b) is not directly connected with or necessary to the management of the site, shall make an appropriate assessment of the implications for the site, in view of that site's conservation objectives.
2. A person applying for any such consent, permission or other authorisation shall provide such information as the competent authority may reasonably require for the purposes of the assessment.
3. The competent authority shall for the purposes of the assessment consult the appropriate nature conservation body and have regard to any representations made by that body within such reasonable time as the authority may specify.
4. They shall also, if they consider it appropriate, take the opinion of the general public; and if they do so, they shall take such steps for that purpose as they consider appropriate.
5. In the light of the conclusions of the assessment, and subject to regulation 49, the authority shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the European site.
6. In considering whether a plan or project will adversely affect the integrity of the site, the authority shall have regard to the manner in which it is proposed to be carried out or to any conditions or restrictions subject to which they propose that the consent, permission or other authorisation should be given."
Considerations under regulation 49 do not arise.
"3.9 Natural England
Natural England note that the application site is adjacent to South Gare and Coatham Sands SSSI [site of special scientific interest] and Redcar Rocks SSSI. Parts of these SSSI's are also constituent elements of Teesmouth and Cleveland Coast SPA and RAMSAR site [the wetland of international importance]. Initially objected to the scheme but they subsequently advised that following the submission of the revised appropriate assessment, had been able to ascertain that the proposed development would not adversely affect the integrity of the SPA/RAMSAR site and would not be likely to cause damage and disturbance to the SSSI. They therefore advise that they have no objections to the proposed development subject to a number of safeguarding conditions being attached to any approval.
3.10 Royal Society for the Protection of Birds (RSPB)
RSPB also initially expressed concern regarding the possible impact of the development on protected areas. However, as is the case with Natural England, they withdrew their holding objection on the basis that the revised appropriate assessment contained sufficient information regarding the likely impacts on the SPA/RAMSAR site. They also advise that conditions should be attached to any approval (broadly similar to those suggested by Natural England)."
"The site's conservation objectives have been taken into account, and the assessment has concluded that subject to conditions, the proposed development would not adversely affect the integrity of the SPA/Ramsar site and would not be likely to cause damage and disturbance to the SSSI."
Lord Justice Rix :
"The reality is that councillors must be trusted to abide by the rules which the law lays down, namely that, whatever their views, they must approach their decision making with an open mind in the sense that they must have regard to all material considerations and be prepared to change their views if persuaded that they should…[U]nless there is positive evidence to show that there was indeed a closed mind, I do not think that prior observations or apparent favouring of a particular decision will suffice to persuade a court to quash the decision…It may be that, assuming the Porter v Magill test is applicable, the fair-minded and informed observer must be taken to appreciate that predisposition is not predetermination and that councillors can be assumed to be aware of their obligations."
"Closely related to the doctrine of necessity is that which permits decision-makers to exhibit certain kinds of bias in the exercise of their judgment or discretion on matters of public policy. Ordinary members of legislative bodies are entitled, and sometimes expected to show political bias. They ought not to show personal bias, or to participate in deliberations on a matter in respect of which they have a private pecuniary or proprietary interest, but their participation in such circumstances may not in itself affect the validity of a legislative instrument" (at 10-065).
"The normal standards of impartiality applied in an adjudicative setting cannot meaningfully be applied to a body entitled to initiate a proposal and then to decide whether to proceed with it in the face of objections…" (at 10-071).
"Despite the latitude given to policy decisions, it should be remembered that four other principles of public law remain in play. First, the person or tribunal holding an inquiry into the matter may not ignore the other part of procedural fairness, namely, the granting of a fair hearing…Secondly, the "no fettering doctrine" would apply. The policy could therefore not be applied rigidly, and the decision-maker will still be required not to shut his ears to someone with something new to say…Thirdly, the body will not be able to pursue powers outside the statutory purposes conferred upon it…Fourthly, it is no longer the case that the full rigours of procedural safeguards are reserved only for decisions that are "judicial"..." (at 10-073/075).
Lord Justice Longmore:
"the decision of a body, albeit composed of disinterested individuals, will be struck down if its outcome has been predetermined whether by the adoption of an inflexible policy or by the effective surrender of the independent body's judgment."
It is these words on which Mr Drabble chiefly relied to submit that, in cases of predetermination, there is no room for a doctrine of apparent predetermination. In context, Sedley J had no need to consider appearances; he was only concerned with actuality. But I do not think he meant to indicate by the words he used that only actual predetermination would vitiate a decision. This is an area of the law where appearances matter and Kirkstall is not a decision that in this area they do not.
"What can properly be inferred is that when the question arose in April 1981 the Government was already clearly in favour of the company's project and highly likely to decide in favour of an Order in Council.
But it is fallacious to regard that as a disqualification. The reference in the amended statement of claim to a real probability or suspicion of predetermination or bias are beside the point in relation to a decision of this nature at this government level …
In relation to decisions under section 3(3) I think that no test of impartiality or apparent absence of predetermination has to be satisfied. Any other approach would make the legislation practically unworkable."
Planning decisions entrusted to a local authority are very different from Ministerial decisions taken by Government and I do not consider that authorities relating to apparent predetermination in that latter context can automatically apply to the former context, since the risk of bias is institutionally present and permitted to be so by the relevant legislation. CREEDNZ is very similar to Alconbury and cannot carry Mr Drabble home in the present case.