Case No: C1/2008/2968&A

Neutral Citation Number: [2009] EWCA Civ 863
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
(MR JUSTICE COLLINS)

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Friday, 24th June 2009

Before:
LORD JUSTICE MUMMERY
LORD JUSTICE SULLIVAN
and
LORD JUSTICE PATTEN

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Between:

	THE QUEEN on the application of SECRETARY OF STATE FOR COMMUNITIES 
AND LOCAL GOVERNMENT	
Appellant	
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ORTONA LTD	

Respondent	

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(DAR Transcript of 
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No:  020 7404 1400  Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
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Mr P Brown QC & Mr R Honey (instructed by the Treasury Solicitor) appeared on behalf of the Appellant.
Mr D Kolinsky (instructed by Mills and Reeves LLP) appeared on behalf of the Respondent.
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Judgment
Lord Justice Sullivan:

Introduction
1.	This is an appeal by the Secretary of State for Communities and Local Government (“the Secretary of State”) against the order of Collins J, dated 18 November 2008, allowing the first respondent’s application under section 288 of the Town and Country Planning Act 1990 (“the 1990 Act”) and quashing a decision dated 23 August 2007 by an inspector appointed by the Secretary of State dismissing the first respondent’s appeal under section 78 of the 1990 Act against the second respondent’s refusal to grant planning permission for the “demolition of existing buildings and erection of mixed-use scheme”, comprising one retail unit and 12 flats on the site of a former bus station at the corner of Prince of Wales Road and Cadogan Road in Cromer.  

2.	The second respondent’s refusal notice said that the following policy statements in the transport chapter of the Norfolk Structure Plan, which was adopted in 1999, were relevant: Policy T.1, which deals with overall strategy; Policy T.2, which deals with redevelopment; Policy T.5, which is concerned with public transport and policy; and Policy T.6, which deals with special needs.  Policy 135 dealing with bus services in the North Norfolk Local Plan which was adopted in 1998 was also said to be relevant.  The refusal notice continued:

“In the opinion of the Local Planning Authority the redevelopment of the bus station for housing and retail use as proposed does not incorporate adequate replacement provision for public transport. In the absence of such alternative provision, the proposed development would result in the unacceptable loss of existing public transport infrastructure and would conflict with the aims and objectives of the above Development Plan policies and with the relevant governing guidance in PPG 13 “Transport.”

3.	The appeal was dealt with by way of a hearing followed by a site visit.  Prior to the hearing, both the first respondent and the second respondent provided written statements in accordance with the Town and Country Planning (Hearings Procedure) (England) Rules 2000.  Paragraphs 5.0 and 6.0 of the second respondent’s statement of case said:

“Main issues  
The main issue which led to the refusal of planning permission is that the proposal involves the loss of the town’s bus station and makes no acceptable alternative provision for public transport.  This issue will be addressed in a comprehensive statement by the Norfolk County Council as highway authority.  

Planning considerations
It will be clear from the agreed issues that the council’s main concern is that the relevant of this site will necessarily involve the loss of the existing bus station.  This is currently closed and the highway authority statement to draw attention to the highway safety problems which this produces particularly for pedestrians and other vulnerable road users.  Government advice, Structure plan policies and open plan policy all seek to encourage the provision of and a modal shift to public transport.  It is the essence of the case against the proposal that in the absence of any acceptable alternative provision for bus station the proposal will reduce the appeal and ease of use of public transport, and hence the likely level of use and furthermore will increase highway dangers elsewhere in the town.  The proposal would therefore be in direct conflict with structure and local plan policies.”

4.	In its pre-hearing statement, the first respondent did not contend that acceptable alternative provision for the bus station was unnecessary.  The first respondent’s statement was in two parts.  Paragraph 6.2 in part 1 said:

“Part 2 of the statement will show a strategy can be implemented that provides for passenger access to bus services either with a replacement facility at Cadogan Road car park, or using on-street bus stops.  It will show this can be effective in providing safe and attractive conditions for passengers and hence contribute to the promotion of sustainable transport, overcoming the reasons advanced for refusal.”

5.	Part 2 of the statement was a report by Atkins Highways and Transportation.  Paragraphs 6.2 and 6.3 of the Atkins report concluded that:

“6.2 A strategy that provides for passenger access to bus services either with a replacement facility at Cadogan Road car park, or a strategy that relies on on-street bus stops, can be effective in providing safe and attractive conditions for the passengers and hence contributing to the promotion to sustainable transport… 

6.3 An “all on street” strategy can be made to be just as satisfactory in meeting national, regional and local transport and planning policy, and can support the role of the bus in promoting sustainable transport…”

6.	In paragraph 1.1 of part 1 of its pre-hearing statement the first respondent said that:

“Ortona owns the appeal site.  They are a private company following a management buy out from the National Bus Company in the mid 1980’s.  In 1992 a lease was agreed with First Bus for their exclusive use of the site (excluding the building) until June 2007.  In early 2006, First Bus confirmed that they no longer required the site for commercial or operational reasons and voluntarily relinquished their lease at the end of March 2006 (one year before the lease was due to expire).”

The inspector’s decision letter.  
7.	Against this background, the inspector said in paragraph 1 of the decision letter that the main issue was:

“…the effect of the proposed development on public transport, highway safety and the free flow of traffic in Cromer town centre.”

Having described the site and the appeal proposal, the inspector said this in paragraph 5 of the decision letter:

“A similar planning application to the appeal scheme was refused in 2005 on the grounds that the proposal did not incorporate adequate replacement provision for public transport.  At that time the site was being used by buses.  However, in March 2006 First Bus voluntarily surrendered their lease for commercial reasons and in April 2006 ceased to operate from the site.  Other operators, particularly Norfolk Green and Sanders, had made significant use of the site but, not being a party to the lease, had no entitlement to run buses from there.  They also ended their operations from the site and so no buses have been using facilities since that time.  There are now barriers in place preventing vehicle access to the site.”

8.	The inspector considered the first respondent’s case that an acceptable alternative provision could be made for the bus station, either by using on-street bus stops or by a replacement facility on the Cadogan Road car park site, in paragraphs 11 to 13 of the decision letter.  In paragraph 13, drawing the threads together, the inspector said:

“13 In my view, the existing on-street operation falls considerable short of an adequate replacement for the facilities that were available on the site.  Improvements on-street would not make us this deficiency, and neither these nor the possible alternative site have established funding.  The appellants contend that the appeal site is no longer a bus station and that it was the operators’ choice to cease using it.  They consider that if the appeal was dismissed the use would not resume and the site would remain vacant.  However, no direct evidence was provided by any of the operators of the circumstances that led to closure or on whether there would be conditions in which those could resume.  Support from operators would be necessary if an alternative site were to be taken forward.  There are examples of towns without bus stations but conditions for public transport operations would vary according to local circumstances.  In my experience small bus stations or interchanges of the kind provided on the appeal site are not uncommon in towns such as Cromer and are used by operators.  I consider that such a facility here is of particular benefit to tourists and visitors as it provides a recognisable focus for bus services for those who are unfamiliar with routes through the town.”

9.	Pausing there, it is clear that the inspector rejected the case that was being made by the first respondent in its pre-hearing witness statement.  The inspector was entitled to conclude that the existing on-street provision was inadequate and that improvements on-street would not make up for this deficiency.  He was also entitled to conclude that, in the absence of secure funding, the Cadogan Road car park site was not an acceptable alternative provision.  It follows that he was entitled to conclude, in paragraph 14 of the decision letter:

“Planning Policy Guidance Note 13: Transport (PPG 13) seeks to maximise the potential usage of public transport.  The established bus station use of the site would be lost if the appeal were allowed.  I consider that this would be a significant retrograde step unless it was clear not only that the facilities could be provided elsewhere but also that there was funding to achieve this.”

10.	Having said that material harm to highway safety had not been demonstrated, although it was likely that there would be some adverse effect on the free flow of traffic on certain roads within Cromer, the inspector said, in paragraph 15 of the decision letter:
“However, my overriding conclusion is that there would be significant detriment to public transport.  The proposal would therefore conflict with the aims of Norfolk Structure Plan Policies T.1, T.2, T.5 and T.6 and North Norfolk Local Plan Policy 135, which seek to promote public transport.”

11.	There can be no doubt that the policies cited by the inspector do indeed seek to promote public transport.  Policy T.1 explains that the:

“transport strategy is to: 

adopt an integrated approach to transport planning which encourages a modal shift to public transport, cycling and walking…”

Policy T.2 advises developers that they will be:

“required to address the transport consequences arising from their proposals.”

Policy T.5 is of most relevance for present purposes.  It provides that:

“A modal shift from private car to public transport will be encouraged by… 

(xi) identifying and protecting sites for bus stations and park and ride sites.”

12.	The explanatory text in paragraph 6.18 of the Structure plan includes the following:

“Public transport can play a greater role in meeting tourist traffic demand.  During summer months the number of visitors means that additional services are viable.  Initiatives therefore need to be undertaken which ensure services linking tourist destinations exist and visitors are aware of, and attracted to, the public transport service.”

Pausing again, the inspector’s conclusion of the final sentence of paragraph 13 of the decision letter that the bus station was of particular value to tourists because it provided a recognisable focus for bus services for those unfamiliar with Cromer is a reflection of the explanatory text to policy T.5. 

13.	Policy T.6 seeks good accessibility for all sections of the community.  The explanatory text refers to those without access to a car and those who have difficulty in getting about due to old age etc and says that “better provision of public transport would assist these groups”.  Policy 135 in the Local Plan seeks “the retention and improvement of local bus services”.  The inspector was entitled to conclude that the loss of the established bus station use of the site would, in the absence of alternative provision elsewhere, be contrary to the aims of these policies.  

14.	In paragraph 16 of the decision letter, the inspector noted that it was common ground between the parties that the proposals would enhance the character of the Cromer Conservation Area and would protect the setting of the adjacent old town hall, which is a Grade II listed building.  He concluded that there would be no harm to either the conservation area or the listed building but said:

“the absence of harm in this respect would not outweigh my conclusion on the main issue.”

The main issue was of course the transport policy objection that he had identified in paragraph 15 of the decision letter.  

The Judgment of Collins J
15.	Collins J allowed the first respondent’s application on two grounds.  Firstly the inspector had failed properly to grapple with the issue whether there was a “realistic possibility of further use [of the appeal site] as a bus station” (“the re-use issue”): see paragraphs 33 and 34 of the judgment.  Secondly, while there was no suggestion of actual bias on the part of the inspector there was a possibility of apparent bias (“the bias issue”).  As Collins J put it, in paragraph 52 of his judgment:

“But it seems to me in all the circumstances that it cannot possibly be said that this was not the situation where there was, in terms of the approach which we now have to take, a possibility of a reasonable, informed observer taking a view that there was a possibility of bias.”

The Grounds of Appeal
16.	On behalf of the Secretary of State Mr Brown QC submitted that Collins J had erred in his approach to both the re-use and bias issues.  In a nutshell, the judge had strayed into assessing that matters of planning judgment when deciding the re-use issue and he had applied an unduly relaxed test for determining the bias issue.  He had not asked in respect of the latter issue whether the circumstances were such as to lead a reasonably informed observer to the conclusion that there was a real possibility of bias but, rather, whether the possibility that such an observer would conclude that there was a possibility of bias could be excluded: see paragraph 52 of the judgment above.  Even if Collins J had applied the correct test, Mr Brown submitted that he had reached the wrong conclusion: and a reasonably informed observer would not have concluded that there was a real possibility of bias in this case.  

Discussion and Conclusions
Re‑use
17.	I can deal relatively briefly with the issue.  In his skeleton argument on behalf of the first respondent, Mr Kolinsky set out the sentence in paragraph 13 of the decision letter:

“The appellants contend that the appeal site is no longer a bus station and that it was the operators’ choice to cease using it.  They consider that if the appeal was dismissed the use would not resume and the site would remain vacant.”

He described this as:

“the basic point made on behalf of the first respondent that no harm resulted from the proposed development because the bus station was not in use and its use would not be reinstated” (emphasis added).

Mr Kolinsky then submitted that the inspector had failed to address this “fundamental point”.  The inspector had simply recorded in the next sentence in paragraph 13 of the decision letter:

“However, no direct evidence was provided by any of the operators on the circumstances that led to closure or on whether there would be conditions in which those could resume.”

Thus, it was submitted, the inspector did not make any finding as to the possibility of the previous use as a bus station resuming.  

18.	It is important to bear in mind that, in his decision letter, the inspector was not writing a thesis on the circumstances in which it is or is not proper to have regard to the possibility or the probability that an established use might resume on a hypothetical site.  He was responding to the evidence and submissions as they were deployed prior to and at the hearing.  He had to determine the appeal in accordance with the development plan unless material considerations indicated otherwise: see section 38(6) of the Planning and Compulsory Purchase Act 2004 (“the 2004 Act”).  Having concluded that the loss of the established bus station on the appeal site would, in the absence of a secured alternative off-street replacement facility, be contrary to the aims of the structure plan policies, including policy T.5 referred to in paragraph 15 of the decision letter, the inspector would therefore have refused planning permission unless material considerations indicated otherwise.  It will be remembered that the first respondent did not contend that there was no need for a replacement facility.  Its case, which was not accepted by the inspector, was that such a replacement could be provided either on-street or at Cadogan Road car park site.

19.	If there was no realistic possibility of a resumption of the established bus station use of the appeal site, that would potentially have been a material consideration indicating that planning permission should nevertheless be granted.  But the first respondent had not contended in its pre-hearing witness statement that there was no such possibility.  The only information provided relevant to this issue was that contained in paragraph 1.1 of its pre-hearing statement: see above.  If the proposition that the use of the bus station had not merely ceased but would not be reinstated had been the first respondent’s “basic point” or “the fundamental point”, one would have expected to see the point articulated in the first respondent’s pre-hearing statement.  Mr Kolinsky fairly conceded that that point emerged only during the course of the hearing.  That concession is plainly correct, because all that Mr Scales, the first respondent’s planning consultant, who appeared on its behalf at the hearing, says about this matter in his witness statement is:

“The Claimant’s position during the appeal, as recorded in paragraph 13 of the Inspector’s decision was that the bus station use of the site had ceased and that if planning permission was refused, it would not resume.”

20.	It will be noted that Mr Scales does not suggest that any evidence was relied upon to support the first respondent’s “position” at the hearing.  On a fair reading of paragraph 13 of the decision letter, the re-use point was no more than a bare assertion by the first respondent which the inspector did not accept because it was unsupported by any evidence: “However, no direct evidence was provided by any of the operators…”.  For good measure, a little later on in paragraph 13 of the decision letter, the inspector added the observation that, in his experience, small bus stations or interchanges of the kind provided on the appeal site were not uncommon in towns such as Cromer and were used by operators.  The inspector was writing his decision letter for an informed audience.  He did not need to spell out the obvious and add that no evidence had been produced that this could not be the position with this former bus station in Cromer.  Whatever the position may be in other cases, the question of re-use was in issue given the development plan policy background to this case (no loss of the existing bus station unless there was a replacement facility).  It was therefore incumbent on the first respondent to persuade the inspector not merely that the established use as a bus station had ceased but that there was no realistic possibility of it resuming.  The respondent failed to do so because, although it belatedly asserted that the use would not resume, it produced no evidence in support of that assertion and preferred instead to rely on the possibility of a replacement facility either on-street or at the Cadogan Road car park, both of which the inspector rejected.  

21.	For these reasons, I am satisfied that the inspector did properly grapple with the re-use issue and there was no reason to quash his decision on this ground.  Of course, the transport policy objection was not necessarily decisive.  The inspector had to consider other material factors, including the alleged advantages of the proposal in respect of the conservation area and the setting of the listed building, and see if they outweighed the policy objections.  That he did, in paragraph 16 of the decision letter: see above.

22.	This leads me to the bias issue.  Town and country planning is a relatively small profession.  Mr Scales, the first respondent’s planning consultant, is a former employee of the South Norfolk District Council.  He realised that the inspector who had been allocated to determine the appeal, Mr Moore, was a former employee of the Norfolk County Council with whom he had had professional contact in the past.  He therefore telephoned the Planning Inspectorate to query the choice of inspector in view of the inspector’s previous employment.  The  Inspectorate took the matter up with Mr Moore and he replied that “there was no prejudice in me continuing to deal with the case”.  Mr Moore made the valid point that:

“Planning is a small world and it is inevitable that you come across people you have known before.”

The  Inspectorate telephoned Mr Scales and told him that Mr Moore would continue to deal with the appeal.  Details of the exchanges between Mr Scales Mr Moore and the Inspectorate are set out in paragraphs 35 to 39 of the judgment of Collins J.  It is unnecessary to repeat them in this judgment because matters have moved on since this issue was considered by Collins J.
 
23.	In the Secretary of State’s grounds of appeal and skeleton argument, it was contended that the practical effect of the judgment of Collins J would be to place additional administration burdens on the Planning Inspectorate (“PINS”) in dealing with the appointment of planning inspectors and that it would also considerably limit the cases with which inspectors could properly deal.  This could have adverse consequences.  For example, it could mean that appeals would be delayed due to a lack of suitable inspectors.  When granting the Secretary of State permission to appeal on the papers, I observed that the case raised issues of wider practical importance for the Planning Inspectorate.  At the outset of the hearing of this appeal, we gave the Secretary of State permission to rely on new evidence in the form of a witness statement dated 27 March 2009 of Leonora Rozee, the Deputy Chief Executive, Director of Policy, Quality and Development Plans and Head of Profession with the Planning Inspectorate.  Ms Rozee was for a further 18 years a planning inspector and prior to that was head of development control in a number of local authorities.

24.	Her evidence deals with two principal matters.  Most of her witness statement is concerned with the practical effects of the judgment if it was to be interpreted as excluding from determining appeals inspectors who had worked for any plan-making body which is participating in an appeal, where the appeal involves consideration of policy made by that body which was in existence at the time of the inspector’s employment with that body.  The very real problems that such a “broad brush” approach to apparent bias would cause in the “small world” of planning, where planning inspectors are largely drawn from those who have worked in the planning profession and where most inspectors will have worked for an authority at some stage of their career, and most indeed will have probably worked for more than one authority, are set out in some detail in Ms Rozee’s witness statement.  It was clearly in the public interest and the interests of justice that the evidential basis for the concerns that had been expressed in the Secretary of State’s grounds was before the court.  

25.	Secondly, in response to the comments of Collins J at paragraph 48 of his judgment, Ms Rozee’s witness statement provided more information on Mr Moore’s professional background and experience as an inspector.  In paragraph 48 Collins J had said:

“It is true that the situation here is that the inspector had not been employed by the authority for some four years or so.  On the other hand, the highways issues, the policies relied on, were county council policies and they were policies which were in being at the time the inspector was working for the council.  In those circumstances it is at least possible, perhaps probable, that he had concerned himself with such policies.  He certainly does not say that he had not.  In dealing with the concern raised by Mr Scales, someone ought to have considered the possibility of apparent bias.  That does not seem to have happened.”

26.	Ms Rozee says in paragraphs 23 and 24 of her witness statement:

“23. The Inspector worked for Norfolk County Council from 1975 to 2003.  His main responsibility was planning policy, and he was involved with the county structure plan throughout this period.  From 1994 he was also responsible for transport planning, including the local transport plan.  From around 2000 he was also responsible for development control matters relating to highways.

24. When the Inspector joined the Planning Inspectorate in March 2003 it was decided that he should not participate in planning appeals in Norfolk, because of his employment with the county council.  This was reviewed in early 2005, some two years later, and it was then decided to change the position so that the inspector was able to take cases in Norfolk, save for the district in which he lives and another district council in Norfolk where he has a personal connection to a planning officer.  This was because of a combination of the passage of time and the Inspector’s previous role at the county council not including mainstream development control matters.  Such reviews of preclusions are regularly carried out by inspectors and their line managers, in order to ensure that inspectors can be deployed properly and effectively.”

27.	In paragraph 25 of her witness statement, Ms Rozee gives information about the number of appeals that the inspector has conducted in Norfolk.  In one of those appeals, where the sole objection was one of highway safety, the inspector had allowed the appeal despite the fact that the county council was objecting to the development.  In another appeal the inspector had recused himself because the planning officer who would have accompanied him on a site visit was not merely a professional colleague but a friend.  While these details are of some interest, it is important to bear in mind at all times that there is no suggestion of actual bias in this case.  The question is whether the fair-minded observer, having been informed of all the circumstances including the information that has now been provided by Ms Rozee in paragraphs 23 and 24 of her witness statement, would conclude that there was a real possibility that this inspector was biased in this particular case.  The real possibility of bias can be a real possibility of bias that is either conscious or unconscious: see Nawal v Northern Spirit [2003] UKHL 35; [2004] AER 187 per Lord Steyn at paragraph 14.  

28.	Mr Kolinsky submitted that, in the circumstances of the present case, the fair-minded observer would have concluded that there was a real possibility of unconscious bias on the part of this inspector, effectively “in favour” of the transport policies for which he had been responsible in both his policy-making and the relevant control roles over many years with the county council.

29.	Mr Brown submitted that the fair-minded observer would not have concluded that there was such a possibility.  Such an observer would have known that planning is a small world, where past professional connections would not be in the least unusual and where most inspectors will have previously worked for local authorities.  The observer would also know that inspectors are independent of both planning authorities and work in accordance with a code of conduct which commits them to making decisions impartially and in the public interest.  As professionals, inspectors would be well aware of their responsibilities in this regard.  The Planning Inspectorate publishes descriptions of those categories of cases which inspectors should not take in order to avoid a conflict of interest.  Those categories include, for example, appeals in the local planning authority area in which the inspector lives.  The present case does not fall within any of the proscribed categories.  

30.	Mr Brown also made the point that the transport policies in question in this appeal were framed at the strategic rather than the local level.  Thus, this was not a site-specific policy in respect of the preservation of a bus station use on this particular appeal site.  In large measure Norfolk County Council’s transport policies were simply a reflection of national transport policy to be found in PPG 13.  Thus the policies in question were not in any real sense a reflection of the inspector’s personal or professional views as a policy-maker with the county council, but rather the translation of national policy, in a fairly predictable way, to county level.  The policies in the structure plan were in any event those of the county council rather than any particular officer.  

31.	Mr Brown also submitted that consideration had been given by the Planning Inspectorate to the question whether, given this inspector’s professional background, he should deal with appeals in Norfolk, and it had been felt that after two years he could properly do so.  Mr Brown emphasised the fact that by the time of the appeal in 2007 it had been four years since the inspector had been employed by the county council so that, in the context of the authorities dealing with apparent bias, some of which are concerned with current employments or associations, this was a considerable period of time.  

32.	At first sight there is force in Mr Brown’s submission that Collins J did not apply the correct test in paragraph 52 of his judgment.  Mr Kolinsky referred to paragraph 43 of the judgment, which both parties accepted sets out the correct test and submitted that the Secretary of State was simply seizing on an unfortunate lapse in an extempore judgment.  It is unnecessary, in my judgment, to resolve that issue, because the real question for this court is whether the fair-minded observer, on the information now available, including in particular the information in Ms Rozee’s witness statement would conclude that there was a real possibility of bias.  Notwithstanding Mr Brown’s valiant attempt to persuade me to the contrary, I am satisfied that the answer to this question must be in the affirmative.

33.	Mr Brown referred us to a number of authorities.  For my part I did not find those authorities to be of material assistance because they demonstrated that each “bias” case must turn upon its own particular facts and the whole of the surrounding factual context must be considered.  The inspector in the present case had worked for Norfolk County Council for very many years from1975 to 2003.  In my view that would not in itself have been sufficient to give rise to any real fear of apparent bias.  Nor would the fact that the inspector had been involved at some unspecified level with structure plan policies generally, which would necessarily have included transport policies.  What is of critical importance in the present case is the inspector’s responsibility within the county council for transport planning, including the local transport plan, in which capacity he would have been responsible for the formulation of the transport policies in issue in the appeal, although of course I acknowledge that the policies were those of the county council rather than any individual planning officer.  This responsibility for transport policy formulation was coupled with his responsibility for the practical application of those policies at local level as the officer responsible for development control matters relating to highways.  This was not a planning officer who had been peripherally involved with the policies in issue in this appeal.  He had been directly responsible for the formulation and implementation of those policies.

34.	It is, in my judgment, significant that the Inspectorate understandably took the view that, given this particular inspector’s long involvement with Norfolk County Council, he should not deal with any appeals in Norfolk when he joined the Inspectorate.  That position was reviewed in 2005 after a period of two years, but it is important to note that the change of position was not based simply on the lapse of time.  It was also based on the fact that the inspector’s role of the county council did not include “mainstream development control matters”.  It is clear that Ms Rozee is distinguishing in her witness statement between “mainstream development control matters”, for which the inspector did not have responsibility and “development control matters relating to highways”, for which the inspector did have responsibility from around 2000 until he retired from the county council’s service in 2003.  The problem in the present case is that this particular appeal was not concerned with “mainstream development control matters” as described by Ms Rozee; it was concerned with the very policy area of transport planning, for which the inspector had been responsible at the county council.  That was, or should have been, apparent to all concerned well before the start of the hearing.  I have already referred to the pre-hearing statement from the second respondent which made it plain that the transport policy objection of the loss of the bus station was not merely the main issue, but that the main issue would be addressed in a comprehensive statement by the Norfolk County Council as highway authority.  That should have set alarm bells ringing at PINS.  I have also referred to paragraph 16 of the decision letter, from which it is clear that the decision in the appeal ultimately turned on the weight that was to be attributed to the conflict with the transport policies for which the inspector had been responsible, both as a policy-maker and when dealing with development control matters whilst in the employ of the county council up to 2003.  

35.	In these circumstances, the fair-minded observer would have concluded that there was a real possibility that this particular inspector, by reason of his particular professional experience within the county council, would, albeit unconsciously, attach undue weight to those policies.  I would emphasise that, for my part, the decision in this case turns very much upon these particular facts.  I entirely accept the evidence of Ms Rozee as to the very real practical problems that would ensue if a much broader brush approach was taken and an inspector who had worked for any plan-making body which was participating in an appeal where the appeal involved consideration of any policy made by that body which was in existence at the time of the inspector’s employment with that body would automatically exclude the inspector from being able to determine the appeal.  

36.	The question is not a mechanistic one to be answered simply by asking: How many years ago did the inspector leave the authority?  A number of factors may well be relevant.  The seniority, for example, of the inspector within the authority.  Was he the county planning officer?  Was he a lowly planning assistant?  How long was he involved with policy formulation?  To what extent was he involved?  Was it merely part and parcel of a much broader role within the authority concerned or was he directly responsible for that area of policy?  These and other factors will all be relevant.  I recognise that these are matters which PINS will have to consider on a case by case basis, but it does not seem to me that this will impose an undue burden.  After all, it is plain from Ms Rozee’s witness statement that these cases are considered individually.  

37.	I have already mentioned that the Inspectorate took the view that in this particular case, no doubt given this inspector’s long service with Norfolk County Council, that it would not be appropriate for him to deal with any appeals within Norfolk for a period of two years after his appointment as an inspector.  According to the guidance he should not have dealt with appeals in the district within which he lived, but the Inspectorate very wisely took account of the particular circumstances of his case and imposed a more extensive ban.  

38.	For the sake of completeness, I should mention that Mr Brown submitted, first, that there had been no objection on the part of Mr Scales.  He had merely raised a concern and, secondly, he submitted that even if there had been an objection there had been a waiver of that objection.  So far as those matters are concerned I would reject the Secretary of State’s submissions for the reasons given by Collins J in his judgment.  I think it unnecessary to repeat them.  I would simply add that, even if there had been a waiver, which there was not, the waiver would not have been effective because Mr Scales would not have been aware of the highly material information that has been provided by Ms Rozee in her witness statement, which dealt with the extent to which this particular inspector was directly responsible for the formulation and implementation of the relevant transport policies within the county council. 

39.	For these reasons, I would dismiss the Secretary of State’s appeal on the apparent bias issue.

Lord Justice Patten:

40.	Cases on bias are necessarily highly fact-specific.  Although a period of four years since leaving the employment of the county council might in some cases have been sufficient in itself to exclude any real possibility of bias on the part of the inspector from the mind of the fair minded and impartial observer, I agree that the close involvement of the inspector with the formulation and implementation of the county council’s transport strategy puts this case into a special category.  

41.	I would therefore dismiss the appeal for the reasons which Sullivan LJ has given.

Lord Justice Mummery: 

42.	I agree with both judgments and would add only this:  the most recent case of apparent judicial bias in the crop of cases in the House of Lords is that of Helow v SSHD [2008] UKHL 62; [2008] 1 WLR 2416.  In his opinion Lord Hope referred to the “fair-minded and reasonable observer” who has been mentioned by Sullivan LJ and is called upon in cases when it is necessary to decide whether there was a real possibility of bias in a particular case.  In paragraph 3 of his opinion Lord Hope said that the fair-minded and reasonable observer would appreciate that the context forms an important part of the material that has to be considered in deciding whether there is a real possibility of bias.  

43.	Our decision in this case is on the context in which Mr Moore, the inspector, gave his appeal decision in his letter of 23 August 2007.  In my judgment, the context in this case is the most important part of the material that has to be considered in approaching the question of the real possibility of bias.  As regards the context, I agree with everything that Sullivan LJ and Patten LJ have said about the circumstances in which it is alleged that the possibility of bias existed.  

44.	For the reasons given in all our judgments, therefore, this appeal is dismissed on the apparent bias point.  As Sullivan LJ mentioned in his judgment, we gave permission for fresh evidence to be adduced on the appeal in the form of the witness statement of Ms Rozee, so that should be included in the order.

Orders: Appeal dismissed (2968); application to adduce fresh evidence allowed (2968A); permission to appeal to House of Lords  refused