QUEEN'S BENCH DIVISION
B e f o r e :
(Sitting as a Deputy High Court Judge)
|THE QUEEN ON THE APPLICATION OF THE PARTINGDALE LANE RESIDENTS' ASSOCIATION||(CLAIMANT)|
|BARNET LONDON BOROUGH COUNCIL||(DEFENDANT)|
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(Official Shorthand Writers to the Court)
MS LIEVEN (HEARING) AND MR E ROBB (JUDGEMENT) (instructed by the Borough Solicitor, Barnet Borough Council) appeared on behalf of the DEFENDANT
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"Partingdale Lane is a pleasant country lane, a little over half a mile long, bordered by fields and woods along part of its length. It is in the Green Belt. Along other parts of the lane there are houses. The houses are built on the edge of the lane and we step from our houses into the lane. The carriageway is approximately 4.5 metres wide. There are no footways. A number of attractive trees and bushes grow at the edge of the road. There are horse riding stables at the eastern end of the lane ... "
It is also helpful to set out what Mr Cunningham, acting chief highways manager for the defendant, says in his witness statement on this question at paragraph 14:
"Historically Partingdale Lane has been a main route, and part of the direct route, between Finchley and Mill Hill. The nature of the road is prominently [I think he may mean predominantly] rural. It has approximately 17 residential properties along its length of about 915 metres. It is therefore not a predominantly 'residential' road. In these respects Partingdale Lane is an appropriate route for vehicles travelling between the two areas and the traffic using the road could not be classed as 'rat running'. It is quite different from traffic diverting through wholly residential streets."
" ... The Council's Public Works Committee Report dated 25 November 1997 indicated that some 500 vehicles in the morning peak period [that is 8 to 9am] would be diverted from Partingdale Lane by its closure with some 300 being displaced on to Frith Lane. Post closure surveys in June 1997 showed that the actual increase on Frith Lane was between 200 to 250 vehicles. However, there is no evidence to show that any of the displaced traffic ceased to exist and the remainder of the additional traffic will have diverted onto other local routes including Totteridge Lane, Nether Street and Ballards Lane which were, and remain, heavily congested in peak periods. From the information available it is not possible to assign traffic flows diverted to other local routes. However, it is evident that the displacement of traffic from Partingdale Lane is onto other heavily trafficked roads, thereby exacerbating congestion in the area."
"2. Barnet Council has operated Executive arrangements under the Local Government Act 2000 since May 2001. The Executive is the Leader and a Cabinet of 9 councillors appointed by the Annual Council meeting in May.
"3. Schedule 1 to the Local Authorities (Functions and Responsibilities) (England) Regulations 2000 specifies the functions that are not to be the responsibility of a local authority's Executive. That Schedule does not include the closure or reopening of highways. That function is therefore the responsibility of the Executive by virtue of Section 13(2) of the Local Government Act 2000. [I should interpose that it was common ground between the parties before me that Mr Goddard was correct to describe the function in issue as an executive function]
"4. Under Section 15 of the Local Government Act 2000 Executive functions may be exercised by:
• the executive
• any members of the executive
• any Committees of the executive
• any officers of the authority.
The Leader of the Council may discharge any Executive function or may arrange for the discharge of a function by any body or person set out above. The arrangements must be submitted to the annual meeting of the Council and set out in the Council's Constitution. The Executive arrangements in Barnet Council are set out in Part 3, Section 3 of the Constitution ... [I will have need to refer to that in due course]
5. These arrangements provide for Councillor Brian Coleman to be the Cabinet Member for Environment. His responsibilities are set out in Part 3, paragraph 3.2 of the Constitution ... and are:
'to lead on budget, policy formulation and implementation on environmental and safety issues. In particular, a healthy environment, street based services, highways and parking provision, and private sector rented housing.'" [Emphasis added]
"3. In May 2002 following the Local Elections a new political administration took control of the Authority, this included the establishment of a new Cabinet.
4. Cabinet Member portfolios were identified immediately following the election results, which included Councillor Brian Coleman as lead Cabinet Member for the Environment which included highway and traffic matters.
5. Following the appointment of the Cabinet early meetings were held with Chief Officers and Cabinet to identify the new Administration's priorities and start to establish work programmes.
6. Included within the priorities of the new Administration was a proposal to reopen Partingdale Lane."
"Recommendation/Conclusions (for decision by the Committee)
That the Acting Head of Planning, Highways and Design be instructed to:
(i) prepare and advertise the necessary draft traffic orders for the re-opening of Partingdale Lane and the 3.5T weight limit detailed in this report and
(ii) carry out any necessary consultations for the changes, resolve any objections to the traffic orders with the Chairman of the Planning and Environment Committee and the Hendon, Chipping Barnet and Finchley and Golders Green Area Environment Sub-Committee Chairmen before implementing any resultant changes."
"7. To progress this matter a report was required seeking authority to establish appropriate traffic orders. The first draft of this report, produced in June 2002, was intended to go to the Cabinet for decision. However the committee clerks determined that this was the wrong approach under the Council's new Constitution, which came into effect in the Summer of 2001 and suggested that the Area Environment Sub-Committee or the Planning and Environment Committee would be the appropriate forum to consider the report.
8. I decided that a report to the Planning and Environment Committee was more appropriate given that I considered the traffic effects of a re-opening would have an impact on more than one of the three Area Environment Sub-Committees. The Area Environment Sub-Committees operate on strict geographical boundaries defined by a specific schedule of political wards and Partingdale Lane is very close to the boundary between the Hendon area in which it sits and the Chipping Barnet area and, in fact, is reasonably close to the Finchley and Golders Green area. The effects of the re-opening or continued closure of Partingdale Lane would go well beyond the Hendon area.
9. A further factor which swayed me to use the Planning and Environment Committee and not the Area Planning Sub-Committee was the experience I had had previously in Barnet where two identical reports were presented to two separate Area Environment Sub-Committee meetings which took place at the same time, but in different parts of the Borough, considering decisions over a traffic scheme that encompassed both Area Environment areas. This was a problematic process which produced different decisions from both meetings which then required significant work to correct and ultimately was not satisfactory. I therefore did not want the report to go to two area sub-committees."
"10. A report was drafted to present to the August meeting of the Planning and Environment Committee and was published with the agenda. About a week before the meeting was due to take place the Head of Committee Administration [that is Mr Goddard] advised that he considered this to be an incorrect route under the new Constitution. This was because he took the view that the decision in question was not a 'Council function' within the meaning of the Local Government Act 2000, and therefore could not be dealt with by the Committee. He further advised there were three potentially correct routes. These were (1) the Area Environment Sub-Committee (this, of course, was already considered inappropriate for the reasons considered above) (2) a Cabinet report or (3) a Delegated Powers Report by the Cabinet Member for the Environment. The draft report was therefore withdrawn from the Planning and Environment Committee agenda.
11. The two remaining options were discussed with Councillor Coleman and the decision was taken to proceed with a Delegated Powers Report. A new report was subsequently drafted and then approved and signed by Councillor Coleman on 29 August 2002."
As that passage makes clear, on 29 August 2002 a report was made by Councillor Coleman in his capacity as cabinet member responsible for the environment. That report is at tab 3, page 106 of the court's bundle. This is a critical document in this case, not least because it contained not merely a recommendation, but a decision at the end, which is at page 111 of the bundle and states as follows:
"5.1 That the Head of Planning, Highways and Design be instructed to:
(i) prepare and advertise the necessary draft traffic orders for the re-opening of Partingdale Lane and the 3.5 tonnes weight limit and 20 mph speed limit detailed in this report and
(ii) carry out the necessary consultations for the changes, resolve any objections to the traffic orders with the Chairman of the Hendon Area Environment Sub-committee before implementing the works detailed in this report." [Emphasis added]
Before leaving that document, it should be noted that, although it was signed quite properly only by Councillor Coleman, the authors, at paragraph 7, included not just Councillor Coleman, but also Mr Freestone, Mr Cunningham and two other officers (who appear to be described only by their initials, but nothing turns on that).
"7. The Overview and Scrutiny Procedure Rules set out in Part 4 of the Constitution provide for Executive decisions to be 'called in' by the Cabinet Overview and Scrutiny Committee. This process is a requirement of Section 21 of the Local Government Act 2000. This Committee is appointed by the Council and consists of 11 members of the Council who are not members of the Cabinet.
8. The procedure which is set out in paragraph 16 of the Overview and Scrutiny Procedure Rules in the Constitution is as follows:
'... (d) If, having considered a decision on its agenda under (b) or (c) above, the Cabinet Overview and Scrutiny Committee is concerned about it, then it may refer it back to the decision making body or person for reconsideration, setting out the nature of its concerns, or refer it to full council if they consider the decision is contrary to the policy framework or budget.
'... (f) Where a decision is referred back, the original decision maker shall then reconsider the decision and decide whether or not to change it before adopting a final decision.'
9. The decision of the Cabinet Member was subject to this procedure and was called in for consideration by the Committee at a meeting on 18 September 2002.
The Committee met in public from 7pm until 9.55pm and reviewed this decision for about [there then appears to be an error in the drafting of the witness statement, but it is clear that what is meant is two and a half] hours. The committee considered written and oral representations ... The committee also questioned the Cabinet Member for the Environment.
10. The committee decided not to refer the matter back to the Cabinet Member for the Environment for reconsideration." [Emphasis added]
Without citing from it, I also note that the meeting is dealt with in the witness statement of Mr Freestone at paragraph 13.
"As you may be aware the council has recently decided to re-open Partingdale Lane. Draft traffic orders for this scheme are currently being advertised as part of the consultation process in the London Gazette and the Barnet Press.
As part of the proposal to re-open Partingdale Lane the council intends to implement the following measures, some of which are detailed on the double-sided plan included with this letter ... [a number of bullet points setting out detailed proposed measures are then set out in the letter, including a 3.5 tonnes weight limit and a 20mph speed limit]." [Emphasis added]
"6. As a result of the consultation the council received 52 letters of objection to the proposals. This compared to having received 142 letters and e-mails of support and 6 objections to the road opening in the period from when the initial proposal to re-open the lane was made public to the writing of the Delegated Powers Report. During the period up to the signing of the Delegated Powers Report the closure of the lane had received a considerable amount of local press coverage providing an opportunity for residents to write to the council on the matter ...
7. The objections to the traffic orders related to two separate areas; objections to the decision making process and objections to the proposals covered by the scope of the specific traffic management orders. I considered that the objections to the decision making process had already been dealt with elsewhere and concentrated on the objections specific to the traffic management orders. The objections that were received through the consultation process did not raise any new issues that had not previously been considered by Councillor Coleman when signing the Delegated Powers Report.
8. All of the objections were considered, commented on and a recommendation made whether they should be overruled, acceded to in full or in part. These considerations were tabulated and provided to both Councillor Offord, as Chairman of the Hendon Area Environment Sub-committee and Mike Freestone, Head of Planning Highways and Design for their consideration.
9. I met and discussed the format and content of the objections, and my views on the objections, with Councillor Offord and Mike Freestone to ensure that they were understood. I also visited Partingdale lane with Mike Freestone to discuss the safety measures that were proposed to be implemented prior to the re-opening of the lane.
10. I believe that at this point a decision could have been made that the objection could not be overruled and that accordingly this would have had to be referred back to the Cabinet Member for further consideration. The decision made was that objections could be resolved and that the implementation of the scheme could therefore proceed. This was however subject to some additional measures such as ribbed edge of carriageway markings, additional road signing and carriageway marking and zone amendments to the junction with The Ridgeway." [Emphasis added]
The matter is also dealt with in the witness statement of Mr Freestone at paragraphs 14 and 15 as follows:
"14. The draft traffic orders were published on 26 September 2002 and the consultation material was issued. Mr Cunningham deals in more detail with the consultation responses. Following the close of the consultation period my staff collated and reviewed all the responses received into a tabular presentation.
15. A meeting was held with Councillor Matthew Offord, Chairman of the Hendon Area Environment Sub-committee with his Vice-Chairman, Councillor Helena Hart and officers to examine in detail the responses received and to consider how best to resolve the objections. The Delegated Powers report recognised that I considered objections in conjunction with Councillor Offord and the Chairman of Hendon Area Environment Scrutiny Committee and a meeting seemed the best way to go through the details. Each objection was reviewed with the officer analysis by Councillor Offord [at the hearing it was agreed that I should there insert the words 'and me'] and some amendments to the scheme detail were developed to respond and resolve objections. Councillor Offord also decided that it was important for him to visit Partingdale Lane prior to him being fully confident in signing off that we had appropriately resolved objections. He subsequently wrote to me confirming his views and listing those additional items of work he thought would be helpful in resolving the concerns and objections made on 16 November 2002. Following receipt of this letter I considered all aspects of the proposal and decided that the Council could proceed with the traffic orders, subject to two additional items being included in the schedule of works."
On 21 September 2002 Mr Freestone decided, as his witness statement describes, to overrule all of the objections, although it was decided, as he mentions, to make two minor modifications.
(1) Did the defendant fail to comply with its own arrangements as to which person or body should deal with the making of traffic schemes such as the one in issue?
(2) Did the defendant fail to follow or have regard to its own policy on reducing rat running and improving road safety?
(3) Did the defendant fail to engage in fair and adequate consultation?
(4) Was the decision to make the traffic orders vitiated by predetermination?
(5) Were the Orders made on a partial or misleading assessment of the facts?
(6) Was the decision to make the Orders perverse?
There appeared initially to be a seventh issue, namely whether, if one or more of the claimant's grounds of challenge were made out, the orders should be quashed. However, at the end of her oral submissions, Ms Lieven, who appeared for the defendant, accepted that, if the court concluded that there had been a breach of the law, the Orders should be quashed, and she did not invite me to exercise a discretion to refuse relief in that eventuality.
"(1) The traffic authority for a road in Greater London may make an order under this section for controlling or regulating vehicular and other traffic (including pedestrians)."
Section 121A provides as follows:
"... (2) In Greater London, the Council of the London borough ... are the traffic authority for all roads in the borough ... [which are not GLA roads and] for which the Secretary of State is not the traffic authority."
"For prescribing streets which are not to be used for traffic by vehicles, or by vehicles of any specified class or classes, either generally or at specified times."
"34(1) This Part of this Schedule applies-
(a) to any order made under or by virtue of any of the following provisions of this Act, namely, sections ... 6 ...
(2) In this Part of this Schedule-
(a) 'the relevant powers', in relation to any such order as is mentioned in sub-paragraph (1)(a) above, means the power with respect to such an order conferred by this Act ... and
(b) 'the relevant requirements' in relation to any such order as is mentioned in sub-paragraph (1)(a) above, means any requirement of, or of any instrument made under, any provision of this Act with respect to such an order ...
35. If any person desires to question the validity of, or of any provision contained in, an order to which this Part of this Schedule applies, on the grounds-
(a) that it is not within the relevant powers, or
(b) that any of the relevant requirements has not been complied with in relation to the order, he may, within 6 weeks from the date on which the order is made, make an application for the purpose to the High Court ...
36(1) On any application under this Part of this Schedule the court-
(a) may, by interim order, suspend the operation of the order to which the application relates, or of any provision of that order, until the final determination of the proceedings; and
(b) if satisfied that the order, or any provision of the order, is not within the relevant powers, or that the interests of the applicant have been substantially prejudiced by failure to comply with any of the relevant requirements, may quash the order or any provision of the order.
(2) An order to which this Part of this Schedule applies, or a provision of any such order, may be suspended or quashed under sub-paragraph (1) above either generally or so far as may be necessary for the protection of the interests of the applicant."
"(1) In this part 'executive arrangements' means arrangements by a local authority-
(a) for and in connection with the creation and operation of an executive of the authority, and
(b) under which certain functions of the authority are the responsibility of the executive ... "
"(1) The executive of a local authority must take one of the forms specified in subsections (2) to (5) ...
(3) It may consist of-
(a) a councillor of the authority (referred to in this part as the executive leader) elected as leader of the executive by the authority, and
(b) two or more councillors of the authority appointed to the executive by one of the following-
(i) the executive leader, or
ii) the authority.
Such an executive is referred to in this Part as a leader and cabinet executive ... "
"(1) This section has effect for the purposes of determining the functions of a local authority which are the responsibility of an executive of the authority under executive arrangements.
(2) Subject to any provision made by this Act or by any enactment which is passed or made after the day on which this Act is passed, any function of a local authority which is not specified in regulations under subsection (3) is to be the responsibility of an executive of the authority under executive arrangements ... [As I have already said, it is common ground in the case before me that the relevant function was an executive function under this provision]"
"(1) Subject to any provision made under section 18, 19 or 20 any functions which, under executive arrangements, are the responsibility of a leader and cabinet executive are to be discharged in accordance with this section.
(2) The executive arrangements may make provision with respect to the allocation of any functions which are the responsibility of the executive among the following persons-
(a) the executive,
(b) any members of the executive,
(c) any committees of the executive, and
(d) any officers of the authority ...
(9) Any arrangements made by virtue of this section by an executive leader, executive, member or committee for the discharge of any functions by an executive, member, committee or officer are not to prevent the executive leader, executive, member or committee by whom the arrangements are made from exercising those functions ... "
"(1) The Secretary of State may by regulations make provision for or in connection with enabling an executive of a local authority, or a committee or specified member of such an executive, to arrange for the discharge of any functions which, under executive arrangements, are the responsibility of the executive by an area committee of that authority ...
(3) In this section-
'area committee', in relation to a local authority, means a committee or sub-committee of the authority which satisfies the conditions in subsection (4) ... [Subsection (4) and the following provisions then set out defining conditions]"
(a) a local authority executive, nor
(b) a committee of a local authority executive,
is to be regarded as a body to which section 15 of the Local Government and Housing Act 1989 (duty to allocate seats to political groups) applies [Again it was common ground before me that the effect of this provision is to disapply the requirements in the 1989 Act as to maintenance of political balance, which does apply to ordinary council committees]."
"(1) An order making authority shall, before making an order in a case specified in column (2) of an item in the table below, consult the persons specified in column (3) of the item ... [ Column (7) includes all cases and requires consultation of, amongst others, such other organisations (if any) representing persons likely to be affected by any provision in the order as the order making authority thinks it appropriate to consult]."
"(1) An order making authority shall, before making an order,-
(a) publish at least once a notice (in these Regulations called a 'notice of proposals') containing the particulars specified in Parts I and II of Schedule 1 in a newspaper circulating in the area in which any road or other place to which the order relates is situated ...
(2) Not later than the date on which paragraph (1) has been complied with, the order making authority shall send a copy of the notice of proposals to each body or person whom it is required to consult under regulation 6(1) or under any of the provisions referred to in regulation 6(2) ... "
"Before making an order, the order making authority shall consider-
"(a) all objections duly made under regulation 8 and not withdrawn ... "
Material provisions of the defendant's internal arrangements
"RESPONSIBILITY FOR EXECUTIVE FUNCTIONS
3.1 All the Council functions that are not mentioned in the first two tables, or reserved to Council in Article 4, are executive functions. These are the responsibility of
• Individual members of the Executive (the Leader and the members of the Cabinet) ...
3.2 Set out below is a table in the first column of which are listed the names, addresses and wards of Cabinet Members. The second column sets out each Cabinet member's functions and the third column summarises what has been delegated."
Councillor Coleman appears as the cabinet member responsible for the environment and the table continues as follows:
"To lead on budget, policy formulation and implementation on environmental and safety services. In particular, a healthy environment, street based services, highways and parking provision, and private sector rented housing."
Column three of the table, insofar as it relates to Councillor Coleman, reads as follows:
"The general powers delegated to Cabinet members are set out below
Certain functions are delegated to
• Area Sub-Committees as set out in Article 10 of the Constitution
• Officers, in consultation with the cabinet member, as set out in paragraph 6 of Part 3 of the Constitution ...
3.3 Cabinet Members general powers may be summarised as
1. To discharge the executive functions that fall within their portfolio, whether or not they are also delegated to officers except for matters specifically reserved to Council, Cabinet or committees ... "
"4.1 Committees and sub-committees of the Council are authorised to discharge all functions within their terms of reference with the exception of:
• Those matters referred to in the above tables
• Decisions reserved to the Council meeting in Article 4 of the Constitution ...
4.3 Area environment sub-committees may take decisions within their terms of reference provided they are not matters of significance to the whole borough, contrary to Council policy or outside budget and subject to the limitation for deciding matters crossing sub-committee boundaries as set out in Article 10 of the Constitution."
Section 6, which is headed "POWERS DELEGATED TO OFFICERS" and has the subheading "General Powers", reads as follows:
"6.1 Chief Officers (ie the Chief Executive, Directors and Heads of Service as listed in Article 12) can take decisions, in consultation with the Cabinet Member concerned:
• to discharge the functions allocated to them or dealt with by them or their staff, except for matters specifically reserved to Executive Members, Cabinet meeting, Cabinet Committees, Committees or Council ... " [Emphasis added]
"(a) Table of area committees and forums. The Council will appoint the area committees and forums as set out in the first column of the table below, composed as set out in the second column of that table and with the terms of reference set out in the third column."
The table then, in relation to the Hendon Area Environment Sub-committee states in column three, which concerns terms of reference, as follows:
"(1) To discharge the council's functions, within the boundaries of their areas, in accordance with council policy and within budget that relate to:
• Highways use and regulation
• Contaminated land and control of pollution ... [Because the relevant function under consideration is not a council function, this is immaterial in the present case]
(2) To discharge the Executive's functions, within the boundaries of their areas, in accordance with policy and within budget that relates to:
• Highways use and regulation not the responsibility of the council ... [Because the relevant function is an executive function, this is material in the present case]"
Paragraph 10.02 then continues, under the heading "Delegations":
"... Area Environment Sub-committees when considering a proposal for discharging an Executive function for a location that crosses their boundaries may take decisions to approve recommendations submitted to them. When such a proposal is to be considered the Head of Committee Administration shall make arrangements for a joint meeting of the sub-committees within whose areas the proposal falls. Voting at every such meeting shall be separate among the members of the different sub-committees. If any sub-committee fail to agree the recommendations then the whole proposal shall be submitted to the Cabinet for decision."
Third and fourth issues
"9. There remains an issue between the parties as to the extent of the consultation that discharge of the duty to notify and consult required. The underlying principles are not in dispute. They were identified by Mr Stephen Sedley QC in argument in ... ex p Gunning ... and were adopted by Hodgson J in his judgment in that case at p 189. They are:
'First, that the consultation must be at a time when proposals are still at a formative stage. Second, that the proposer must give sufficient reasons for any proposal to permit of intelligent consideration and response. Third, that adequate time must be given for consideration and response, and finally, fourth that the product of consultation must be conscientiously taken into account in finalising any statutory proposals.'
10. Those principles were elaborated in this way by McCullough J in ex p Cran at p 38 as follows:
'What kind and amount of consultation is required in a particular case must depend on the circumstances. A few general principles can however, be stated.
'The process of consultation must be effective; looked at as a whole, it must be fair. This requires that: consultation must take place while the proposals are still at a formative stage; those consulted must be provided with information which is accurate and sufficient to enable them to make a meaningful response; they must be given adequate time in which to do so; there must be adequate time for their responses to be considered; the consulting party must consider responses with a receptive mind and a conscientious manner when reaching its decision.'
So far as they go, those passages in my judgment correctly state the relevant principles."
"It cannot be doubted that one of the cardinal principle of natural justice, and one of very wide application, is that in the absence of statutory authority or consensual agreement or the operation of necessity, no man can be a judge in his own cause. But again, the extent to which this fundamental principle applies must be governed by the relevant circumstances, including, especially, the statutory provisions relating to the function. It is a patent consequence of the rule that no man can be a judge in his own cause that where the circumstances reasonably indicate the likelihood of bias on the part of the adjudicator, he will, unless one of the exceptions stated above apply, be disqualified. It is now necessary to see, in the light of the applicable circumstances, to what extent these rules apply to a council dealing with objections to a proposed street stopping. It is obvious that before a council reaches the stage of deciding to put in motion the machinery for stopping, much investigation will have been undertaken and many decisions made. There will have been a resolution passed by the council. A fair minded and responsible person might well think that when a council have reached that stage of decision, a real likelihood of bias must be seen to be present, because the council must to a large extent have pre-determined the issue. Nevertheless, the Legislature, well-knowing this, has designedly left it to councils to determine at the next stage whether objections should be sustained. So something less than the scrupulous state of impartiality and its appearance required of Courts of justice is required of councils in these circumstances. We think that the state of impartiality which is required is the capacity in a council to preserve a freedom, notwithstanding earlier investigations and decisions, to approach their duty of inquiring into and disposing of the objections without a closed mind, so that if considerations advanced by objectors bring them to a different frame of mind they can, and will go back on their proposals ... " [Emphasis added]
"I fully accept, particularly having regard to the authorities to which I have referred, that there is an obligation on the district council to deal fairly with the applications by KLF for planning permission and that in that sense the principles of natural justice apply to the consideration of an application for planning permission. Furthermore, I agree that this court has the right to intervene to prevent an application being dealt with in an unfair manner or contrary to the principles of natural justice by the district council. However, I cannot accept that Webster J's test can be applied in this situation [That was a reference to Steeples v Derbyshire County Council  3 All ER 468]. It is much easier for the court to interfere on the basis of procedural unfairness than on the basis of bias of the sort alleged in this case. It is to be noted that it is not alleged here that the district council had entered into any contract which precluded them from exercising an independent judgment as was alleged against the Derbyshire County Council. Nor is it alleged that any individual district councillor has some personal financial interest. 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 predisposed' 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 fact 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 such a large 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.
"The rules of fairness of natural justice cannot be regarded as being rigid. They must alter in accordance with the context. Thus in the case of highways, the department can be both the promoting authority and the determining authority. When this happens, of course any reasonable man would regard the department as being predisposed towards the outcome of the inquiry. The department is under an obligation to be fair and to carefully consider the evidence given before the inquiry but the fact that it has a policy in the matter does not entitle a court to intervene. So in this case I do not consider the fact that there is a declaration of policy by the majority group can disqualify a district council from adjudicating on a planning application. It may mean that the outcome of the planning application is likely to be favourable to an applicant and therefore unfavourable to objectors. However, Parliament has seen fit to lay down that it is the local authority which have the power to make the decision and an applicant for planning permission in the normal way are entitled to have a decision from the local authority if the Secretary of State decides not to intervene. The legislation could have given a right of appeal to the objectors in the same way as it is given to applicants but this it has not done and they are dependent on the limited powers of this court to intervene by way of judicial review.
"I do not say that the court can never intervene. Indeed I do not question Webster J's decision to do so in respect of the conduct of the county council. However in this case, 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. However, in this case I have an affidavit from the leader of the majority Labour group on the district council that when the planning committee come to consider the application all material considerations will be taken into account. He furthermore indicates that the decision will be taken in light of the report prepared by the council's officers. That report is in evidence before me; it is a detailed and balanced report which has not been criticised by the applicants. In these circumstances, it seems to me that it would be quite wrong of me to infer that the planning committee would not do precisely what Mr Cook deposes that he believes that they will do, namely take into account all material considerations."
Before proceeding with citation from the authorities, it is worth noting: (1) that in that case the relevant decision had not yet been taken, because the affidavit from the leader of the majority Labour group made it clear that it would be taken in the light of all material considerations and in the light of a report prepared by the officers, which was, as Woolf J held, detailed and balanced; and (2) that there was indeed evidence from the very political decision-makers involved as to what their states of mind would be. I note that there is before me in this case no evidence filed by Councillor Coleman, who is the relevant political decision-maker in these proceedings.
"It is, of course, entirely appropriate for a council, the majority of whose members have been elected after setting out a particular policy in their election manifesto, to take into account, and give considerable weight to, that circumstance when exercising their discretion in relation to that policy after they have been elected and come to power. It is, however, entirely wrong for such a majority to regard themselves as bound to exercise their discretion in relation to that the policy in accordance with their election promises, whatever the cost and other countervailing considerations may turn out to be." [Emphasis added]
"111. In my judgment a Council acts unlawfully where its decision-making body has predetermined the outcome of the consideration which it is obliged to give to a matter, whether by the delegation of its decision to another body, or by the adoption of an inflexible policy, or as in effect is alleged here, by the closing of its mind to the consideration and weighing of the relevant factors because of a decision already reached or because of a determination to reach a particular decision. It is seen in a corporate determination to adhere to a particular view, regardless of the relevant factors or how they could be weighed. It is to be distinguished from a legitimate predisposition towards a particular point of view ...
112. There is obviously an overlap between this requirement and the commonplace requirement to have rational regard to relevant considerations. But, in my judgment, the requirement to avoid predetermination goes further. The further vice of predetermination is that the very process of democratic decision making, weighing and balancing relevant factors and taking account of any other viewpoints, which may justify a different balance, is evaded. Even if all the considerations have passed through the predetermined mind, the weighing and balancing of them will not have been undertaken in the manner required. Additionally, where a view has been predetermined, the reasons given may support that view without actually being the true reasons. The decision-making process will not then have proceeded from reasoning to decision, but in the reverse order. In those circumstances, the reasons given would not be true reasons but a sham ...
114. Of course certain factors taken by themselves point away from predetermination and some can indeed be seen in a less unfavourable light. Each individual component may have some individual explanation satisfactory by itself. But it is important in examining this issue to look at the whole picture. Examining the whole picture and the crucial components of the decision, which are the officers' reports and the reasons given, and the way in which matters have been approached over the years, I have been driven reluctantly to reach the conclusion that this matter was dealt with by the Council with a closed mind." [Emphasis added]
"The Leader of the Council has forwarded your letter to me. Partingdale lane will be reopened to traffic in line with this administration's commitment during the election campaign. All safety issues will be properly addressed. The re-opening will reduce significantly congestion and pollution in the whole Woodside area and is supported by the Woodside Park Residents Association and the Totteridge Residents Association." [Emphasis added]
"... Partingdale Lane, the main road from finchley to Mill Hill for nearly 200 years and which was closed against officers' advice to provide a private road for a small number of residents, many of whom promptly sold their houses for inflated amounts, will be reopened ... [see tab 3, page 123, emphasis added]
"A concerted e mail campaign I would suggest is needed to all Councillors on the Planning and Environment Ctte in the week before August 29. Best wishes and thanks for all your efforts so far [see tab 3, page 228]."
It will be recalled that at that time it was envisaged that the issue of re-opening Partingdale Lane was to go before the planning and environment committee in late August.
"The decision has been made by members to re-open Partingdale Lane. Councillor Coleman is keen to achieve this with minimum delay and the work has been given an urgent top priority by the administration ... "
"Mr Freestone discussed the matter of the closure of Partingdale Lane with Councillor Coleman on a number of occasions between the meeting with Councillor Offord and receipt of Councillor Offord's email in November 2002."
Far from helping the defendant's case, it seems to me that that information reinforces the view that Councillor Coleman had not left the scene after 29 August 2002 but was still an active player during the consultation part of the process in November 2002.
Fifth and sixth issues
"Brian Coleman, the cabinet member for environment who took the decision, said judges had no authority to decide whether or not a road should be reopened.
If they rule that the order was made incorrectly, it could just go back to the committee where ... it is likely the same decision will be made."
Similarly, in an article in the Hendon Times, dated 23 January of this year (at the same page), there appears the following, again in relation to the decision of Hooper J:
"Mr Coleman said the judge's statements were 'nonsense' and vowed the lane would eventually be permanently reopened, no matter what the courts said.
'The judge doesn't understand the council constitution,' he said. 'It's a minor inconvenience. It doesn't influence our policy at all. It will just delay matters slightly.'"