QUEEN'S BENCH DIVISION
London, WC2A 2LL
B e f o r e :
| COSTAS GEORGIOU
|- and -
|LONDON BOROUGH OF ENFIELD
- and -
CYGNET HEALTHCARE LTD, RAINBOW DEVELOPMENTS, Mr JC and Mr J PATEL
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr Toby Davey (instructed by London Borough of Enfield) for the Defendant
Mr Anthony Dinkin QC and Miss Mary Cook (instructed by Beachcroft Wansboroughs) for the Interested parties
Crown Copyright ©
Mr Justice Richards :
i) The applications for listed building consent and planning permission were made in January 2003.
ii) On 5 February the proposals were considered by the council's conservation advisory group ("the CAG"), which is established under the council's constitution to consider and advise on a range of conservation issues. It consists of members of the council and representatives of the local community.
iii) On 16 April there was a public meeting of a special planning panel set up in accordance with the council's constitution to provide an opportunity for (a) Cygnet to explain its proposals, (b) local residents and organisations to put forward their views at an early stage, and (c) officers and members to listen to the ideas and issues raised and concerns expressed prior to consideration at a subsequent planning committee.
iv) An officers' report was prepared for a meeting of the planning committee on 29 April at which decisions were due to be taken on the applications. The report recommended that listed building consent and planning permission be refused.
v) At Cygnet's request, consideration of the applications was deferred to enable it to consider the concerns expressed and to submit revisions.
vi) Local government elections took place on 1 May, as a result of which there were some changes in the membership of the CAG and of the planning committee.
vii) Revised drawings and further supporting documents were submitted by Cygnet on 14-15 May. Further representations were also made during May on other matters, including the question of need for the proposed development
viii) The revised proposals were considered by the CAG on 27 May.
ix) A revised officers' report was prepared for a meeting of the planning committee on 17 June. The revised report recommended the grant of listed building consent and planning permission.
x) At the meeting on 17 June the planning committee, having heard representations from various individuals and deputations, resolved by a majority of 8:7 to grant planning permission subject to the completion of a s.106 agreement and subject to the conditions set out in the officers' report. It also resolved to grant listed building consent subject to the conditions set out in the report. The formal grant of listed building consent was made on the same day.
xi) The actual grant of planning permission took place on 8 October, following completion of the s.106 agreement.
Ground (2): Appearance of bias
"The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased."
"88. I do, however, consider that by the time of the September 1999 meeting, a fair-minded observer, knowing the background, would have considered that there was a real danger of bias from her external interest as a member of the New Forest Committee. First, it is clear that the decisions of a planning authority are open to review on the basis of apparent bias of participating councillors (see, for example, R v. Secretary of State for the Environment, ex parte Kirkstall Valley Campaign Ltd  3 All ER 304, Sedley J).
89. Second, the source of the danger has to be a personal external interest. In my judgment an interest as a member of another body is a personal interest. ….
90. Third, it is not necessarily sufficient to remove the danger, that the external interest should arise from a councillor's appointment in her capacity as a councillor. It depends on the circumstances, including the degree of involvement in the external body, the position of the councillor on the relevant council committee and the nature of the issues.
95. Fifth, in the circumstances of this case, Councillor Drake had participated in a meeting of the New Forest Committee in August 1999, at which it declared its support for the council's position. She says the vote was unanimous, which suggests she voted. The committee had also previously supported the council's position on the Heritage Area when she had been a member of the NFC earlier in the 1990s and again since her reappointment in May 1999.
96. This was not a body of incidental importance to the issue. It had been regarded by the Council as the body which ought to be defining the Heritage Area boundary, and indeed in the early 1990s the government had so regarded it. It was an influential body….
97. Councillor Drake was also not a councillor of incidental importance. She was the Planning and Transportation Committee chairman, a position which can be regarded as one of real influence in Committee deliberations, even though she did not actually vote in July because the decision was so clear-cut. Events at the meeting in July would have done nothing to assuage the fears that might have arisen in August and September.
98. This Committee in September 1999 had to consider Bovis' response to the reasons given by the council for the rejection of the Inspector's view. It had to do so against the background not just of the previous Council decision, but on the basis that the NFC supported the Council. The Council was pursuing a proposal which had already been influenced by the NFC, rejecting for the third time the recommendation of the second Inspector. These circumstances give all the appearance of a Council being influenced by the NFC, not just through its representations, but also through the Chairman of the Planning and Transportation Committee, who had helped to formulate and had voted on those very NFC views. In my judgement she should not have been present at the September 1999 meeting. Her presence leads to the inference that there was an appearance of bias."
"3.4.1 Currently, some councillors are members of the CAG and the Planning Committee. This has arisen mainly because of members' interests in both areas and the clear links between the two. Indeed, such dual membership can have a positive effect on the working relationship between the two bodies. However, this dual membership can also give rise to possible conflicts of interest. For example, where a member has commented publicly, and possibly voted, on a planning application at CAG (without the benefit of a Planning Committee report covering all relevant issues), this could be viewed as prejudicing his/her position as a member of the Planning Committee subsequently considering the same matter. The conservation issues may be but one of a number of issues that need to be considered.
3.4.2 The ability of the members to vote at CAG, and therefore affect the recommendation to the Planning Committee, could give rise to a possible conflict of interest. It is suggested therefore that the following could be included in the Planning Code of Practice which is part of the Council's Constitution (Part 5 – Paragraph 5.2)
"Councillors may be members of both the Conservation Advisory Group (CAG) and the Planning Committee. Their considerations at CAG are confined strictly to conservation matters. When a matter is to be considered by both bodies, these members may participate in the discussion at CAG but not vote on the issues. This is because when the item reaches the Planning Committee, members must be seen to consider impartially all the material considerations. Such members will be required to make a statement reflecting the above position at both CAG and Planning Committee. These statements will be minuted."
"256. I accept Sedley J's analysis of the two distinct principles. The first question is whether there was a real danger that a Councillor's decision would be influenced by a personal interest, or putting it in what may be a slightly different formulation of the test for bias, following In re Medicaments and Related Classes of Goods (No2)  1 WLR 727 CA: would the fair-minded observer, knowing the background, consider that there was a real danger of bias from, in this context, a personal interest held by a councillor? There is an important distinction between bias from a personal interest and a predisposition, short of predetermination, arising say from prior consideration of the issues or some aspect of a proposal. 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 source of the potential bias has to be a personal interest for it to be potentially objectionable in law."
"264. I do not consider that this gives rise to any personal interest. It is not an extraneous interest. The committee is exercising functions on behalf of the Council. Its members' support for the applications is transparent but not binding on the full Council which, subject to argument on predetermination, reached its own decision.
265. I do not consider that the bias test can be applied, at least in this decision making area, unless the danger of the influence on Councillors derives from an extraneous personal interest. Were the law otherwise, it is difficult to see how a Council could lawfully reach a decision on a planning application, whether made by the Council or an outsider, if the application advantaged the Council financially or in the performance of its functions. The real danger of influence would be ever present."
Ground (1): The highways/access issue
"Specifically, in addition to the issues raised in previous correspondence, the concerns apparent from inspection of the plans and SC's [Singleton Clamp's] letter now received are as follows:
1 The plans described in the letter to Development Control from Brady and Mallalieu Architects and dated 14 may 2003 are different from those received. I shall comment only on what I got and not on what I should have got if that is different
2 I note that surgical waste is still shown. No surgery should be conducted on the site and no body parts should be removed from it. Minor bits like nail clippings should not need a separate storage and collection.
3 Locating refuse stores at the bottom of a ramp is poor design as it means pushing or lifting waste uphill – with added risk of spillage or tipping.
4 The gradients shown are steeper than the maximum permitted under UDP standards and I am aware of no reason why an exception should be made in this case.
5 I have previously requested a plan showing how the proposed access junction would relate to the existing layout of Oakthorpe Road and existing features thereon, including existing junctions nearby. This has not been received. The plan received suggests a bellmouth requiring pedestrians to cross some 10 metres of carriageway. This is excessive and should be designed down.
6 The plans show no North point and it is difficult nay impossible to relate the proposed development and highway layout.
7 I reject out of hand the suggestion made by SC that 'it is highly unlikely that two vehicles would ever meet on or in the vicinity of the ramp'. Given the likelihood that one shift would end when another begins, I would argue strongly that it is highly unlikely that they would not ever meet.
8 I have previously requested – and been promised – a plan showing the autotrack analysis mentioned in SC's letter. I have not received one and therefore cannot assume that turning movements would be acceptable.
9 The passing place for two vehicles is shown at the bottom of the ramp, remote from the junction with the public highway. This is unacceptable because it would involve either a lobster quadrille at the junction, which is what the passing place is to obviate, or reversal down the ramp, which should be designed out.
10 The plans and elevations are not consistent and it appears that parts of the vehicle ramp would be only 3 metres wide. This is too narrow for a refuse collection vehicle to access the bins, particularly in reverse gear!
The above may not be exhaustive.
I conclude that, as currently presented, this application should be refused consent for the reasons that
1 The proposal does not make provision for access and servicing in accordance with the standards adopted by the Council and could therefore give rise to kerbside loading unloading and servicing in the adjacent streets to the detriment of safety and the free flow of traffic including pedestrian traffic on the public highway. In this respect the proposal is contrary to policies GD6 and GD8 of the UDP
2 The proposed layout would result in a vehicle crossing the footway at an acute angle and would therefore constitute a hazard to pedestrians on the public footway. In this respect the proposal is contrary to Policies (II)GD8 (II)T13 and (II)T17 of the UDP."
"In conclusion I myself do not see justification to relax Council standards of development and therefore would not revise my recommendation. However, if it decided, following receipt of advice from the DoSS and other appropriate quarters that the application should be supported, then clearly we must look again at the details. I should point out that achievement of an acceptable vehicle ramp, disability access and accommodation, ambulance/minibus parking, and highway layout in Oakthorpe Road, are likely to result in revised plans and elevations, since flattening gradients could well lift the wh[o]le building out of the ground, adding to its mass."
"By way of explanation it should be highlighted that Mr Juer provides the groundwork for comments on the highway and transportation aspects of development proposals. In preparing the recommendation for Councillors, I reviewed Mr Juer's comments and took his views into account. However, I took the view that the matters raised by Mr Juer were not sufficient in their own right to justify refusing planning permission, but could be covered by planning conditions or that they were outweighed by other considerations. This explains why Mr Juer's comments did not find their way into the final report."
"It is important that those who make determinations under the planning acts are familiar with sections 70(2) and 54A of the 1990 Act and apply the test imposed by parliament. It follows that a planning officer reporting to and advising council members who are to make a relevant decision must keep the test in mind in the information and advice he provides and in the manner in which he provides it.
Clear mindedness and clarity of expression are obviously important. However that is not to say that a report is to be construed as if it were a statute or that defects of presentation can often render a decision made following its submission to the council liable to be quashed, The overall fairness of the report, in the context of the statutory test, must be considered.
It has also to be borne in mind that there is usually further opportunity for advice and debate at the relevant council meeting and that the members themselves can be expected to acquire a working knowledge of the statutory test.
In my view the report itself in the present case was not only comprehensive in its treatment of the facts but sufficiently advised the Committee upon the statutory and policy framework within which the decision was to be taken. The Committee were adequately advised and their decision should stand. I would dismiss these appeals."
"The report by a planning officer to his committee is not and is not intended to provide a learned disquisition of relevant legal principles or to repeat each and every detail of the relevant facts to members of the committee who are responsible for the decision and who are entitled to use their local knowledge to reach it. The report is therefore not susceptible to textual analysis appropriate to the construction of a statute or the directions provided by a judge when summing a case up to the jury.
From time to time there will no doubt be cases when judicial review is granted on the basis of what is or is not contained in the planning officer's report. This reflects no more than the court's conclusion in the particular circumstances of the case before it. In my judgement an application for judicial review based on criticisms on the planning officer's report will not normally begin to merit consideration unless the overall effect of the report significantly misleads the committee about material matters which thereafter are left uncorrected at the meeting of the planning committee before the relevant decision is taken."
"The proposal involves 32 parking spaces provided within an underground car park. This total would be for a shift containing 31 staff on site at any one time serving the 48-bed space facility. The applicant also envisages 3 visitors present on top of this figure.
The relevant UDP requirement would be for 1 space per two members of staff plus one space for every 10 occupants. This level of provision would thus be within that required by UDP standards. Consequently, together with cycle parking provision and the proximity to Green Lanes, it is considered the provision is sufficient for the proposed development.
Vehicular access to the premises would be from Oakthorpe Road. Access via Green Lanes is not an option on highway grounds (free flow and safety of traffic) as well as the possible impact on the setting of the listed building. The access point would be positioned close to the entrance with St Anne's School. To mitigate against any potential safety concerns, the introduction of traffic calming measures have been discussed and could in principle address such concerns.
Local residents have expressed objections to the proposal on grounds relating to the impact on Oakthorpe Road particularly given the cumulative impact arising from the use of the Community Centre and Mosque (now under construction). On street parking in the vicinity of the site is during the day at saturation. Any further pressure therefore is likely to lead to additional parking along Oakthorpe Road. However, it is accepted that sufficient parking exists and although there could be pressure at times when shifts are changing, this is outside peak times when spare capacity is likely to exist. It is not considered therefore that the proposal would result in unacceptable level of traffic generation to the detriment of Oakthorpe Road.
Any further observations relating to this issue will be reported at the meeting if necessary."
Ground (3): Health care need and service impact
"Of further relevance to this issue though is the question of the need for such a facility. Again this concern reflects the concern of local residents and expressed at the recent Planning Panel.
Both Social Services and the local NHS Trust object to the development. They consider there is no proven need for the development at present and that such a facility will place additional strain on already over stretched support services. Although national advice advocates the pre-eminence of choice and competition which the planning system should not seek to hinder, the question of need can be material to the consideration of such proposal and this application especially where any development would have some adverse environmental impacts. The Applicant has sought to provide further support to this issue citing support from Barnet, Enfield & Haringey Mental Health Trust and local representatives of MIND. In addition, the Applicant reiterates their contention that the facility would provide a type of facility and treatment not presently available within the Trust area and that it would enable all Enfield patients to be treated within the Borough and not externally as currently occurs. However, in the light of the local NHS Trusts and Social Services objection, this issue continues to be of concern. Any further comments will be reported at the meeting."
"In the light of the above additional information, and the advice contained in PPG1, it is considered that a refusal on the question of need may be difficult to sustain. However if any further comments are received from either Social Services or the local NHS Trust, these will be reported at the meeting."
Ground (4): Inadequate summary of consultation responses
MR JUSTICE RICHARDS: For the reasons given in the judgment which I am handing down the claim succeeds and the decisions and consents under challenge will be quashed.
Mr Wolfe, I apologise for the fact that counsel had relatively short notice of the hand down, but I took the view that having managed to get the judgment done this term it was better to have it handed down this term.
MR WOLFE: We are certainly grateful for that, my Lord. My Lord has, I hope, had from me, by fax this morning, a draft suggested order.
MR JUSTICE RICHARDS: I have indeed.
MR WOLFE: My Lord, I think it picks up basically what my Lord has just said. There was one point which I put forward by way of correction as to the judgment. It was to bring within the judgment the listed building --
MR JUSTICE RICHARDS: To include specifically the grant of listing building consent. Yes, I am grateful for that. That is incorporated now in the judgment. Let me just check.
MR WOLFE: In two or three places.
MR JUSTICE RICHARDS: Yes.
MR WOLFE: My Lord, I am grateful for that. My proposed draft order then, I think, simply picks up those things and costs in paragraph 5. I think it is uncontroversial apart from sub-paragraph 4.
MR JUSTICE RICHARDS: Quite.
MR WOLFE: My Lord, I simply put that forward. In a sense it speaks for itself. My Lord has found that there was a perception of bias in relation to those three individuals. We say if it goes back - because there is no certainty about it going back - if it goes back before any of the relevant bodies, being the council, its planning committee, or the CAG, we say that those individuals should neither be present or vote in accordance with the historic perception of bias that has led, in part, to my Lord's judgment.
MR JUSTICE RICHARDS: Is not the right course, if the council reconsiders this matter, as it is free to do, for the council to take due account of what is said in my judgment and to form its own view as to what needs to be done in order to avoid a similar problem next time round?
MR WOLFE: My Lord, I have no doubt it would do that in any event, but, my Lord, in my submission there is a significant risk of a repeat of a problem in the event that there is a reconsideration by, let us say for sake of argument, the planning committee, involving those three individuals. It goes no further than that.
MR JUSTICE RICHARDS: Yes. I do not think it follows, inevitably, from my judgment that the three counsellors to whom you refer could not participate. I think much would depend upon what precisely was said and done in order to remove the problem that I identified in relation to the last decision-making process. I certainly do not take the view that my judgment precludes it, albeit I recognise that if they do participate there are potential problems there.
MR WOLFE: My Lord, I would seek to persuade my Lord to go the extra small step and say, for the avoidance of doubt in one sense, that would be the appropriate course and it should be a matter my Lord deals with rather leaving to the council and no doubt for future argument down the line.
MR JUSTICE RICHARDS: Yes, right, well, thank you. What do you say?
MR WHITE: My Lord, I appear for the council in place of Mr Davey. He sends his apologies for being unable to appear today. My Lord, the council has nothing to say in respect of costs, and nothing in particular in respect of the draft order, other than issue 4, my Lord. The council resists what is being sought by my learned friend in that. I do not know whether I can address --
MR JUSTICE RICHARDS: You resist it on the grounds that I have already canvassed in discussion with Mr Wolfe?
MR WHITE: Yes, my Lord.
MR JUSTICE RICHARDS: Yes, thank you. You have nothing to say, I would imagine?
MR GREEN: My Lord, no.
MR JUSTICE RICHARDS: Happy position to be in. Mr Wolfe, I am not going to include paragraph 4 of the draft order. I am going to leave it to the council as I think it is the appropriate course for them to form a judgment as to how to proceed from here.
MR WOLFE: My Lord, I am grateful.
MR JUSTICE RICHARDS: I take it there is no further application in the case?
MR WHITE: My Lord, I am instructed to seek leave to appeal from this court, my Lord. My Lord, at paragraph 33 of your Lordship's judgment, your Lordship indicated that:
"In those circumstances I take the view, though not without a degree of hesitation, that a fair-minded and informed observer would conclude that there was a real possibility of bias..."
My Lord, this issue as to appearance of bias, possibility of bias, is an important issue for local authorities. It appears from your Lordship's judgment that the issue was finely balanced and, my Lord, in those circumstances there may be a prospect of success at appeal. My Lord, I think that is all I can say at this stage.
MR JUSTICE RICHARDS: Thank you very much. If the appearance of bias issue stood alone --
MR WHITE: Yes.
MR JUSTICE RICHARDS: -- I would give you permission to appeal. The problem is, so far as the council is concerned, that I found against them on each of the other three grounds which are very much dependent upon the individual facts of the case, and on which I do not believe there is a real prospect of success. That being so, I do not think that the appearance of bias issue is a proper basis for me to grant permission to appeal and I refuse permission.
MR WHITE: I am obliged, my Lord.
MR JUSTICE RICHARDS: But subject to that addition to the draft order, that is to say, permission to appeal refused, the order will be in the terms of paragraphs 1, 2, 3 and 5 of the draft. I am very grateful to all counsel.