Case No: CO/4674/2003
Neutral Citation Number: [2004] EWHC 779 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, 
London, WC2A 2LL

Wednesday 7 April 2004
Before :

THE HONOURABLE MR JUSTICE RICHARDS

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Between :

	COSTAS GEORGIOU	Claimant	
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	LONDON BOROUGH OF ENFIELD
- and -
CYGNET HEALTHCARE LTD, RAINBOW DEVELOPMENTS, Mr JC and Mr J PATEL
	Defendant

Interested Parties	

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(Transcript of the Handed Down Judgment of
Smith Bernal Wordwave Limited, 190 Fleet Street
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Mr David Wolfe (instructed by Bindmans) for the Claimant
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

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Judgment

Mr Justice Richards : 
1.	This is a challenge to decisions of the defendant council on 17 June 2003 (i) to grant listed building consent for a change of use of a property known as Truro House into offices and a consulting room and for erection of a mental health nursing home for up to 60 persons within its curtilage, and (ii) subject to conclusion of a s.106 agreement, to grant planning permission for the erection of the nursing home.  The decisions were taken by the council’s planning committee.  The challenge also encompasses the subsequent formal grant of listed building consent and planning permission.
2.	Truro House is a Grade II listed building. It has suffered from neglect and is currently on English Heritage’s register of buildings at risk and is subject to an urgent repairs notice requiring works to be undertaken.  Those works were included in the planning application. 
3.	The applications for listed building consent and planning permission were made by Cygnet Healthcare Ltd (“Cygnet”), a specialist provider of mental healthcare which had an option to purchase the site. 
4.	The claimant is chairman of a local business association which objected to the applications.  He is also an active member of other local representative groups.  No issue is taken over his standing to bring the present claim.
5.	The detailed facts are best considered in the context of the specific issues.  In order to put matters in context, however, it is helpful to set out the broad chronology:  
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.
6.	There are four remaining grounds of challenge to the decisions taken on 17 June.  They are in summary as follows:  (1) there was a failure to take into account matters raised by one of the council’s officers concerning highways/access matters; (2) participation in the decisions by members of the planning committee who were also members of the CAG gave rise to an appearance of bias; (3) members of the planning committee were not adequately informed on the issues of need for the proposed development and of its impact on existing services; and (4) members were not adequately informed about the consultation responses generally.

7.	It is convenient to consider ground (2) first.  The other three grounds have a theme in common, in that they concern in one way or another the sufficiency of the information given to the planning committee for the purposes of reaching the decisions; and they are relied on cumulatively as well as individually.

Ground (2): Appearance of bias

8.	This ground raises the question whether the planning committee’s decisions were vitiated by an appearance of bias arising out of the fact that four members of the committee were also members of the CAG and three of them (who all voted in favour of the grant of consents) participated in the meetings of the CAG at which support was expressed for the applications.
9.	I have mentioned that the CAG is established under the council’s constitution.  Specifically, chapter 7, on regulatory and consultative committees and panels, provides that “[t]he Council will appoint the committees set out below to discharge the following non-executive functions described”.  The “committees” listed are the planning committee, planning panels and the CAG.  The membership of the CAG consists of 6 members of the council plus 19 other members comprising representatives of residents’ associations and of various societies and groups within the borough.  Various officers are also involved, as non-voting members.  The terms of reference of the CAG include:  (a) to consider and advise the planning committee on proposals for development which are referred to the CAG which could affect the character or appearance of conservation areas, ancient monuments, listed buildings or their settings; and (b) to advise the planning committee on the preservation or enhancement of the character or appearance of heritage features, areas and their environs.

10.	When the applications came before the CAG on 5 February 2003, those present included two members of the CAG (Councillors Dey and Zinkin) who were also members of the planning committee that took the impugned decisions on 17 June.  At the CAG meeting the members received a presentation from Cygnet’s consultants.  The note of the meeting records that, following discussion, “the Chairman concluded that the Group were encouraged at the good opportunity to restore Truro House with an associated development which was sensitive to the history of the site.”

11.	When the revised applications came before the CAG on 27 May, those present included three members of the CAG (Councillors Dey, McCannah and Zinkin) who were also members of the planning committee that took the impugned decisions.  A fourth person (Councillor Giladi) also had dual membership of the CAG and the planning committee, but was not present at the CAG meeting.  At the CAG meeting the members again received a presentation from Cygnet’s consultants.  The note of the meeting records that “the Group noted the revisions and continued to support the application”.

12.	The views of CAG received separate mention in the officers’ report for the planning committee on 17 June.  The report stated, for example, that “[t]he revised application was reported to CAG on 27th May 2003, and the Group have noted the revisions made to the scheme and continue to support the application”.

13.	Another pointer to the significance of the CAG is that the seating plan for the meeting of the planning committee on 17 June involved the allocation of particular places in the room for certain groups of people, including non-councillor representatives of the CAG as well as officers from the planning department. 

14.	At the 17 June meeting, the three members of the planning committee who had attended the CAG on 27 May voted in support of the applications.  One of them, Councillor Dey, was in fact the chair of the planning committee.  (Mr Wolfe submitted that Councillor Dey also chaired the CAG on 27 May, but in my view the evidence does not support that conclusion.) The fourth person with dual membership of the CAG and the planning committee, but the member who had not attended the CAG on 27 May, voted against the applications.

15.	Mr Wolfe submits that the circumstances were such as to create an appearance of bias sufficient to vitiate the planning committee's decisions.  He relies on the principles laid down in Porter v. Magill [2002] 2 AC 257, summarised by Lord Hope in the following sentence (page 494, para 103):  

"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."

16.	Reliance is also placed on the decision of Ouseley J in Bovis v. New Forest DC [2002] EWHC 483 (Admin).  The relevant issue in that case was whether the defendant council's decision to adopt the local plan was vitiated by apparent bias on the part of the chairman of the relevant committee.  The contentious feature of the local plan was the inclusion of certain land in the New Forest Heritage area.  The chairman of the committee was also a member of a non-statutory body, the New Forest Committee, which had been closely involved in defining the boundaries of the heritage area and had supported the position adopted by the committee.  Ouseley J, applying in substance the test approved in Porter v. Magill, though using the language of "real danger of bias" rather than "real possibility of bias", held that the chairman's membership of the New Forest Committee did vitiate the council's decision:

"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 [1996] 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.”

17.	In support of the submission that a fair minded and informed observer in possession of all the facts of the present case would conclude that there was a real possibility of bias, Mr Wolfe points to the overlapping membership of the CAG and the planning committee; the importance attached to the CAG; the fact that the CAG had expressed positive support for the applications even though they had heard only part of the evidence and had not considered all the relevant planning issues; the fact that there was no indication that any of those present at the CAG meeting on 27 May dissented from the CAG's support for the applications; the fact that the three members of the planning committee who had attended the CAG meeting on 27 May voted in favour of the applications, whilst the other person with dual membership, but who had not attended the CAG meeting, voted against; the fact that one of those with dual membership who voted in favour was the chair of the planning committee; and the very narrowness of the 8:7 vote in the planning committee. 

18.	It is also submitted that matters were made worse by the fact that three members of the planning committee, including one of those with overlapping membership of the planning committee and the CAG (Councillor McCannah), were new to the planning committee and had not yet received the training in planning law and procedure which they were required by the council's code of practice to receive within three months of their appointment.  The three new members all voted in favour of the applications.

19.	A further submission is that in expressing support for the applications, the members of the CAG were in breach of the council's code of practice, which provides that "[w]hen being lobbied, Members of the Planning Committee should not express an opinion which may be taken as indicating that they have already made up their mind on the issue before they have exposed themselves to all the evidence and arguments".  I say at once that I do not think that this provision of the code is directed towards consideration of issues in the CAG or other committees of the council, even if the meeting does receive presentations from a developer or other interested party.  But that does not affect the wider question whether members' participation both in the CAG and in the planning committee gave rise to an appearance of bias on the facts of this case.

20.	Finally, Mr Wolfe relies on what he submits to have been an implicit recognition by the council itself that what had happened in this case was flawed.  In a report dated 10 June 2003 officers had drawn the council's attention to potential problems arising out of dual membership of the CAG and the planning committee: 

"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.”

21.	The council resolved to amend the code of practice in line with the recommendation.  But that resolution was adopted only on 18 June, the day after the impugned decisions were taken.  Accordingly the arrangements provided for in the amended code were not in place at the time of the decisions.

22.	For the council, Mr Davey accepts that the governing principles are those in Porter v. Magill and Bovis, but submits that the situation is factually distinguishable from that which led to a finding of an appearance of bias in Bovis.  The CAG is formed of a variety of interest groups concerned with conservation issues. It is not concerned with the full range of issues arising on a planning application, and the views it forms on conservation issues give rise to no predetermination of the planning issues.  The evidence of the councillors themselves shows that they appreciated the wider range of issues that needed to be considered in the context of the decisions of the planning committee and that they had not made up their minds on those issues by reason of their participation in the CAG.  Further, no vote was taken in the CAG.  In any event, merely to express support for a proposal in terms of conservation issues cannot be taken to demonstrate a closed mind in relation to wider planning issues.  

23.	For Cygnet, Mr Dinkin draws particular attention to the reasoning of Ouseley J in R (Cummins) v. London Borough of Camden [2001] EWHC Admin 1116 and submits that a distinction has to be drawn between bias, predisposition and predetermination.  Cummins predated Porter v. Magill and Bovis.  It involved the grant of planning permission by the full council in respect of land owned by the council and appropriated for the most part to its Leisure and Community Services Committee.  The issues raised included bias and a closed mind, which were considered at paragraphs 234 ff. of the very long judgment.  Ouseley J cited passages from the Kirkstall Valley case in which Sedley J drew a distinction, first, between bias (i.e. whether there was a real danger that a person would be influenced by a pecuniary or personal interest in the outcome) and predetermination (which, as Sedley J put it, "while it can legitimately be described as a form of bias, is jurisprudentially a different thing from a disqualifying interest held by a participant in the process"); and, secondly, between predetermination and predisposition (e.g. arising out of the policies of a political party or the known views of an individual).  He summarised the position as follows: 

"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) [2001] 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." 

24.	He went on to hold that there had to be an extraneous personal interest to give rise to bias.  That could arise through membership of an external body, but not through membership of one of the council's own committees, including the Leisure and Community Services Committee even though it was closely involved in the promotion of the scheme.  Thus, in relation to membership of that committee he stated:

"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."
 
25.	Ouseley J went on to consider as a separate question whether the decision was vitiated by predetermination, in relation to which, upon detailed consideration of the evidence, he rejected the claimant's case that the members of the council had approached the decision with a closed mind. 

26.	Applying the principles in Cummins to the facts of the present case, Mr Dinkin submits that membership of the CAG, which is a committee of the council, must be distinguished from membership of an extraneous body.  The fact that a member of the planning committee is also a member of CAG cannot in itself give rise to an extraneous interest capable of engaging the rules on bias. To apply the rules on bias to the position of the CAG would interfere with the proper operation of council committees.  Consistently with those submissions, Mr Dinkin contends that the amendments to the council's code of practice to deal with perceived problems concerning dual membership of the CAG and the planning committee were in fact unnecessary.  He submits further that, given the limited role of the CAG in considering only conservation issues, the expression of views in the CAG could at most evidence a predisposition in favour of the proposals; it did not amount to any predetermination of the applications. There is nothing to show that anyone approached the planning issues with a closed mind at the meeting of the planning committee on 17 June.

27.	My conclusions in relation to this ground are as follows.

28.	First, the case is put squarely on the basis of an appearance of bias.  The governing principles are therefore those stated in Porter v. Magill and, in particular, whether a fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the planning committee or some of its members were biased.

29.	I accept Mr Dinkin's submission that bias, in the sense of a pecuniary or personal interest in the outcome of a decision, is conceptually distinct from predetermination or a closed mind, and I see the force of the analysis in Kirkstall Valley which was picked up and applied in Cummins.  If the Cummins approach were applied narrowly here, then it seems to me that the rules on bias could not be said to be engaged, since under the council's constitution the CAG is a committee of the council (albeit one with co-opted external members) rather than an external body, and a councillor's membership of that committee could not be said to amount to an external or extraneous personal interest.  The situation is in that respect factually closer to Cummins than to Bovis, where the problem arose out of participation in what was truly an external body by the chairman of the relevant committee of the council.

30.	It seems to me, however, that a different approach is required in the light of Porter v. Magill.  The relevant question in that case was whether what had been said and done by the district auditor in relation to the publication of his provisional conclusions suggested that he had a closed mind and would not act impartially in reaching his final decision:  see e.g. the background set out by Lord Hope at pages 491-492 paras 96-98.  Thus it was a case of alleged predetermination rather than one in which the district auditor was alleged to have a disqualifying interest.  Yet it was considered within the context of apparent bias, and the decision was based on the application of the test as to apparent bias which I have already set out.  There is nothing particularly surprising about this.  I have mentioned Sedley J's observation in Kirkstall Valley, as quoted in Cummins, that predetermination can legitimately be regarded as a form of bias.  Cases in which judicial remarks or interventions in the course of the evidence or submissions have been alleged to evidence a closed mind on the part of the court or tribunal have also been considered in terms of bias:  see e.g. London Borough of Southwark v. Jiminez [2003] EWCA Civ  502 at para 25 of the judgment, where the test in Porter v. Magill was accepted as common ground and was then applied.  

31.	I therefore take the view that in considering the question of apparent bias in accordance with the test in Porter v. Magill, it is necessary to look beyond pecuniary or personal interests and to consider in addition whether, from the point of view of the fair-minded and informed observer, there was a real possibility that the planning committee or some of its members were biased in the sense of approaching the decision with a closed mind and without impartial consideration of all relevant planning issues.  That is a question to be approached with appropriate caution, since it is important not to apply the test in a way that will render local authority decision-making impossible or unduly difficult.  I do not consider, however, that the circumstances of local authority decision-making are such as to exclude the broader application of the test altogether.  

32.	On that basis I do have concerns about what happened in this case and the objective impression that it conveyed.  Although the CAG’s remit was to consider only the conservation implications of the applications, its conclusion was expressed in simple terms of support for the applications, without any qualification.  Both the note of the CAG meeting on 27 May and the report to the planning committee on 17 June state that CAG "continued to support" the applications.  Moreover, although there is nothing to show that a vote was taken within the CAG, there is equally nothing to show that any of the members present dissented from that conclusion:  the support appeared to come from all those present, including the three members who were also members of the planning committee. When it came to the meeting of the planning committee, nothing was said about the limited function of the CAG or about the need for those with dual membership to put on one side the support expressed in the CAG and to examine all the relevant planning issues before reaching the planning decisions.  

33.	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, in the sense of the decisions being approached with closed minds and without impartial consideration of all the planning issues, as a result of the support expressed by the CAG being carried over into support for the applications in the context of the planning committee's decisions.  

34.	The fact that one of those with dual membership had received no training in planning matters reinforces that concern.  So does the fact that all three of those with dual membership who had attended the CAG meeting on 27 May voted in favour of the applications.  

35.	On the other hand, in my view nothing turns on the fact that one of them was the chairman of the planning committee.  The problem, as I see it, relates to the possibility that the three members to whom I have referred approached the matter with closed minds, rather than the possibility that they influenced other members or that the special status attached to the CAG meant that its support for the applications affected other members.  

36.	Having regard to the objective nature of the question of apparent bias, I do not think that any significant weight is to be attached to the members' own witness statements in which they state that they did approach the planning decision with open minds:  cf. per Lord Hope in Porter v. Magill at page 496 para 104.   

37.	It follows from the above that in my view the concerns expressed by the council's officers about the problems arising out of dual membership of the CAG and the planning committee were justified, and the amendment to the planning code of practice which took effect on 18 June had a sensible basis to it. Whether the amendment goes far enough is another question.  The facts of this case throw up a possible deficiency, in that the amendment provides that those with dual membership must not vote on issues considered at the CAG; but a member of the CAG may be associated with a position adopted by the CAG even in the absence of a formal vote, as appears to be the position here.  The mischief at which the amendment is aimed is therefore capable of arising, and in my view arose in this case, without the need for a formal vote.  It may be that the amendment should go further and provide those with dual membership should expressly dissociate themselves from any conclusion reached by the CAG, even if reached without a formal vote.  In any event a very important point, and one substantially reflected in the last part of the amendment (the requirement to make a statement both at the CAG and at the planning committee), is that all concerned should understand and acknowledge openly the need to ensure that participation in the CAG does not lead to any predetermination of the planning application, which must be approached in the planning committee with an open mind and by impartial consideration of all the planning issues.

38.	Whether or not the amendment to the planning code of practice goes far enough, it cannot help to save the decisions in this case, which were taken before the amendment was adopted.

39.	For the reasons I have given, the decisions were in my judgment vitiated by the appearance of bias. 

Ground (1):  The highways/access issue

40.	The nature of the claimant’s case on this ground is that concerns expressed by an official in the council’s transport planning team, Mr Roger Juer, were not communicated to the members of the planning committee and that this resulted in a failure on the part of the committee properly to discharge its obligations under s.54A of the Town and Country Planning Act 1990 and/or a failure to take into account material considerations.  

41.	To put Mr Juer’s involvement in its proper perspective, I should explain that he was a senior engineer in the transport planning team.  His line manager was Mr David Taylor, who was Team Leader (Transportation Planning) and was himself a qualified highways engineer.  Above Mr Taylor was Mr Stephen Tapper, who was Assistant Director (Planning and Transportation) and who approved in that capacity the officers’ report to the planning committee.

42.	Traffic and transportation issues, including parking and turning arrangements and access to and from the road onto the site, were plainly of potential importance.  At the meeting of the special planning panel on 16 April they were identified by Mr Tapper, the Assistant Director (Planning and Transportation), as one of five key planning issues in relation to the proposed development.  

43.	Mr Juer had expressed concerns about highways and transportation aspects of the original planning application.  These were discussed at a meeting on 16 April 2003 with Mr Peter Prutton of Singleton Clamp & Partners Ltd, a consultant retained by Cygnet.   On 21 April Cygnet submitted revised drawings and additional information on parking requirements.  In a memorandum dated 24 April Mr Juer expressed continuing concerns, expressing the view that the application should be refused on grounds that the proposal did not make provision for (i) car and pedal cycle parking or (ii) access and servicing in accordance with the standards adopted by the council.  On 25 April Mr Prutton sent a fax to Mr Juer about various matters.  On 14 May Cygnet submitted further revised drawings, followed on 15 May by addenda on various matters, including an addendum by Mr Prutton on highway and traffic matters.  The 15 May covering letter stated that “I am advised by Peter [Prutton] that all of the outstanding issues raised by Roger Juer have been addressed”.

44.	Although Cygnet believed that the outstanding issues had been addressed, Mr Juer evidently took a different view.  In a memorandum dated 30 May and an e-mail dated 2 June, which were internal to the council and not seen by Cygnet, he raised continuing concerns about the application even in its amended form. 

45.	The memorandum of 30 May stated:

"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." 

46.	The e-mail of 2 June stated:

"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."  

47.	The claimant’s case is that Mr Juer’s views, in particular on the lack of conformity with UDP policies, were something that the planning committee needed to be aware of and to take into account.  By s.54A of the 1990 Act the application had to be determined in accordance with the development plan unless material considerations indicated otherwise.  It was therefore necessary for the committee to interpret the development plan properly, decide whether the proposed development accorded with the development plan, identify and take into account all other material considerations, and decide whether the development plan should be accorded the priority given to it by statute.  Yet neither the fact nor the substance of Juer’s views was drawn to the attention of members for the purposes of their decision on 17 June.  Indeed the impression given in the officers’ report to the committee was that there were no highways or related difficulties in relation to the application.

48.	The responses of Cygnet and the council are surprisingly different from each other.  

49.	For Cygnet, Mr Dinkin submits that there was no substance to any of the points raised by Mr Juer, which have to be viewed against the background of the discussions and revisions that had already taken place.  Some of the points had nothing to them at all or were simply petty, some were factually in error, and it was plainly open to Mr Tapper to conclude that none of them raised any substantial issue as to compliance with the UDP and that none of them needed to be mentioned in the report to the planning committee.  (Although doubt was expressed about whether Mr Juer’s comments were based on consideration of the up to date revised plans, this was not pursued and was in my view not sustainable.)

50.	The council is not so dismissive of Mr Juer’s comments.  In his witness statement, Mr Taylor states: 

"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." 

51.	Mr Tapper gives evidence to the same effect, also stressing that the comments formed part of an internal discussion held within the team and that comments from external bodies would have been treated differently and reported more or less verbatim.  

52.	So it is not suggested by the council that Mr Juer’s comments lacked substance.  Both officers state instead that the view taken internally by officers was that the issues raised could be covered by planning conditions or that they were outweighed by other considerations.  

53.	The council in fact moved in stages to the position set out in the witness statements. In response to a supplementary letter before claim, the council stated simply that “the report reflected that there were no traffic problems of significance remaining sufficient to justify refusal of the scheme".  In its grounds of resistance to the claim, it contended that the issues raised by Mr Juer had been addressed by the imposition of the planning conditions set out in the report. It was only in the evidence of Mr Taylor and Mr Tapper that it was said that the view taken was that the matters could be covered by planning conditions or were outweighed by other considerations.  Although this shift of ground may be thought surprising, I think it right in a matter of this kind to concentrate on the account given in the actual evidence filed by the council.

54.	One further point I should make about the state of the evidence is that there is no witness statement from Mr Juer himself.  Mr Dinkin sought to make something of the fact that Mr Juer was present at the meeting on 17 June but did not repeat his concerns on that occasion.  In my view, however, that cannot justify the inference that he had changed his views in any respect; nor is there any suggestion to that effect in the council’s evidence.

55.	I move on to consider the issues arising on this ground of challenge.

56.	The adequacy of the report to the committee needs to be assessed in the light of the principles set out in Oxton Farms v. Selby District Council, a judgment of the Court of Appeal dated 18 April 1997.  The contention advanced in the case was that an officers' report to the planning committee was deficient.  Pill LJ stated:

“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.”

57.	Judge LJ concurred and added:

“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.”

58.	In the present case the report to committee listed relevant UDP policies, including those referred to by Mr Juer, but did not set them out or summarise their terms.  It identified “highways implications” (which evidently included questions of access) as one of the key issues raised by the application.   On that issue it stated: 

“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.”

59.	The general impression conveyed by that passage was that highways matters were not a problem.  Mr Juer’s concerns were not mentioned.   Nor were they mentioned at the meeting on 17 June itself.  The essential question is whether their omission resulted in the committee being significantly misled or otherwise led to a failure properly to carry out the exercise required by s.54A.

60.	If Mr Dinkin is right in his submission that Mr Juer’s points contained nothing of substance, then plainly it was unnecessary to draw them to the attention of the committee and their omission was of no consequence.  I accept that some points fall readily into that category.  Others, however, give rise to greater difficulty:

61.	Perhaps the single most important of the points in Mr Juer’s memorandum of 30 May is no.4, where he states that the gradients shown are steeper than the maximum permitted under UDP standards.  Its potential importance lies in the fact that it is picked up in the email of 2 June, where he says that flattening gradients could well lift the whole building out of the ground, adding to its mass.  If this was right, I have no doubt that it ought to have been drawn to the attention of the committee.  But Mr Prutton has provided detailed evidence to show that it was not right and that the gradients on the approved plans do comply with the standards referred to in the relevant policy of the UDP, namely policy GD8.  I am conscious of the danger of getting drawn into planning judgments that are not for the court.  I take account of the fact that Mr Juer states at point no.10 that the plans and elevations are not consistent.  I am also concerned about the fact that the council’s own evidence does not seek to cast doubt on the correctness of Mr Juer’s concerns.  On the other hand, the claimant has not advanced any positive case as to non-compliance with the UDP or with standards referred to in it and has put forward nothing to cast doubt on the substance of Mr Prutton’s evidence that the gradients do comply with the standards.  In the circumstances I am not satisfied that Mr Juer’s concerns about the gradients needed to be drawn to the attention of the committee.

62.	On the other hand, some of Mr Juer’s other points cannot be dismissed by reference to objective material in the same way as can his point on gradients.  His concerns about the access junction (no.5), the ramp and the adequacy of passing places (nos.7 and 9) and the collection of refuse (points no.3 and 10) – all of them being points that contributed to his advice that the application should be refused on the two grounds stated by him - raise issues of planning judgment.  The judgmental nature of the issues is emphasised by the terms of the UDP policies to which he refers.  For example, policy GD6 is “to have regard … to the traffic likely to be generated … and its implications for the locality”.  Policy GD8 is “to require that the site access and servicing of all development normally complies with the council’s standards … and in particular … (c) that refuse storage facilities are carefully sited and screened in all cases …; (d) that … there are adequate arrangements for circulation, servicing and off-street parking …”.  Policy T13 is “to assess proposals for the creation or improvement of an access onto the public highway … in accordance with the following criteria …”.  It is not for me to make the requisite judgments, e.g. by way of accepting Mr Dinkin’s submission that it is plain from the plans that the access to the highway would not pose any problems.  It may be inferred from the council’s evidence that the council’s senior officers did not consider Mr Juer’s points to be without substance. 

63.	In those circumstances I am not persuaded by Mr Dinkin’s submission that Mr Juer’s comments should be regarded as being without substance or no more than technical points on which senior officers could properly form a different assessment.  Nor in my view can they be dismissed on the basis that even if they had been brought to the attention of the planning committee, they could have had no effect on the outcome, in that members could not reasonably have accepted Mr Juer's advice or concluded that the proposals would be in breach of UDP policies.

64.	That makes it necessary to consider how, on the council’s own evidence, the comments were actually dealt with.

65.	As to the council’s evidence that it was that thought that the matters raised by Mr Juer could be covered by planning conditions, there is of course no problem in principle about the use of appropriate conditions to deal with matters that might otherwise justify the refusal of planning permission.  Where, however, it was being said that the proposals were contrary to policies in the UDP (as was the case with some of Mr Juer’s concerns, even if one discounts the point about gradients), it seems to me that the attention of members ought to have been drawn to the concerns expressed and to the way in which it was said that they could be met by conditions.  The relevant judgment was for them to make, even though they would no doubt rely heavily in practice on the advice given to them by senior officers.  As it was, the report not only failed to draw their attention to the concerns or to the view (in so far as this was the case) that they could be met by conditions, but gave very little information about the conditions themselves.  It referred to them only in summary form, e.g. “6.  C13 Details of Loading/ Unloading/ Turning Facilities” and “7.  C14 Details of Access and Junction”, these apparently being the headings of the council’s standard conditions.  It did not include any reasons for the imposition of such conditions.  The full text of the conditions and the statement of reasons only came later, with the actual grant of planning permission.

66.	In his submissions Mr Davey sought to identify which particular conditions addressed each of the concerns raised by Mr Juer.  I have to say, however, that I found this exercise unsatisfactory since it is in the first instance for the decision-making committee, not for the court, to satisfy itself that the conditions are apt to meet the concerns expressed.  The material placed before members of the committee did not enable them to carry out that exercise.  

67.	The council’s difficulties increase if one considers the other basis upon which, on the council’s evidence, it was considered unnecessary to draw Mr Juer’s concerns to the attention of the committee, namely that they were outweighed by other considerations.  Although Mr Davey submitted that this meant other highways considerations, that is not what the witness statements say and is not what council said when asked to clarify the evidence.  In my view it is an impermissible gloss on the evidence.  Yet if the reference is to other, non-highways considerations, then plainly it was for the members of the committee, not just for the officers, to carry out the balancing exercise.  They were not, however, in a position to do so, since the report did not tell them of Mr Juer’s concerns and, as I have said, it gave the general impression that highways matters were not a problem at all.

68.	In my view nothing that was said at the meeting on 17 June altered the position.

69.	I am driven to the conclusion that there was here a failure to place adequate information before the members. I think it likely that the concerns were capable of being met by conditions or of being outweighed by other considerations, but it was for the committee to form the relevant judgment, and for that purpose the members needed more information than they were in fact given.  This conclusion involves no departure from the reasoning in Oxton Farms v. Selby DC, but is an application of that reasoning to the particular facts of this case.

Ground (3): Health care need and service impact

70.	Issues of health care need and the impact of the proposed development on existing health and social services provision were treated at all times as material considerations and were the subject of substantial comments from consultees.  Amongst the responses were objections from the council’s Social Services Department and from the local NHS Primary Care Trust.  Cygnet sought to counter the concerns expressed.  As is now clear, however, the objections remained.  The main issue raised by this ground is whether the members of the planning committee were given adequate information about the up to date position and/or whether they were left with the erroneous impression that the concerns had been resolved.

71.	The nature of the concerns expressed is sufficiently indicated by reference to two documents.  In a letter dated 19 March 2003 the Assistant Director (Adults) of Social Services, Ms Penny Butler, disputed the existence of a need for the services to be provided by the proposed development and said that it had the potential severely to destabilise local statutory services.  In a letter dated 8 April 2004 the Chief Executive of Enfield NHS Primary Care Trust stated that the proposed development did not accord with Enfield’s 3 year Local Development Plan based upon the needs of Enfield residents, and expressed concern that patients might be imported from outside Enfield, causing increased pressure on other local services, and that it would prejudice the successful recruitment and retention of staff in existing and planned services.  

72.	Those concerns were summarised in the officers’ report prepared for the meeting of the planning committee that was due to be held on 29 April but was then deferred.  Although Mr Wolfe criticised the summary (which was repeated in the later report) as failing to convey the full nature and strength of the concerns, it was in my view in that respect adequate.  Furthermore the report went on to state, when discussing the acceptability of the proposed land use: 

"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.”

73.	The absence of a proven need for the proposed use was one of the matters that was then weighed in the balance in the report’s conclusion, leading to the recommendation at that time that planning permission be refused.

74.	In the course of May, Cygnet submitted a substantial amount of additional material on the question of need, including a report dated 23 May and referred to before me as the Laing Report.  

75.	The officers’ report for the meeting on 17 June contained the same summary as before of the comments of Social Services and the Primary Care Trust, though noting at that point that additional information had been received and that any further comments would be reported at the meeting.  The report’s subsequent discussion of the issue of need started in terms almost identical to those in the previous report, though excluding the words “However, in the light of the local NHS Trusts and Social Services objection, this issue continues to be of concern.”  The report went on to set out a summary of the additional information received from Cygnet.  What was set out was in fact a verbatim transcription of a lengthy executive summary provided by Cygnet.  The report continued:  
“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." 

76.	No further comments from Social Services or the Primary Care Trust were reported at the meeting, though it is right to note that the concerns previously expressed by those bodies were referred to in the course of representations made by objectors at the meeting. 
                                                                                                        
77.	Mr Wolfe submits that the officers’ report for the 17 June meeting ought to have drawn members’ attention to the recommendation for refusal contained in the previous report, and that the failure to do this resulted in the committee unlawfully failing to take account of that recommendation as a material consideration.  I reject that submission.  It is based on a factually mistaken premise, in that the evidence before the court (which, despite a certain oddity about it, I must take at face value since it has not been possible to take the matter any further) is that each member of the committee did in fact receive copies of the earlier report; they must therefore be taken to have been aware of the earlier recommendation for refusal.  In any event I do not accept that the earlier recommendation needed to be drawn to their attention.  It was based on the information then available and had not been considered by the committee at that time.  What mattered on 17 June was the up to date information and the fresh recommendation based on that information.

78.	Mr Wolfe’s further and stronger submission is that the members of the committee did not have adequate up to date information and were left with an erroneous impression that the concerns previously expressed by Social Services and the Primary Care Trust had been resolved.  

79.	The Laing Report itself suggested the existence of mixed views concerning the need for the proposed development.  Reference was made inter alia to the view expressed by officers at Strategic Health Authority level as to the absence of a significant need, and to concerns expressed by a local NHS manager about competition for staff and the financial implications of a new local service.  Those matters were not mentioned in the summary of Cygnet's representations contained in the officers' report to the planning committee, nor were members of the committee supplied with a copy of the Laing Report itself. 

80.	It does not appear that the council’s officers, having received the Laing Report, put it to Social Services or the Primary Care Trust for comment.  Nevertheless it appears to have come to the attention of Social Services at least.  The evidence before the court includes a letter dated 29 May 2003 from Barnet, Enfield and Haringey NHS Mental Health Trust to Penny Butler at Social Services, giving the Mental Health Trust’s comments on the Laing Report.  Ms Butler’s own comment, endorsed in manuscript on the letter, was “my view remains the same!”.  There was also a manuscript instruction that the document should be copied to the planning department.  It was received by the planning department but there is no record of its having been drawn to the attention of members of the planning committee.

81.	Recent inquiries by or on behalf of the claimant confirm that the concerns of Social Services and the Primary Care Trust in fact remained as set out in the letters of March and April 2003 to which I have previously referred.   In manuscript comments annotated on a list of questions sent to her by the claimant, Ms Butler states that “the view of Social Services did not change and has not changed subsequently”.  A letter dated 5 March 2004 from Enfield NHS Primary Care Trust to the claimant's solicitors states that had there been further consultation with them on health care needs the Primary Care Trust’s views would have been as set out in their original letter.  

82.	The fact that Social Services and the Primary Care Trust continued to object to the proposed development, an objection underlined by the views of the Strategic Health Authority referred to in the Laing Report, is a matter of some importance, especially given that the absence of proven need had been one of the factors contributing to the recommendation for refusal in the original officers’ report.  In my judgment this was something of which members of the planning committee ought to have been aware.  

83.	Mr Davey and Mr Dinkin seek to meet that point by saying that the objections of Social Services and the Primary Care Trust were already summarised in the officers’ report and were therefore before the committee, and that it would have added nothing to draw attention to the fact that their objections were maintained.  I disagree.  On a fair reading of the report as a whole and in the absence of information as to further input from Social Services or the Primary Care Trust, members could well have been left with the impression that the objections of those bodies had been substantially met by the additional information received from Cygnet.  Members were told in the report that in the light of that additional information, together with an unparticularised reference to the advice contained in PPG1, it was considered that a refusal on the question of need might be difficult to sustain.  They were also told that if further comments were received from Social Services or the Primary Care Trust, such comments would be reported at the meeting.  The fact that no such further comments were communicated to members would have tended to indicate that the Social Services and the Primary Care Trust did not dissent from the view expressed by officers in the report.

84.	It may be little more than a forensic point, but Mr Wolfe draws attention to the witness statement of Cygnet’s own Regional Director, Mr Hoar, in which he notes that that Social Services, the Primary Care Trust and the Mental Health Trust did not appear to speak at the committee meeting on 17 June and had not written to the council to pursue their objections.  He states his belief that “they did not do so because their concerns had been addressed in the additional documentation which they had been sent”.  If Cygnet’s own witness formed that impression, then it is not easy for Cygnet to contend that members of the committee would have proceeded on the contrary basis that the objections of Social Services and the Primary Care Trust were maintained.

85.	Accordingly, and again in application of the principles in Oxton Farms v. Selby DC (above), I take the view that on the issue of need the report to members was materially deficient and misleading.  It resulted in the committee proceeding on a mistaken factual basis and failing to have proper regard to a material consideration in reaching its decision.

Ground (4): Inadequate summary of consultation responses

86.	This ground looks at the adequacy of the report’s summary of consultation responses as a whole.  In part it is cumulative, referring back to matters covered under grounds (1) and (3).  It also advances two further points.

87.	The first additional point concerns the views expressed by members of the public who attended the meeting of the special planning panel on 16 April.  A nine page note of the meeting was prepared, summarising the views expressed.  It was sent to members with the original officers’ report, for the meeting of the planning committee that was due to take place on 29 May but was then deferred.  The report for the committee on 17 June referred to the earlier meeting of the planning panel and to certain of the concerns expressed at the panel, but the note of the meeting was not appended or sent separately to members.  Mr Wolfe’s submission is that this was a material omission.

88.	Planning panels are set up as and when required and have a formal place within the council’s constitution.  I have referred already to their purpose.  Chapter 7 of the constitution provides that “[t]he Panel proceedings to be noted and fed back to Committee”, and the same point is made in the actual terms of reference.  It seems to me that the note of the meeting of the planning panel ought to have been sent to members of the planning committee for their consideration of the applications on 17 June.  It is true that the panel meeting took place before significant revisions had been made to the planning application.  But what had been said at the panel meeting remained relevant.  Otherwise it would not have been referred to in the report for the committee on 17 June; and indeed, if matters had changed so substantially as to render the previous panel meeting irrelevant, one would have expected a further panel meeting to have been held.  

89.	Some members of the planning committee had themselves been present at the panel meeting and the rest of the then existing membership of the planning committee would have received the note of the panel meeting together with the original officers' report for committee on 29 April.   Since that time, however, the membership of the committee had changed and there were three new members.  Although there is evidence that those attending the meeting of the committee on 17 June were sent a copy of the original report, there is no evidence that they were also sent the note of the panel meeting.  So the new members, at least, had neither personal involvement in the planning panel nor a note of the panel meeting.   They were therefore lacking information that, under the council’s constitution, they were intended to have.

90.	It is true that most of the points covered in the note of the Panel meeting were covered in one way or another in the officers' report for 17 June or at the 17 June meeting itself.  But that is not so with all of them.  For example, Mr Wolfe points to a concern raised by one resident that further building would exacerbate an existing problem of overflow of raw sewage into gardens.  This featured in the report, if at all, only by way of reference to a concern expressed about “flooding risk in the area”.  In any event the notes of the panel meeting would in my view have given members a better feel for, or understanding of, the issues raised.  

91.	Accordingly I accept that the failure to send the notes of the panel meeting to the new members of the planning committee was a material failure.

92.	Mr Wolfe submits that the summary of consultation responses was also deficient in a further respect, in that the report to committee did not summarise properly the public responses to consultation as set out in extensive and detailed correspondence opposing the proposal.  The report referred simply to responses from the public “raising some or all of the following points” and then set out a list of bullet points such as “There is a flooding risk in the area” and “Traffic flow, parking and access implications”.  It did not give an intelligible account of the specific concerns expressed or of the reasons for them.  

93.	Viewed by itself, I would not attach much weight to that criticism of the report.  It has to be said, however, that the report was in this respect very thin; and when taken in conjunction with the omission of the notes of the planning panel meeting, this does add marginally to my concern about the adequacy of the information given to members about the views of the public.  Again I do not think that a complete answer is to be found in the fact that oral representations were received at the meeting of the planning committee itself on 17 June.

94.	Taking everything into account, I have come to the conclusion that the members of the planning committee were not given sufficient information to ensure the proper discharge of their functions in relation to this planning application.  It was plainly a difficult and highly controversial decision, reached by the narrowest of majorities. Members needed to be fully aware of the nature and extent of concerns expressed on all material issues, so that they could perform the requisite judgments both as to compliance with the UDP and as to the nature of, and weight to be given to, other material considerations.  I accept that what was said in the report and at the meeting itself must have alerted them to the extent of the opposition and to most of the important issues.  I also accept that, as was made clear in Oxton Farms v. Selby DC, a sensible and practical approach must be adopted towards officers' reports and too much should not be expected of them.  On the particular facts of this case, however, I take the view that the report did not do enough.  The deficiencies identified in relation to the highways/access issue (ground 1), the issue of need (ground 3) and the overall public response to consultation (ground 4) are substantial when viewed individually.  When aggregated they give rise to a strong case that the committee was not made sufficiently aware of relevant information and that its decision was flawed in consequence.

Discretion

95.	Some efforts were made to persuade me to exercise my discretion to withhold relief even if I found in favour of the claimant on the substance of the challenge.  In the light of my conclusions I see no scope for the exercise of such discretion.  It is plainly not appropriate to do so in relation to the bias issue; and given the narrowness of the vote in the planning committee, it is impossible to conclude that the decision would inevitably have been the same if members had been given the further information that they ought to have been given.  I am conscious of the importance attached to the development for conservation reasons and of the interests of Cygnet, but such matters cannot justify my denying the claimant the relief to which he is otherwise entitled.  The right course is for the decisions to be retaken in circumstances that do not give rise to an appearance of bias and on the basis of sufficient information.

Conclusion
96.	For the reasons given, the decisions to grant listed building consent and planning permission, together with the subsequent formal grant of listed building consent and planning permission, must be quashed.   I will hear from counsel as to the precise terms of the order.
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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.