England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		19 November 2008

MR JUSTICE SULLIVAN:

Introduction

1. In this application for judicial review, the claimant seeks a quashing order in respect of an outline planning permission dated 22 November 2005, granted by the defendant to the interested parties, for the removal of an existing static caravan and the erection of a dwelling on a field, OS No 5419, at Kirkby Malzeard ("the site"), owned by the interested parties. Although the Harrogate Borough Council ("the Council") is nominally the defendant in these proceedings, it does not resist the claim.
2. The claimant is the leader of the Council, and in reality the Council is seeking the quashing of the planning permission because it accepts, in the light of an adverse report dated 14 December 2006 by the Local Government Ombudsman ("the Ombudsman"), that the grant of permission was procedurally flawed because there was apparent bias on the part of the Chair of the Council's Area Planning Development Control Committee ("the Committee") on whose casting vote the planning permission was granted.

Factual background

3. The factual background is set out in some detail in the Ombudsman's report, and there is no need to rehearse it in this judgment. In brief summary, Mrs Atkinson became a Conservative Borough Councillor on 2 May 2002. In March 2005, she and her husband applied for the outline planning permission in question. The planning officers' report recommended refusal of the application for the following reason:

"No special justification for a dwelling in the particular location has been given and the development would be outside the built up confines of Kirkby Malzeard in the countryside where it would seriously and adversely harm the character and natural beauty of the Nidderdale AONB [Area of Outstanding Natural Beauty] and consequently the development would be contrary to North Yorkshire County Structure Plan Policies E1 and H7 and Harrogate District Local Plan Policies C1, C15 and H7."

4. On 19 April 2005, the Committee resolved that it was minded to grant planning permission on the casting vote of the Chair, Councillor Simms, who was also a Conservative Councillor. In accordance with the Council's scheme of delegation, the application was deferred to a later Committee meeting on 20 September 2005. Again, the officers' report "strongly recommended" a refusal of planning permission. The recommended reason for refusal was in even more emphatic terms, and the Committee were advised by the planning officers that they should consider the question of precedent:

"In the absence of exceptional circumstances to justify it, the development is contrary to policy. If members are minded to approve them, then they need to consider what are the factors in this situation which make it different from the other similar applications which are likely to be brought in the future."

5. The Committee, again on Councillor Simms' casting vote, resolved to approve the application. The Committee's reasons for approval, contrary to their officer's recommendations, were as follows:

"1. It was considered that there would be a visual improvement in the area if the caravan was removed, and an appropriate designed dwelling constructed in its place.

2. The caravan was not located on a designated site and it is not thought the proposal would cause any detriment to the visual amenity of the Nidderdale AONB."

6. A local resident in Kirkby Malzeard complained to the Ombudsman, who commenced an investigation. In February 2006, the interested parties made a second application for planning permission for the same form of development on land immediately adjoining the earlier application site. That application was considered by the Council's Area Planning Committee on 25 April 2006. Again, the planning officers recommended refusal, essentially for the same policy reasons as they had recommended refusal of the first application. On this occasion, Councillor Simms declared a prejudicial interest and left the meeting prior to its consideration of the interested parties' application. The Committee, by a majority, refused the second planning application for the policy reasons recommended by the planning officers:

"1. The siting of the proposed dwelling is outside the development limit for Kirkby Malzeard in the open countryside. There is inadequate special justification for a dwelling in the particular location and consequently the development would be contrary to North Yorkshire Structure Plan Policy H5, Harrogate District Local Plan Policy H7 and Kirkby Malzeard Village Design Statement Policies SPC2 and SPC3.

2. The proposed siting and design including the vehicular access and extent of parking does not reflect the character of traditional buildings in the locality; is not adjacent to an existing group of buildings or significant trees; is not in an inconspicuous location; is not accompanied by an integral landscaping scheme; and would seriously and adversely harm the character of the area and the natural beauty of the Nidderdale AONB and consequently the development would be contrary to North Yorkshire County Structure Plan Policy E1 and Harrogate District Local Plan Policies C1, C2, C11, C15, HD20, A1, H18 and the Kirkby Malzeard Village Design Statement Policy BD1."

7. On 14 December 2006, the Ombudsman issued her final report. In paragraph 7 of her report she set out the relevant test for apparent bias:

"The test, the courts have held, is not just actual bias but the appearance of bias; whether a fair minded and informed observer, with knowledge of the facts, would conclude that there was a real possibility of bias."

In a footnote, the Ombudsman referred, inter alia, to the case of Porter v Magill [2002] 2 AC 357. The conclusions in the Ombudsman's report that are relevant for present purposes are contained in paragraphs 59 to 63 and are as follows:

"59. The Members Code of Conduct says that a Councillor must not use his position improperly to confer on or secure for himself or anyone else any advantage or disadvantage. Councillors who belong to a political group must declare a personal interest in any planning application by a member of the same political group. Provided that interest is not also prejudicial they can then take part in the meeting and vote. All the Councillors who were members of the same political party as Councillor Atkinson should therefore have declared an interest at both the April and September 2005 meetings.

60. The Code and recent case law have defined what amounts to a prejudicial interest. To paraphrase, the only Councillors who should have considered and voted on the application were those whose relationship with Councillor Atkinson would not lead a member of the public to think that their decision, because of that relationship, would be biased.

61. The Chairman of the Area Committee, Councillor Simms, was in the habit of driving Councillor Atkinson to and from Council meetings, a journey which will have taken over 30 minutes each way. Sharing cars in a rural community is a courtesy, apart from making good economic sense. However, over time this brought the two into sufficiently close contact for fellow Councillors to express unease amongst themselves, for one Councillor to make a complaint to the Chief Executive of the Council, for another Councillor to suggest that Councillor Simms should take no further part in consideration of Councillor Atkinson's planning applications, for a member of the public to make a complaint to the Standards Board and for another member of the public to make a complaint to me.

62. The association between Councillor Simms and Councillor Atkinson furthermore was not confined to Council business. Church functions, political events, village gatherings and mutual friends brought the two families together, on average, once a fortnight. Councillor Simms, whose casting vote was decisive in Councillor Atkinson's favour, had a clear prejudicial interest and, by failing to acknowledge and declare it, he breached the Code of Practice. Without Councillor Simms' votes Councillor Atkinson's application would have been defeated. The involvement of Councillor Simms in both decisions was maladministration.

63. It is open to Members to reach a decision other than that recommended by the officers, but they must do so for sound planning reasons. The Members who supported the officers felt the weight of argument was heavily in their favour - and they had substantial national and local policies to back them up. By comparison, there is no evidence that the three who voted contrary to the officers' recommendation gave significant weight to any of the policies, but based their decision simply on the grounds that a house would look better than a caravan - which was not on a designated site - and the house would not, in their view, be detrimental to the visual amenity of the AONB."

8. In paragraph 70 the Ombudsman noted that, in response to the draft of her report, the Council had agreed-

"To consider what action it should take to cancel the planning permission which was improperly obtained. The Council accepts that this may require an order of the court. In the meantime, the Council has agreed that any consideration of reserved matters under the current planning permission will be dealt with in the light of this report ..."

9. In paragraph 74, the Ombudsman commended the Council "for its positive response to the criticisms within this report and its willingness to take appropriate action".
10. The Council's Cabinet considered the Ombudsman's report on 3 January 2007, and unanimously resolved to fund this application for judicial review by the claimant. The Council's reasons included the following:

"The decision made in September 2005 was clearly improper and should not be allowed to stand. An application for judicial review, if successful, would lead to the court quashing the outline planning permission. This would enable the authority, if the applicant requires, to reconsider the application on its merits in accordance with the law and the Council's policies."

Apparent bias - the correct legal test

11. Pausing there, it is common ground that the Ombudsman correctly set out the relevant test for apparent bias. On behalf of the interested parties, Mr Carter referred to the Court of Appeal's decision in Persimmon Homes Teesside Limited v R (on the application of Lewis) [2008] EWHC Civ 746, in support of the proposition that, in applying that test, the court must bear in mind the surrounding context. For present purposes, that context includes the fact that, in addition to being members of the same political party, councillors will often be friends or acquaintances and will have social and other dealings with one another. Although Persimmon is readily distinguishable on its facts (it was a "pre-determination" case), I would readily accept, in principle, the proposition advanced by Mr Carter. The fair-minded and informed observer's consideration of the facts would surely include the surrounding context, and in the present case that context would include the fact that Mrs Atkinson and Councillor Simms were fellow councillors, and as such would be likely to be acquainted with each other to some degree or other.

The court's approach to the Ombudsman's report

12. Mr Carter took issue with the submission of Mr Sharland, on behalf of the claimant, that the court, while not bound by the Ombudsman's report, should not depart from it unless there was a "very good reason" to do so. I accept, of course, that the court has to ascertain the relevant facts for itself, and that in doing so, it is not bound by the Ombudsman's findings. It may well be that Mr Sharland's test of "very good reason" pitches the threshold somewhat high. However, as a matter of practical reality, where the Ombudsman has not merely looked at documents but has interviewed the relevant parties in the course of her investigations, the court, looking at the matter on the papers alone, and bearing in mind the Ombudsman's own extensive expertise in matters relating to local Government, will be slow to depart from the Ombudsman's conclusions, and will do so only if it is persuaded that there is a good reason to do so. Mr Carter sought to persuade me that there were good reasons to do so based on Mrs Atkinson's two witness statements, which dispute, in certain respects, the Ombudsman's factual conclusions.
13. Before turning to Mrs Atkinson's evidence, it is convenient to deal with the outcome of the complaint that had been made by another individual to the Standards Board for England, which Mrs Atkinson prayed in aid in her case.

The Standards Board's report

14. The report, dated 26 July 2007, contains a number of findings. For present purposes, the most relevant conclusion of the Ethical Standards Officer ("the officer") was that Councillor Simms did not have a personal interest (for the purposes of the Council's Code of Conduct) in Mrs Atkinson's planning application as a result of their alleged friendship. At first sight, this might appear to contradict the Ombudsman's conclusions (see above), however it is important to bear two factors in mind. First, the officer expressly did not consider whether the decision on the planning application might be flawed by bias. In paragraph 4.9 of the report, he said:

"My investigation is concerned solely with whether Councillor Simms breached the Council's Code of Conduct, and issues such as the weight to be given to planning policies play no part in my considerations. Nor do I consider whether the decision might have been flawed by bias. Those matters are outside by jurisdiction and do not influence my findings. I do not comment on them."

15. Second, when considering whether there was a friendship between Councillors Simms and Mrs Atkinson for the purposes of the Council's Code of Conduct, the officer applied the following definition of "friend" in paragraph 5.26 of his report:

"The Code does not define a 'friend', but the Adjudication Panel for England (in the case referenced APE 0211) stated that:

'A friend can be defined as someone well known to another and regarded with liking, affection and loyalty by that person.

In the Tribunal's view, this definition, which requires the presence of four elements, does assist in drawing the line between friends, acquaintances or friendly acquaintances. Where each of the four elements is present, the Tribunal is satisfied that the relationship is such that its existence should be declared in the public interest.'"

16. In my judgment, there can be no doubt that any fair-minded observer who concluded that Mrs Atkinson was not merely a fellow Conservative Councillor, but was well-known to Councillor Simms, and that he regarded her with "liking, affection and loyalty" would conclude not merely that there was a real possibility of bias on the part of Councillor Simms, but that it was likely that there would be bias. In the spectrum of relationships between decision-takers and those who will benefit personally from their decisions, a friendly relationship as defined in paragraph 5.26 of the report, perhaps best summarised as "a close friendship", would be a compelling reason for the decision-taker to recuse him or herself. It does not follow that there will be no apparent bias if the relationship is less close, ie if one or more of the four elements referred to in paragraph 5.26 of the report is not present in the relationship between the decision-taker and the person who benefits from the decision.
17. Mr Carter accepted that there could be a finding of apparent bias even in the absence of a "friendship" as defined in the Board's report, but he relied on the officer's factual findings which he submitted were more detailed and hence more reliable than those of the Ombudsman.
18. In paragraphs 5.27-5.40, the officer concluded as follows:

"5.27. Councillor Simms regularly drives Councillor Atkinson to and from Council meetings, a round trip of around 40 miles. Both members live in a rural area and Councillor Atkinson's house lies between Councillor Simms' home and the Council offices.

5.28. Councillor Simms' wife and Councillor Atkinson's husband are both involved in their respective parish churches as wardens. Councillor and Mrs Simms, and Councillor and Mr Atkinson share a mutual friend, Mr Rhodes.

5.29. Councillor Simms and Councillor Atkinson have known each over directly only since Councillor Atkinson became a member of the Council in 2002, and it was at this point that the mutual connections with Mr Rhodes and their partners being churchwardens came to light.

5.30. Councillor Simms and Councillor Atkinson come into contact outside Council business a couple of dozen times a year, at political, church and village social functions.

5.31. Councillor Simms and Councillor Atkinson have seen each other socially three of four times since she became a member of the Council in 2002, at large-scale local social events, often attended by hundreds of people.

5.32. Councillor Simms has visited Councillor Atkinson's house on two or three occasions since 2002, attending fundraising events, and she has never visited his house.

5.33. I am concerned by the apparent incompatibility between Councillor Simms' statement, recorded by the Ombudsman, that he and Councillor Atkinson come into contact over twenty times in a year, and Councillor Simms' and Councillor Atkinson's statement to my investigator that they have seen each other socially only three or four times in the last five years.

5.34. In my view, however, this contradiction is explained by the difference between 'coming into contact' and meeting socially. It is likely that two people living relatively close together and being members of the same local authority and political group as well as actively involved in the local community will, as a matter of course, come into contact with some frequency, even outside formal Council business, whereas meeting socially indicates a degree of friendship.

5.35. The evidence of Councillor Atkinson and Councillor Simms is largely consistent in this respect, in that both recalled only three or four occasions when they met in a social context, some of these occurring at Councillor Atkinson's home, but in all cases the events appear to have been of relatively significant scale and not events that would be limited to a circle of friends.

5.36. I consider it to be a particularly relevant fact in this respect that Councillor Simms was not invited to Councillor and Mr Atkinson's recent event celebrating their anniversary, which involved 120 invitees.

5.37. In applying the criteria for friendship set out by the Adjudication Panel for England, I first consider whether Councillor Atkinson is well-known to Councillor Simms. In my view, a combination of factors must be considered, the length of time for which two people have known each other, the frequency of contact between them, the nature of that contact, and the extent of the knowledge each has of the other.

5.38. Councillor Simms and Councillor Atkinson have known each other for five years, and come into contact quite frequently, but the nature of that contact is only occasionally social and even then in the context of large gatherings. I do not consider that Councillor Atkinson and Councillor Simms have any particular knowledge of one another beyond that which would characterise acquaintances.

5.39. I consider that Councillor Simms does regard Councillor Atkinson with a degree of liking, as he would be unlikely to regularly share his car with someone for whom he had no liking. I do not consider however that the evidence of Councillor Simms or Councillor Atkinson indicated any particular affection between them, or loyalty beyond what would be reasonable for political colleagues.

5.40. I do not consider that the nature of the relationship between Councillor Simms and Councillor Mrs Atkinson is such as to constitute a friendship for the purposes of the code of conduct."

Mrs Atkinson's evidence

19. In her two witness statements (the first pre-dating and the second post-dating her receipt of the Board's Report) Mrs Atkinson took issue with a number of the Ombudsman's conclusions and maintained that Councillor Simms was not a friend. He had not, for example, been among as many as 120 guests who had been invited to her and Mr Atkinson's wedding anniversary celebrations in 2007, and he had not attended the weddings of her two children, at which large numbers of guests had been present. She particularly took issue with the account apparently given by Councillor Simms to the Ombudsman's investigator of the number of occasions during the year in which they came into contact with each other (see paragraph 5.30 of the Board's report and paragraph 62 of the Ombudsman's report).
20. The officer sought to resolve the apparent discrepancy in paragraph 5.34 of the report, which for convenience I repeat:

"In my view, however, this contradiction is explained by the difference between 'coming into contact' and meeting socially. It is likely that two people living relatively close together and being members of the same local authority and political group as well as actively involved in the local community will, as a matter of course, come into contact with some frequency, even outside formal Council business, whereas meeting socially indicates a degree of friendship."

21. Mrs Atkinson gave evidence of the four social occasions at which she and Councillor Simms were present. In each of those cases, there were also large numbers of other guests present.

Detailed submissions

22. It is common ground that the court must have regard to all of the relevant circumstances. Mr Sharland relied on eight factors in particular, which he submitted either individually or cumulatively demonstrated the existence of apparent bias. Those factors were:

(i) Councillor Simms' membership of the same political group as Councillor Atkinson, together with his failure to declare, contrary to the members' Code of Conduct, his personal interest arising from that membership.

(ii) Their shared transport to and from Council meetings and site visits, including to and from the two Committee meetings that discussed Mr and Mrs Atkinson's planning application. The fact that such car sharing was done for environmental purposes was neither here nor there.

(iii) Their social contact outside the Council. The descriptions by the Board and the Ombudsman of such contact differed somewhat, but even on the Board's analysis, they came into contact on a couple of dozen times a year.

(iv) The various concerns that had been expressed by fellow councillors and members of the public as to their relationship.

(v) The conflict between Councillor Simms' views and that of certain other Conservative Councillors, and the strong views of the Council's planning officers and other councillors as to the merits of the planning application. The Ombudsman had noted that the approach taken by Councillor Simms did not accord with the correct approach to be taken to such applications.

(vi) The fact that Mrs Atkinson had copied Councillor Simms into correspondence relating to possible planning enforcement action in a letter dated 24 March 2004.

(vii) The fact that Councillor Simms had stated that he had had "his ear bent" about the application.

(viii) Councillor Simms' subsequent withdrawal in April 2006 from the Committee's consideration of the second planning application that had been made by Mr and Mrs Atkinson on the basis that he had a prejudicial interest in the application.

23. In response to those factors, Mr Carter submitted that, considered individually, no one factor would cause a fair-minded and informed observer to conclude that there was a real possibility that there had been bias. I readily accept that submission. This is a case in which no one factor is decisive; rather it is the overall picture presented by the cumulative impact of the factors relied upon by Mr Sharland.
24. In respect of each individual factor, adopting the numbering set out above, Mr Carter submitted that, in respect of (i), although Mrs Atkinson and Councillor Simms were members of the same political group, Councillor Simms had registered his membership of that political group. It was not in the least unusual for councillors to be members of the same political group. Mrs Atkinson's planning application had been made in her private capacity, not as a member of the group. Thus this was a factor which should be given no weight.
25. In respect of (ii) car sharing, there was a factual dispute between the Ombudsman and Mrs Atkinson. The Ombudsman had found that the shared car journeys took over 30 minutes each way. On Mrs Atkinson's evidence, the journey took 20 minutes "on a good run". I do not regard this factual difference as being of any particular significance. Mr Carter submitted that of greater significance was the purpose of the car sharing. On the evidence, the car was shared not because of any friendship between Mrs Atkinson and Councillor Simms, but in order to save money. Both of them lived in a rural area where lengthy distances were to be travelled, and only one expense claim would be made if one car was used. He further submitted that according, to Mrs Atkinson, and indeed Councillor Simms, she did not lobby him while in the car about the merits of her application. Thus, no one could consider that the fact that they shared cars was material.
26. In respect of factor (iii), as to the extent of their social contact outside the Council, I have already mentioned that Mrs Atkinson took issue with the way in which the Ombudsman depicted that contact in paragraph 62 of her report. Mr Carter drew attention to the way in which, in the Board's report, the officer drew a distinction between coming into contact and meeting socially (see paragraph 5.34 above). He also referred to Mrs Atkinson's account of the occasions on which she and Councillor Simms had been at the same social function -- in each case the social function being one where there were large numbers of other persons present.
27. In respect of factor (iv), the concerns that had been expressed by councillors and members of the public, Mr Carter submitted that their views were not synonomous with the views of a fair-minded and informed observer, not least because they did not know the full range of facts which were now before the court. He also drew attention to the fact that the concerns expressed had related not simply to Councillor Simms, but also to another councillor, Councillor Ellington, about whom no complaint is made in these proceedings, and moreover, the complainants (or some of them) had formed the view that Councillor Simms and Mrs Atkinson were "close friends", a view which was not borne out when that issue was examined by the Standards Board.
28. As to issue (v), he submitted that the fact that Councillor Simms had disagreed with the views of the planning officers was a point of no weight whatsoever. It was for councillors to form their own views, and since there had been no challenge to the validity of the planning permission, it must be assumed that the reasons for granting planning permission were reasons which were reasonably open to those councillors who voted in favour of granting permission.
29. As to issue (vi), he submitted that the mere fact of sending the letter of the 23 March 2004 to Councillor Simms did not suggest that there might be any apparent bias on his part. The letter was sent some time before the relevant decision in 2005.
30. So far as issue (vii) is concerned, the reference to Councillor Simms "having his ear bent" should be read in the light of other passages in the Ombudsman's report in which it is reported that Councillor Simms had "admitted to officers that he had had his ear bent at length about this application, although he did not say by whom" (see paragraph 36). Councillor Simms told the Ombudsman that if he had said such a thing, it would have been in relation to comments made either by the Chairman of the Parish Council or by Councillor Atkinson. He was not clear as to which, but he did say that if it was Councillor Atkinson, then she would have been bending his ear about the delay in determining her application, and there was not any discussion about the merits of the application. His recollection of events is recorded in the same way in the Board's report.
31. Lastly, in respect of issue (viii), Mr Carter submitted that Councillor Simms' withdrawal from the later decision was not probative at all; the withdrawal was made at a time when the Ombudsman was investigating the matter and could equally well be explained by the fact that Councillor Simms was simply being cautious -- ultra cautious perhaps -- in his dealings with the matter.

Conclusions

32. In deciding what conclusions would be drawn by the fair-minded and informed observer, it seems to me that the starting point must be that the extent of the contact between Mrs Atkinson and Councillor Simms led not merely one aggrieved member of the public to complain to the Ombudsman, but to fellow councillors to express their concerns, and to another member of the public (or a councillor, cf. para. 61 of the Ombudsman's report and para. 1.1 of the Board's report) to complain to the Standards Board. While some of their criticisms may well have been misplaced and/or overstated, there can be little doubt that Councillor Simms' conduct at the two meetings in April and September 2005 was a cause of real concern. Thus, the Ombudsman, in reaching her conclusion that there was maladministration, could not be said to have been on some "frolic of her own". Moreover, the Council itself now acknowledges that the decision to grant planning permission was "clearly improper". Thus, this is not a case of a lone third party alleging apparent bias on the part of a local planning authority that is vigorously denying any such procedural impropriety. The Council itself concedes that there was apparent bias. Although Mr Carter submitted that little weight should be given to that conclusion because he said that the Council was concerned to avoid paying compensation if it had to make a revocation order, I do not accept that that is the sole reason why the Council has adopted the stance that it has in these proceedings. I have no doubt that it had regard to an understandable desire to avoid paying compensation in revocation proceedings, but equally, I have no doubt that it genuinely formed the view that the criticisms made by the Ombudsman were justified.
33. In these circumstances, Mr Carter would have had an up-hill task to persuade this court to disagree with the Ombudsman's judgment, reinforced by that of the decision-taking local planning authority. However, his task is made well nigh impossible by Councillor Simms' own evidence to the Board, which the officer recorded in these terms in paragraphs 4.118 and 4.119 of his report.

"4.118. Councillor Simms stated that he had declared a prejudicial interest at the 26 April 2006 DCC meeting because a fellow member and political colleague had advised him that a member of the public might consider the friendship to be close.

4.119. Councillor Simms stated to my investigator that he had not previously considered the issue of how interests might be perceived by the public, as opposed to his own perception, but in the light of the comments his colleague, Councillor Nash, had made to him, he now considered that on that basis he may have had a prejudicial interest in Councillor Atkinson's planning application. Councillor Simms emphasised that this was on the basis of knowledge and information he did not have at the time to the 2005 meetings, but with hindsight, he considered it might have been more appropriate for him to declare a prejudicial interest at the time."

34. Councillor Simms was at pains to emphasise that he was expressing those views with the benefit of hindsight. However, as Mr Carter acknowledged, the court must consider all of the circumstances, and in so doing is able to confer the benefit of hindsight on the informed observer. There has been no evidence from Councillor Simms to contradict what he told the Board's investigator. His (albeit belated) recognition of how others would have perceived his relationship with Mrs Atkinson is, in my judgment, fatal to the interested parties' case. It must be borne in mind that Councillor Nash was not a political opponent; he was a fellow member of the Conservative Party.
35. I of course give appropriate weight to Mrs Atkinson's evidence, but the critical question is not her perception of the relationship between herself and Councillor Simms, but how Councillor Simms' relationship with her would have appeared to the fair-minded and informed observer. Whatever the arguments as to the details of the extent of the social and other contact between them, on both the Ombudsman's and the Board's findings, that contact went beyond the contact which might normally be expected between fellow councillors who were simply in the same political party. Although they were not friends, as defined by the Board, they were fairly described as "friendly acquaintances", and were plainly perceived as such by their fellow councillors, including councillors who were the political allies of Councillor Simms.
36. This was not any planning application; it was a planning application in which a councillor, who was a member of Councillor Simms' own political party, had a very obvious personal interest. Councillor Simms was not simply a member of the relevant Committee; he was its Chairman. In that capacity, he should have been only too aware of the need to avoid any appearance of bias. On the basis of the evidence that he gave to the investigator on behalf of the Standards Board, he simply failed to give any thought to that issue. When he belatedly did so, even he recognised that the public's perception of the relationship would have been such that he should have recused himself.
37. It is also relevant, as part of the surrounding circumstances, that his vote was not simply one amongst a large number of votes either in favour of or against a particular proposal, his was the casting vote. Moreover, it is of particular importance that his casting vote in favour of planning permission was a vote contrary not simply to one but to two very strong recommendations by the planning officers to refuse planning permission. I would readily accept the submission that officers recommend and members decide, but in looking at all of the circumstances of this case, it is relevant to bear in mind that the officers' recommendations that planning permission should be refused on policy grounds were expressed in very strong terms. In the officers' view, this was not a finely balanced decision. There were very clear policy objections to the proposed development.
38. Moreover, although Mr Carter submitted that, in the absence of legal challenge, it must be assumed that the reasons for granting planning permission were not Wednesbury unreasonable, any fair-minded observer, with the benefit of the facts that are now known by the court, would surely be struck by the fact that the decision of the Committee (admittedly a differently constituted Committee) when Councillor Simms recused himself was to refuse planning permission for the second application on the very policy grounds that Councillor Simms had rejected. There has been no suggestion that there was any material difference between the first and the second applications such as to justify on planning grounds the decisions to grant the first and to refuse the second.
39. In these circumstances, in my judgment, any fair-minded and informed observer would conclude that there was indeed a real possibility of bias in the decision to grant planning permission.
40. Mr Carter submitted that, even if I reached that conclusion, I should not quash the planning permission. Instead, the defendant should be left to revoke the planning permission pursuant to section 97 of the Town and Country Planning Act 1990. The starting point, in my judgment, is that where a procedural impropriety such as apparent bias has been established, the proper approach, in principle, is to maintain the integrity of the planning system by quashing the offending planning permission. There may of course be sound reasons for not pursuing such a course. There may, for example, have been undue delay. There may, for example, be substantial prejudice. There may be other reasons why it would be appropriate not to quash a permission in such circumstances. However, the starting point should be that the permission will be quashed unless there is a good reason not to do so. In the present case, delay and prejudice are rightly not argued on behalf of the interested parties.
41. So far as the submission that the defendant should be left to revoke the permission is concerned, Mr Carter fairly acknowledged that that would impose a burden upon the public purse, but he contended that the interested parties were the innocent parties in this affair; that they had done no wrong, and therefore it was wrong to, as he put it, "impose the burden" on them.
42. It is important to understand the nature of "the burden". Quashing the planning permission will not turn a grant of planning permission into a refusal of planning permission; rather, the matter will have to be re-determined by the defendant in accordance with the law. If the proposed development is justified on the planning merits, then, no doubt, planning permission will be granted. If the interested parties receive a refusal of planning permission from the defendant, they will of course be entitled to appeal against that refusal to the Secretary of State. So quashing the planning permission will not deprive them of the opportunity of establishing, if they are able to do so, that a grant of planning permission is justified on the planning merits.
43. If, on the other hand, it is concluded, either by the defendant and/or by the Secretary of State on appeal, that planning permission is not justified on the planning merits, then I can see no good reason why the public should be required to pay the interested parties' compensation for the loss of a planning permission which, by definition, they should not have been granted.
44. For those reasons, I reject the submission that it would be appropriate not to quash the planning permission. The application for judicial review succeeds, and the planning permission is quashed.
45. MR SHARLAND: My Lord, thank you very much. I have one minor correction. I believe you referred to the Standards Board being a complaint by the public; it is actually a complaint by Councillor Stanley Beer, a member of the Council.
46. MR JUSTICE SULLIVAN: That is interesting.
47. MR SHARLAND: It is page 157, paragraph 1.1 of the Standards report where it sets it out.
48. MR JUSTICE SULLIVAN: I had got that from the Ombudsman. She talked about -- I see, yes. Well, actually, at paragraph 61 she said: "... for a member of the public to make a complaint to the Standards Board and for another member of the public to make a complaint to me". So the member of the public was a councillor?
49. MR SHARLAND: Either yes, or there was a subsequent complaint by the councillor. I am not sure, but the actual complaint that the Standards Board looked at came from the councillor.
50. MR JUSTICE SULLIVAN: Thank you very much. I will deal with that in the body of the judgment.
51. MR SHARLAND: Thank you very much, my Lord. That just leaves the issue of costs. We would ask for our costs today. As this case was listed for a day and a half, neither side have produced schedules, so I would ask for detailed assessment if a figure cannot be agreed. I have spoken to my learned friend beforehand and he is content with the detailed assessment approach. He does not resist costs generally, although he seeks to resist some of the costs, and I feel it makes sense if I let him put that, and respond briefly.
52. MR JUSTICE SULLIVAN: Yes, Mr Carter?
53. MR CARTER: My Lord, I plainly cannot argue against the costs award in principle, but I would ask your Lordship to bear in mind the particular nature of these proceedings. The interested party had no involvement in making the decision. There was no pre-action protocol letter served on my clients. For obvious reasons there was no point in so doing, and plainly the claimant would not have served a pre-action protocol letter on the Council given the nature of the circumstances. That means that the application for permission to bring this judicial review claim was always going to have to be made by the claimant to the court. My clients took advantage of the opportunity given to them to put in summary grounds of resistence, but this is not one of those cases where the claimant has sought to respond to those summary grounds prior to the determination of the permission issue. My submission would be that any costs order against my clients should only run from the period after 24 July 2007, which is the date when permission was granted, because prior to that, all the work that the claimant has done would have had to have been conducted in any event, and my client has not caused any of that expense to have been incurred.
54. Your Lordship clearly has a discretion to take matters as to periods of costs into account having regard to CPR 44.3, so I would make that submission, and as it is a matter of principle, I would submit it needs to be dealt with now rather than to be left for detail assessment.
55. MR JUSTICE SULLIVAN: Yes, effectively you are saying that had you put your hands up on receipt of the claim form, then we would have ended up with a consent order quashing the permission by consent, and it is the difference in costs, in substance, if we take the date from when Mr Bartlett granted permission. It is the difference between the costs of obtaining a written consent order, which the claimant would have had to bear, indemnified by the Council of course, and the costs of the all singing, all dancing hearing.
56. MR CARTER: My Lord, yes.
57. MR JUSTICE SULLIVAN: What do you want to say about that, Mr Sharland?
58. MR SHARLAND: My Lord, we oppose such an approach. My learned friend mentioned pre-action protocol. If we had written one, it would just have increased costs. Clearly, the Council cannot -- I do not think that takes the matter any further. Clearly we did need to issue and we would have issued anyway, but that is pretty much true for most judicial reviews. If the interested party, on receipt of the claim form, had agreed to a consent order, it is probable that no order for costs would have been made, although not inevitable. One would look at the Boxall case, and there might be argument on that issue. But they had their opportunity.
59. MR JUSTICE SULLIVAN: Costs would normally be made against the defendant, which is the Council, so --
60. MR SHARLAND: My Lord, I accept there might be some argument on that. I also accept the likely costs will be no order for costs, albeit I would say that that is not inevitable. But the interested party had an opportunity to get out of this without any costs, but they fought this tooth and nail. My Lord, I do not think that overstates the position. They put in summary grounds; they put in detail grounds; they put in two witness statements; they put in a very full skeleton argument. The interested party had their opportunity; they chose to fight it, and if they choose to fight it and lose, the consequences should be that they pick up the bill, my Lord. That is really all I have to say.
61. MR JUSTICE SULLIVAN: Thank you very much.
62. I am satisfied that the fair order in this case, bearing in mind that the fault is actually on the part of the defendant Council, is to say that the interested parties are to pay the claimant's costs after the date when permission was granted by Mr Bartlett QC. I accept Mr Sharland's submission that the interested parties at least thereafter fought the matter tooth and nail, and I am afraid they must pay for that. Until then, it does seem to me they were entitled, as bystanders effectively, to see what view the court took of the matter by way of putting in summary grounds. So that was not an unreasonable course, but thereafter they had their warning and they did not choose to take it, so they pay thereafter.
63. Any more for any more?
64. MR CARTER: No, thank you, my Lord.
65. MR SHARLAND: Thank you, my Lord.
66. MR JUSTICE SULLIVAN: Thank you both very much.