England and Wales High Court (Administrative Court) Decisions

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

		9 May 2012

MR JUSTICE SILBER:

I. Introduction

1. TW Logistics Limited ("the claimant") is the owner and operator of Mistley Port in Essex, which as its name shows comprises a port within the Manningtree and Mistley Conservation Area. According to the claimant, it and the appropriate local authority Tendring District Council ("the Council") have diametrically opposed views as to the future of the quayside from which the Port operates with the claimant seeking its protection and enhancement for port-related uses, while, according to the claimant, the Council is seeking the mixed use (non-port) regeneration of the area.
2. The claimant contends first that this approach of the Council is contrary to the core premise on which the development plan for the area was based and second that this approach was comprehensively rejected by the local planning inspector in the formulation of the local planning policies applicable to this area in the Tendring Local Plan 2007 ("the Local Plan"). The case of the claimant is that the Council has now sought to achieve its aim of being able to adopt this approach by imposing material considerations of importance in planning decision-making by its adoption of the Manningtree and Mistley Conservation Area Management Plan ("the CAMP"), which relates to a designated conservation area and which includes the relevant parts of the Port.
3. Mr. David Forsdick, counsel for the claimant, submits that the Council has thereby sought by implementing the CAMP to make it easier for it to accede to planning applications for non-port related or mixed use activities in the area of Mistley Port because by the terms of the CAMP, the Council has sought to regard these matters as being of importance in making decisions in planning issues, notwithstanding that such matters are inconsistent with the Local Plan. It is said that in adopting the CAMP, the Council has failed to take into account the claimant's objections to the draft CAMP and the recommendations of its own consultants in relation to the Port. The basis of this submission is that once the CAMP is adopted, the weight to be attached to it would be entirely for the Council. So the case for the claimant is that it is necessary to challenge the CAMP at this stage in order to prevent it being used by the Council as a justification for departing from the policies and the development plan.
4. It is also said that the Council unlawfully failed to consult further with the claimant contrary to a legitimate expectation that it would do so and that the decision to adopt the CAMP was taken by the portfolio holder on the Council even though there was a real risk of pre-determination and bias.
5. The claimant seeks to judicially review this decision to adopt the CAMP and in particular it seeks to obtain orders that parts of the CAMP that are inconsistent with the continuation and expansion of port-related activities should be deleted. Mr Stuart Isaacs QC sitting as a Deputy Judge, gave the claimant permission to pursue its application, which is opposed not only by the Council but also by Anglia Maltings (Holdings) Limited ("the Interested Party"), which is the owner of Edme Industrial site, Thorn Quay warehouse and other premises, which are also within the Conservation Area. The Interested Party is a major employer and manufacturer in Mistley.
6. The Council and the Interested Party contend that all these criticisms of the CAMP are misconceived because first the claimant had misunderstood the purpose of the CAMP, which is merely a management plan for the conservation area; and second, in any event, the CAMP does not undermine or contravene any policy contained in the Local Plan, but rather it is underpinned by the policies in that Plan and driven by the statutory duties imposed on the Council by section 71 of the Planning (Listed Building and Conservation Area) Act 1990. ("the LBCAA"), which is set out in paragraph 18 below.

II. The Statutory Regime

7. There was a comprehensive statutory code relating to the procedure for the development of land where the issues include the protection of its existing character. The code is to be found in the Town and Country Planning Act 1990, ("TCPA"), the Planning and Compulsory Purchase Act 2004 ("the 2004 Act") and the LBCAA. The legislation deals with both the formulation and the adoption of planning policies and the decision-making on applications for planning permission. A conservation area is provided with an added layer of protection, which affects both of these different activities.
8. A development plan is required to be in place. The 2004 Act provided that it should consist of, first, a regional spatial strategy (in this case for the East of England although these strategies have now been abolished by section 109 of the Localism Act 2011) and second a set of local development plan documents ("DPDs") prepared and adopted by the local authority. They would include a core strategy, which would set out the basis spatial strategy and potentially a site allocation development plan document which would allocate specific sites for specific development and uses. The 2004 Act and regulations made under it provide for the adoption of supplementary planning documents ("SPDs") through a statutory process involving public consultation and they were required to be consistent with the policies in the DPDs.
9. Pending the formulation and adoption of the DPDs, the Local Plan ("LP") policies were generally saved. The process for the adoption of a LP was to start with the publication of a draft LP by a local authority and which was to be followed by an opportunity for objections to be made to it and the holding of a statutory inquiry into the objections. The independent inspector could then make binding recommendations to the local authority as to the changes necessary to the LP to overcome the objections. It is common ground that there are decided authorities which show the importance of local authorities adopting planning policies through the statutory process and not otherwise. Local authorities were also entitled to issue non-statutory supplementary plans and policies, which have now been superseded by SPDs; see paragraph 8. Such documents are required to be an elaboration and supplementary to the Local Plan and not to be a substitute for them.
10. So the plan-making process requires not merely a statutory process in the course of which the appropriateness of draft policies is properly tested, but, also a requirement that the adoption of the local plan is in accordance with the recommendations of the Independent Inspector. The Local authority is required to set out it is policies in the LP: S17 (3) of the 2004 Act. It is a fundamental feature of the system that each level of plan policy is in conformity with the level above and in particular for the SPD to be consistent with the LP (see, for example, R (Pye) v Oxford City Council [2002] EWCA Civ 1116).
11. In development control, the decision-making process which involves deciding whether or not to grant planning permission is governed by section 70(2) of the TCPA 1990, which provides in relation to an application for planning permission that:-

"In dealing with such an application the authority shall have regard to-

the provisions of the development plan, so far as material to the application,…

(c) any other material consideration".

12. Similarly, section 38(6) of the 2004 Act explains how regard is to be made to the provisions of the development plan and it states that:-

"If regard is to be had to the development plan for purpose of any determination to be made under the planning Acts, the determination must be made in accordance with the plan unless material considerations indicate otherwise".

13. It follows that on any application for planning permission in and around the Port, the starting point for the Council has to be the local plan and that means the entire policy framework within the LP while the term "material considerations" for the purpose of either of these provisions may include any consideration related to the use and development of the land: Stringer v Minister of Housing and Local Government [1971] 1 All ER 65,77.
14. The approach to the relevance and to the interpretation of Local Plans has recently been considered by the Supreme Court in Tesco Stores Limited v Dundee City Council [2012] UKSC 13. Lord Reed (with whom the other members of the Court agreed) explained that:-

"17. It has long been established that a planning authority must proceed upon a proper understanding of the development plan: see, for example, Gransden & Co Ltd v Secretary of State for the Environment (1985) 54 P & CR 86, 94 per Woolf J, affd (1986) 54 P & CR 361; Horsham DC v Secretary of State for the Environment (1991) 63 P & CR 219, 225-226 per Nolan LJ. The need for a proper understanding follows, in the first place, from the fact that the planning authority is required by statute to have regard to the provisions of the development plan: it cannot have regard to the provisions of the plan if it fails to understand them. It also follows from the legal status given to the development plan by section 25 of the 1997 Act", [which was the Scottish equivalent of section 70(2) of the TCPA 1990]."

15. Lord Reed proceeded to consider a submission that:-

" 18…the meaning of the development plan was a matter to be determined by the planning authority: the court, it was submitted, had no role in determining the meaning of the plan unless the view taken by the planning authority could be characterised as perverse or irrational…".

16. He rejected this submission on the basis that it would make "little practical sense" because:-

"18…The development plan is a carefully drafted and considered statement of policy, published in order to inform the public of the approach which will be followed by planning authorities in decision-making unless there is good reason to depart from it. It is intended to guide the behaviour of developers and planning authorities. As in other areas of administrative law, the policies which it sets out are designed to secure consistency and direction in the exercise of discretionary powers, while allowing a measure of flexibility to be retained. Those considerations point away from the view that the meaning of the plan is in principle a matter which each planning authority is entitled to determine from time to time as it pleases, within the limits of rationality. On the contrary, these considerations suggest that in principle, in this area of public administration as in others (as discussed, for example, in R (Raissi) v Secretary of State for the Home Department [2008] QB 836), policy statements should be interpreted objectively in accordance with the language used, read as always in its proper context.

19… Nevertheless, planning authorities do not live in the world of Humpty Dumpty: they cannot make the development plan mean whatever they would like it to mean".

17. There is no dispute that in making a planning decision, the local authority has to assess its conformity with a development plan and the weight to be attached to other material considerations: Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759. Questions of the weight to be attached to any material consideration are matters, which fall within the jurisdiction of planning authorities, and their exercise of their judgment can only be challenged on the ground that it is irrational or perverse (ibid at 780-1 per Lord Hoffmann). This shows the importance to be attached to determining what could be a material consideration.
18. As I explained earlier, the fact that a planning application relates to buildings in a conservation area requires attention for an additional reason which is that a local authority has an obligation to designate appropriate parts of their area as conservation areas; section 69 of the LBCA 1990. Section 71(1) of the LBCA provides that :-

"It shall be the duty of the local planning authority from time to time to formulate and publish proposals for the preservation and enhancement of any parts of their area which are conservation areas".

19. The CAMP which is the subject of controversy in this case was formulated in purported pursuance of the duty. One of the issues of great importance in this application is determining the function and effect of the CAMP.
20. Section 72(1) of that Act provides that in the exercise of any planning judgment in respect of buildings or land in a conservation area:-

"special attention should be paid to the desirability of preserving or enhancing the character or appearance of that order".

21. Before considering the relevant documents, it is necessary to explain a little about the area around the Mistley Port,

III. The Mistley Port

22. Mistley forms part of the Manningtree and Mistley Conservation Area and it consists of a village developed in the late eighteenth century. It borders the River Stour and at the western end of the village, Mistley Towers stands within old railings on stone coppings on a brick flint floor and it has a backdrop of trees.
23. At the western end of the Port is Stockdale Warehouse, which has covered storage space totalling 5,000 square meters. Going east from Mistley Towers, there is the High Street and also the main port access road and HGV areas, which go down the side of the river to Thorn Reach and on to Mistley Quay. Between Mistley Quay and the High Street, there is a building known as Edme Thorn Quay Warehouse, which belongs to the Interested Party and which is, according to the claimant, suitable for port use. The Interested Party also owns the Edme Industrial Site which is on the opposite side of the High Street from Edme Thorn Quay Warehouse and this site, according to the claimant, includes some buildings suitable for port use.
24. Continuing to go east beyond Mistley Quay and on the river front there are first six working berths and then further east after that, there is the Baltic Wharf with the Northumberland Wharf next to it. It has been identified as suitable for port expansion by the Council and it has been the subject of undetermined applications for non-port related development. Moving away from the river front and behind the first of the working berths but next to the High Street, there are the Maltings and Barley Stores. Behind them are the main port access road and the outside storage land.
25. A feature of relevance on this application is a 2-metre high chain link fence (erected under permitted development rights in 2008 for operational and safety reasons), which is about 200 metre long. It is adjacent to a length of 2.4 metre high fencing erected with permission in 2004 and there is other temporary 2 metre high fencing along about 60 metres. The 2008 erection of the fencing though lawful excited considerable local opposition centred on the claims that the quayside should be made available for public mooring and even was common land. The decision maker in this case, Councillor Gugliemi was a member of the campaign against the fence.
26. The total operational area is about 750 meters from Stockdale Wharf to just beyond the Baltic Wharf and just before the Northumberland Wharf.

IV. The Chronology

27. The claimant owns the wharfs and in 1981, the Stockdale Warehouse was constructed. No. 1 Maltings was derelict and it was unsuitable for port uses. It was sold for mixed-use development in 2000. At about that time, discussions as to the possible relocation of Stockdale Warehouse to the east commenced. A number of land owners had plans for mixed use development at the western end of the port, including for Stockdale Warehouse, Thorn Quay Warehouse and the Edme Industrial Site. A Master Plan evolved and it was supported by the Council, which showed the eastward relocation of the Port and the release of land to the west for mixed (non-port) use.
28. The claimant objected to the Master Plan, on the grounds that the western end of the Quay and the surrounding industrial uses were central to the area's future as an operational port, which actually needed more space and not less space. In any event, the case for the claimant was that there was not adequate capacity to replace the existing Stockdale Warehouse to the east.
29. Thus it became clear that there were two conflicting views as to the future of the western end of the quayside and in particular relating to Thorn Quay Warehouse and the Edme estate. The claimant's view was that there was a need for the protection of the existing port facilities with the retention of opportunities to expand these activities and the avoidance of other uses being allowed in and around the operational port. The opposing view, which was that of the other landowners and of the Council, was that they wanted mixed-use development and the relocation of the port eastwards.
30. The dispute as to the approach that should be adopted as to the future of the Port came to a head through the preparation of the Local Plan. The original views of the claimant were not accepted with the eastward relocation ambition and the redevelopment of buildings at the westward end of the quayside all being embodied in a draft policy LMM1. It envisaged Thorn Quay Warehouse and Stockdale Warehouse being released for mixed use with substantial residential development at Thorn Quay Warehouse. The claimant objected and it explained the operational need for the expansion of the port and not the relocation of it. A major area of dispute related to the use of Thorn Quay Warehouse and to its potential for port-related uses of the eastern half of the Edme Industrial Site.
31. A local plan inspector was appointed to consider the objections to the Local Plan and to make binding recommendations. His report was favourable to the claimant on the key issue as to the future of the quayside because he concluded first that the initial Master Plan failed to acknowledge the realities of current port operation; second that its implementation would "represent a serious threat to the continuing successful operation of the port"; and third that the mixed use redevelopment of Thorn Quay Warehouse was to be deleted because "my primary concern is to ensure that its potential use for port purposes is properly considered before it is redeveloped for some other purposes". In consequence the housing allocations at Thorn Quay Warehouse were deleted and the relocation of Stockdale Warehouse was confirmed as not to be possible.
32. The Inspector's policy required a complete redrafting of LMM1 and it emphasised the protection of existing port uses and the potential expansion for port uses including the western end before there should be consideration of mixed uses. The case for the claimant is that the approach of the Inspector was not to support a mixed use redevelopment at the western end of the quayside.

V. LMM1 and the draft SPD

33. LMM1 provided that:-

"Policy LMM1 – Mistley Urban Regeneration Area

New development in the Mistley Urban Regeneration Area will be required to:

i. Provide for promotion of a balanced community, including an appropriate range of opportunities for the protection and enhancement of the historic environment (having particular regard to the maritime heritage of the area) and the provision of new housing, employment, tourist, recreation and leisure facilities;

ii. Protect the employment base of Mistley through the provision of alternative employment facilities to replace any potential los of employment;

iii. Protect the port operations;

iv. Have regard to the potential for port uses of existing buildings, before allowing any change of use;

v. Allow for access arrangements which do not increase current levels of HGV traffic on the Highways Act Street;

vi. Provide or allow for sustainable and managed public facilities and non-motorised public access to the waterfront, including a public footpath link in all the non-commercial areas and a public right of mooring along the quayside;

vii. Enable the development of views across the Stour Estuary; and

viii. Protect the adjoining nature conservation interests, biodiversity and landscape quality during construction work and thereafter.

New development at the western end of the Urban Regeneration Area must respect the character and setting of the Mistley Towers Scheduled Ancient Monument.

To promote new development in accordance with these requirements, the Council will prepare a Supplementary Planning Document for the Mistley Village and Waterfront area."

34. The claimant's case is that the policy LMM1 requires the Council to produce a SPD for the area covered by it and this had to be in accordance with and in conformity with LMM1. So Mr. Forsdick contends that the drafting of the SPD could not be regarded as an opportunity to reconsider or amend the merits of the Inspector's formulation of LMM1.
35. The Council decided to produce a CAMP alongside the SPD and in parallel with it as they both served different purposes, but according to the claimant, it was intended that they should be complimentary and consistent with each other and to be read together. The preparation of the SPD and the CAMP meant that the Council instructed Adams Hendry Ltd/MDS Transmodal Limited to assess the future of Mistley Port and its land use implications.
36. The Port Report, which was subsequently produced, advocated the continued protection of the western expansion area as being the only significant area of land adjoining the Port with potential for uses associated with it. Significantly it also recognised the potential of Thorn Quay Warehouse and parts of the Edme Industrial Site to be used for port-related purposes. It also explained that the Council's Option B in the draft SPD (which essentially replicated the plan which had been removed by the Inspector from the local plan) would not comply with the national policy on the safeguarding of ports.
37. The Port Report concluded by stating first that the storage areas were essential to current port operations; second that the growth of the Port conformed with Government policy; and third that the loss of potential port land to other uses would "appear to conflict" with LMM1. Its conclusions were that it was:-

"…fundamental that regeneration policies should not directly or indirectly encourage the redevelopment, for non-port uses of areas required for port operation, and that regeneration proposals should proceed in the understanding that Mistley is a viable working port" (paragraph 7.10); and that

"we see no reason why the development plan policies cannot continue to support regeneration of sites surplus to (or not appropriate for) port requirements, provided that any proposals do not adversely effect the operation of the Port" (paragraph 7.19).

38. Finally, the report referred to the importance of ensuring that any new development did not conflict with existing port uses. Mr Forsdick contends that the Report provided a "compelling analysis (never criticised or rejected by the Council) as to why port related regeneration was required and consistent with LMM1 and why mixed use regeneration at the western end of the quay was inconsistent with port related policy imperatives". The Port Report identified the starting point for all policy and development aspirations and development control on the quayside so that any regeneration proposals was to maintain the existing port and to consider its scope for expansion as well as not undermining the key strategic objective by encouraging alternative uses or redevelopments.
39. Another series of documents of importance is the Development Plan which in this case is the Tendring District Plan 2007. Policy ER2 and ER3 provides that lands and employment use will normally be retained for that purpose unless it can be demonstrated it is no longer viable or suitable for any form of employment use. They state that:-

"Policy ER2 – Principal Business and Industrial Areas

Proposals for employment development will be directed towards the principal business and industrial areas and allocated sites set out in Policies QL5(b) and ER1. Within these areas, Class B1(a) uses will not be permitted"

"Policy ER3 – Protection of Employment Land

a. The Council will ensure that land in, or allocated in this Plan for employment use will normally be retained for that purpose. Its redevelopment or change of use for non-employment purposes will only be permitted if the applicant can demonstrate that it is no longer viable or suitable for any form of employment use. The applicant should either:-

Submit evidence of a sustained but ultimately unsuccessful marketing exercise, undertaken at a realistic asking price; or

Show that the land (site, or premises) is inherently unsuitable and/or not viable for any form of employment use.

b. Where the loss of an employment site is permitted, the applicant will normally be expected to provide a suitable alternative site elsewhere in the district, or a financial contribution towards the Council's employment, training or regeneration programmes and initiatives.

c. This policy will not be applied where vacant business premises form a subordinate but integral part of an existing dwelling in the same ownership."

VI. The CAMP and the Draft SPD

40. In January 2010 consultation drafts of both these public documents were published and TWL objected strongly to them on the basis that they were seeking to update and implement the rejected master plan approach as was shown by the attempts first to resurrect a mixed use scheme for Thorn Quay Warehouse and second that the requirement in LMM1(iv) ("have regard for the potential for the port uses of existing buildings before allowing any change of the use") which was then to be "weighed against the other aspirations".
41. The draft SPD, for example placed emphasis on mixed-use regeneration of land associated with the Port such as by seeking to re-use Thorn Quay Warehouse for other uses and to "define the balance" between port and non-port uses.
42. As a result of the detailed objections from TWL to the draft, a further draft of the SPD was produced which went some way to meeting the concerns of the claimant and it was published for consultation in March 2011. The Interested Party objected on the basis that the redraft went too far in protecting the claimant and that it was inconsistent with LMM1.
43. In consequence the Council abandoned the preparation of the SPD even though it was required by LMM1 and it was supposed to be developed, and adopted in parallel with the CAMP. The second draft of the SPD was largely in conformity with LMM1.
44. The Council nevertheless adopted the CAMP, which had been based on and emerged in parallel with the first draft SPD which, as has just been pointed out, was not in conformity with LMM1. [The Council contends that the CAMP can be relied on as an important material consideration.] To complete the picture, it should be explained that the Council has not moved forward with the original SPD because of the claimant's objections. Although the Council responded to the concerns of the claimant in respect of the first draft of the SPD by making substantial changes, it has not made the same changes to the CAMP.
45. The draft CAMP was intended to guide regeneration from a Conservation Area perspective and, according to the claimant, it adopted the same mixed use (non-port) emphasis as was set out in the original SPD. The complaints of the claimant are, for example, that the draft CAMP considered that port-related buildings such as Thorn Quay Warehouse and Stockdale Warehouse were detracting from the character of the area and sought to encourage their redevelopment notwithstanding they were part of the industrial port fabric of the area which the LMM1 was designed to protect. In addition, the draft CAMP identified the redevelopment and reuse of Thorn Quay Wharf as a "key project".
46. The case for the claimant is that the Council was not entitled to adopt that approach and that it could not have done so if it had appreciated that the starting point was the requirements of LMM1 (iii) and (iv), which recognised the starting point was to have an operational port. The draft CAMP was subject to detailed objections from the claimant, which were submitted at the same time as the objections to the SPD and indeed the objections to the draft CAMP were the same as those to the first draft SPD.
47. Notwithstanding the objections, the Council's executive member, Councillor Gugliemi, considered a report on the CAMP on 17 August 2010 and it confirmed the draft consultation version of the CAMP subject to some minor changes. The report set out the claimant's objections although in a way in which the claimant contended was "woefully inadequate to reflect the force of the points" made by the claimant and that "the responses to the points that were summarised failed to engage with the substance to the points being made". I will return to consider this when dealing with the issues raised on this application.
48. The way in which, according to the claimant, the CAMP failed to grapple with conservation issues from the fundamental starting point of the industrial use of the Port and the local plan policies supportive of the port are the basis of the claimant's objections and to which I will return. On 19 April 2011, the Council received a further report which according to the claimant sought to make good the inadequacies in the summary of the claimant's objections to the CAMP and this is described by the claimant as a "misguided attempt to lawfully reaffirm the CAMP".
49. A point made by the claimant is that the Council published a draft core strategy in October 2010 and which stated that:-

"the Council is working with the land owner of Mistley Quay and a number of local businesses and organisations to deliver a mixed use scheme to regenerate the Quayside whilst supporting the operations of Mistley Port and respecting the area's industrial heritage and sensitive setting".

50. The case for the claimant is that this was the clearest indication that the Council regarded the CAMP as promoting and furthering mixed use. It is said on behalf of the claimant that the draft Core Strategy provided a new focus for planning policy on the quayside which was entirely contrary to that in LMM1. It seeks to challenge the adoption of the CAMP.
51. The claimant challenges the decision to adopt the CAMP on the grounds that:-

A. Ground 1 The CAMP is inconsistent with the policies in the local plan;

B. Ground 2 The Council failed to engage in consultation;

C. Ground 3 the Council failed to involve the CAMP in tandem with the SPD;

D. Ground 4: The Council's failure to enter into further discussions when the claimant had a legitimate expectation that they would do so; and that

E. Ground 5 There was apparent bias or predetermination on the part of the Council.

VII. Ground 1: The CAMP is inconsistent with the Policies in the Local Plan

(i) Introduction

52. The case for the claimant is that the CAMP contains proposals, which are inconsistent with saved policies in the adopted local plan and particularly with its policy LMM1. There are two strands to the claimant's argument of which the first is that LMM1 should be construed as meaning, in the words of the claimant's written skeleton argument, that "the quayside area is first and foremost for port related uses"; and second that the CAMP is a policy document which contains proposals which are inconsistent with saved policies and in the words of the claimant's written skeleton argument "fails to recognise that the retention and expansion of the Port is at the heart of planning policy".
53. Each of these contentions is disputed by the Council and the Interested Party and it is convenient to look at them separately.

(ii) Does LMM1 show that "the quayside area is first and foremost for port related uses" or that that "the retention and expansion of the Port is at the heart of planning policy"?

54. As to LMM1, this is a criterion-based policy to deal with new developments in the Mistley Urban Regeneration Area and it does not relate just to the port but it relates to the whole of the area. It is noteworthy that there is a specific requirement that over the whole of this area, any new development is required to provide for the promotion of a balanced community and the provision of new housing, employment and tourist or facility.
55. It is noteworthy that any new development is required (a) to "protect the port operations" (LMM1 (iii)) and the use of the word "protect" shows that this must relate to the existing port operation; and (b) only to "have regard to the potential for port uses of existing buildings before allowing any change of use" (LMM1 (iv)). This has to be read alongside ER2 and ER3.
56. The significant words in LMM1 (iv), which show the obligation of the Council in relation to its requirement to consider the potential for port use is that it merely must "have regard to such potential use". I asked counsel for their submissions in relation to the Council's obligations in order to satisfy that requirement. Subject to one point mentioned in the next paragraph, they all agreed that:-

"'To have regard' to a particular factor means that, at some stage in the decision making process, the decision maker must conscientiously consider that factor, on the clear understanding that it is a factor relevant or potentially relevant to his decision. In other words, he must take that factor into account during the decision making process.

Conversely, it would be an error of law if the decision maker reached his decision, either without having considered that factor at all because he forgot about it or was not reminded of it; or if, having considered it, he erroneously concluded that he was precluded from taking it into account either as a matter of law or of policy and therefore did not go to the next stage of considering what, if any, weight should be attached to it".

57. Mr. Forsdick added that although he agreed with this summary, it was subject to his submissions that it was necessary:-

"to understand the development plan as a whole and he attached importance to the port/employment related focus of the relevant parts of the development plan and the implications of this for the approach to LMM1 generally and LMM1(iv) specifically".

58. In respect of the Council's obligation in respect of considering "the potential for port uses of existing buildings before allowing any change of use", I do not consider after applying Lord Reed's comments which are set out in paragraphs 14 to 16 above, that the obligation imposed on the Council in relation to the potential for port use of existing buildings, goes further than "taking it into account" even in the light of the factors mentioned by Mr. Forsdick in his submissions. The Council is not required to consider this factor in LMM1(iv) as the sole or exclusive factor so that no other factor can be considered before this LMM1 (iv) factor is considered. What is quite clear is that there is no provision in LMM1 (iv) or elsewhere in LMM1 ensuring that the approach of the Council in handling applications for developments for buildings not used for port purposes should be that "the quayside area is first and foremost for port related uses".
59. In reaching that conclusion, I have considered all the matters relied on by Mr. Forsdick and in particular two of them. First, the employment policies ER2 and ER3 set out above in paragraph 39 do not support the contention that "the quayside area is first and foremost for port related uses", nor do they require land or buildings not presently used for port purposes to be used for it in the future. They do not impose any requirements relating to land used for port purposes over and above what is said in LMM1 (iii), namely to "protect the port operations".
60. Second, the policy QL6 – Urban Regeneration Area from the Council's adopted LP does not impose any such additional requirement because it merely states that "permission will be granted for development that reinforces and/or enhances the function, character and appearance of the area and contributes towards regeneration and renewal". It is also said that planning permission "will not be granted for developments that that would have an adverse impact on the revitalisation of any of these Urban Regeneration Areas". There is nothing in that policy which supports the case that port-related uses would have priority other than as set out in LMM1 (iii) or that there would be a planning requirement to that effect for land or buildings not presently used for port purposes.
61. The inevitable conclusion is that the words in LMM1 (iv) do not give primacy to the port and its operations for such buildings and land, but instead they merely recognise their importance and they accept that it is one factor that must be properly considered and taken into account. Indeed, Mr Fosdick's submission would entail rewriting LMM1 (iv) so that it reads that the obligation on the Council was to allow applications to "ensure the port uses" of land or buildings not presently used for port purposes or that such consideration should be an overriding concern. This fortifies my conclusion that the claimant's submission must fail.
62. I should add that in his report on which LMM1(iv) is based, the Local Planning Inspector was concerned that proper consideration should be given to the potential of using buildings for port use when he explained that:-

(i) "The Council are very clear on their views on the port operations at Mistley Quay – it must be protected";

(ii) The Councils evidence was that "this Council has continued to show a strong commitment to the Port and realises that it deserves special attention"; and that

(iii) In respect of the Interested Party's Thorn Quay Warehouse "my primary concern is to ensure that its potential use for port purposes is properly considered before it is redeveloped for some other purpose. In my view, criterion (iv) of the reworded policy LMM1(2) ensures this".

63. Thus I conclude that in respect of matters falling outside LMM1(iii), the obligation of the Council under LMM1(iv) does not extend beyond properly considering the potential use for port purposes before any land is developed for some other purpose. There is nothing in LMMI which shows that that such use is to be the sole or overriding consideration. To that extent, I reject the claimant's case.

(iii) The CAMP

64. As I explained in paragraph 18 above, the Council had a duty under section 71 of the LBCAA to prepare, consult on and adopt a CAMP and having first identified the special architectural and historical interest that justified designation as a conservation area, the Council stated that:-

"Having considered what is important about its conservation areas, the Council now needs to consider how they will be looked after. For this, it has embarked on a series of management plans that will eventually cover all conservation areas in the District. The purpose of this management plan, therefore, is to ensure that future decision-making is coordinated with the common objective of enhancing the qualities of [the relevant area]."

65. There is a dispute concerning the role of the CAMP as the case for the Council and the Interested Party is first that the CAMP is addressing conservation protection and enhancement issues, but second that it is not a part of a development plan and does not set out policy for change of use. The case for the claimant is that the CAMP is setting out policies which are inconsistent with the saved policies as "it fails to recognise that the retention and expansion of the Port is at the heart of planning policy". I will now have to consider the passages to which Mr. Forsdick takes exception to see if this criticism is justified.
66. The claimant in support of this submission attaches great significance to what is said in the CAMP about port-related buildings, namely Thorn Quay Warehouse and the Stockdale Warehouse, and in particular that they distract from the character of the area and encourage their redevelopment (paragraph 6.22). Mr. Forsdick complains about recommendation 9, which is to:-

"Encourage the redevelopment of buildings which have a negative affect on the character or appearance of the conservation area as and when they become ready for renewal".

67. Mr Forsdick contends that this wording fails to recognise the critical importance to the Port of a very large warehouse in that location and so it ignores or is inconsistent with LMM1 (iv). He says that in the light of this provision, the CAMP was not entitled to have adopted that approach or to have made similar statements elsewhere in the CAMP, bearing in mind that the starting point was first that these buildings were part of the industrial port fabric, which LMM1 was designed to protect; and second that Thorn Quay Warehouse had been identified as suitable for port-related use in the Port Report and that it was needed for such use.
68. I am unable to accept that this recommendation 9 or the commentary in relation to it in the CAMP is in any way inconsistent with LMM1 (iv), because what is of great importance is that the recommendation and the relevant passages in the CAMP do not make any recommendation or state anything about the use or about the future use of any of those buildings. All they are doing is addressing and making suggestions relating to the character and appearance of the building as part of a long-term recommendation dealing with conservation protection and enhancement issues.
69. There is nothing in that recommendation or the relevant passages, which precludes or deters its redevelopment for port use and after all the CAMP itself explains at its appendix 3 at page 51 in paragraph 2.12 (ii) that "the simple point of the recommendation is that when opportunities arise the remediation of negative effects should be encouraged". So the position is that recommendation 9 and the commentary in relation to it does not say or imply that the Council will not ensure that the potential use of port-related buildings such as Thorn Quay Warehouse and the Stockdale Warehouse, for port purposes will not be properly considered before any such building is redeveloped for some other purpose. In answer to a point made when the draft judgment was circulated, I should add that the word "redevelopment" does not envisage or entail any particular use as it can be carried out for any purpose.
70. The claimant also takes issue with first paragraph 6.26 of the CAMP which states first that the conservation area was not particularly endowed with open spaces, which makes those that do exist all the more distinctive and second that there were important spaces in the surroundings of Mistley Towers, the Quaysides and the allotment and with recommendation 11 which provides that "appropriate enhancement should be sought for all significant open spaces". This was explained as meaning that "appropriate enhancement will amount to little more than good maintenance".
71. I cannot see how these provisions undermine or conflict with LMM1 (iv), because they do not preclude or prevent proper consideration by the Council of any part of the Port for port purposes before it is redeveloped for some other purpose. These provisions do not deal with the use of any of these areas.
72. Mr. Forsdick also complains about the treatment in the CAMP of the fence, which has been a subject of much controversy and paragraph 6.36 of the CAMP states that "public condemnation has been directed at [it]" and it was said that "even if the fence is needed on health and safety grounds, a less Unitarian policy would be possible". Recommendation 17 states that "every opportunity should be used to seek a more sympathetic design for the edge of Mistley Quay".
73. I agree with Mr Price Lewis QC counsel for the Interested Party when he points out that the CAMP states at page 43 that this would be achieved by "negotiation". In any event, this recommendation does not prevent the erection of a fence or undermine its significance or its need for port-related purposes but merely deals with the design of it, which is a fundamentally different issue.
74. Mr. Forsdick also complains about paragraph 6.59 of the CAMP, which deals with "opportunities for enhancement" and which states that: -

"a number of improvements, some public and some private, would make a welcome difference to the appearance of the conservation area. The likelihood of schemes coming forward is of course increased where enhancements are linked to development opportunities".

75. It sets out the "most significant possibilities" which include:-

"Significant improvements to Mistley Quay would include a more pedestrian-friendly public realm and the removal of the fence along the quayside, which "could be achieved through the reorganisation of the port and the re-use and redevelopment of the Thorn Quay Warehouse"; and

"Enhancement of the setting to the Mistley Tower, The footpath to the rear is overgrown and bounded by an industrial fence. In the longer term, the redevelopment of the Stockdale Warehouse would provide an opportunity for a visual axis to the river".

76. It is not said expressly or impliedly that any of these changes should be for a non-port related purpose or that the Council need not give proper consideration to the use of any part of the Port for port-related purposes before permitting its use for non-port related purposes. In fact, nothing in paragraph 6.59 of the CAMP is inconsistent with LMM1 (iv).
77. The CAMP considers the matters raised in consultation in Appendix 3 and states in paragraph 2.12 that the Mistley Thorn warehouse is probably the largest unused building in the conservation area and that local people wished to see better use made of it "for whatever purpose", but what is of critical importance is that nothing is said expressly or impliedly about what that use might be or anything that contradicts or qualifies what is set out in LMM1(iv).
78. The same reasoning means that I cannot accept the further submission of Mr. Forsdick that the statement in paragraph 7.8 of the CAMP that "capital projects are vital for raising confidence. Perhaps the most important are the development of ...the Edme site and the Mistley Thorn warehouse". Such development would have to be subject to LMM1 (iv) and is not inconsistent with it.
79. The stark fact which answers all Mr. Forsdick's complaints is that the CAMP does not make policy and it does not promote any type of development or prevent the Council in the words of LMM1 (iv) having "regard to the potential for port uses of existing buildings before allowing any change of use". Each of the matters which are the subject of the claimant's complaints is dealing with conservation protection and enhancement issues, which is the essential purpose of the CAMP. In concluding that nothing in the CAMP is inconsistent with the policies in the saved plan, I have not overlooked any of the complaints made by Mr Forsdick but none of them are inconsistent with LMM1 (iv).

(iv) Conclusion

80. This ground has to be rejected because there is nothing in the CAMP, which is inconsistent with LMM1 (iv). It is addressing conservation protection and enhancement issues, and it is not a part of a development plan and does not set out policy for change of use. There is no reason why the Council cannot also take into account the matters set out in the CAMP and there is nothing in LMM1 or in any other document which precludes them from doing so.

VIII. Ground 2: Failure of consultation

(i) Initial Consideration Stage

81. The thrust of this complaint by the claimant is that the Council failed to understand the key thrust of its objections to the SPD and the CAMP, namely that they were inconsistent with the saved local plan policies and they thereby failed to address the key matters in the CAMP. It is also said by Mr. Forsdick that the Council failed to accurately reflect the nature of the obligations in the summary of them with the result that the Executive Member was not aware of the substance of the objections and in consequence he could not take them into account. There is also a further complaint that the Council dismissed the objections on a basis, which in a large part is incomprehensible and which is unrelated to the nature or substance of the objections.
82. As examples, it is said that the Council dismissed unfairly and incorrectly the objections that under LMM1, the Thorn Quayside Warehouse should be retained for port-related purposes and that the port area was to be used as an operational port. The reason why it is said that these objections were rejected was that the CAMP referred to the facts that "it is no surprise that local people wish to see better use of [the Thorn Quay warehouse]" and that "the enhancement of the whole of Mistley Quayside is a popular aspiration".
83. Thus it is said that the CAMP ignored or downplayed the fundamental objections to the thrust of it and that it failed to take account of the views of its own consultants. There is also a complaint relating to the further reaffirmation of the CAMP in April 2010 to which I will return to consider later in paragraph 89.
84. In order to consider these obligations on the Council to consult, it is necessary to bear in mind that it is unnecessary for the decision-maker to deal with each word or each line of objection or to have before them each word of the objections to the proposals as long as they have been summarised properly. I have considered the claimant's letter of objections, which to my mind is adequately summarised in Appendix 3 of the CAMP.
85. The other objections of the claimant are essentially repeating the points which they had previously made and which I have dealt with in relation to issue 1 above and which were that the quayside area was first and foremost for port-related uses and that the CAMP was in contradiction to it. I have explained when dealing with Issue 1 why I cannot accept those points. This conclusion answers many of the objections made by Mr Forsdick to the effect that the Council had not understood or taken into account the type of points put forward in support of their contentions on this issue.
86. It is noteworthy, for example in respect of the contention that Thorn Quayside Warehouse was "safeguarded for port use", the unanswerable response is that no proposals were made in the CAMP for the specific re-use or re-development of that warehouse in a way inconsistent with port use.
87. There is a further complaint made by Mr. Forsdick, which was that the Council failed to take account of the recommendations in the report by Adams Hendry Ltd/MDS Transmodal Limited, who were the consultants retained by the Council, but I am unable to see how this allegation (even if is correct) can substantiate a failure to consider the case for the claimant. There is an assertion by Mr. Ashby the planning officer of the Council that these findings were considered by the Council and I have no reason to disagree. In any event, the proper course is to accept as correct the views of a defendant on a judicial review application save in exceptional circumstances which do not apply.
88. Many of the complaints made by Mr Forsdick pre-suppose that the obligation on the part of the Council was to respond to every objection made in detail in the report, but I regret to say I do not accept that as true. In any event, as I have explained, the major answers are that these points have been answered but in any event, the claimant's case fails to appreciate that the CAMP is not a redevelopment plan.

(ii) Reconsideration

89. It is said by Mr Forsdick that the Council sought to remedy its failure to consult through its subsequent reaffirmation of the CAMP in April 2011 and Appendix B to that report. Mr Forsdick says that the Council cannot retrospectively seek to remedy the flaws in its earlier approach after its approach has been challenged. He submits that it is inappropriate for a Council to be allowed to supplement its reason for a decision in the course of a judicial review and in consequence it is not open to the Council to "reaffirm its decision to bolster its defence". Thus the case for the claimant is that the reaffirmation was sought to demonstrate that the matters complained of would have had no difference at the ultimate outcome.
90. Mr Forsdick says that the correct approach would have been for the Council to start considering the matter afresh, rather than to seek to remedy flaws in its original decision in order to defend a judicial review. He drew an analogy with the fact that a party is not allowed to supplement its reasons for a decision in the course of a judicial review. In this connection, he relies on the well known cases of R v City of Westminster ex parte Emrakov (1996) 28 HLR 819 and of R (Nash) v Chelsea College of Art and Design [2001] EWHC Admin 538. Mr Forsdick repeats the point that there is an inconsistency between the CAMP and the development policy, explaining that it is inconsistent with the words used in the CAMP which advocate reuse or development or reorganisation of the operational port rather than its protection and expansion.
91. It is worthwhile remembering that Councillor Gugliemi referred his decision to adopt the CAMP back to Cabinet for redetermination pursuant to the Council's constitution. On 15 June 2011, the Cabinet which consists of eight members, including Councillor Gugliemi, reconsidered the adoption of the CAMP and it then had before it the claimant' letters of February 2010 and 19 April 2011, the judicial review application and the Council officers' response to those objections. The Cabinet considered those documents and then it unanimously resolved to reaffirm the decision to adopt the CAMP.
92. As I understand it, the claimant does not contend that the Council lacked the vires to reconsider the adoption of the CAMP but instead it relies on the decisions in Emrakov and Nash to argue that it is "inappropriate for the Council to reaffirm the decision". Those decisions merely show that where it is said that no proper reasons have been given, then further reasons could not thereafter be given to contradict or to amplify the original reasons. Thus in Emrakov, the Court of Appeal refused to allow a local housing authority to give further reasons contradicting its earlier ones in a situation where that authority had been statutorily obliged to give its reasons for its determination. So that case was therefore dealing with a completely different framework from that with which this case is concerned. In the case of Nash, Stanley Burnton J summarised the relevant principles and admitted in evidence a letter explaining the original reasons. In the present case, what is important is that a fresh decision was made rather than providing new reasons for an old decision.
93. What is important in this case is that there is no statutory procedure for the adoption of the CAMP other than that the proposal should be submitted for consideration to a public meeting (see section 71(2) LBCAA), and this is not the claimant's complaint. In addition, a CAMP creates no rights or obligations on a third party, and thus in my view a local authority may lawfully reconsider its decision to adopt a CAMP. It is not disputed that it had power to do so under the Local Government Act 2000 s2. In my view, there was no initial failure of consideration of representation, but even if there had been such a failure this had been cured by the reconsideration process, and so this ground must be rejected.

IX. Issue 3: Failure to evolve the CAMP in tandem with the SPD

94. Mr Forsdick contends that the Council had initially proceeded on the basis that the CAMP would evolve in tandem with the SPD. He submits that in the light of the incompatibility between the draft SPD and the existing saved local planning policies, the SPD could not proceed in its draft form and therefore it was correctly put on hold. His complaint is that the Council erred in not also taking the same steps with the CAMP and not proceeding with it. It is therefore said by the claimant that the Council has in the CAMP sought to achieve the same outcome as would have been achieved by changing the core strategy and SPD without having gone through the statutory processes required in order to create a weighty material consideration. This, Mr Forsdick contends, is inconsistent with the retention of the quayside for port-related purposes. Thus it is said that the CAMP is unlawful.
95. I am unable to agree because there is no statutory or other obligation to produce a CAMP in tandem with or at the same time as a SPD. The complaint of the claimant is really a repeat of the point made on issue 1, which is that the CAMP is a policy document and which has recommendations, which are inconsistent with the policies of the local plan. As I have explained I am unable to accept that submission.

X. Ground 4: Legitimate Expectation to Enter into Further Discussions

96. The case for the claimant is first that the Council made representations to the claimant which created the legitimate expectation on the claimant's part that the Council would enter into further discussions with the claimant before the adoption of the CAMP, but second that it failed to do so without providing any good reasons for that failure. The response of the Council is that it had not made any promise to re-consult on the CAMP with the consequence that there was no basis for the claimant's assertion that it had a legitimate expectation that there would be re-consultation.
97. The factual background is that in its letter of 18 February 2010, the claimant made full representations to the consultants responsible for drafting the CAMP. This was followed on 14 April 2010 by a meeting between the claimant and the Council solely relating to the draft SPD and at the end of the meeting, it was suggested there should be a further meeting "targeted for Mid May".
98. On 15 April 2010 Mr Ashby of the Council sent the claimant an email thanking them for the meeting and hoping to address the claimant's objections to the draft SPD. This was followed by a letter of 16 April 2010 in which the claimant stated to the Council that "although we did not discuss the draft CAMP at our meeting on Wednesday, we will need to discuss this document also at our next meeting".
99. The Council did not specifically respond to that letter but Mr Ashby wrote in an email of 24 June 2010 , which discussed sending the final draft version of the SPD to the claimant explaining that "a further meeting would be useful to address any final issues on the SPD" , but significantly nothing was said about the CAMP.
100. I am unable to accept the submission made by Mr Forsdick that the claimant were justified in considering that the SPD and the CAMP was part of the package being pursued in parallel and so:-

"it was obviously necessary for the in principle objections to the package to be addressed in the context of the SPD because once these matters had been redressed in the SPD the consequential and necessary changes to the CAMP would be clear".

101. In this case, the claimant has failed to show the existence of the important pre-condition for finding a legitimate expectation, which is that there was "a clear and unambiguous representation had been made" (see, for example R v Inland Revenue Commissioners ex parte MFK Underwriting Agents Limited [1990] 1 WLR 1545, 1569-1570). The claimant could not only satisfy this requirement or the alternative which was as explained by Peter Gibson LJ in Rowland v Environment Agency [2004] 3 WLR 249 at [68] that:-

"…2 It is not always a condition for a legitimate expectation to arise that there should be a clear unambiguous and unqualified representation by the public authority…. The test is whether the public authority has acted so unfairly that its conduct amounts to an abuse of power".

102. There could not be such an abuse of power because when the matter was returned to the Cabinet for reconsideration, the claimants were invited to send additional comments to the Council which they duly did and they were before the Cabinet in the officer's report which took them into account. A further insurmountable obstacle for the claimant's submission is that there was no prejudice to the claimant because their extensive objections had been properly considered before the CAMP was issued by the Council. This is a determinative factor against the claimant's case because there was no actual prejudice to the claimant and it is settled law as Ouseley J explained in R (Mid Counties Co-operative Limited) v Wyre Forest District Council [2009] EWHC 964 [94] Admin that:-

"The question of whether what the District Council did or omitted to do involved any procedural unfairness is however closely bound up with the question of whether there was any actual prejudice to the claimant. In the absence of some prejudice, there is in general no procedural unfairness because there is no such concept as a technical breach of natural justice."

103. Thus I have no difficulty in rejecting this ground.

XI. Ground 5: Apparent bias or pre-determination

104. Mr Forsdick contends that the decision to adopt the CAMP was taken by Councillor Gugliemi, who is the Ward Member for Manningtree and Mistley and the Council's planning portfolio holder and who had been a long-standing leading opponent of the fence and a proponent of public access. In consequence, it is said that he had a closed mind or predetermined the issue to adopt the CAMP in circumstances where such a real risk of a closed mind on his part means that the decision to adopt the CAMP should not be upheld.
105. The evidence in this case is that Councillor Gugliemi has no personal financial interest in the adoption of the CAMP, but that his electorate namely the residents of Mistley have been aggrieved by the erection of the quayside fence and he was obviously very aware and supportive of that view. In August 2008 Councillor Gugliemi spoke to Ms Sargeant of the claimant about the fence and he tried to speak to her about it on a number of subsequent occasions. He was also present at a meeting called by Lord Hanningfield, who was the leader of Essex County Council to discuss the fence and this took place on about 15 October 2008.
106. On 9 December 2008 at a meeting of the Council, Councillor Gugliemi seconded an unsuccessful motion which called on the Council to recognise the detrimental nature of the fence and to seek its urgent removal. During the course of the meeting, a heated debate took place and regrettably he used intemperate language about the claimant which he now accepts quite correctly that he should not have used.
107. In March 2010, Councillor Gugliemi was in favour of an article 4 direction unsuccessfully made by the Council to require planning permission for any development involving repairs, maintenance, improvements or alterations to the fence.
108. On 17 August 2010 which was the day when he became the planning portfolio holder, Councillor Gugliemi was called upon to decide whether the Council should adopt the CAMP and that he had before him a report from the Head of Planning recommending adoption. It is his case that he reached a decision with an entirely open mind and he had previously decided that the Council should adopt other CAMPs with the one for Mistley being part of a series and the fence only featured in the CAMP to a very limited degree.
109. On 18 September 2010, Mistley Green residents protested about the fence and the police were called. On 29 September 2010 Councillor Gugliemi wrote an email to Essex police in which he referred to the claimant's "bullish tactics" as he continued to believe that the public has a long standing right to access the Quay. Mr Altaras submits that it is not unusual for a Councillor to have to make a decision or any elected representative to make a decision on a matter on which he previously expressed some view or other.
110. In any event there appear to me to be insurmountable obstacles to this ground. First, the decision to adopt the CAMP was unanimously reaffirmed by eight members of the Cabinet including Councillor Gugliemi and it is not suggested that a charge of pre-determination or apparent bias can be made against the other members of the Cabinet. Second, the fence formed a very small part of the overall CAMP.
111. Third and importantly, it is recognised that elected Councillors might have pre-determined views on many planning matters and indeed they might have expressed views on such matters in their election manifestoes. In those cases the law takes a realistic approach to their position when they seek to implement those views as was explained in R (on the application of Island Farm Development Limited) v Bridgend County Borough Council [2006] EWHC Admin 2189 by Collins J who said that:-

"30. Councillors will inevitably be bound to have views on and may well have expressed them about issues of public interest locally. Such may, as here, have been raised as election issues. It would be quite impossible for decisions to be made by the elected members whom the law requires to make them if their observations could disqualify them because it might appear that they had formed a view in advance. The decision of the Court of Appeal in Baxter's case, of the New Zealand Court of Appeal in the Lower Hutt case and of Woolf J in the Amber Valley case do not support this approach. Nor is it consistent with those authorities that no weight should be attached to their own witness statements. Porter v Magill was a very different situation and involved what amounted to a quasi-judicial decision by the Auditor. In such a case, it is easy to see why the appearance of bias tests should apply to its full extent".

112. The judgment proceeded to state that:-

"31.The reality is that Councillors must be trusted to abide by the rules which the law lays down, namely that, whatever their views, they must approach their decision-making with an open mind in the sense that they must have regard to all material considerations and be prepared to change their views if persuaded that they should. It is to be noted that the Court of Appeal sees nothing objectionable in a judge who has refused permission to appeal on the papers sitting on an oral hearing to reconsider his decision. That is because it is recognised that a judge is always prepared to be persuaded to change his mind. So it is with Councillors and, unless there is positive evidence to show that there was indeed a closed mind, I do not think that prior observations or apparent favouring of a particular decision will suffice to persuade a court to quash the decision. This approach is consistent with observations of Lightman J, with which I entirely concur, in R(Loudon) v Bury School Organisation Committee [2002] EWHC 2749 (Admin) in paragraph 23, where he said:-

"The distinction between (disqualifying) pecuniary interests and (non-disqualifying) potential pre-judgment arising from prior publicly stated views in the case of administrative bodies … is well-established: see e.g. R v SSE ex p Kirkstall Valley Campaign [1996] 3 All ER 305. This accords with well established law in the local authority field where it has long been held that political application and party loyalty and a party whip do not disqualify: see Baxter's case and R v Bradfield MCC ex p Wilson [1989] 3 All E.R. 140."

113. So he considered that the correct approach was that:-

"32. It may be that, assuming the Porter v Magill test is applicable, the fair-minded and informed observer must be taken to appreciate that predisposition is not predetermination and that Councillors can be assumed to be aware of their obligations. In this case, the evidence before me demonstrates that each member was prepared to and did consider the relevant arguments and each was prepared to change his or her mind if the material persuaded him or her to do so. I am not therefore prepared to accept that there was apparent bias or predetermination which vitiated the decision."

114. The matter was reconsidered by the Court of Appeal in the case of R (Lewis) v Persimmon Homes Teeside Limited [2009] 1 WLR 83 in which Pill LJ endorsed the approach of Collins J [66] before proceeding to say in paragraph 71 that:-

"It is for the court to assess whether Committee members did make the decision with closed minds or that the circumstances give rise to such a real risk of closed minds that the decision ought not in the public interest be upheld. The importance of appearances is, in my judgment, generally more limited in this context than in a judicial context. The appearance created by a member of a judicial tribunal also appearing as an advocate before that tribunal (Lawal v Northern Spirit Ltd [2003] ICR 856 may make his judicial decisions unacceptable but the appearance created by a Councillor voting for a planning project he has long supported is, on analysis, to be viewed in a very different way."

115. In the same case, Rix LJ expressly approved of this passage from the judgment of Collins J and he also agreed with the statement of Longmore LJ that "109.. a test of apparent bias relating to predetermination is extremely difficult to satisfy".
116. In my view, this claim falls a long way short of reaching the threshold required for this ground to succeed because it was made by the Cabinet.
117. Finally even if I had found that there had been bias, then the question of the CAMP would have to be sent back to the Council for reconsideration but it would have then been possible for Councillor Gugliemi by himself to decide to adopt the CAMP as a result of the provisions of section 25 of the Localism Act 2011. This provision came into effect on 15 January 2012 and so it would therefore now apply if the decision was quashed on grounds of bias or predetermination by Councillor Gugliemi.
118. Section 25 , so far as is relevant, provides that:-

"(1) Subsection (2) applies if—

(a) as a result of an allegation of bias or predetermination, or otherwise, there is an issue about the validity of a decision of a relevant authority, and

(b) it is relevant to that issue whether the decision-maker, or any of the decision-makers, had or appeared to have had a closed mind (to any extent) when making the decision.

(2) A decision-maker is not to be taken to have had, or to have appeared to have had, a closed mind when making the decision just because—

(a) the decision-maker had previously done anything that directly or indirectly indicated what view the decision-maker took, or would or might take, in relation to a matter, and

(b) the matter was relevant to the decision."

119. So it would have been pointless to uphold this ground and if, which is not the case I had any doubt about whether to accept this ground of challenge, the effect of section 25 would constitute a factor in favour of my discretion to refuse to grant the relief sought on this ground.

XII. Conclusion

120. I have come to the conclusion that this application must be refused but it might be some consolation to the claimant that I do not accept their fears relating to the effect of the CAMP for the reasons which I have sought to set out.