The appearance of bias

A High Court judge recently quashed a grant of planning permission on the ground that there was an appearance of bias on the part of a councillor. Simon Goacher examines the ruling.

In Kelton v Wiltshire Council [2015] EWHC 2853 (Admin) (QBD) Mr Justice Cranston quashed the grant of outline planning permission by Wiltshire Council, after it emerged that one of council’s planning committee councillors had displayed the appearance of bias.

The judge felt compelled to follow the decision in Porter v Magill after it was discovered that the councillor, Magnus Macdonald, was a director of Selwood Housing Association, a non-profit association, which had an active interest in the affordable housing part of the proposed development.

Background

The High Court hearing was the result of a successful request for judicial review of the granting of outline planning permission by Wiltshire Council. The application related to a scheme of up to 35 custom-built residential dwellings, including 9 affordable homes, that were to be built on land near the River Wylye, Warminster. The defendants, HPH and HAB Housing, were the applicants for planning permission. Also interested in the proceedings was Selwood Housing Association (“Selwood”), a non-profit association based in Trowbridge, who had it on good authority that they were in line to tender successfully for the affordable housing part of the development. The claimant, a riparian owner living near the proposed development area, brought a claim forward on four counts:

1. One of the councillors on Wiltshire’s planning committee, Cllr Magnus Macdonald, whose vote carried the decision in favour of granting the outline planning permission, should have been disqualified from participating in the planning committee on this matter, because he was a director of Selwood. Cllr Macdonald received, as director, £3,000 per annum.

2. The development would have a significant effect on the River Avon Special Area of Conservation, specifically because of the risk of contamination to the River Wylye arising from the specialist foundations required for the development.

3. The council's Environmental Impact Assessment screening opinion for the development was flawed.

4. Wiltshire’s conclusion that the development would not cause harm to heritage assets was flawed.

Decision

Mr Justice Cranston ruled in favour of the claimant on the grounds that Cllr Macdonald, in his capacity as director of Selwood, displayed the appearance of bias by involving himself in the planning application meeting. The judge accepted the third of three challenges put forward under ground 1 of the review by the claimant; these are examined in more detail below.

In relation to the first challenge, the claimant’s argument was that Cllr Macdonald, as a director of Selwood, should have been automatically disqualified following the rule established in Dimes v Proprietors of Grand Junction Canal (1852) 3 HL Case 759. Selwood, although not having been granted the contract for the housing development, did retain an interest in the application for planning permission as they had been effectively earmarked by the defendants as their affordable housing partner. However, Mr Justice Cranston felt that Cllr Macdonald could not be regarded as promoting the cause of affordable housing through his voting on planning permission on this application and, as a result, could not be regarded as having a pecuniary or proprietary interest in the planning application so as to satisfy the requirements of automatic disqualification.

The second challenge, brought under Section 31 of the Localism Act 2011, called for the statutory disqualification of Cllr Macdonald as a result of a disclosable pecuniary interest. The same argument was put forward by the claimant, namely, that Cllr Macdonald knew that Selwood stood to benefit directly from the granting of planning permission and, accordingly, deserved to be disqualified for not disclosing his interest prior to the meeting. Again though, Mr Justice Cranston was not satisfied that the councillor had an interest that was disclosable on the facts of the case. Selwood were not applicants for the planning permission and, at the time of the application, had no formal contract with the developers. Mr Justice Cranston did acknowledge however that Selwood may well have built up a goodwill relationship with the developers over time.

The third and final challenge related to the presence of potential bias on behalf of Cllr Macdonald. Mr Justice Cranston was of the view that both Selwood’s and Cllr Macdonald’s interests in having the planning permission approved were aligned. The test for bias comes from the case of Porter v Magill [2002] 2 AC 357 and can be explained as:

“The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased”

It was Mr Justice Cranston’s belief that a reasonable and fair-minded observer, with knowledge of all of the facts, would have been aware that Selwood had committed time, resources and expertise to working with the developers over the design of the affordable housing part of the scheme. Those circumstances alone though were not enough to distinguish the case from the majority of housing applications likely to be dealt with by the committee. The key point, as explained by Mr Justice Cranston, was that in the context of the time, resources and expertise committed, Selwood were in a superior position to that of any other interested providers. As a result, Cllr Macdonald’s private interests, as a director of Selwood, were engaged and Mr Justice Cranston found it wrong for him to have participated in the meeting.

Comment

This case demonstrates the importance for elected members and those advising them to consider the potential of the common law test for bias applying to decisions which they are making. This is particularly difficult where councils have adopted codes of conduct with provisions on interests restricted to disclosable pecuniary interests. It also shows that the application of the test in specific circumstances can be difficult. Cllr McDonald was clearly aware of the issue of interests because he did not participate in another decision at the same meeting as a result of an interest. He clearly thought that in this case he did not have an interest which prohibited him from participating but the court disagreed. As ever members need to be encouraged to seek advice on these issues.

Simon Goacher is a partner at Weightmans. He can be contacted on 0151 243 9582 or This email address is being protected from spambots. You need JavaScript enabled to view it..