Officers, relatives and apparent bias

A High Court judge has found decisions tainted by apparent bias where an officer’s husband worked for a rival developer. John Hunter reports.

The High Court has held in R (on the application of Piffs Elm Ltd) v Tewkesbury Council that a series of planning decisions were tainted by apparent bias where the case officer’s husband worked for a rival developer due to the potential impact of the claimant’s proposals on land being promoted by the rival developer nearby.

The claimant made three unsuccessful applications in 2015 and 2016 for planning permission for industrial development on a site in Tewkesbury. The first application was refused by the council’s planning committee in accordance with the recommendation in the officer report (albeit only on the chairman’s casting vote), the second was refused without further reference to the committee under delegated powers, and the council declined to determine the third application exercising its powers under section 70A of the Town and Country Planning Act 1990. The officer report in each case was prepared by the area team leader, who had been appointed as the case officer for the applications following the departure of the original case officer in early 2016.

The claimant’s case was that the decisions were tainted by the apparent bias of the area team leader as her husband was employed as planning manager in the local offices of another developer (Bloor Homes). The claimant argued it was not appropriate and contrary to the council’s own planning protocol for her to have had any role in the applications on the grounds that it was in Bloor Homes’ interests for the claimant’s application to be refused given that Bloor had options over an extensive area of land a short distance away which they were promoting through the development plan process for mixed employment and housing development. Since Bloor’s land lay within the Green Belt in order to justify its release “exceptional circumstances” would need to be demonstrated. The claimant argued that Bloor was less likely to be able to demonstrate a need to release all of this land if permission were granted for sites such as the claimant’s nearby. The claimant contended that this would have led the fair-minded observer to conclude that there was a real possibility of bias. The claimant also relied on other factors including:

• The fact that the case officer gave “little weight” was given to the future need for employment land in the claimant’s applications yet the council treated the same need as amounting to “exceptional circumstances” justifying Green Belt release for the purposes of the allocation of Bloor’s land in the JCS
• The fact that senior officers had held a meeting in December 2015 in which they questioned whether the proposals could be located on other land instead, include Bloor’s land, and raised concern that the application might be prejudicial to Bloor’s proposals
• The council’s failure to disclose the fact that the original case officer had prepared a draft report before leaving which, in contrast to that prepared by the area team leader, had recommended approval

His Honour Judge Jarman (sitting as a judge of the High Court) upheld the claimant’s complaint, finding that the decisions were tainted by the appearance of bias. He also held that it could not be said that the outcome would have been substantially the same but for the conduct complained of. However, although he found that the decision to commence proceedings had been reasonable, and that the council’s conduct during the litigation had brought further suspicion upon it, he decided not to grant any formal remedy on the basis that the claimant had a more suitable alternative remedy via a planning appeal.

John Hunter is a barrister at Kings Chambers. He acted for the claimant. John can be contacted This email address is being protected from spambots. You need JavaScript enabled to view it..

The judgment was handed down extempore on 4 November. A link to the transcript will be added when it is available.