If a member seems to be biased, will that take out the whole decision?

‘They’ (who always know about such things) say that ‘one rotten apple spoils the whole barrel’. But whilst both empirical and scientific evidence would agree, does the maxim nevertheless apply to local authority apparent bias?

Not necessarily, it would seem, as the jurisprudence in this area evolves ever more context sensitively following the July 2008 decision of the Court of Appeal in R (Lewis) v Persimmon Homes Teesside Ltd [2008] EWCA Civ 746. This of course had held (amongst other things) that:  'Given the role of Councillors, clear pointers are. . .required if that state of mind is to be held to have become a closed, or apparently closed, mind at the time of decision'. (Emphasis added).

And recently (29 March 2012) the Court of Appeal (Carnwath, Moore-Bick LJJ and Sir Richard Buxton) in R (Berky) v. Newport City Council and others [2012] EWCA Civ 37) expressed the view that apparent bias on the part of one councillor will not inevitably vitiate a decision.

The case concerned planning permission for mixed development (including construction of a food store and restoration of a former working men’s institute) given by the Council on 26 January 2011. Amongst the heads of (unsuccessful) challenge were that one of the Planning Committee members (Councillor Richards) was biased in favour of the proposal and had predetermined the issue. The Appellant relied (amongst other things) on the dictum of Ouseley J in Bovis Homes Limited v. New Forest District Council [2002] EWHC 483 (Admin)) who had in the circumstances agreed that the ‘participation of a single member who is disqualified by bias vitiates the decision’.

Councillor Richards

The allegation of bias had several evidential strands including:
•    A 48 page petition ‘to welcome and support the proposals for a Morrisons Superstore’ submitted to the Council part of which included the words ‘(14/09/2010) John Edward Richards petition Morrison’s doc’.
•    Certain councillors (apparently including Councillor Richards) had circulated a leaflet explaining ‘Why your councillors are Backing this Project’.
•    At the Committee meeting, Councillor Richards spoke in favour of the proposal, and, concerning the officers’ report, said he ‘would remind officers you are here to serve the public’.

At first instance the Judge had considered that the fact that Councillor Richards was inclined to support the development, and that this was known in the area, was not itself objectionable since such a state of affairs ‘is not uncommon in the world of local politics’. Nor did he find it significant that the Councillor’s name appeared on a ward newsletter supportive of the proposal. The Judge was more concerned by the Councillor's words at the meeting which were not only unfair to the officers, but were capable of creating the impression of bias.

However, he equally noted Persimmon (where (amongst other things) Pill LJ noted that planning committee members ‘would be entitled, and indeed expected, to have and to have expressed views on planning issues’). The Judge also took account of the absence of any ‘persuasive material’ that the attitude of the other members was tainted by Councillor Richards’ actions or words and that the resolution to grant permission was carried by 8 votes to 1.

Of the Councillor’s remarks at the meeting the Judge said that:‘Although regrettable I do not consider it enables a submission of bias, apparent bias or pre-determination on the part of the decision maker - the whole planning committee - to be made good. Rather it should be seen as an example of an ill-considered remark by a single member of a democratically accountable political decision maker made in the heat of the moment’.

Court of Appeal

Carnwath LJ found the judge’s reasoning on this issue to be ‘unimpeachable’. Moore-Bick LJ agreed that the Court of Appeal ‘cannot go behind the findings of the judge’.

However, he in any event doubted ‘. . . whether the existence of a closed mind on the part of one member of a body of this kind (assuming it can be proved) is sufficient of itself to render the decision unlawful’. For ‘the decision of the planning committee was made by a majority of 8 to 1 and there is nothing to suggest that Councillor Richards exercised an undue degree of influence over the other members’.

And ‘With all due respect to Ouseley J’, he doubted that ‘the view expressed in Bovis Homes Ltd v New Forest District Council [2002] EWHC 483 is correct.’

Sir Richard Buxton considered that: ‘. . . there is really no reason at all to assume that the mere presence of one member who is biased or has made up his mind in advance must automatically render a decision unlawful. Such a rule should certainly not be applied when, as in this case, the judge has made a specific finding of fact that the tainted member had no effect on the decision.’

Comment

This case further heightens the evidential bar for a finding of local authority bias or predetermination. For it effectively lays the ‘one biased apple’ ghost from the Bovis Homes case in the absence of persuasive evidence that the authority decision was in fact unsafe.  The judgment was of course unaffected by section 25 of the Localism Act 2011 which applies only to decisions made after 15 January 2012 when the measure came into force. However, that section is only likely to enhance the liberal approach currently taken by the courts in this area.

Dr. Nicholas Dobson is a Senior Consultant with Pannone LLP specialising in local and public law is also Communications Officer for ACSeS. He can be contacted at This email address is being protected from spambots. You need JavaScript enabled to view it.

© Nicholas Dobson April 2012.