High Court judge quashes planning permission for apparent bias, finds monitoring officer “went wrong in law”

A High Court judge has quashed a district council’s grant of planning permission for the erection of five self-contained buildings to store and facilitate construction of carnival floats, after finding that the permission was vitiated by apparent bias on the part of two councillors.

In CPRE (Somerset), R (On the Application Of) v South Somerset District Council [2022] EWHC 2817 (Admin) Mr Justice Chamberlain said: “This outcome does not reflect adversely on the integrity or professionalism of either councillor. Both councillors declared their interests openly. Neither attempted to hide their associations. Both followed the advice of the Monitoring Officer. That advice flowed from her honest analysis and application of the Code [South Somerset’s Member Code of Conduct]. The Monitoring Officer went wrong in law, as many public decision-makers and most judges do at some point, but was not otherwise at fault.”

Responding to the ruling South Somerset said: “This is a very disappointing outcome and the council is considering its position.”

The background to the case was that in April 2022 the district council granted an application for planning permission by Ilminster Town Council for the buildings on agricultural land at a site owned by the Dillington Estate in Ilminster.

This followed a 6-5 vote by South Somerset’s Area West Planning Committee at a meeting on 19 January 2022.

The claimant, the Somerset branch of campaign group CPRE, contended that the decision of the Planning Committee was tainted by apparent bias on the part of its Chair and Vice-Chair and therefore unlawful.

The basis for CPRE Somerset's claim was as follows:

(a) Cllr Brian Hamilton, the Vice-Chair of the Planning Committee, was Deputy Major of Ilminster and a member of the Town Council which had made the planning application. As such, he was automatically disqualified from participating in the process to determine it, or was otherwise tainted by apparent bias.

(b) Cllr Jason Baker, the Chair of the Planning Committee, was a member of the Chard Carnival Committee (the CC Committee), in which capacity he public supported the planning application. He was also a close affiliate of the South Somerset Carnival Park Committee (the SSCP Committee), which acted as agent for the applicant Town Council. As such he was tainted by apparent bias.

(c) Because of these interests, Cllr Hamilton and/or Cllr Baker approached the planning application with closed minds so that the decision to grant planning permission was predetermined.

Mr Justice Chamberlain noted that carnivals had played an important part in the cultural life of Somerset since the 17th century. “They involve, among other things, processions of floats, which are constructed and elaborately decorated by local carnival clubs.”

On 14 January 2022, CPRE Somerset wrote to the District Council's Monitoring Officer saying that six members of the Planning Committee had personal interests in the application arising from their membership of the Town Council or the CC Committee asking for consideration of the application to be deferred until these concerns were addressed.

The Planning Committee met on 19 January 2022. Cllrs Hamilton and Baker both declared a "personal interest" under South Somerset’s Member Code of Conduct but, on the advice of the Monitoring Officer, took the view that they did not have a "prejudicial interest" on a proper interpretation of the Code. They participated in the meeting and decision and both voted in favour of the grant of planning permission.

Three other councillors declared personal interests under the Code and did not participate in the meeting or decision-making process. A sixth declared a "personal interest" but, again on the advice of the Monitoring Officer, did not consider that he was precluded from participating and did participate, voting against the grant of planning permission.

The Committee voted 6-5 to grant planning permission.

Mr Justice Chamberlain considered the positions of Cllrs Hamilton and Baker separately.

He found [judge's emphasis where relevant]:

37. As to Cllr Hamilton, neither counsel [for the claimant and the defendant] placed much emphasis on the Code. Both said that the key question was whether his situation gave rise to apparent bias at common law.

38. Mrs Graham Paul [counsel for South Somerset] relied on R (Taylor) v Maidstone Borough Council to show that a breach of the Code would not necessarily render the resulting decision unlawful. In my judgment, it does not establish that proposition. In Taylor, there had been a breach of a different code, adopted under the Local Government Act 2000, containing procedural requirements for dealing with planning applications. The requirement in question concerned the right of interested parties to address the planning committee: see [5]. Planning permission was refused. The claimant had appealed to the Secretary of State. In that context, it was said that judicial review was not the appropriate remedy, because the real issue was whether the local authority had been right to grant planning permission and that would be determined on appeal: see [25]. Taylor is therefore a case about alternative remedies, which does not provide any assistance as to the legal effect of local authority codes of conduct. In the present case, planning permission was granted and there is no alternative remedy.

39. The legal effect of the Code therefore has to be considered from first principles. Mr Moules [counsel for CPRE Somerset] did not submit that breach of the Code provides a freestanding ground for challenging the resulting decision – for example because the Code is an outward-facing published policy, which must be complied with absent good reason to depart from it. Such a submission would have been inconsistent with the Localism Act 2011, which requires local authorities to adopt and maintain codes of conduct. Section 28(4) of that Act provides as follows:

"A failure to comply with a relevant authority's code of conduct is not to be dealt with otherwise than in accordance with arrangements made under subsection (6); in particular, a decision is not invalidated just because something that occurred in the process of making the decision involved a failure to comply with the code."

The arrangements in subsection (6) concern investigating and adjudicating on allegations of breach of the code.

40. But to say that a decision is not invalidated "just because" the process of making it involved a failure to comply with the code is not to say that such a failure must be ignored when considering the validity of the decision.

41. Local authorities could draft their codes of conduct to say, simply, that a prejudicial interest will arise whenever a person has an interest which a fair-minded and informed observer would regard as giving rise to a real possibility of bias (or words to that effect). But that would be unhelpful to councillors and to members of the public alike, because it is not always easy to predict how the common law test will be applied by others. So, local authorities generally go further and specify particular kinds of interests and connections which will, and will not, be disqualifying.

42. The process of drafting a code of conduct requires the local authority to take a considered view, in advance, about situations which its members are likely to face and decide whether they should, or need not, disqualify themselves in those situations. The draft will be tailored to the circumstances of the local authority in question and can then be the subject of local consultation and debate. This process not only delivers greater certainty, but also promotes good administration by holding elected representatives to reasonably precise standards, adopted in advance with a democratic imprimatur.

43. Against this background, it would be surprising if compliance with the code of conduct were categorically irrelevant to the question whether the apparent bias test was met. I accept that it cannot be determinative, but it is surely a matter which the fair-minded observer would take into account in deciding whether there was a real possibility of bias. Providing that the definition of "prejudicial interest" is a reasonable one, and other things being equal, a fair-minded observer would consider that a member who had no prejudicial interest was less likely to be biased; and that, other things being equal, a member who had a prejudicial interest was more likely to be biased.

44. This means that the construction of the Code is of some relevance. It is, therefore, unfortunate that its para. 2.9 [on prejudicial interests] is a textbook case of syntactic ambiguity. It is structured to specify that a personal interest will be prejudicial "where X and where Y or Z". (X denotes the case where the interest is one which a member of the public with knowledge of the relevant facts would reasonably regard as so significant that it is likely to prejudice the councillor's judgement of the public interest; Y is the case where the business affects the councillor's financial position or the financial position of a significant person; and Z is the case where the business relates to determining any approval, consent, licence, permission or registration in relation to the councillor or any significant person.)

45. Saying that an interest will be prejudicial "where X and where Y or Z" could mean:

(a) an interest will be prejudicial in any of cases X, Y or Z; or

(b) an interest will be prejudicial only where X and Y or X and Z.

46. The Monitoring Officer read para. 2.9 in the second sense. If correct, this would suggest that:

(a) only some cases where the councillor himself has a financial interest in the outcome of the application give rise to a prejudicial interest (whereas Dimes says that all such cases give rise to automatic disqualification); and

(b) a councillor can never have a prejudicial interest if the business does not affect his financial position or that of a significant person and does not relate to determining any approval, consent, licence, permission or registration in relation to him or a significant person (even if a member of the public with knowledge of the relevant facts would reasonably regard as so significant that it is likely to prejudice the councillor's judgement of the public interest). On this reading a councillor who was chairman of an advocacy organisation objecting to the planning permission (such as CPRE) would not have a prejudicial interest, even if he had been personally responsible for formulating and advancing the objection (and so would plainly satisfy the test for apparent bias at common law).

47. In my judgment, it is more plausible to read para. 2.9 in the first sense set out at para. 43 above. Read in that way, a councillor will always have a prejudicial interest if a member of the public with knowledge of the relevant facts would reasonably regard it as so significant that it is likely to prejudice the councillor's judgement of the public interest. He will also have a prejudicial interest where the business affects his financial position or that of a significant person, or relates to determining any approval, consent, licence, permission or registration in relation to him or a significant person. These latter cases are specific instances where a prejudicial interest will automatically arise.

48. The paragraph beginning "For the avoidance of doubt" does not help much in determining which of the two interpretations is correct. On either view, it is badly drafted. On the Monitoring Officer's interpretation, the case specified in that paragraph is not aptly introduced by the words "For the avoidance of doubt"; and it is unclear why a prejudicial interest should automatically arise in that case, but not where the party benefitting at the expense of the District Council is the councillor himself (see para. 45(a) above). On the interpretation I prefer, the concluding words ("which would be at the cost or to the financial disadvantage of South Somerset District Council") are otiose, since the main provision makes clear that any business which affects the financial position of the councillor himself or Somerset County Council or a town or parish council will automatically give rise to a prejudicial interest. But on this view para. 2.9, read as a whole, is – at least – coherent.

49. It follows from this discussion that, in my judgment, the Monitoring Officer's advice was wrong. Because the business being discussed on 17 August 2021 involved determining a permission relating to the Town Council (a "significant person"), Cllr Hamilton automatically had a prejudicial interest. None of the exceptions in para. 2.9(4) applied, so he was disqualified from voting.

50. In my judgment, this affects what the fair-minded observer would think about Cllr Hamilton's participation in the Planning Committee meeting. Although he had not himself promoted the application, or voted to make it, he was nonetheless a member of a relatively small public body whose application he was being asked to consider. The passage quoted above from [24] of Lord Hope's judgment in Meerabux shows that mere membership of an organisation party to a proceeding does not automatically disqualify and that active involvement in the institution of the particular proceedings does automatically disqualify. This does not mean that, without such active involvement, there will never be apparent bias. As Lord Hope made clear at [25], that will depend on an application of the Porter v Magill test, which is fact-specific.

51. In this case, the relevant facts are these. Cllr Hamilton was one of 15 members of the Town Council and was Deputy Mayor. He was present at meetings where support for the application was expressed. Although he did not participate, the Town Council voted to become the applicant and to indicate its support by letter. On a proper construction of the Code, he had a prejudicial interest, which disqualified him from participating in the decision-making process. When taking all these facts into account, a fair-minded member of the public would conclude that there was a real possibility that he would be biased in favour of the Town Council's application.”

Mr Justice Chamberland meanwhile said that the Code did not assist in answering the question whether Cllr Baker was tainted by apparent bias:

52. …..The applicability of the Code in his case depended solely on whether a member of the public with knowledge of the relevant facts would reasonably regard his interest as so significant that it was likely to prejudice his judgement of the public interest. But this is a paraphrase of the Porter v Magill test.

53. In my judgment, however, the Porter v Magill test was clearly satisfied. Cllr Baker had a longstanding association with both the CC Committee and the Eclipse carnival club. The application was presented as needed to secure the continued viability in the medium term of both the Federation [the South Somerset Federation of Carnivals] (of which the CC Committee was a constituent part) and the remaining carnival clubs (of which Eclipse was one). Both the Federation's constituent committees (including the CC Committee) and the clubs (including Eclipse) were said to be supportive of the application. Eclipse appears to have had a financial interest in the outcome, because, as the application made clear, the rent it and the other clubs would pay under the agreement with Dillington was lower than for its existing premises. Cllr Baker was personally pictured in the application documents among a group of individuals appearing to support the SSCP Committee (which was agent for the application). Nice distinctions of the kind relied upon by Mrs Graham Paul ("among the South Somerset carnival supporters" rather than "a supporter") have no place in an analysis of this kind: the fair-minded observer would place more weight on the impression created by the article and picture than by a minute linguistic analysis of the caption. Such an observer would clearly conclude that there was a real possibility of bias.

54. This conclusion is not undermined by the fact that Cllr Wale, who is also involved with the CC Committee voted against the application. I have not heard enough about Cllr Wale's circumstances to know whether his interest in the outcome of the application was similar to that of Cllr Baker. But even if it was, the fact that one member with a particular interest voted against an application does not show that another with the same interest was not tainted by apparent bias.

Mr Justice Chamberlain said that having found that both Cllrs Hamilton and Baker were tainted by apparent bias, it followed that the decision to grant planning permission was unlawful.

“Although there are some cases where bias or predetermination on the part of a single member of a large committee has been held not to vitiate the committee's decision, the vote in this case was 6-5 in favour of grant and Cllrs Hamilton and Baker were Vice-Chair and Chair of the Committee. It is simply not possible to say what the outcome would have been if they had recused themselves, as the law required,” he said.

Quashing the planning permission, Mr Justice Chamberlain said the district council would now have to make arrangements to determine the application according to law.