High Court quashes grant of planning permission over ‘apparent bias’

Malcolm Prowse, leader of the Independent group on North Devon District Council, was on friendly terms with two interested parties - Nicholas Kent-Smith and Jemma Grigg - who had gained planning consent for development of one home in the village of Patchole.

Local resident Oliver Perrin, who objected to this, took the council to judicial review, which led HHJ Russen KC, sitting as a judge of the High Court, to quash the permission.

HHJ Russen said: “In my judgment, Mr Perrin's allegation of apparent bias has been established.”

He explained this was because a fair-minded observer would conclude there was a real possibility of apparent bias as Cllr Prowse, his sister Cllr Liz Spear, and Ms Grigg “were each known to each other and the brother and sister were friendly towards [her] when they met”.

Cllr Prowse also knew Mr Kent-Smith and his family and was friends with him on Facebook.

The councillor provided procedural advice to Ms Grigg and called in her and Mr Kent-Smith’s application for determination by the planning committee.

In his witness statement, Cllr Prowse said his request was in line with the Planning Code of Conduct as the reasons were solely matters of material planning concern in that he was unclear about the application of planning policy for Patchole.

HHJ Russen noted though that Cllr Prowse had not called in an earlier application for three dwellings - rather than one - in the village even though both applications raised similar issues.

Cllr Prowse said in his witness statement that the parish council was unclear about the application of policy but the judge said a letter from the parish showed “that it was instead very clear in its understanding.

“The questionable justification given by Cllr Prowse for not calling in the [earlier] application indicates that the fair-minded does not need to be unduly suspicious in thinking that a reason behind him calling in the [interested parties’] application was because he knew and was friendly towards [them].”

Before the relevant planning committee began Cllr Prowse was seen “to have a long and amicable conversation” with Ms Grigg and made complimentary comments during the meeting about Mr Kent-Smith’s family.

HHJ Russen said: “The decision is tainted by apparent bias primarily through the participation of Cllr Prowse in the decision-making process.”

Cllr Prowse had served as a councillor for 46 years and his “views were likely to carry some weight among other members of the planning committee given his seniority as a councillor”, the judge said.

He quashed the decision and also found for Mr Perrin on three grounds of claims for irrationality, irrelevant considerations and inadequate reasons given for the original decision.

Mark Smulian