Court of Appeal finds apparent bias by planning officer tainted report on CLEUD revocation

Giving the main judgment, Holgate LJ said in the case brought by landowner Ocean One Hundred that members of the authority board were not given a fair and balanced report to guide their decision.

“This is a most unusual case the circumstances of which, it is to be hoped, are unlikely to be repeated,” he said.

Landowner Jonathan Cox applied in 2007 for a certificate of the lawfulness of an existing use or development (CLEUD) under s.191 of the Town and Country Planning Act 1990 on land near North Ripley, in the New Forest National Park.

Mr Cox only applied for a certificate to use a small part of a 2.57 ha site for storing caravans adjacent to his bungalow. There was no planning permission, but he said the use had become lawful under the Town and Country Planning Act 1990 by virtue of at least 10 years' continuous use.

In 2008 the authority granted a certificate in much broader terms showing the entire site as a ‘caravan site’ apart from an area for the storage of touring caravans.

“Although the CLEUD related to the whole of the site, bizarrely it did not mention the residential use of the bungalow,” the judge noted.

He went on to observe that in the High Court judgment under appeal, R v New Forest Park National Authority ex p Ocean One Hundred Ltd [2025] EWHC 953 (Admin) Jay J said it was a further mystery why the CLEUD had been issued in those broad terms.

“I would add that, given public concerns about the activities on the site and the consultation which had taken place, it is another mystery why nobody appears to have applied for judicial review of that decision, or even to have questioned it at the time,” Holgate LJ said.

In November 2020 Lord Manners, a local resident and the then Official Verderer of the New Forest, asked the authority to revoke the CLEUD under s.193(7) of the TCPA 1990, a power that Holgate LJ noted can be used only if a statement was made which was false in a material particular or any material information was withheld, but not because an authority has changed its mind or made an error.

The authority’s executive director (strategy and planning) Steven Avery, prepared a report which recommended the board revoke the CLEUD, which it did in October 2023.

Holgate LJ said a further unusual feature of the case was that the authority had lost or destroyed a number of relevant documents.

Ocean One Hundred had become the owner of the site in December 2021 and later applied for judicial review to quash the revocation but Jay J rejected all the grounds of challenge, one of which was alleged bias by Mr Avery. He was said to have colluded with members of the local community, including Lord Manners, who were lobbying the authority to revoke the CLEUD.

Although Ocean One Hundred raised a number of appeal grounds the case centred on claims of bias including that Mr Avery attended a private meeting at an objector's home without setting out in advance what could and could not be discussed and noting afterwards what had occurred and that he updated pro-revocation campaigners but not the appellant.

It was further alleged that Mr Avery provided material to the pro-revocation side on a confidential basis, and deleted one important email chain inappropriately.

Jay J concluded that had Mr Avery been the ultimate decision maker - rather than the board - he would have found apparent bias.

Holgate LJ said: “From my review of the materials before the board…I conclude that the members did not receive a report which was fair and balanced so as to avoid their decision to revoke the CLEUD being tainted by the apparent bias of Mr Avery.”

He said the officer’s report did not enable board members to reach independent views on issues which they needed to consider and resolve, and which were untainted by the apparent bias of Mr Avery.

“The process was therefore unfair and substantially prejudiced the appellant in its opposition to the revocation of the CLEUD,” Holgate LJ said.

Lord Justice Stuart-Smith agreed with Holgate LJ but said Jay J had been wrong to dismiss as “chaff” the disclosing of information from confidential sessions to Lord Manners but not the appellant.

Lady Justice King also agreed and noted that revocations were not based on planning policy but on the circumstances which led to the granting of the original certificate.

“It is as Jay J said a 'sensitive, unusual and complex decision making process' and it is accordingly of the utmost importance that the investigations which proceed the compiling of the officer's report are seen to be scrupulously fair,“ she said. “That was not as the judge found, the case here.”

Mark Smulian