R (Lewis) v Redcar and Cleveland Borough Council and Persimmon Homes Teeside Limited [2008] EWCA Civ 746

In a case which will put an end to much uncertainty, a recent Court of Appeal decision makes clear the dividing line between predisposition and predetermination in cases where councillors might be expected to have strong political views. The decision is authority that, in non quasi-judicial decisions, members are able to follow their political inclinations.

The broad facts will be unremarkable to those with a planning background. Redcar and Cleveland Borough Council had granted planning permission for a mixed residential and leisure development on land which they owned. The site was near a conservation area and the planning application had become a politically sensitive one.

Planning permission was granted, contrary to the council’s own guidance that politically-sensitive decisions should not be made in the purdah period in the run-up to local elections. Following the grant of permission, and the election, there was a change of political control within the council. As is often the case in controversial planning decisions, the decision was challenged on the basis of an appearance of bias.

At first instance, Jackson J granted the application for judicial review and quashed the planning permission on the basis that the decision failed the well known “fair-minded and informed observer test” for apparent bias in Porter v Magill [2001] UKHL 67.

The issue in the case is well known: whether and to what extent there is, or ought to be a distinction, for the purposes of apparent bias, between quasi-judicial decisions and other local authority decisions.

Allowing the appeal, Pill LJ took a more expansive approach than has been seen previously, reversing Jackson J’s decision in part. It had not been demonstrated that members of the planning committee had made the decision with minds which were closed to planning merits, or in circumstances which had given rise to a real risk of such closed minds.

The point Pill LJ was at pains to make is that, except where they act quasi-judicially, councillors are elected to devise and implement policies and should be permitted to do so.

He went on:

Central to such a consideration, however, must be a recognition that councillors are not in a quasi-judicial position but are elected to provide and pursue policies. Members of a planning committee would be entitled, and indeed expected, to have and to have expressed views on planning issues.

There must be “clear pointers … if that state of mind is to be held to have become a closed, or apparently closed, mind at the time of decision”.

Rix and Longmore LJJ gave concurring judgments. Rix LJ added:

So the test would be whether there is an appearance of predetermination, in the sense of a mind closed to the planning merits of the decision in question.

Evidence of political affiliation or of the adoption of policies towards a planning proposal will not for these purposes by itself amount to an appearance of the real possibility of predetermination, or what counts as bias for these purposes. Something more is required, something which goes to the appearance of a predetermined, closed mind in the decision making itself.

So here we see a distinction between quasi-judicial decisions and straightforward local authority decisions, providing a much needed dose of common sense. The judgments highlight the particular constitutional function of councillors and acknowledge their proper role as politicians rather than as impartial quasi-judicial figures.

The decision was clear cut and is unlikely to be appealed, which will warrant a relaxing of attitudes among officers, to the consternation of potential objectors. It will allow a more confident approach to non quasi-judicial decisions than officers have sometimes tended to take, provided of course the members in question keep an open mind.

The case comes in the wake of a series of cases* which sought to draw the line between predisposition and predetermination and demonstrated a move towards a common-sense approach and this latest will put paid to the last lingering doubts.

*Condron v National Assembly for Wales [2006] EWCA Civ 1573, R (on the application of Island Farm Development Ltd) v Bridgend CBC [2006] EWHC 2189 (Admin) and R (Linda Ware) v Neath Port Talbot Council & National Grid [2007] EWHC 913 (Admin).