R (on the application of Lewis) v Redcar & Cleveland Borough Council (2007) EWHC 3166 (Admin)

A recent, unusual planning case involving Redcar and Cleveland Borough Council has raised some interesting issues about decision making in local government around the time of local elections.

In this case, developers were seeking to redevelop a site. The coalition controlling the Council at the time of the application strongly supported the scheme, whereas the Labour opposition were alleged to oppose it. Prior to the May 2007 local elections, the local authority issued a guidance note on publicity for the period from the date that formal notice of the elections was given until the date of the elections (the ‘purdah’ period). It included a provision that ‘any meetings or decision making related to the “day-to-day” business of the Council that do not involve controversial local issues should continue to go ahead’ during this period.

Although the concept of a purdah period is well established in politics, its applicability to decision making in the run up to an election is less clear. The Local Government Act 1986, for example, deals with the prohibition of political publicity and requires a local authority not to publish any material which appears to be designed to affect public support for a political party. Guidance issued under section 4 of that Act highlights the purdah period as being a particularly sensitive one for these purposes. However, there is no specific guidance regulating decision making within local authorities during the purdah period. For this reason it is not unusual for local authorities to issue guidance, such as that issued by Redcar and Cleveland Borough Council.

In the Redcar case, the Coalition took the view that the process of determining the planning application should not be suspended during the purdah period and it was considered at a planning committee meeting during the period, at which the committee resolved to grant permission. The permission was challenged on grounds of an appearance of bias or predetermination. In the High Court it was held that to go ahead with the committee meeting during the purdah period was a clear breach of the Council’s own guidance. In the court’s opinion, a fair-minded and informed observer would consider there to have been a real possibility of bias or predetermination on the part of the planning committee. As a result the planning permission was quashed.

That decision was, however, appealed by the developer. The Court of Appeal allowed the appeal on the basis that the evidence did not support the party political dichotomy alleged and that there was little evidence that the committee members were any more politically motivated than would normally be expected. The failure of the local authority to follow its own advice did not of itself invalidate the planning permission.