In Kelton v Wiltshire Council [2015] EWHC 2853 (Admin) three challenges were made to a grant of planning permission on the ground of bias/disqualification.  Two challenges failed.  The third succeeded.  The planning permission was for a scheme of up to 35 custom built residential dwellings, including 9 affordable homes.  At issue was the participation of one of the councillors on the Council ‘s planning committee, Councillor Magnus Macdonald, whose vote carried the decision in favour of granting the outline planning permission. It is alleged that he was disqualified from participating in the planning committee on this matter, because he is a director of Selwood Housing Association (“Selwood”), a not for profit association, which has had an interest in the affordable housing part of the development. Cllr. Macdonald receives, as director, some £3000 per annum.

The first challenge was based on the rule of automatic disqualification for financial interest.  The argument was that Cllr. Macdonald was automatically disqualified as a result of his directorship of Selwood.  Selwood was involved in the application and had an interest in its fate given that the applicants for planning permission had identified it as, effectively, their affordable housing partner.

Cranston J held that Cllr. Macdonald had no direct pecuniary or proprietary interest in the planning application so as to be automatically disqualified from participating in the decision. The decision of the committee in the present case did not lead to Cllr. Macdonald obtaining any benefit. There are too many contingencies between the committee’s decision and any benefit to him as a director of Selwood for the rule to have any purchase.  Here Selwood was not a party to the decision. Cllr. Macdonald could not be regarded as promoting the cause of affordable housing through his voting on planning permission on this application.

The second challenge was statutory disqualification as a result of a disclosable pecuniary interest, contrary to  Section 31 of the Localism Act 2011 and the Schedule to the Relevant Authorities (Disclosable Pecuniary Interests) Regulations 2012.

The argument was that, under Section 31, Cllr. Macdonald had a disclosable pecuniary interest in the matter before the planning committee. He was aware that Selwood stood to benefit directly from the grant of permission and accordingly was statutorily disqualified from participation in the meeting and should have withdrawn.

In the Judge’s view, however, Cllr.Macdonald had no disclosable pecuniary interest in the matter to be considered. Selwood was not the applicant for planning permission and at the point of the decision had no contract with the developers. It may have built up goodwill with its advice to them over a period, but at the time of the grant of planning permission the affordable housing part of the development was yet to be tendered. In the result, Cllr. Macdonald was not disqualified under Section 31.

Apparent bias was the third challenge.  Cranston J’s view was that Cllr. Macdonald’s participation in the decision to grant planning permission gave rise to an appearance of potential bias. It was plainly in Selwood’s interests and Cllr. Macdonald’s, as director, for the application to be approved. The reasonable and fair-minded observer, having the background facts, would have been aware that Selwood had committed time, resources and expertise to working with the developers over the design of the affordable housing part of the scheme. It was highly unlikely that Selwood would have gone to all the trouble it did unless it was seriously interested in delivering the affordable housing part of the scheme and had reason to believe that it stood a good chance of winning the tender once planning permission was granted. It had built up goodwill with the developers. The evident reality of the position then was that although it was not a done deal, Selwood was the front runner to deliver the affordable housing part of the scheme and would, barring something unforeseen, be appointed to do so in due course.

One element of the attack on Cllr. Macdonald’s participation was that he participated in a decision which furthered the cause of affordable housing, which as a member of Selwood he obviously supported, but that was only part of it.  The important distinction is that as a director of Selwood he also had a private interest.  In Cranston J’s view, Cllr. Macdonald’s directorship of Selwood will not be an issue in the great majority of housing applications likely to come before the committee, even those with an affordable housing element.  The position in this case was quite different.  Selwood, with Cllr. Macdonald as a director was not simply an affordable housing provider.  Here it was the only provider which had been willing to give assistance on the scheme, had expressed a clear interest in delivering it, had been named by the applicants as their potential partner, and had written in support and attended the planning committee meeting when it was considered.  In other words, its position was superior to that of any other interested providers of affordable housing because of its previous involvement and its prospects of winning the contract when the affordable housing part was tendered.  Because of that, Cllr. Macdonald’s private interests were engaged, as a director of Selwood, not just his interests in the cause of affordable housing. In all these circumstances it was wrong for Cllr. Macdonald to have participated in the meeting.

In R (Nicholson) v Allerdale BC [2015] EWHC 2510 (Admin) Holgate J emphasized relevant principles upon which the High Court will approach a challenge to a decision taken by a local planning authority involving criticism of the officer’s report:-

(i) In the absence of contrary evidence, it is a reasonable inference that members of the planning committee follow the reasoning of the officer’s report, particularly where a recommendation is accepted;

(ii) The officer’s report must be read as a whole and fairly, without being subjected to the kind of examination which may be applied to the interpretation of a statute or a contract;

(iii) Whereas the issue of whether a consideration is relevant is a matter of law, the weight to be given to a material consideration is a matter of planning judgment, which is a matter for the planning committee, not the court;

(iv) An application for judicial review based on criticisms of the planning officer’s report will not normally begin to merit consideration unless the overall effect of the report significantly misleads the committee about material matters which thereafter are left uncorrected at the meeting of the planning committee before the relevant decision is taken;

(v) In construing reports, it has to be borne in mind that they are addressed to a knowledgeable readership, including council members who, by virtue of that membership, may be expected to have a substantial local and background knowledge;

(vi) The purpose of an officer’s report is not to decide the issue, but to inform the members of the relevant considerations relating to the application. It is not addressed to the world at large, but to council members who, by virtue of that membership, may be expected to have substantial local and background knowledge. There would be no point in a planning officer’s report setting out in great detail background material, for example, in respect of local topography development plan policies or matters of planning history if the members were only too familiar with that material. Part of a planning officer’s expert function in reporting to the committee must be to make an assessment of how much information needs to be included in his or her report in order to avoid burdening a busy committee with excessive and unnecessary detail;

(vii) Democratically elected bodies go about their decision-making in a different way from courts. They have professional advisers who investigate and report to them. Those reports obviously have to be clear and full enough to enable them to understand the issues and make up their minds within the limits that the law allows them. But the courts should not impose too demanding a standard upon such reports, for otherwise their whole purpose would be defeated.

There was also an irrationality challenge.  Holgate J reiterated that an application for judicial review is not an opportunity for a review of the planning merits of the Council’s decision. Although an allegation that such a decision was perverse, or irrational, lies within the scope of proceedings under CPR Part 54, the Court must be astute to ensure that such challenges are not used as a cloak for a rerun of the arguments on the planning merits.  In any case where an expert tribunal is the fact finding body, as in the case of a planning committee, the threshold for Wednesbury unreasonableness is a difficult obstacle for a Claimant to surmount, which is greatly increased in most planning cases by the need for the decision-maker to determine not simply questions of fact, but a series of planning judgments. Since a significant element of judgment is involved, there will usually be scope for a fairly broad range of possible views, none of which could be categorised as unreasonable. Moreover, the decision may also be based upon a site inspection, which may be of critical importance. Against this background, a Claimant alleging that a decision-maker has reached a Wednesbury unreasonable conclusion on matters of planning judgment faces a particularly daunting task.  On the other hand, irrationality challenges are not confined to the relatively rare example of a “decision which simply defies comprehension”, but also include a decision which proceeds from flawed logic.

On policies, Holgate J reiterated that the correct interpretation of planning policy is a question of law to be determined by the Courts.  But, notwithstanding its legal status and effects, a development plan is not analogous to a statute or a contract and therefore its policies must not be construed as if they were statutory or contractual provisions. That is because development plans often contain broad statements of policy, and policies of that nature may be difficult to reconcile if construed strictly. In addition, the language used to express planning policy may depend upon the exercise of judgment by the decision-maker when applied to a given set of facts. The exercise of judgment by a planning authority when applying a policy is legally distinct from the construction of that policy. Such matters of judgment fall within the jurisdiction of the planning authority and may only be challenged in the courts if irrational or perverse.   When determining the extent to which a proposal conforms with a local plan, the correct focus is on the plan’s detailed policies. The supporting text consists of descriptive and explanatory material and/or reasoned justification in respect of the policies. That text is relevant to the interpretation of the policy with which it is concerned, but it does not itself constitute policy or form part of policy. Because the supporting text does not have the force of policy it cannot trump or override the policy to which it relates. So, for example, a criterion which is to be found in supporting text but not in a policy of the plan, could not affect the decision as to whether a proposal accords with the development plan.