BIAS

January 15th, 2018

R (Legard) v Kensington and Chelsea RLBC (2018) EWHC 32 (Admin) concerns the Council’s decision to permit a Neighbourhood Plan, for the designation of land as a Local Green Space, pursuant to paragraph 77 of the NPPF, to proceed to a Referendum.   The various grounds of complaint included allegations of apparent bias, breaches of the requirements of fairness, and ultra vires.

At paragraph 133, Dove J, having reviewed the authorities, distilled the principles that were particularly relevant to the considerations in the case before him:-

“…        The starting point must be a careful examination of all the facts before the court, and not simply those which would have been known to the claimant or a hypothetical onlooker. The test to be applied is whether a fair-minded and informed observer, having considered those facts, would conclude that there was a real possibility of bias on behalf of the decision-maker. The fair-minded observer should be neither unduly suspicious nor complacent. The fair-minded observer would need to be satisfied that the complaints made could be objectively justified as giving rise to a real possibility of bias. In addition, the fair-minded observer will take account of the overall context of the evidence in reaching a conclusion on the available facts. Part of that context will include, in relation to cases involving local government, that members of local authority are democratically accountable and will have political allegiances and policy positions. Thus, it has to be acknowledged that councillors may have a predisposition in relation to a particular decision, but that will not amount to predetermination provided they approach the decision with a mind which is willing to grasp all of the merits to be considered, and which is not closed to making a decision amounting to a departure from their predisposition. In a similar way, as part of the context of a case involving a government minister, the fair-minded observer will be taken to appreciate that ministers often have difficult and finely balanced decisions to take, and that it does not follow from a decision in favour of, for instance, a vocal body of local residents, that the minister was biased in their favour. Once an allegation of apparent bias has been made out, it is not obviated by the fact the apparent bias has had no operative effect upon the decision under challenge.”

On the other hand, in relation to allegations of unfairness, it is necessary for a claimant to establish not only that unfairness has occurred, but also that it has caused prejudice (paragraph 136).

Dove J further said:-

“142.     In seeking to form a view in relation to the question of whether or not the claimant has established that the defendant was apparently biased towards the second interested party, in my view it is necessary to have regard to the following features which would be part of the context known to the well informed and fair minded observer. Firstly, so far as the defendant’s officers are concerned, they are public officials who have a responsibility to seek to take account of legitimately expressed interests raised with them by the members of the public who they are employed to serve. It is part and parcel of their role to have a listening ear to representations that are made to them. Of course, from time to time there will be a necessity to turn representations away: they may be representations which are illegal or vexatious. There also may be the need from time to time, akin to the observations of the Court of Appeal in Broadview Energy Developments in respect of the conduct of the Secretary of State, to politely observe that there is no purpose in making further repetitious representations. Nonetheless, in the context of modern public administration there will be an expectation that Local Government officers will engage with representations which are made to them by all members of the public, since failing to do so may give rise to justifiable complaint.

  1. Secondly, in relation to members of the local authority, as is evident from authorities such as Lewis and Island Farm Development Limited, councillors are politicians and policy makers. As democratically elected representatives they are expected to receive and consider representations and lobbying from those interested in the issues they are determining. As Rix LJ observed in paragraph 96 of Lewis “[e]vidence 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 pre determination or what counts as bias”. As he went on to conclude, something more is required, in the sense of the local member having abandoned the obligation at the point of decision-making to address planning issues fairly and on their merits even though the member may have previously expressed a predisposition in relation to that decision.
  2. Thirdly, the well informed and fair minded observer would have an appreciation of the obligation of the defendant under paragraph 3(1) of Schedule 4B of the 1990 Act to “give such advice or assistance to [the second interested party] as, in all the circumstances, they consider appropriate for the purpose of, or in connection with, facilitating the making of proposals for [neighbourhood plans]”. Thus, the narrative of events, and in particular the defendant’s involvement in that narrative, would be understood by the well informed and fair minded observer as taking place against the backdrop of the requirement of the defendant to provide advice and assistance to the second interested party in order to facilitate the making of the Neighbourhood Plan. The duty is expressed in relatively broad terms, and in my view was undoubtedly included within the statutory provisions to reflect the fact that, firstly, the local planning authority would be well equipped with experienced professional officers to provide a range of expertise to support a qualifying body in the making of its Neighbourhood Plan and, secondly, to reflect the fact that many qualifying bodies would by stark contrast not have the resources or expertise available to them to produce a Neighbourhood Plan unassisted. That is not to say that there is anything in paragraph 3(1) which requires the local planning authority to support the proposals of a Neighbourhood Plan come what may, or whatever may be their views of the merits of the Neighbourhood Plan. It is obvious that the local planning authority has important tasks within the statutory framework in terms of appraising the merits of the Neighbourhood Plan against the specific tests which are set out in the legislation. The duty to provide “advice or assistance” does not require uncritical and unthinking support. What it does require, however, is undoubtedly relatively close engagement with the qualifying body to facilitate the making of the Neighbourhood Plan.
  3. I shall deal with the detail of the specific points of the claimant’s case individually below. Having carefully scrutinised the whole of the factual context set out above, together with those particular features highlighted by the claimant, I have reached the conclusion that there was neither apparent bias nor unfairness in the defendant’s involvement in the making of the Neighbourhood Plan, and in particular the proposal for the LGS designation of the site. …”

“175.     I have reached the conclusion, having considered the totality of the narrative of events in this case and all of the correspondence and documentation relevant to what occurred, that there is no substance in the contention of the claimant that the defendant was apparently biased toward the second interested party taking the overall context into account …”

“177.     … in essence the claimant relies upon points raised in relation to apparent bias in the context of fairness. For the reasons set out above, in my view the specific features of the case relied upon by the claimant are no more supportive of contentions in relation to fairness than they are to apparent bias. …”

“183. Overall, therefore, I do not consider that the procedure throughout the making of the Neighbourhood Plan up to the decision of the defendant to send the Neighbourhood Plan to referendum involved any unfairness to the claimant’s interests. In particular, at the key points of the decision-making process, namely the examination of the Neighbourhood Plan and the key decision following the receipt of the Examiner’s report, the claimant was afforded, and took, a full opportunity to engage in the merits of the proposal to designate the site as LGS and make their representations that this proposal was misconceived in planning terms.”

“195.     For the reasons which have been set out above, I am satisfied that the claimant has not made out any of the Grounds that have been raised in relation to the decision of the defendant under challenge, namely to pass the Neighbourhood Plan forward to referendum. Having considered the claimant’s arguments I have not been persuaded that there was any illegality in the decision which the defendant reached. This claim must therefore be dismissed.”

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