Tromans, R (on the application of) v Cannock Chase District Council & Anor

An administrative body exercising functions affecting the rights or interests of others must act fairly. Fairness is closely connected with Wednesbury reasonableness. Where a close committee vote is challenged bona fide and promptly, fairness may require the challenge to be put to the chair or committee so that it can decide whether verification is necessary. The decision is fact-sensitive. Verification may be unnecessary where the voting is clearly established. If the challenge is not referred to the decision-maker, and it cannot be known what decision would have followed, the resulting decision may be procedurally unfair and liable to be quashed.

The appellants sought judicial review of a planning permission granted by the respondent’s Planning Control Committee for development next to their property. The result was recorded as seven votes to six in favour of approval. The appellants contended that the vote was seven to six against, partly because of a dispute about whether a councillor had voted. The concern was raised during the meeting, but the chair and committee were not informed and no recount or other investigation took place.

Forbes J dismissed the grounds of challenge, including the contention that the failure to investigate rendered the decision procedurally unfair. Permission to appeal was limited to that issue. The central question was whether fairness required the disputed vote to be referred to the chair or committee before the meeting continued.

Appeal allowed unanimously. The respondent’s planning decision was quashed.

1. The court found no real difference between the suggested tests of procedural fairness and Wednesbury reasonableness. The Council was under a duty to act fairly, and a failure to do so could not properly be described as reasonable in the Wednesbury sense. The outcome depended on the facts.
2. The challenge to the recorded vote had been raised in good faith and promptly, while the committee was still sitting. The vote was close and any counting error could have been decisive. It was practicable to check the voting, and there was no suggestion that verification would prejudice good administration.
3. Fairness required the concern to be put to the chair or committee so that an informed decision could be made. The chair might have concluded that the vote was sufficiently clear and required no verification, but she might instead have ordered a recount or other check. The evidence did not show that she had been told of the challenge or had made any decision about it.
4. Because it could not be established that the chair would have adhered to the recorded result if informed, the appellants had demonstrated procedural unfairness. The court therefore allowed the appeal and quashed the respondent’s decision. Lord Justice Maurice Kay and the President of the Family Division agreed with the judgment of Lord Justice Latham.

The court’s approach was consistent with the fairness principle stated in R v Commissioner of Racial Equality Ex parte Hillingdon LBC [1982] AC 779. An earlier decision concerning a disputed show of hands, R v The Vestrymen and Churchwardens of St Pancras Middlesex (1839) 11 Ad and E 15, was cited in support of the appeal.

1. Court of Appeal (Civil Division) allowed the appeal and quashed the respondent’s planning decision.
2. QBD (Admin Court): Forbes J dismissed the judicial review grounds in a judgment dated 10 December 2003, including the challenge based on the disputed vote.