Ghadami v Harlow District Council & Anor

A planning decision is not invalidated by every procedural defect. The court must consider the statutory purpose, the circumstances and any resulting prejudice, while retaining a discretion as to relief. An environmental impact assessment screening opinion concerns the proposed development, rather than the identity of the person who requested it. Apparent bias or predetermination is established where a fair-minded and informed observer would conclude that there was a real possibility that a decision-maker approached the application with a closed mind and without impartial consideration of relevant planning issues.

The claimant sought judicial review of Harlow District Council’s resolution to grant planning permission for the redevelopment and extension of the Harvey Centre in Harlow town centre. He owned commercial premises affected by the proposed development and challenged the environmental impact assessment screening opinion, statutory notices and advertisements, the participation of councillors, procedural fairness, and the adequacy of the officers’ report.

The claim was heard at a rolled-up hearing. The court refused permission to challenge the screening opinion, rejected the other grounds, but found that the participation of the Planning Committee chairman gave rise to apparent bias or predetermination.

1. Screening opinion. A screening opinion under the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 relates to the development, not to the person who requested it. Information required for screening may already have been supplied separately. The council was the primary judge of whether it had sufficient information, and its rational conclusion that no EIA was required disclosed no error of law.
2. Notices and advertisements. Although the newspaper advertisement omitted the period for representations, the court retained a discretion whether to grant relief. The statutory purpose was to give the public an opportunity to make representations. In the circumstances, public awareness was substantial, representations had been received and considered, and no prejudice was shown. Relief was refused.
3. Apparent bias and predetermination. Applying Georgiou v London Borough of Enfield and Porter v Magill, the question was whether a fair-minded and informed observer would conclude that there was a real possibility that the chairman approached the application with a closed mind and without impartial consideration of relevant planning issues. His discussions about buying out the claimant, alternative premises, a possible compulsory purchase order and securing the development went beyond ordinary constituency representation. He ought to have stood down.
4. Substitution and other procedure. Under Standing Order 27, the substitute member became a committee member for the meeting and could vote on the basis of her own knowledge. Meetings with the developer did not themselves create unfairness, provided members remained careful about undisclosed information and objectors had a proper opportunity to make representations.
5. Disposition. Permission was refused for the screening-opinion challenge. Permission was granted for the remainder, but all grounds other than apparent bias or predetermination were rejected. Because planning permission had been granted by four votes to three and the chairman’s participation vitiated the process, the planning permission was quashed.

First-instance judicial review decision. The judgment records an earlier interlocutory order of the Court of Appeal concerning document bundles, but gives no appellate determination of the merits.