National Assembly for Wales v Condron & Anor

Apparent bias is assessed by asking whether a fair-minded and informed observer, considering all circumstances disclosed by the court’s investigation, would find a real possibility of bias. The assessment is not confined to information available when the decision was made. A legitimate predisposition remains compatible with consideration of relevant factors; unlawful predetermination involves a closed mind.

A planning authority’s duty to consider material matters continues until permission is formally granted. A later event requires reconsideration only if it is rationally capable of affecting the planning balance. Political debate which creates no policy or planning change does not meet that standard.

The National Assembly for Wales granted permission for opencast mining and associated reclamation works following a public inquiry and a favourable inspector’s report. Mrs Condron challenged the permission under section 288 of the Town and Country Planning Act 1990.

The Administrative Court, in [2005] EWHC 3007 (Admin), quashed the permission because a remark by the chair of the Planning Decision Committee created an appearance of predetermination. The Assembly appealed. By respondent’s notice, Mrs Condron relied alternatively on the treatment of buffer-zone policy, a subsequent Assembly debate and post-inquiry representations.

The principal issue was whether all the circumstances known after investigation disclosed a real possibility that the chair or committee had approached the application with a closed mind.

1. Appeal allowed. The allegation of apparent bias was not established. The High Court’s quashing order was reversed, and the Planning Decision Committee’s grant of planning permission was restored.
2. Per Richards LJ, with whom Wall and Ward LJJ agreed, the test from Porter v Magill [2001] UKHL 67 required consideration of all circumstances disclosed by the court’s investigation. The assessment was not confined to what an observer knew when the impugned remark was made or when the committee decided the application. Apparent bias was a question of law requiring the legal test to be applied correctly to the facts found.
3. The chair had said that he was going with the inspector’s report. In context, that brief and unprepared remark was compatible with a predisposition rather than a closed mind. Predisposition permits consideration and weighing of relevant matters. Predetermination does not. The inspector had firmly recommended permission; the committee subsequently conducted unusually prolonged deliberations and fully explored the competing issues. The members’ training and Code of Conduct also carried some weight. Taken together, those circumstances did not disclose a real possibility of bias.
4. The High Court had properly refused to admit the chair’s witness statement after circulation of the draft judgment. Although a court may reopen a decision before its order is perfected, exceptional circumstances or strong reasons are required. The draft-judgment procedure could not be used to recover an evidential opportunity which the Assembly had failed to take without explanation. The Court of Appeal also refused to admit that evidence.
5. The buffer-zone policy in Minerals Planning Policy Wales favoured and advocated buffer zones but allowed their extent to depend on the operation and local circumstances. The inspector lawfully concluded that a prescribed zone was inappropriate because the proposal combined extraction with reclamation and its impacts could be controlled. His reasons were adequate, intelligible and rational, and the committee lawfully adopted them.
6. Under section 70(2) of the Town and Country Planning Act 1990, the duty to consider material considerations continued until the decision notice was issued. The later Assembly debate created no new policy, power or planning consideration and therefore required no referral back to the committee.
7. Rule 17(4) of the Town and Country Planning (Inquiries Procedure) (Wales) Rules 2003 permitted the Assembly to disregard post-inquiry material. In any event, the documents established that the committee considered the further representations and rationally found that they would not materially affect its decision.

1. Court of Appeal (Civil Division): In [2006] EWCA Civ 1573, allowed the Assembly’s appeal, rejected every ground in the respondent’s notice and reversed the quashing order.
2. High Court, Administrative Court: In [2005] EWHC 3007 (Admin), Lindsay J quashed the planning permission because the committee’s decision was affected by an appearance of bias. He rejected the other grounds of challenge.