Lewis, R (on the application of) v Redcar and Cleveland Borough Council

Apparent bias or predetermination is established where a fair-minded and informed observer, who is neither complacent nor unduly suspicious, would conclude that there was a real possibility that the decision-maker had closed his mind. In local authority planning decisions, the observer allows for the practicalities of local government and does not treat prior political views as sufficient by themselves. Unusual factors may cumulatively establish unlawful predetermination, including breach of election-period guidance, participation by a politically committed cabinet member, unanimous party-line voting and haste designed to bind a successor authority. An appropriate assessment under regulation 48 of the Conservation (Natural Habitats, &c) Regulations 1994 requires no particular procedure. The integrity test requires a high degree of certainty that the protected site will not be adversely affected.

The claimant sought judicial review of the council’s grant of outline planning permission to Persimmon Homes Teesside Ltd for a mixed residential, leisure and community development at Coatham Common, Redcar. He alleged apparent bias or predetermination arising from the council’s political support for the project and the planning committee’s decision during the local election purdah period. He also alleged non-compliance with regulation 48 of the Conservation (Natural Habitats, &c) Regulations 1994 concerning the nearby Teesmouth and Cleveland Coast Special Protection Area.

Permission to proceed was granted at a rolled-up hearing. The central questions were whether the planning committee’s decision was vitiated by apparent bias or predetermination, and whether the council had made an appropriate assessment and attained the required certainty concerning the protected site’s integrity.

1. Bias and predetermination. Actual or apparent bias or predetermination renders a decision unlawful. The test is whether a fair-minded and informed observer, neither complacent nor unduly sensitive or suspicious, would conclude that there was a real possibility of bias or predetermination. The observer must first consider all relevant circumstances.
2. In the local government context, the observer is familiar with the practicalities of elected decision-making. Councillors may have previously expressed views or supported political policies. Ordinarily, that does not prevent them from approaching a planning decision with an open mind. The court must identify precisely the facts which would cause the observer to conclude otherwise.
3. Here, the council’s ownership of the site, prior political support and the cabinet member’s earlier involvement were not, by themselves, sufficient. However, the cumulative effect of the project becoming a major election issue, the council’s breach of its own guidance by holding the controversial meeting during purdah, the participation of a cabinet member closely associated with the project, unanimous coalition voting, and the development agreement entered into shortly before the election was sufficient. The observer would conclude that there was a real possibility that the committee had acted with bias or had predetermined the outcome.
4. The planning permission was therefore unlawful and was quashed on the first ground.
5. Regulation 48. The appropriate assessment process need not follow any particular method. An iterative process conducted by the council’s proper officer, using successive reports prepared by the developer’s ecological consultants and consultation with Natural England and the RSPB, was capable of satisfying regulation 48.1 to 48.3.
6. The ascertainment required by regulation 48.5 involves a high degree of certainty. The planning committee had sufficient information and, having regard to the proposed mitigation measures and the conclusions of the conservation bodies, had in fact reached the required degree of certainty. The second ground therefore failed.
7. The permission was quashed because of apparent bias or predetermination, notwithstanding the council’s success on the regulation 48 issue. Counsel were requested to agree the appropriate order.

First-instance judicial review proceedings. The judgment states that Collins J directed a rolled-up hearing of permission and the substantive claim after considering the matter on the papers.