Ware, R (on the application of) v Neath Port Talbot Council & Anor

Planning councillors may discuss applications with constituents, provided they retain an open mind and do not predetermine the outcome. The relevant question is whether a fair-minded and informed observer would conclude that there was a real possibility of bias. Over-cautious monitoring-officer advice should not inhibit councillors from performing their democratic functions. A possibility of an ombudsman complaint or judicial review is not itself a reason for withdrawal. Where materially wrong advice, given during the meeting, causes councillors who were otherwise entitled to participate not to vote, and their absence may have affected the result, the decision may be unlawful.

The claimant sought judicial review of decisions by Neath Port Talbot Council granting National Grid planning permission and hazardous substances consent for a gas installation. Four planning-committee councillors had previously met objectors but had not expressed any view or predetermined the applications. Two councillors later withdrew after officers raised concerns about their failure to attend a site visit and the possibility of an ombudsman complaint. The planning permission was approved by 13 votes to 12. The central issues were whether the councillors had been properly excluded from participation and whether the resulting decisions were lawful.

1. The claim succeeded and the planning permission was quashed. The hazardous substances consent, which was parasitic upon the planning decision, also fell. The matter was to be reconsidered through a proper and fair decision-making process, with eligible councillors given the opportunity to participate.

2. Members of a planning committee may properly be lobbied by constituents. They must nevertheless approach the decision with an open mind and be willing to change their view in light of the arguments and evidence. The applicable test, from Porter v Magill [2002] 2 AC 357, was whether a fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility of bias.

3. The councillors had made no statement indicating predetermination or even predisposition. The monitoring officer’s advice should therefore have been that they were entitled to remain and vote. The possibility that an ombudsman complaint or judicial review claim might be made was not the relevant test. Withdrawal was justified only if there was a real risk that such a complaint or claim would succeed.

4. Whether a site visit is essential depends on the circumstances. Chichester District Council v The First Secretary of State [2007] JPL 389 concerned a building whose internal features could not properly be assessed without an accompanied inspection and did not govern this case. A committee could not, as a matter of principle, bind an individual member so that failure to attend a site visit automatically prevented participation. The individual member had to decide whether the absence disqualified participation on the facts.

5. Although advice short of a direction will ordinarily leave a councillor to exercise personal judgment, the circumstances here were exceptional. The advice was given after the meeting began, when independent advice could not realistically be obtained, and reasonably conveyed that the councillors should not participate. Their absence could have affected a 13–12 result. The wrong advice was therefore capable of affecting the lawfulness of the decision; it could also be characterised as reliance on an immaterial consideration within the concept of irrationality.

6. The court added that judicial review would not ordinarily follow merely because councillors later asserted that they had misunderstood proper advice or an adequately explained report. Such a principle would destabilise the decision-making process. Costs were awarded to the claimant, and environmental protection works were permitted pending redetermination.