Persimmon Homes Teesside Ltd v Lewis, R (on the application of)

Legitimate political predisposition by elected councillors must be distinguished from unlawful predetermination. Councillors may support and develop planning policies before deciding an application. They must nevertheless consider material planning matters fairly and remain open to persuasion by relevant arguments.

An apparent-predetermination challenge requires clear circumstances creating a real possibility that councillors’ minds were closed to planning merits. Prior support, electoral timing and a party-line vote do not, without more, meet that demanding test. The court must assess the issue in its democratic and constitutional context. Under Conservation (Natural Habitats &c) Regulations 1994, a planning committee may rely on expert assessment and consultees’ advice where the conditions imposed enable it to ascertain that a protected site’s integrity will not be adversely affected.

Persimmon Homes Teesside Ltd appealed against Jackson J’s decision in the Administrative Court, [2007] EWHC 3166 (Admin), quashing the Council’s planning permission for a mixed-use redevelopment at Coatham Enclosure, Redcar.

The claimant had contended that Coalition members of the planning committee appeared to have predetermined the application because it was determined during the pre-election period, after public political support for the project, and was followed by a development agreement. By a respondent’s notice, he also contended that the Council had failed to comply with regulation 48 of the Conservation (Natural Habitats &c) Regulations 1994 in respect of a nearby Special Protection Area.

The central issues were whether the circumstances showed a real possibility of councillors having closed minds, and whether the ecological assessment and conditions met the regulatory requirements.

1. Appeal allowed unanimously. The court restored the planning permission. The circumstances did not justify quashing it for apparent bias or predetermination. The respondent’s notice on regulation 48 was dismissed.
2. Elected councillors are entitled, and expected, to hold and express views on planning policy. Their legitimate predisposition differs from predetermination. They must consider material matters fairly, give proper attention to officers’ reports and representations, and remain open to relevant new arguments. The court may use the fair-minded and informed observer’s perspective, but that observer must recognise the democratic and policy-making role of councillors. Judicial-style impartiality cannot be required.
3. The decisive inquiry was whether the evidence created a real possibility that minds were closed to the planning merits. Clear pointers are required. The project’s political character, the meeting’s occurrence during the pre-election period, prior support for it, and the absence of Coalition dissent did not establish such a risk. The meeting had been arranged on officers’ advice, members had a detailed report and heard representations, and the evidence did not show political motivation beyond what could ordinarily be expected of elected policy-makers.
4. The court approved the contextual approach to the Porter v Magill test. It held that the test remains available in a predetermination challenge to a local planning decision, but its application must reflect the distinction between elected policy-makers and judicial or quasi-judicial decision-makers.
5. On regulation 48, the Council had obtained and considered an appropriate ecological assessment. Natural England and the RSPB had been consulted, had withdrawn their objections subject to conditions, and the committee was entitled to rely on their advice and the officers’ report. The omission to reproduce the statutory test and the officer’s conclusion in full did not invalidate the permission. The imposed conditions enabled the committee to ascertain that the nearby protected site’s integrity would not be adversely affected.

• Court of Appeal (Civil Division): Allowed Persimmon Homes Teesside Ltd’s appeal and dismissed the respondent’s notice.
• Administrative Court (Queen’s Bench Division): Jackson J quashed the planning permission for apparent bias or predetermination: [2007] EWHC 3166 (Admin) .