Gardner, R (on the application of) v Harrogate Boroug Council & Ors

Apparent bias is assessed by asking whether a fair-minded and informed observer, having regard to all the circumstances, would conclude that there was a real possibility of bias. The circumstances must be considered cumulatively. A close friendship between a decision-maker and a person benefiting from the decision is compelling, but apparent bias may exist even where the relationship is only that of friendly acquaintances. In planning cases, the decision-maker’s casting vote, failure to recuse, strong contrary officer recommendations and inconsistent treatment of a materially similar application may be significant. Where apparent bias has affected a planning permission, quashing is the proper starting point unless good reason, such as undue delay or substantial prejudice, justifies another course.

The claimant sought judicial review of an outline planning permission granted by Harrogate Borough Council to the interested parties for a dwelling replacing a static caravan. The permission had been granted by the Area Planning Committee on the casting vote of its chair, who belonged to the same political party as one of the applicants and had regular personal contact with her.

The Local Government Ombudsman concluded that the decision was affected by apparent bias and maladministration. The Council accepted that the permission was improperly granted and did not resist the claim. The central issues were whether the fair-minded and informed observer would conclude that there was a real possibility of bias, and whether the permission should be quashed or left to revocation under section 97 of the Town and Country Planning Act 1990.

1. Claim allowed and planning permission quashed. The court applied the apparent-bias test accepted in Porter v Magill [2002] 2 AC 357: whether a fair-minded and informed observer, informed of all the relevant circumstances, would conclude that there was a real possibility of bias.
2. The surrounding context must be considered. The fact that councillors belong to the same political party and may commonly be acquaintances is relevant, but it does not prevent apparent bias where the cumulative circumstances go beyond ordinary political or professional contact. The court accepted that approach in Persimmon Homes Teesside Limited v R (on the application of Lewis) [2008] EWHC Civ 746.
3. No single factor was decisive. The relevant cumulative circumstances included shared transport, social contact beyond that normally expected between fellow councillors, concerns expressed by colleagues, the chair’s failure to consider public perception, his casting vote, the strong officer recommendations for refusal, and the later refusal of a materially similar application when he recused himself. The relationship was not a close friendship for the purposes of the Standards Board definition, but it was properly regarded as a friendly acquaintance and was sufficient, in context, to establish apparent bias.
4. The Ombudsman’s conclusions were not binding. The court had to determine the facts for itself, but, given the Ombudsman’s investigation, interviews and expertise, it would depart from her conclusions only for good reason. No such reason was established.
5. Where apparent bias has infected a planning decision, the proper starting point is to quash the permission in order to maintain the integrity of the planning system. A permission should ordinarily be quashed unless there is a good reason not to do so, such as undue delay, substantial prejudice or another compelling circumstance. Revocation under section 97 was not an adequate reason to avoid quashing: the application would have to be redetermined lawfully, and any refusal could be appealed.
6. The interested parties were ordered to pay the claimant’s costs incurred after permission was granted. Before that date they were effectively bystanders and had been entitled to await the court’s decision.