Ortona Ltd, R (on the application of) v Secretary of State for Communities & Local Government

When a development plan protects land for a potential future use, refusal of planning permission need not depend on proof that the use is more probable than not. The relevant question is whether there is a realistic possibility of the protected use returning and whether its retention, balanced against the proposed development, justifies refusal. The decision-maker must grapple with the practical evidence, including alternative sites and the conduct of relevant operators, and must give reasons showing that those matters have been properly considered.

An apparent-bias challenge is determined objectively. The question is whether a fair-minded and informed observer would conclude that there was a real possibility of bias. Prior professional employment may require recusal even where actual bias is neither alleged nor established. Waiver requires knowledge of the material facts and consequences, together with a fair opportunity to make an unfettered choice.

The claimant challenged under section 288 of the Town and Country Planning Act 1990 an inspector’s refusal of planning permission for development on a former bus-station site in Cromer.

The inspector considered that losing the site could harm public transport and traffic flow, notwithstanding the availability of possible alternative arrangements. The claimant argued that the inspector had applied the wrong approach to the likelihood of the bus-station use resuming and had failed to give adequate reasons. It also alleged apparent bias because the inspector had previously been employed by Norfolk County Council, the principal highway objector.

The issues were whether the inspector had properly assessed the realistic possibility of future bus-station use and whether the circumstances created a real possibility of apparent bias.

1. Planning assessment. The balance-of-probabilities test in Westminster City Council v British Waterways [1985] AC 676 concerned competing uses where refusal of one use was justified solely by preservation of another existing use. It was not necessarily appropriate where a development plan sought to preserve the option of a future use.
2. Following Nottinghamshire County Council v Secretary of State for the Environment [2002] 1 P&CR 389, the possibility of a desirable future use could be a material consideration under section 70(2) of the Town and Country Planning Act 1990 without a requirement that the use had a 51 per cent probability of occurring. The correct approach was to assess whether there was a realistic possibility of the use resuming and to weigh that possibility against the planning merits of the proposal.
3. The inspector had failed to grapple with the realities of the evidence. The bus-station use had ceased, operators had not indicated a wish to resume it, enhanced on-street arrangements were available, and an alternative site existed. The absence of direct evidence from operators could not fairly be held only against the claimant when the council could also have investigated and produced such evidence. The reasons were therefore inadequate. [26]-[34]
4. Apparent bias. The test, reaffirmed in Howell v Millais [2007] EWCA Civ 720, Porter v Gill [2002] 2 AC 357 and the other authorities considered, was whether a fair-minded and informed observer would conclude that there was a real possibility or real danger of bias. Actual bias was unnecessary. In the circumstances, prior employment by the principal objector and the inspector’s familiarity with relevant policies required that the possibility of apparent bias be properly considered. The inspector should not have been appointed once the objection had been raised. [42]-[56]
5. There was no waiver. Under Peter Smith v Verder Cementation Foundations [2006] EWCA Civ 232, waiver required awareness of all material facts and consequences, and a fair opportunity to make an unfettered decision. Those requirements were not met. The inspector’s decision was quashed, and the claimant was awarded its costs, subject to detailed assessment if not agreed. [53]-[68]

First-instance judicial review under section 288 of the Town and Country Planning Act 1990. The inspector’s decision refusing planning permission was quashed.