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

In apparent-bias cases, the question is whether a fair-minded and informed observer would conclude that there was a real possibility of bias in the particular factual context. The assessment is not mechanistic. Time since an inspector left a public authority is relevant, but it is not decisive. Seniority, responsibility for formulating the relevant policies, and responsibility for implementing them may be critical. A planning inspector’s previous employment does not automatically disqualify the inspector from hearing appeals involving that authority’s policies. Where an inspector had direct responsibility for the formulation and local implementation of policies central to the appeal, however, the circumstances may establish a real possibility of unconscious bias. An inspector may also rely on the absence of evidence when rejecting a late assertion that an established use will not resume.

Ortona Ltd sought planning permission to demolish a former bus station in Cromer and build a mixed-use development. The local planning authority refused permission because the proposal did not provide adequate replacement public transport facilities. An inspector dismissed Ortona’s appeal under section 78 of the Town and Country Planning Act 1990.

Collins J allowed Ortona’s statutory challenge under section 288, holding that the inspector had failed to address realistically the possibility of the bus station use resuming and that there was a possibility of apparent bias. The Secretary of State appealed. The central issue was whether the inspector had properly dealt with the re-use issue and whether, in the light of all the circumstances, a fair-minded observer would conclude that there was a real possibility of bias.

1. Appeal dismissed. The Court of Appeal dismissed the Secretary of State’s appeal on apparent bias. Permission to adduce fresh evidence was allowed, and permission to appeal to the House of Lords was refused.
2. The inspector was entitled to find that existing on-street provision was inadequate and that a proposed alternative at Cadogan Road car park was unacceptable in the absence of secure funding. The loss of the established bus station use was therefore contrary to the relevant transport policies, unless material considerations indicated that permission should nevertheless be granted.
3. Under section 38(6) of the Planning and Compulsory Purchase Act 2004, the appeal had to be determined in accordance with the development plan unless material considerations indicated otherwise. The possibility that the established bus station use might resume could potentially be such a material consideration. Ortona had not properly advanced or evidenced that contention before the hearing. The inspector was entitled to treat it as an unsupported assertion and had properly grappled with the re-use issue.
4. The apparent-bias question was whether the fair-minded observer, informed of all the circumstances, including the fresh evidence, would conclude that there was a real possibility of conscious or unconscious bias. The inspector’s four-year gap from employment by the county council was not decisive. Nor was previous general involvement with structure-plan policies sufficient by itself.
5. The decisive circumstances were the inspector’s long and direct responsibility for formulating Norfolk County Council’s transport policies and later responsibility for applying them in highway development control. The appeal turned on the weight given to those policies. Those features placed the case in a special category and would lead the fair-minded observer to conclude that there was a real possibility that the inspector would unconsciously attach undue weight to the policies.
6. The assessment is case-specific. Relevant factors include the inspector’s seniority, the duration and extent of involvement in policy formulation, and whether responsibility for the relevant policy area was direct or merely incidental. A broad rule automatically excluding inspectors with any prior connection to a plan-making authority was rejected as unnecessary.
7. Any alleged waiver was ineffective because Ortona’s representative did not know the material facts concerning the inspector’s direct responsibility for the relevant policies.

• Court of Appeal (Civil Division): dismissed the Secretary of State’s appeal against Collins J’s order of 18 November 2008. The court allowed the application to adduce fresh evidence and refused permission to appeal to the House of Lords.
• Administrative Court, Queen’s Bench Division: Collins J allowed Ortona Ltd’s application under section 288 of the Town and Country Planning Act 1990 and quashed the inspector’s decision.