Turner v The Secretary of State for Communities And Local Government & Ors

Apparent bias in a planning inquiry is assessed by asking whether a fair-minded and informed observer, considering all the circumstances, would conclude that there was a real possibility of bias. The assessment must reflect an inspector’s inquisitorial role and legitimate need for active case management, focused questioning, time limits and indications that arguments are unrealistic or unhelpful. Robust management, interruptions and provisional views do not themselves establish bias. The conduct must instead cross the threshold into unfairly closing down a party’s case or creating a real possibility of bias. The Planning Inspectorate’s code guides good practice but does not define the legal test. A lapse in courtesy alone is insufficient.

The Secretary of State allowed a proposed redevelopment of the Shell Centre site following a public inquiry conducted by an appointed planning inspector. George Turner, who had represented an objector, challenged the decisions on several grounds. Collins J dismissed the challenges, including the allegation that the inspector had given an appearance of bias, in a judgment reported at [2015] EWHC 375 (Admin).

Permission to appeal was granted only on the apparent-bias ground. The central issue was whether the inspector’s conduct before and during the inquiry, and his treatment of matters in the report, would lead a fair-minded and informed observer to conclude that there was a real possibility of bias.

1. Appeal dismissed. The inspector’s conduct, considered individually and cumulatively, did not give rise to a real possibility of bias. The Court of Appeal also declined to endorse Collins J’s criticisms of the inspector or to characterise his conduct as equivalent to judicial misconduct.
2. The applicable test is whether, having regard to all the circumstances, a fair-minded and informed observer would conclude that there was a real possibility that the decision-maker was biased. The assessment is objective. The complainant’s fears may be relevant when deciding whether a complaint requires investigation, but become less important at the objective assessment stage. The court must consider the material before it, not merely matters known to the objectors or the hypothetical observer at the time: Porter v Magill [2002] 2 AC 387; National Assembly for Wales v Condron [2006] EWCA Civ 1573; Resolution Chemicals Ltd v H Lundbeck A/S [2013] EWCA Civ 1515.
3. The context of a planning inquiry is important. An inspector has a strong inquisitorial function and may focus debate, impose reasonable time limits, require concise questioning and answers, indicate that points appear unrealistic, and intervene to obtain material useful for the report. Robust inquiry management may go too far, but a finding of apparent bias based on such management will be rare. Halifax Building Society v Secretary of State for the Environment [1983] JPL 816 supported these propositions, although its facts were far removed from the present case.
4. The Inspector’s Code of Conduct promotes best practice but does not itself establish the legal standard. A lapse in courtesy or patience, without more, does not establish apparent bias. The court applied the approach in HCA International Ltd v The Competition and Markets Authority [2015] EWCA Civ 492.
5. The pre-inquiry procedural mistakes were promptly corrected or caused no unfairness. The inspector’s interventions, management of cross-examination, treatment of documents and focus on substantive issues were legitimate inquiry-management decisions. The report, read as a whole, showed that the objectors’ evidence and cases had been considered.

• Court of Appeal (Civil Division): appeal dismissed on the sole permitted ground of apparent bias. The court held that the inspector’s conduct did not create a real possibility of bias. Judgment dated 11 June 2015, [2015] EWCA Civ 582.
• Queen’s Bench Division, Administrative Court: Collins J dismissed the challenges to the Secretary of State’s decisions, including the apparent-bias ground, in [2015] EWHC 375 (Admin). Permission to appeal was granted only in relation to apparent bias.