Kelton v Wiltshire Council

In local planning decision-making, a councillor is not automatically disqualified merely because a body of which the councillor is a director may later benefit from planning permission. The question of apparent bias is distinct. The fair-minded and informed observer must consider the councillor’s actual private interests and the surrounding circumstances. A prospective affordable-housing provider may create apparent bias where it has worked closely with the applicants, publicly supported the application, has been identified as the proposed partner and is the likely successful tenderer. Conditions and mitigation may be considered when assessing likely significant effects under the Habitats Regulations, provided the authority has sufficient objective information and the conditions are capable of addressing the risk. A planning authority must also apply the statutory heritage duties, but those duties are engaged by a planning judgment that harm exists.

The claimant, a riparian owner living downstream from the proposed site, sought judicial review of Wiltshire Council’s grant of outline planning permission for up to 35 custom-built dwellings, including affordable homes. The site was near the River Wylye, part of the River Avon SAC and SSSI, and within the setting of nearby heritage assets.

The challenge alleged: councillor disqualification or apparent bias; failure to assess the development’s effects on the River Avon SAC; an unlawful environmental impact assessment screening opinion; and failure properly to assess harm to listed buildings and a conservation area. The court heard the bias ground separately because late evidence prevented the whole claim being completed at the first hearing.

1. Ground 1 succeeded. The councillor was not automatically disqualified by a direct pecuniary or proprietary interest. There were too many contingencies between permission and any financial benefit to Selwood, and Selwood was neither the applicant nor a contracted provider. The statutory prohibition in section 31 of the Localism Act 2011 was likewise not engaged because Selwood had no contract with the applicants when permission was granted.
2. The test for apparent bias was whether the fair-minded and informed observer, having considered the material facts, would conclude that there was a real possibility of bias. That test applied to local planning decisions, although its significance could differ from a judicial context. Selwood had devoted time, expertise and resources to the scheme, had been identified publicly as the applicants’ potential affordable-housing partner, had supported the application and was the likely front-runner for the later tender. The councillor’s private interests were therefore engaged. His participation and deciding vote gave rise to apparent bias.
3. The challenge under the Habitats Regulations failed. The Council had sufficient objective information to conclude that significant effects on the River Avon SAC were unlikely. The identified construction risks were addressed by conditions requiring pollution prevention, consultation on foundation technologies and safeguards against unforeseen adverse effects. Mitigation could be taken into account, and there was no evidence that the conditions were impossible to satisfy. The principle in Lewis Thirkell v Proberun Ltd v Secretary of State for the Environment did not apply because condition 14 was a straightforward negative condition prohibiting piling without approval.
4. The EIA screening challenge failed. The officer identified the correct test under the Town and Country Planning (Environmental Impact Assessment) Regulations 2011. The reference to dealing with impacts through the ordinary planning process and conditions did not distort that test, and the screening opinion considered the relevant contamination and environmental information.
5. The heritage-ground challenge failed. Whether harm was caused to the setting of listed buildings or the conservation area was a matter of planning judgment. The officer’s conclusion that there was no overall harm was supported by the evidence. Accordingly, the statutory duty under section 66 of the Planning (Listed Buildings and Conservation Areas) Act 1990 did not require separate emphasis in the report.

The court granted judicial review and quashed the decision dated 21 January 2015 granting planning permission.