CPRE (Somerset), R (on the application of) v South Somerset District Council

Apparent bias in a planning committee is assessed by asking whether the fair-minded and informed observer would conclude that there was a real possibility of bias. Local authority codes of conduct are relevant to that assessment, although breach of a code does not by itself invalidate a decision. A code should be construed according to its wording and purpose. Where it provides that an interest is prejudicial if it is likely to prejudice judgment of the public interest, that limb may operate independently of provisions concerning financial interests or permissions relating to the councillor or a connected person. Mere membership of an organisation involved in an application is not automatically disqualifying, but the surrounding facts may nevertheless establish apparent bias. A planning decision affected by apparent bias must be quashed where the composition and majority make it impossible to say that the result would have been the same.

South Somerset District Council granted planning permission for five buildings on agricultural land to store and construct carnival floats. The application was made by Ilminster Town Council and supported by organisations with which members of the District Council’s planning committee were associated.

The committee chair, Councillor Baker, was associated with the Chard Carnival Committee and the Eclipse carnival club. The vice-chair, Councillor Hamilton, was Deputy Mayor and a member of Ilminster Town Council. Both declared personal interests but participated in the meeting, which granted permission by six votes to five.

CPRE Somerset sought judicial review, alleging automatic disqualification, apparent bias and predetermination. The central issues were the effect of the Council’s code of conduct and whether the councillors’ interests created a real possibility of bias.

1. Outcome. The claim succeeded. The planning permission was quashed because the decision was vitiated by apparent bias on the part of Councillors Hamilton and Baker. The District Council was required to make arrangements to determine the application according to law.
2. The governing common-law test was whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the committee was biased. The observer is fully informed, neither complacent nor unduly suspicious. Automatic disqualification remains relevant where the decision-maker has a personal or pecuniary interest, but mere membership of an organisation involved in proceedings does not invariably disqualify. The question remains fact-specific.
3. The Council’s code of conduct was not irrelevant. Localism Act 2011, section 28(4), meant that breach of the code did not, by itself, invalidate the decision. It did not require the court to ignore the breach when applying the common-law test. Compliance with a reasonably framed code is a factor which the fair-minded observer would take into account.
4. Paragraph 2.9 of the Code was syntactically ambiguous. It was preferable to read the relevant limbs disjunctively. Thus, an interest was prejudicial where a member of the public would reasonably regard it as sufficiently significant to be likely to prejudice the councillor’s judgment of the public interest. A prejudicial interest also arose where the business affected the financial position of the councillor or a significant person, or concerned a permission relating to that person. The Monitoring Officer’s contrary construction was wrong.
5. Hamilton was a member of the applicant Town Council, was its Deputy Mayor and had attended meetings at which support for the application was expressed. The application concerned a permission relating to a significant person under the Code. He therefore had a prejudicial interest and was disqualified from voting. The circumstances also satisfied the common-law test.
6. Baker had longstanding associations with the Chard Carnival Committee and the Eclipse carnival club. The application presented the development as necessary for the continuing viability of the Federation and carnival clubs, including those organisations, and identified financial benefits for Eclipse. His appearance among supporters of the applicant’s agent reinforced the impression. Fine distinctions about the accompanying caption were immaterial. A fair-minded observer would conclude that there was a real possibility of bias.
7. The six-to-five vote and the councillors’ positions as chair and vice-chair meant that it could not be said that the result would have been the same had they recused themselves. The issue of predetermination therefore did not require determination.