Philip Webb, R (on the application of) v London Borough of Bromley

In planning decisions by elected councillors, the Porter v Magill apparent-bias test applies, but it operates in light of the councillors’ democratic and policy-making role. Legitimate predisposition is distinct from predetermination. Clear or positive evidence of a closed mind is required for predetermination, but that additional requirement must not dilute the apparent-bias test where a councillor has a disqualifying personal connection.

Compliance with a lawfully framed local code is relevant to apparent bias but is not decisive. The court must examine the essential facts in the round. Mere membership of an NHS foundation trust, without decision-making responsibility or an advocacy role, did not establish a real possibility of bias. Nor did involvement in a charity connected with a councillor’s family illness, where the charity’s activities and the planning proposal were materially different.

The claimant sought judicial review of the defendant local planning authority’s decision to grant permission for an endoscopy unit and substation at a hospital operated by the interested party, King’s College Hospital NHS Foundation Trust.

Permission was granted on one ground: that there was an arguable real possibility that Councillor Anthony McPartlan, a member of the planning committee, was biased. He was a governor of the interested party, had attended meetings where the project was discussed, and was a trustee with his wife of Billie’s Fund, a charity associated with her treatment for leukaemia.

The issues were whether those connections created apparent bias, whether the councillor had predetermined the application, and whether the late-raised Billie’s Fund issue could be considered.

1. Outcome. The application for judicial review was dismissed.
2. Apparent bias. The Porter v Magill test applies to planning decisions by elected councillors, but not in precisely the same manner as in judicial or quasi-judicial contexts. The fair-minded and informed observer must understand that councillors may properly bring political, policy and local-community views to the decision. Those views do not amount to bias merely because they create a predisposition.
3. Bias and predetermination. Predetermination is distinct, though related, to apparent bias. The requirement for positive evidence or clear pointers of a closed mind applies to predetermination. It must not be used to dilute the apparent-bias test where a councillor has a personal connection which should have prevented participation altogether.
4. Codes of conduct. Compliance with a lawful local code is a factor weighing against apparent bias, but it is not determinative. The Bromley Code and Planning Protocol did not require Councillor McPartlan to withdraw from the meeting merely because he was a trust governor or a trustee of Billie’s Fund.
5. Trust governorship. The governor stood at two removes from the trust’s executive decision-makers and had no role in deciding to seek planning permission for the endoscopy unit. The governance arrangements provided local accountability and oversight, not advocacy for the trust’s projects. His role was therefore materially different from membership of an applicant body with decision-making powers or an indirect financial interest.
6. Billie’s Fund. The issue could be considered as an extension of the pleaded bias ground because the defendant and interested party identified no prejudice from its late introduction. On the evidence, the charity focused on leukaemia, seriously ill young people and related charitable activity. Its donations did not support the proposed endoscopy unit. Viewed in that context, the family connection and charity involvement did not create a real possibility of bias.
7. Predetermination. The evidence showed that the councillor acknowledged planning difficulties, proposed a restrictive condition and described the decision as difficult. There was no evidence that he had closed his mind.