Consent struck down on apparent bias grounds

Wiltshire Council's decision to grant permission for a residential development including affordable housing has been struck down by the High Court because of apparent bias on the part of a planning committee member.

The developer had identified a local housing association as a prospective partner to provide the affordable housing element, but no contract had been awarded. One of the association’s directors was also a member of the planning committee. He declared that interest at the meeting when the application was considered but still voted to approve, on the basis that his association was only a prospective partner with the developer.

The committee decided to grant permission by one vote. The claimant argued that the councillor should have been automatically disqualified under the Localism Act 2011 because of a disclosable pecuniary interest. In any event, he claimed that the committee’s decision was tainted by apparent bias.

Mr Justice Cranston noted that the rule on automatic disqualification for pecuniary or proprietary interest was set out in Dimes v Grand Junction Canal Proprietors [1852] and first applied to planning decisions in R v Hendon Rural District Council ex parte Chorley [1933]. However, in contrast to the position in Chorley, he noted that the councillor did not have a direct or pecuniary interest in the application such that he should be automatically disqualified.

The judge was unable to reach the same conclusion in respect of apparent bias. The legal test was whether a fair-minded and informed observer would perceive a real possibility of bias, he remarked. It was plainly in the housing association’s interest, he reasoned, that permission was granted, since it had spent time and money working with the developer on the affordable housing element of the scheme. It was highly unlikely that it would have done so unless it believed that it would be awarded the contract, he concluded. The councillor’s private interests were therefore engaged and it had been wrong for him to have participated in the vote, the judge ruled.

Kelton v Wiltshire Council

Date: 9 October 2015

Ref: [2015] EWHC 2853 (Admin)

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