Legal Viewpoint: Why ministerial decision was rendered unlawful by appearance of bias

On 21 May this year, housing secretary Robert Jenrick accepted that his decision of 14 January granting planning permission for redevelopment of the Westferry Printworks site on the Isle of Dogs was unlawful because of the appearance of bias.

The original decision had been announced three days before Tower Hamlets Council’s revised Community Infrastructure Levy (CIL) charging schedule was due to take effect. This would have resulted in a CIL liability for the developers, Westferry Developments Ltd, of up to £50 million.  
The previous mayor of London had granted planning permission for a smaller redevelopment on the six-hectare site, providing a fallback position. The appellants indicated that they would build out the consented scheme were planning permission to be refused for their revised larger scheme. This comprised 1,542 residential units, shops, offices and leisure and community uses facilities in five blocks of up to 44 storeys, with an approximate gross development value of £1 billion.   
In approving the revised scheme (DCS Number 200-009-129), the secretary of state overruled his inspector’s November 2019 recommendation to dismiss the appeal and advice from departmental officials last December explaining why they agreed with the inspector’s report, which they considered “very thoroughly argued and evidenced”. The secretary of state, on legal advice, accepted that there was a real possibility of appearance of bias and consented to judgment, rather than defending a judicial review challenge commenced by the council and the Greater London Authority (GLA).
The “published statutory target date” for the Westferry decision was 20 February 2020. The decision emerged on 14 January, within eight weeks of the inspector’s report, despite the general election and Christmas intervening. The secretary of state has said that of the “urgent” decisions put before him following the return to Parliament, Westferry “took the longest time for me to determine”. Yet no other outstanding recovered appeal decision appeared until 22 January.
According to a Commons research briefing in January 2019, the frequency with which the secretary of state has disagreed with inspectors’ recommendations has varied from zero to 32 per cent of recovered appeals in recent years. It is for the decision-maker to judge the “weight” attributable to the many considerations that arise in major mixed-use schemes, so it is not surprising that different outcomes are a common enough feature of the planning landscape. However, while the secretary of state was legally entitled to reach a different conclusion from that of his inspector, he was obliged to find cogent reasons to justify his stance.  
The grant or refusal of planning permission for major proposed development has significant environmental, social and economic consequences. It is a cardinal feature of the system that planning decisions are taken on the planning merits and in the public interest. While there may not always be a “right answer” on the planning merits and demerits, there is a procedurally lawful method or process for arriving at the answer.  
In February 2012, former government chief planner Steve Quartermain wrote a six-page document concerning propriety issues that may arise when the secretary of state exercises decision-making functions. It states: “Ministers must ensure that no conflict arises, or appears to arise, between their public duties and private interests.” It sets out that planning ministers are under a duty to behave fairly, giving examples of even-handedness, adding: “Privately made representations should not be entertained unless other parties have been given the chance to consider them and comment.”
We now know that the secretary of state was shown a promotional video of the proposed Westferry development by Richard Desmond on behalf of the developers during a discussion of the scheme at a Conservative Party dinner on 18 November 2019, when they were seated at the same table with the developers’ associates and representatives of the contractor. The next day, the secretary of state contacted Richard Desmond to arrange a site visit, before deciding it would be better if they did not meet until after he had determined the appeal.     
The timing of the permission saved - by three days - the developer having to pay a CIL bill of up to £50 million. This fact, together with the secretary of state’s insistence that his decision be issued before its target date and his disagreement with his inspector and his officials, would, at the very least, cause the fair-minded observer’s eyebrows to rise. A fair-minded and informed observer would, having considered the facts, conclude that the secretary of state’s conduct was such that it appeared he was biased in favour of the developer.          
Clive Moys is a barrister at Radcliffe Chambers  

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