Condron v National Assembley for Wales
| Jurisdiction | England & Wales |
| Judge | Lord Justice Richards,Lord Justice Wall,Lord Justice Ward |
| Judgment Date | 27 November 2006 |
| Neutral Citation | [2006] EWCA Civ 1573 |
| Docket Number | Case No: C1/2006/0086 |
| Court | Court of Appeal (Civil Division) |
| Date | 27 November 2006 |
[2006] EWCA Civ 1573
Lord Justice Ward
Lord Justice Wall and
Lord Justice Richards
Case No: C1/2006/0086
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION, ADMINISTRATIVE COURT
MR JUSTICE LINDSAY
Royal Courts of Justice
Strand, London, WC2A 2LL
Timothy Corner QC and Philip Coppel (instructed by the Treasury Solicitor) for the Appellant
Charles George QC and Alexander Booth (instructed by Richard Buxton Solicitors) for the First Respondent
Keith Lindblom QC, Rhodri Price Lewis QC and James Pereira (instructed by DLA Piper Rudnick Gray Cary LLP) for the Second Respondent
This is an appeal by the National Assembly for Wales ("the Assembly") from an order of Lindsay J quashing the Assembly's grant of planning permission for the carrying out of opencast mining and related removal and reclamation operations at a site of some 400 hectares at Ffos-y-fran, near Merthyr Tydfil. The proposed development generated a great deal of local opposition. The first respondent, Mrs Condron, was one of the objectors. The second respondent, Miller Argent (South Wales) Limited ("Miller Argent"), is the developer.
The detailed background is set out very clearly in Lindsay J's main judgment (see [2005] EWHC 3007 (Admin)) . A brief summary will suffice at this stage. The planning application was submitted by Miller Argent in April 2003. It was "called in" under section 77 of the Town and Country Planning Act 1990 for determination by the Assembly. An inspector was appointed to conduct a public inquiry. In his report, submitted in November 2004, the inspector recommended that planning permission be granted subject to conditions. In accordance with its standing orders, the Assembly delegated its decision on the application to a Planning Decision Committee ("the PDC") consisting of four members of the Assembly. The Chair of the PDC was Mr Carwyn Jones AM, the Minister for Environment, Planning and Countryside in the Welsh Assembly Government. At a meeting on 3 February 2005 the PDC resolved that it was minded to allow the application subject to conditions and the completion of a section 106 agreement. A "minded to grant" letter to that effect was issued on 7 February 2005. The PDC authorised the details of the formal permission, including review of the section 106 agreement and the final formulation of the conditions, to be dealt with by officials on its behalf. The formal grant of planning permission followed on 11 April 2005.
Mrs Condron thereupon brought a challenge under section 288 of the 1990 Act to the grant of planning permission. The matter came before Lindsay J, who considered the grounds under five headings. He dismissed the challenge under four of those headings but found in Mrs Condron's favour under the fifth, by which it was contended that the PDC's decision was vitiated by the appearance of bias arising out of a remark made by Carwyn Jones to an objector the day before the PDC meeting. The Assembly now appeals against the judge's finding on that issue. The appeal is supported by Miller Argent and resisted by Mrs Condron.
In addition, by a respondent's notice Mrs Condron seeks to uphold the judge's order on the basis that he ought to have acceded to aspects of her challenge under three of the four headings on which he found against her. I shall defer any consideration of those issues until I have dealt with the issue of apparent bias.
Appearance of bias: introduction
The claim of apparent bias arose out a remark allegedly made by Carwyn Jones to Mrs Jennie Jones, a retired civil servant who lives in Merthyr Tydfil within sight of the proposed development and was a member of a local protest group. Jennie Jones's evidence was that on 2 February 2005, the day before the PDC met to consider the planning application, she was involved in a demonstration outside the Assembly's office building in Cardiff. She was invited inside the building by an Assembly member in order to get out of the cold. As she entered the building she saw Carwyn Jones and approached him. What happened next was described in her witness statement as follows:
"When I first approached him I spoke in English and I asked him whether I could have a word about the scheme. He asked me whether I was from Merthyr Tydfil and I replied that I was. He did not appear that interested in talking to me. I asked whether he would be willing to continue the conversation in Welsh and he then became more responsive.
It was a reasonably brief conversation but during this I explained that he had two little boys and asked him whether he would be concerned about the proposal being developed close to their school. He agreed that it was a concern but concluded, in English, that he was 'going to go with the Inspector's Report'.
I was disheartened about the discussion and when I returned to our group I explained my conversation to them. I was not surprised to hear that the Planning Decision Committee had approved the Scheme, in my view Mr Jones had already made up his mind. He was also the chair of the group and may have had the opportunity of having the casting vote.
…
From what Carwyn Jones told me it was absolutely clear that he was not bringing an unbiased properly directed and independent mind to the consideration of the matter. Since he was Chairman of the Planning Decision Committee this was particularly unfortunate" (my emphasis).
The point made in relation to Carwyn Jones's position as Chair of the PDC related not only to a concern that the Chair might have an influence over the debate but also to the fact that the PDC consisted of only four members and if there was an equality of votes the Chair had a casting vote.
Following the encounter on 2 February, Jennie Jones's group made a complaint to the Assembly on the ground that Carwyn Jones had breached the Code of Conduct for members of the PDC by discussing a case with an interested party. The complaint was passed on to the Assembly's independent Commissioner for Standards, Mr Richard Penn ("the Commissioner"), who investigated the matter and set out his findings in a letter of 13 May 2005. His conclusion was that the complaint was inadmissible since it did not meet one of the criteria laid down in the complaints procedure, namely that "it appears at first sight that, if all or part of the conduct complained about is established to have been committed by the Member, it might amount to a breach of any of the matters encompassed within Standing Order 16.1(i) or (ii)".
The Commissioner said that he had reached that conclusion after a preliminary investigation in the course of which he had interviewed Jennie Jones and other representatives of her group; the Clerk to the Environment, Countryside and Planning Committee (who also clerked the PDC meeting) ; an official of the Environment, Countryside and Planning Division who was the key adviser to the PDC; and Carwyn Jones himself. As to the relevant facts, the Commissioner stated:
"There is a considerable consensus between Jennie Jones and Carwyn Jones AM about the conversation that took place between the two of them on 2 February 2005. Both said that they met entirely by chance … and that the discussion was brief lasting no more than 90 seconds with no witnesses to what was said. Jennie Jones told me that she could see that Carwyn Jones AM was obviously uncomfortable at talking to her and was 'itching to get away'. Both agree that the conversation started in English but switched to Welsh soon after. Both agreed that the planning application in respect of Ffos-y-Fran was touched on and that Carwyn Jones AM referred to the Planning Inspector's Report. However there is disagreement about exactly what Carwyn Jones AM said to Jennie Jones. Jennie Jones claimed that Carwyn Jones AM told her that he was 'going with the Report of the Inspector' – she took this to mean that he was going to accept the recommendations in the Report – whereas Carwyn Jones AM said that as soon as he recognised that Jennie Jones was a part of the demonstration against the Ffos-y-Fran application that was taking place outside the building he reverted to English and told her that he could not discuss the matter and that he had not yet read the Inspector's Report. Both agree that the conversation then ended and he walked out of the Milling Area."
The Commissioner then referred to certain provisions of the Code of Conduct, to which I will need to return later in this judgment. He said that he had carefully considered all the evidence he had collected. He went on:
"It is indisputable that Carwyn Jones AM neither sought nor agreed to a meeting with Jennie Jones as clearly demonstrated by the evidence of both Jennie Jones and Carwyn Jones AM. The meeting was wholly accidental and unplanned. There is disagreement about what was said in part of the conversation that resulted from this accidental meeting but Carwyn Jones AM is adamant that as soon as he realised there was a danger he would be discussing the planning application for the Ffos-y-Fran application he terminated the conversation as quickly as was politely possible. Jennie Jones herself said that Carwyn Jones AM was clearly uncomfortable and 'itching to get away'.
The evidence from the Committee Clerk and from the Environment, Countryside and Planning Division official reinforces the claim by Carwyn Jones AM that he did not form a final view on the application until the conclusion of the...
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