Georgiou v London Borough of Enfield and Others
| Jurisdiction | England & Wales |
| Judge | Mr Justice Richards,MR JUSTICE RICHARDS |
| Judgment Date | 07 April 2004 |
| Neutral Citation | [2004] EWHC 779 (Admin) |
| Docket Number | Case No: CO/4674/2003 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 07 April 2004 |
[2004] EWHC 779 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Richards
Case No: CO/4674/2003
Mr David Wolfe (instructed by Bindmans) for the Claimant
Mr Toby Davey (instructed by London Borough of Enfield) for the Defendant
Mr Anthony Dinkin QC and Miss Mary Cook (instructed by Beachcroft Wansboroughs) for the Interested parties
This is a challenge to decisions of the defendant council on 17 June 2003 (i) to grant listed building consent for a change of use of a property known as Truro House into offices and a consulting room and for erection of a mental health nursing home for up to 60 persons within its curtilage, and (ii) subject to conclusion of a s.106 agreement, to grant planning permission for the erection of the nursing home. The decisions were taken by the council's planning committee. The challenge also encompasses the subsequent formal grant of listed building consent and planning permission.
Truro House is a Grade II listed building. It has suffered from neglect and is currently on English Heritage's register of buildings at risk and is subject to an urgent repairs notice requiring works to be undertaken. Those works were included in the planning application.
The applications for listed building consent and planning permission were made by Cygnet Healthcare Ltd (“Cygnet”), a specialist provider of mental healthcare which had an option to purchase the site.
The claimant is chairman of a local business association which objected to the applications. He is also an active member of other local representative groups. No issue is taken over his standing to bring the present claim.
The detailed facts are best considered in the context of the specific issues. In order to put matters in context, however, it is helpful to set out the broad chronology:
i) The applications for listed building consent and planning permission were made in January 2003.
ii) On 5 February the proposals were considered by the council's conservation advisory group (“the CAG”), which is established under the council's constitution to consider and advise on a range of conservation issues. It consists of members of the council and representatives of the local community.
iii) On 16 April there was a public meeting of a special planning panel set up in accordance with the council's constitution to provide an opportunity for (a) Cygnet to explain its proposals, (b) local residents and organisations to put forward their views at an early stage, and (c) officers and members to listen to the ideas and issues raised and concerns expressed prior to consideration at a subsequent planning committee.
iv) An officers’ report was prepared for a meeting of the planning committee on 29 April at which decisions were due to be taken on the applications. The report recommended that listed building consent and planning permission be refused.
v) At Cygnet's request, consideration of the applications was deferred to enable it to consider the concerns expressed and to submit revisions.
vi) Local government elections took place on 1 May, as a result of which there were some changes in the membership of the CAG and of the planning committee.
vii) Revised drawings and further supporting documents were submitted by Cygnet on 14–15 May. Further representations were also made during May on other matters, including the question of need for the proposed development
viii) The revised proposals were considered by the CAG on 27 May.
ix) A revised officers’ report was prepared for a meeting of the planning committee on 17 June. The revised report recommended the grant of listed building consent and planning permission.
x) At the meeting on 17 June the planning committee, having heard representations from various individuals and deputations, resolved by a majority of 8:7 to grant planning permission subject to the completion of a s.106 agreement and subject to the conditions set out in the officers’ report. It also resolved to grant listed building consent subject to the conditions set out in the report. The formal grant of listed building consent was made on the same day.
xi) The actual grant of planning permission took place on 8 October, following completion of the s.106 agreement.
There are four remaining grounds of challenge to the decisions taken on 17 June. They are in summary as follows: (1) there was a failure to take into account matters raised by one of the council's officers concerning highways/access matters; (2) participation in the decisions by members of the planning committee who were also members of the CAG gave rise to an appearance of bias; (3) members of the planning committee were not adequately informed on the issues of need for the proposed development and of its impact on existing services; and (4) members were not adequately informed about the consultation responses generally.
It is convenient to consider ground (2) first. The other three grounds have a theme in common, in that they concern in one way or another the sufficiency of the information given to the planning committee for the purposes of reaching the decisions; and they are relied on cumulatively as well as individually.
Ground (2): Appearance of bias
This ground raises the question whether the planning committee's decisions were vitiated by an appearance of bias arising out of the fact that four members of the committee were also members of the CAG and three of them (who all voted in favour of the grant of consents) participated in the meetings of the CAG at which support was expressed for the applications.
I have mentioned that the CAG is established under the council's constitution. Specifically, chapter 7, on regulatory and consultative committees and panels, provides that “[t]he Council will appoint the committees set out below to discharge the following non-executive functions described”. The “committees” listed are the planning committee, planning panels and the CAG. The membership of the CAG consists of 6 members of the council plus 19 other members comprising representatives of residents’ associations and of various societies and groups within the borough. Various officers are also involved, as non-voting members. The terms of reference of the CAG include: (a) to consider and advise the planning committee on proposals for development which are referred to the CAG which could affect the character or appearance of conservation areas, ancient monuments, listed buildings or their settings; and (b) to advise the planning committee on the preservation or enhancement of the character or appearance of heritage features, areas and their environs.
When the applications came before the CAG on 5 February 2003, those present included two members of the CAG (Councillors Dey and Zinkin) who were also members of the planning committee that took the impugned decisions on 17 June. At the CAG meeting the members received a presentation from Cygnet's consultants. The note of the meeting records that, following discussion, “the Chairman concluded that the Group were encouraged at the good opportunity to restore Truro House with an associated development which was sensitive to the history of the site.”
When the revised applications came before the CAG on 27 May, those present included three members of the CAG (Councillors Dey, McCannah and Zinkin) who were also members of the planning committee that took the impugned decisions. A fourth person (Councillor Giladi) also had dual membership of the CAG and the planning committee, but was not present at the CAG meeting. At the CAG meeting the members again received a presentation from Cygnet's consultants. The note of the meeting records that “the Group noted the revisions and continued to support the application”.
The views of CAG received separate mention in the officers’ report for the planning committee on 17 June. The report stated, for example, that “[t]he revised application was reported to CAG on 27 th May 2003, and the Group have noted the revisions made to the scheme and continue to support the application”.
Another pointer to the significance of the CAG is that the seating plan for the meeting of the planning committee on 17 June involved the allocation of particular places in the room for certain groups of people, including non-councillor representatives of the CAG as well as officers from the planning department.
At the 17 June meeting, the three members of the planning committee who had attended the CAG on 27 May voted in support of the applications. One of them, Councillor Dey, was in fact the chair of the planning committee. (Mr Wolfe submitted that Councillor Dey also chaired the CAG on 27 May, but in my view the evidence does not support that conclusion.) The fourth person with dual membership of the CAG and the planning committee, but the member who had not attended the CAG on 27 May, voted against the applications.
Mr Wolfe submits that the circumstances were such as to create an appearance of bias sufficient to vitiate the planning committee's decisions. He relies on the principles laid down in Porter v. Magill [2002] 2 AC 257, summarised by Lord Hope in the following sentence (page 494, para 103):
“The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.”
Reliance is also placed on the decision of Ouseley J in Bovis v....
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