Persimmon Homes Teesside Ltd v R Kevin Paul Lewis

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Pill,Lord Justice Rix,Lord Justice Longmore
Judgment Date01 Jul 2008
Neutral Citation[2008] EWCA Civ 746
Docket NumberCase No: C1/2008/0159

[2008] EWCA Civ 746

IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CIVIL DIVISION)

ADMINISTRATIVE COURT

MR JUSTICE JACKSON

[2007] EWHC 3166 (Admin)

ON APPEAL FROM QUEEN'S BENCH DIVISION

Before:

Lord Justice Pill

Lord Justice Rix and

Lord Justice Longmore

Case No: C1/2008/0159

Between
Persimmon Homes Teesside Limited
Appellants
and
The Queen on the Application of Kevin Paul Lewis
Respondent

Mr Richard Drabble QC and Mr James Maurici (instructed By Messrs Ward Hadaway) for the Appellants

Mr Richard Clayton QC and Mr Gordon Nardell (instructed By Messrs Irwin Mitchell) for the Respondent

Hearing dates: 20 & 21 May 2008

Lord Justice Pill
1

This is an appeal by Persimmon Homes Teesside Limited (“the appellants”) against a judgment of Jackson J dated 20 December 2007. The judge quashed the grant by Redcar & Cleveland Borough Council (“the Council”) of planning permission to the appellants for:

“Proposed mixed use redevelopment to provide new tourism, sport, recreation, leisure, linked housing and community facilities including new highways and infrastructure works”.

The redevelopment was to be at Coatham Enclosure, Redcar and was subject to over 40 conditions, reasons for each of which were given.

2

The Council's Planning Committee, to whom power had been delegated, resolved to grant permission at a special meeting held on 3 April 2007. The notice of planning permission was issued on 24 May 2007. The Council were represented before the judge and opposed the application to quash. They have not appeared before this court on appeal.

3

The permission was quashed by the judge on the application of Mr Kevin Paul Lewis (“the respondent”) who by respondent's notice claims that the grant of planning permission was also unlawful by reason of the Council's failure properly to apply regulation 48 of the Conservation (Natural Habitats &c) Regulations 1994 (“the 1994 Regulations”). I will deal separately with that notice.

The Facts

4

In 1999, the Council adopted a local plan under which Coatham Common, as the Enclosure is more commonly known, and the surrounding area, was allocated for major leisure use with linked housing development. The scheme for the development of Coatham Common was prepared in 2002 at the time when the Council was Labour controlled. (Because of the claimed relevance of party political issues, it is necessary to refer to parties). In 2003, the Council appointed the appellants as development partners. By then, control of the Council had passed to a Coalition comprising Liberal Democrats, Conservatives and East Cleveland Independents. Objection to the scheme came from “Friends of Coatham Common”, who wished to keep the area as open space. That is the stance of the respondent. Amongst those who favoured development, there were issues as to the amount of housing development which should be permitted as compared with the extent of the proposed leisure facilities.

5

In February 2006, the Council's cabinet, having considered a detailed report from the Council's Project Manager, resolved to enter into written Heads of Terms with the appellants. It was contemplated that the planning application would be determined in August 2006. Application for planning permission was made and public consultation followed. Labour Councillors, while accepting that there was a need to regenerate the Coatham area, considered that the proposals included too high a proportion of housing.

6

Local elections were to be held on 3 May 2007. Council Officers issued a document entitled “Local Elections 2007, Guidance Note on Publicity”, further reference to which will need to be made. What the document described as the “pre-election period”, began on 27 March when formal notice of the elections was given.

7

Having taken advice from Council Officers, the Committee Chairman, a Coalition member, took the view that the planning application could be considered during the pre-election period and the special meeting was arranged for 3 April. On the day before the meeting, Mr Dunning, leader of the Labour group on the Council, wrote to Mr Frankland, the Council's Monitoring Officer, expressing grave concerns over the wisdom and propriety of holding the meeting “to determine such a controversial matter during the election period”. What gave rise to the letter was an anonymous note purporting to canvass support for the Coalition, though Mr Dunning says in the letter that concerns had been expressed earlier.

8

The meeting proceeded. The Councillors had before them a detailed report from the Director of Area Management which concluded with the recommendation: “Committee indicate that it is mindful to grant approval for the development at Coatham subject to the conditions outlined below”. The minutes of the meeting show that a substantial discussion took place. It was resolved “that the development at Coatham be approved subject to the following conditions unless the application is called in by GONE” (Government Office for the North East). Thirteen members were present. Nine voted in favour, including all Coalition members and two Labour members. Two Labour members abstained and one Labour member and an independent member outside the Coalition voted against.

9

A development agreement between the Council and the appellants was signed on 1 May 2007. At the election on 3 May, a Labour majority was elected. By letter dated 15 May 2007, GONE notified the Council that, having considered representations, the Secretary of State had concluded that her intervention would not be justified “as there is not sufficient conflict with National Planning Policies on the above matters or any other sufficient reason to warrant calling in the application for her own determination”. A notice of planning permission was issued on 24 May.

10

The respondent challenged the lawfulness of the grant of permission on the ground that there had been an appearance of bias or predetermination on the part of the Coalition members of the Committee all of whom voted in favour of the proposal. Mr Clayton QC, who appears for the respondent, prefers the expression 'closed minds' and I agree that is a better way of describing the concept, for present purposes.

The Judgment

11

Having considered the authorities, the judge, beginning at paragraph 74, stated four propositions:

“1. Actual or apparent bias or predetermination on the part of a decision maker renders his decision unlawful.

2. If a fair minded and informed observer who is neither complacent nor unduly sensitive or suspicious, having considered the facts, would conclude that there was a real possibility of bias or predetermination, then apparent bias or predetermination is established. For the sake of brevity, I shall use the phrase “the notional observer” to denote an observer who is fair minded, informed, not complacent and not unduly sensitive or suspicious.

3. In the context of decisions reached by a council committee, the notional observer is a person cognisant of the practicalities of local government. He does not take it amiss that councillors have previously expressed views on matters which arise for decision. In the ordinary run of events, he trusts councillors, whatever their pre-existing views, to approach decision making with an open mind. If, however, there are additional and unusual circumstances which suggest that councillors may have closed their minds before embarking upon a decision, then he will conclude that there is a real possibility of bias or predetermination.

4. Before the court makes a finding of apparent bias or predetermination, it must first identify with precision the facts which would drive the notional observer to such a conclusion.”

12

The judge summarised the detailed allegations made to him by Mr Nardell on behalf of the respondent and expressed views on them. The judge concluded:

“99. Let me now draw the threads together. The following facts are relevant by way of background, but do not by themselves arouse the suspicions of the notional observer.

100. 1. The planning committee was dealing with a scheme promoted by the council itself on council-owned land, where the council had a pecuniary interest in the grant of permission.

101. 2. The fact that coalition councillors had previously expressed support for the scheme and Labour councillors had previously expressed opposition.

102. 3. The fact that Mr Kay was a member of the cabinet which had decided to sign the heads of agreement with Persimmon 14 months before the planning meeting.

103. In my judgment, however, five further facts, when taken in conjunction with the previous facts, would tip the balance and would cause the notional observer to conclude that there was a real possibility of bias or predetermination. These facts are:

104. 1. The merits of the Coatham development project had become a party political issue in the imminent local election. The coalition's support for the project featured in its pre-election literature.

105. 2. Contrary to the council's own guidance and in the face of Labour opposition, the coalition proceeded with the planning meeting during the purdah period.

106. 3. One of the coalition councillors who spoke and voted at the planning meeting was a member of the council's cabinet. The cabinet had not only resolved to sign the heads of agreement on 28th February 2006, but also more recently had made forceful public statements in support of the project.

107. 4. Despite the formidable arguments on both sides, not a single member of the coalition either abstained or voted against the motion.

108. 5. On the 1st May 2007, just two days before the election and...

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