R Piffs ELM Ltd v Tewkesbury Borough Council and Others
| Jurisdiction | England & Wales |
| Judge | His Honour Judge Jarman |
| Judgment Date | 04 November 2016 |
| Neutral Citation | [2016] EWHC 3248 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/3214/2016 |
| Date | 04 November 2016 |
[2016] EWHC 3248 (Admin)
IN THE HIGH COURT OF JUSTICE
SITTING AT THE BRISTOL CIVIL AND FAMILY JUSTICE CENTRE
2 Redcliff Street
Bristol
Avon BS1 6GR
His Honour Judge Jarman QC
CO/3214/2016
Mr J Hunter appeared on behalf of the Claimant
Mr J Pereira QC appeared on behalf of the Defendants
The claimant in this matter is a development company and seeks to challenge a decision dated 18 May 2016 of the defendant as local planning authority (I will refer to it as the authority) to refuse its application for planning permission to erect two buildings for industrial/factory development with ancillary offices and associated development on land at Tewkesbury Road, Elmstone Hardwicke near Cheltenham. I shall call this the site.
On considering the application on paper for permission to bring judicial review proceedings, I ordered that the issue of permission should be dealt with at an oral hearing and that if permission were granted, the substantive hearing would take place immediately following. This is what has occurred. I have heard detailed submissions in writing and orally from Mr Hunter on behalf of the claimant and Mr Pereira QC for the authority.
The site is an arable field of about 5 hectares. It is surrounded by a mix of agricultural fields, horticultural enterprises and small parcels of woodland.
The single ground of challenge in this case is that the decision is tainted by the apparent bias of a planning officer employed by the authority who prepared the reports concerning the application and who recommended refusal. That officer is Joan Desmond, who is married to Christopher Shaw. He is a former planning officer of the authority and he is now employed as a planning manager by a company called Bloor Homes Limited (I shall refer to that company as Bloor) who is also a developer. Bloor has options to purchase large areas of land (which I shall call the Bloor land) which fall within the green belt between junction 10 of the M5 motorway and North West Cheltenham. The site is about 1 kilometre to the west on the other side of the M5.
In order to explain why the claimant asserts that the refusal of its application may impact beneficially on the Bloor land, it is necessary to say something about the planning policies which apply and may apply in the future to that land. Part of the Bloor land is proposed as a strategic allocation in an emerging Gloucester, Cheltenham and Tewkesbury Joint Core Strategy (the JCS) for housing and employment. The remainder is proposed as safeguarded land to allow for additional need for such development land arising within the plan period. There is some way to go before that strategy is adopted.
In May 2016 that allocation was the subject of an interim report by a planning inspector. That report was informed, amongst other things, by a report from three local planning authorities to the inspector dated December 2015. In that it was indicated that about 195 hectares of employment land is expected to be brought forward in B1 land uses. In the report of the inspector, she dealt with the safeguarded land and she said this at paragraphs 182 to 185:
i. "In my preliminary findings, I express some reservations over the green belt release of the huge area of countryside covered by north west Cheltenham urban extension and the adjoined safeguarded land combined and would question whether exceptional circumstances exist. Nonetheless, the AMEC report shows this safeguarded land as …..making only "a contribution" to the green belt, unlike much of the land around Cheltenham and Gloucester, which makes a "significant contribution". There is no doubt that there would be a substantial cumulative impact on the environment associated with any future development of the safeguarded land which lies in such close proximity to the large north west Cheltenham allocation. This part of Cheltenham would be completely transformed from a pleasant rural landscape to a large built up suburb. Also, there could be issues over the consolidation of the north west Cheltenham urban extension and the subsequent building out of the safeguarded land in succession. To ensure appropriate integration of such major development, careful attention will need to be paid to infrastructure and phasing of schemes. The situation over the upgrading of junction 10 of the M5 is also likely to impact on the release of the safeguarded land for development and at present there are no further proposals for a junction upgrade."
Pausing there, Bloor has indicated that such an upgrade would be a prerequisite before it put forward its proposals in respect of the Bloor land.
The inspector continued:
i. "However, that having been said, Cheltenham is constrained and there is a limit to where future strategic development can reasonably take place. The broad locations report states that broad location C3, which contains this land, has the greatest potential to accommodate a significant element of Cheltenham's needs and the site assessment/capacity report states that longer term development for commercial uses could potentially be accommodated on land along the A4019 towards the M5. Indeed, this M5 corridor is favoured for economic development by the local enterprise partnership in their strategic economic plan for Gloucester."
In that plan under a proposal summary, this is said:
i. "Preliminary conversations with a major landowner of land between North West Cheltenham and junction 10 (Bloor Housing) suggest that they would be interested to develop the land if allocated. They accept that employment land is likely to be the most plausible and pragmatic use to bring the site forward. They have indicated that they are unlikely to bring forward the site in the absence of a junction upgrade but that they see no other significant barriers to development — subject to the land being allocated through the local plan process.
Even if the JCS were to be adopted in its current state, and there are issues remaining in relation to it, it is clear that development within the safeguarded land will only be permitted if, amongst other things, a need is shown. The claimant's case is that it is in the interests of Bloor to limit the supply of employment land nearby in order to increase demand and reduce competition for development which it proposes to carry out. The balance i between the need for and the supply of employment land and that is somewhat uncertain. On behalf of the claimant, therefore, it is submitted that a fair minded independent observer would perceive that the refusal of the application which I am considering had potential to benefit Bloor.
That is not accepted by the authority. It is common ground that there is a need for unallocated employment sites over and above the allocated sites. The authority submits thatthere is no reason why this proposal should not be approved in the right place in addition to the Bloor proposals. Land has been allocated to meet identified land and in the normal way, the safeguarded land is there in case additional need to shown in the plan period. It may well not be shown and the prospect of a link is, at best, remote.
There is no dispute as to the legal principles before me relating to apparent bias. The test for such bias is whether:
i. "a fair minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased,"
per Lord Hope in Porter v Magill [2002] 2 AC 357 at paragraph 103.
That test must be applied on all of the facts capable of being known to the public. That is clear from the authority of Condron v The National Assembly for Wales [2007] 2 P & CR page 4. The test applies to the decision maker, but it also may arise from the apparent bias of someone involved in the planning process: see Persimmon Homes v Vale of Glamorgan Council [2010] EWHC 535 (Admin).
Mr Hunter on behalf of the claimant combines his submission that when that test is applied to the facts of this case apparent bias is made out, with a submission also that there has been a breach of the duty of candour on the part of this authority. That duty was also referred to by Richards LJ in the Condron case. He cited the passage from the judgment of Laws LJ in R (Quark Fishing Ltd) v Secretary of State for Foreign and Commonwealth Affairs [2002] EWCA Civ 1409 at paragraph 50 where Laws LJ said this:
i. "The real question here is whether in the evidence put forward on his behalf the Secretary of State has given a true and comprehensive account of the way the relevant decisions in the case were arrived at. If the court has not been given a true and comprehensive account, but has had to tease the truth out of late discovery, it may be appropriate to draw inferences against the Secretary of State upon points which remain obscure."
Having dealt briefly with the law, I now turn to the facts of the case in more detail. The claimant has made three applications in all for planning permission in similar terms. The first application was made in 2015 and was validated and consulted upon. The development manager of the authority, Paul Skelton, allocated the first application to be dealt with by a temporary planning case officer who was then working for the authority, Andrew Thompson.
In December 2015 Mr Thompson had a meeting with Mr Skelton and Miss Desmond and a Mr Hinett. Miss Desmond was a team leader of the team which covers the north of the borough, where...
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