The Queen v Holderness Borough Council ex parte James Robert Developments Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SIMON BROWN,LORD JUSTICE BUTLER-SLOSS,LORD JUSTICE DILLON |
| Judgment Date | 04 December 1992 |
| Judgment citation (vLex) | [1992] EWCA Civ J1204-2 |
| Court | Court of Appeal (Civil Division) |
| Date | 04 December 1992 |
| Docket Number | 92/1164 |
[1992] EWCA Civ J1204-2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(MR JUSTICE POPPLEWELL)
Royal Courts of Justice
Lord Justice Dillon
Lord Justice Butler-Sloss
Lord Justice Simon Brown
92/1164
MR JOHN MACDONALD Q.C. and MR RICHARD NEWBURY, instructed by Messrs Stamp Jackson & Proctor (Hull), appeared for the Appellant.
MR DAVID GERREY, instructed by the Solicitor, Holderness Borough Council, appeared for the Respondents.
This is an appeal, with the leave of the judge below, against an order for costs made on 25th November 1991 in favour of the respondents upon the dismissal of the applicant's motion for judicial review. It is an unusual appeal, I would suggest unique. For this reason: although in form an appeal against costs, in substance it is an appeal against the judge's decision upon the substantive issue raised in the judicial review proceedings, an issue which by the time the judge was seized of it was entirely academic and which was resolved solely to determine the question of costs.
I for my part regard this as a profoundly unsatisfactory basis for an appeal to this court, with or without the judge's leave, and would have preferred to dismiss the appeal on that ground alone, without even embarking upon consideration of the substantive issue. Given, however, that the court, having raised this preliminary issue and heard argument upon it, then de bene esse embarked upon the substantive hearing; and given that my Lords have since formed the view that the appeal was properly brought and falls to be determined upon the substantive issue, but, alas, have reached differing conclusions upon it, it seems to me essential that I indicate my view upon that issue as well as the reasons why I myself would have preferred not to entertain the appeal at all.
First, however, I must sketch in the basic facts of the case. They can be shortly stated. The appellants (the applicants below) are speculative builders. They are based in Withernsea, some four miles from Patrington, each a small town in the respondents' area of Humberside. In April 1989 they acquired for development a two and a half acre site in Patrington, sold with the benefit of an outline planning permission for housing. No assurance had been given as to the number of houses that would be permitted and all matters of density, design, appearance and landscaping were reserved for future consideration. From that time until planning permission upon the reserved matters was finally granted in March 1991, i.e. for a period of some two years, the appellants submitted a succession of schemes, each of which until the last was rejected Four separate applications were made, some with subsequent modifications. It was the respondents' sworn evidence that permission was ultimately granted when the scheme allowed for a sufficient area for proper landscaping, a final modification which satisfactorily met their last outstanding objection. The development site was, it should be noted, within a conservation area and thus raised sensitive planning considerations. There is, of course, a statutory right of appeal to the Secretary of State against a refusal of planning permission. Not once did these appellants exercise it.
Throughout the period when the appellants were seeking to secure their plannng permission the Patrington Parish Council was strongly opposed to the scheme, certainly in all its earlier manifestation. Mr Hunter was its Chairman. He was also a district councillor with a seat on the respondents' planning committee. It is not disputed that as a member of that committee he spoke and voted consistently against the applications, until perhaps the last. The burden of the complaint raised upon this judicial review challenge is that Mr Hunter should throughout have disqualified himself from sitting on the planning committee in respect of the appellants' applications. Not because he was the Chairman of the Parish Council within which this development site was located; that contention is expressly disavowed by Mr MacDonald Q.C. for the appellants. But rather because he too is a builder and developer within this self-same area of Humberside. He owns two companies in Patrington: one which had recently carried out building work on a nearby site under contract to other developers; a second which, like the appellants, undertakes speculative building in the general vicinity. Contrary, however, to one of the contentions originally advanced by the appellants, neither company had bid for or ever been interested in this particular development site.
The substantive issue
The essence of the appellants' case upon their motion for judicial review—an essence distilled from a very considerable volume of documents before the court—is that it is always and necessarily improper for one builder to sit upon a planning committee considering applications for development permission submitted by a rival builder. For Councillor Hunter to have participated in the deliberations upon their applications was, contend the appellants, a clear breach of the rules of natural justice. Even assuming that actual bias on his part could not be demonstrated—and in my judgment it plainly could not—his involvement gave, it is said, the appearance of bias. Whether the proper test be one of real likelihood or of reasonable suspicion, it is, counsel submits, satisfied here. Whether the question put is "did the situation give rise to a real likelihood (in the sense of a real probability) of bias?", or "might people alive to the facts have had a reasonable suspicion that these applications were not being impartially considered?", the clear answer for which Mr MacDonald contends is "yes". I myself doubt whether the two tests are significantly different. If one asks "was the adjudicator probably biased?", one is really asking no more than whether his personal involvement in the matter was such that, on balance, he could not reasonably be thought able to bring an impartial mind to bear upon it (whether or not he himself was aware of such inability). And if one asks "might people reasonably suspect him of bias?", one is surely asking "might people reasonably doubt whether he was able to be impartial?" it being implicit in the question that, if so, then some people at least would think he probably could not.
The basis upon which the appellants contend that Councillor Hunter, or indeed any builder adjudicating upon a rival builder's application for residential development permission, should be regarded as unlikely to have acted impartially or as open to the reasonable suspicion of partiality, is set out in their skeleton argument as follows. His position on the planning committee would, it is said, give him "the opportunity (1) to assert his local superiority over potential rivals and competitors and thereby deter them, (2) to cause a rival to suffer delay, (3) to tie up a rival's capital and or borrowing capacity in a redundant asset, (4) to restrict the supply of housing to his own companies thereby causing potential buyers to purchase those properties constructed by his companies, (5) to dictate the terms of the granting of planning permission by means of density of houses, or mix or type or construction of houses and by specified works on amenities so as to reduce the profitability of a site to a rival, (6) to disrupt a rival's business plans, (7) to cause a rival expense in legal, architect and planning fees by repeated applications, (8) to embarrass a rival with local suppliers, customers and tradesmen, (9) to force a rival to sell the land at a loss, (10) to have the land bought subsequently on his behalf at a reduced price."
However sceptically one may regard the integrity of local government decision making as a whole, those contentions, I am bound to say, strike me as altogether too cynical. No doubting an ideal world no one would ever adjudicate upon another's cause if it gave him the very least opportunity to advance some interest of his own, however indirectly. No doubt the very most fastidious of Councillor Hunter's friends, if asked whether he should sit on the planning committee dealing with these appellants' applications, might have suggested that perhaps it would be best if he did not. But I can hardly think that all his friends would clearly thus have advised him and in my judgment it is going too far to say, as we are invited to do upon this appeal, that the mere fact of being a rival builder (perhaps one of many) within a provincial planning district necessarily disqualifies one from sitting on the planning committee.
The "good friend" test, comes, it should be noted, from this passage in the judgment of Lord Denning, M.R. in Metropolitan Properties Co (F.G.C.) Ltd. v. Lannon [1969] 1 Q.B. 577 at 600:
"Test it quite simply: if Mr John Lannon were to have asked any of his friends: 'I have been asked to preside in a case about the rents charged by the Freshwater Group of Companies at Oakwood Court. But I am already assisting my father in his case against them, about the rent of his flat in Regency Lodge, where I am living with him. Do you think I can properly sit?' [This, I would interpolate, in the context of a dispute in which the rents to be determined for Oakwood Court would be influential 'comparables' when it came to determine the Regency Lodge rent.] The answer of any of his friends would surely have been: 'No, you should not sit. You are already acting, or as good as acting, against them. You should not, at the same time, sit in...
To continue reading
Request your trial