High Court judge quashes planning permission over appearance of bias

A High Court judge has quashed the grant of outline planning permission for a residential development in Wiltshire over the appearance of bias.

The claimant in Kelton v Wiltshire Council [2015] EWHC 2853 (Admin) was seeking to challenge the grant of permission by Wiltshire Council on 21 January 2015 for a scheme of up to 35 custom built residential dwellings, including nine affordable homes, on land near the River Wylye, Warminster, Wiltshire.

The claimant was a riparian owner, living approximately 700 metres downstream from the proposed development. The interested parties were HPH and HAB Housing, the applicants for planning permission.

Also featuring in the case was Selwood Housing Association, a not for profit association based in Trowbridge which had an interest in the affordable housing part of the development.

The judicial review was advanced on four grounds:

1. One of the councillors on Wiltshire’s planning committee, Cllr Magnus Macdonald, whose vote carried the decision in favour of granting the outline planning permission, should have been disqualified from participating in the planning committee on this matter, because he was a director of Selwood. Cllr Macdonald received, as director, £3,000 per annum.

2. The development would have a significant effect on the River Avon Special Area of Conservation, specifically because of the risk of contamination to the River Wylye arising from the specialist foundations required for the development.

3. The council's Environmental Impact Assessment screening opinion for the development was flawed.

4. Wiltshire’s conclusion that the development would not cause harm to heritage assets was flawed.

On the first ground, Mr Justice Cranston said Cllr Macdonald had no direct pecuniary or proprietary interest in the planning application so as to be automatically disqualified from participating in the decision whether to grant permission.

The judge also concluded that the councillor had no disclosable pecuniary interest in the matter to be considered and was not disqualified under section 31 of the Localism Act 2011. Selwood was not the applicant for planning permission and at the point of the decision had no contract with the developers HPH and HAB Housing.

“It may have built up goodwill with its advice to them over a period, but at the time of the grant of planning permission the affordable housing part of the development was yet to be tendered,” he added.

However, Mr Justice Cranston found that Cllr Macdonald’s participation in the decision to grant planning permission gave rise to an appearance of potential bias as defined by Lord Hope in Porter v Magill.

“It was plainly in Selwood's interests and Cllr Macdonald's, as director, for the application to be approved. The reasonable and fair-minded observer, having the background facts, would have been aware that Selwood had committed time, resources and expertise….to working with HAB/HPH over the design of the affordable housing part of the scheme,” he said.

The judge noted evidence from the development director of Selwood that it had not made a final decision to bid for the scheme.

“In my view, however, it was highly unlikely that Selwood would have gone to all the trouble it did unless it was seriously interested in delivering the affordable housing part of the scheme and had reason to believe that it stood a good chance of winning the tender once planning permission was granted,” Mr Justice Cranston said.

Selwood had built up goodwill with HPH, the judge said, and “the evident reality of the position then was that although it was not a done deal, Selwood was the front runner to deliver the affordable housing part of the scheme and would, barring something unforeseen, be appointed to do so in due course”.

The judge noted that Selwood’s strong position when it came to tendering to deliver the affordable housing had been stated publicly. It had also been the only local, affordable housing provider to express public support for the scheme before the planning committee.

Selwood had argued that a letter in support had been simply supporting affordable housing. However, the judge said, the appearance created had been that Selwood, HPH and HAB had been working closely together on the scheme and had the very same interest.

Mr Justice Cranston said Cllr Macdonald's directorship of Selwood would not be an issue in the great majority of housing applications likely to come before the committee, even those with an affordable housing element.

The position in this case was quite different, he said. “Selwood, with Cllr Macdonald as a director, was not simply an affordable housing provider. Here it was the only provider which had been willing to give assistance on the scheme, had expressed a clear interest in delivering it, had been named by the applicants as their potential partner, and had written in support and attended the planning committee meeting when it was considered.

“In other words, its position was superior to that of any other interested providers of affordable housing because of its previous involvement and its prospects of winning the contract when the affordable housing part was tendered. Because of that, Cllr Macdonald's private interests were engaged, as a director of Selwood, not just his interests in the cause of affordable housing. In all these circumstances it was wrong for Cllr Macdonald to have participated in the meeting.”

The judge meanwhile rejected the other grounds of challenge. He said:

• The evidence demonstrated to his satisfaction that the council had sufficient objective information to reach its conclusion that under the Habitats Regulations no significant effect was likely. “Insofar as a risk was identified in relation to the construction works, this was addressed with conditions which specifically address it.”
• The screening could not be regarded as flawed.
• The officer's report before the planning committee concluded that developing the site would not harm the setting of the Bishopstrow Conservation Area or nearby heritage assets. “In my judgment there was ample evidence on which to base that conclusion and it was reasonable to reach it.”

Irwin Mitchell solicitor Alex Peebles, who acted for the claimant, said: ““The quashing of planning permission for these homes is a fantastic result for those members of the community who feel very strongly that the area would have been negatively impacted by their construction. They want to protect the site of special scientific interest and the local listed buildings."