High Court Detects Apparent Bias in Residential Planning Decision

22 Oct 2021
Harold Benjamin

Construction, Development and Planning, Residential Property

Justice should not only be done but should be seen to be done. That phrase may be somewhat hackneyed but, as a High Court planning case showed, it is a golden rule that serves to root out even the appearance of bias in official decision-making.

The case concerned a planning permission granted for construction of 23 houses and a three-storey block of flats in a seaside town. The site was owned by a limited liability partnership (LLP) between the local planning authority (LPA) and another council. The LLP focused on mobilising private sector finance for economic regeneration projects and could only act with the LPA’s authority.

The LLP had entered into a contract with the developer by which the developer agreed to use its best endeavours to obtain planning permission in respect of the site as soon as reasonably possible. In challenging the permission, a local objector argued that the decision-making process gave rise to an appearance of bias.

Ruling on the matter, the Court found that the LPA would gain from the regeneration of the site and that there was at least the potential for it to also benefit financially. The planning application having been made on behalf of the LPA, as a partner in the LLP, it should have been considered by its planning committee. In the event, the decision was taken by a planning officer using delegated powers.

The Court acknowledged that it is inevitable that local authorities sometimes have to determine planning applications relating to land in which they have an interest. The law had to be applied in a way that did not render decision-making impossible or unduly difficult. The existence of the contract between the LLP and the developer was not by itself sufficient to persuade a fair-minded observer that the decision was tainted by apparent bias.

However, the Court noted that the LPA’s initial position that the application would be considered by the planning committee was subsequently changed. Matters relating to noise generated by the development, its effect on air quality and highway safety and its potential impact on a nearby special protection area had also not been dealt with properly.

In quashing the permission, the Court concluded that a fair-minded observer would have thought there was a real possibility that the decision-maker was biased. Given its interest in the site, the LPA was under a particular duty to weigh the issues, engage with objections, and set and closely observe procedural requirements. That duty was not complied with.