Pride, prejudice, and planning procedure
Ella Grodzinski analyses a recent High Court judgment on the impact of alleged bias on a grant of planning permission following a particularly acrimonious meeting of a council’s planning committee.
Anyone who was on the internet during the pandemic probably remembers the (absolutely hilarious) Handforth parish council meeting which went viral in February 2021, at which councillors hurled insults, threats and obscenities at each other over zoom. (Think: “you have no authority here Jackie Weaver!!”). The proceedings of the Isle of Wight Council’s planning committee in the case of R. (on the application of Greenfields (IOW) Ltd) v Isle of Wight Council [2024] EWHC 2107 (Admin) have not gone viral, but they appear to have been nearly as acrimonious.
The factual background for the case is a grant of conditional planning permission for the development of agricultural land, granted by the Isle of Wight Council (the local planning authority). The Claimant sought to bring a Judicial Review of the decision. At a rolled-up hearing in August of this year, HHJ Jarman KC refused the Claimant’s application.
To say that tensions seem to have been running high would be putting it lightly. The judge recited excerpts from the July 2021 meeting but commented that “this cannot convey the tenor of the meeting”. Councillors are recorded as calling each other’s conduct “scandalous”, “dismissive”, “intimidating”, “humiliating” and “belittling”. A large proportion of this appears to have been directed at the chair of the meeting, who had – improperly, it was alleged – excluded from the meeting a number of councillors who seemed likely to vote against the application. It appears that a large number of the councillors were predisposed against the application, while the Chair of the meeting was in favour of it.
The Judicial Review was brought on a number of grounds, but the two most interesting ones were: (1) that the original meeting of July 2021 which initially resolved to grant planning permission had been procedurally improper and/or unfair, which vitiated the grant of planning permission; and, relatedly, (2) that the chair of that meeting was biased and/or exercised his functions for an improper purpose, which likewise vitiated the planning permission.
In relation to ground 1 on procedural irregularities, the judge held that while the chair’s advice to certain councillors not to attend the meeting did not actually exclude them, the chair’s decision to explicitly prohibit one specific councillor from the meeting on the factually and procedurally flawed basis that he had missed too much of the site visit did amount to a procedural irregularity. However, the procedural irregularity and other viable “criticisms” of the procedure at the July 2021 meeting had been “overtaken by events” – the proposal had been reconsidered at a further meeting of April 2023, at which conditional permission was granted following a proper debate and vote, of which no criticism was made. As such, the procedural irregularities at the July 2021 meeting did not vitiate the eventual grant of conditional planning permission.
In relation to bias (ground 2), the judge reinforced the clear distinction in the caselaw between predisposition and predetermination. The judge noted the case of R (Lewis) v Redcar and Cleveland Borough Council [2008] EWCA Civ 746, at which Pill LJ said at [63]:
“Councillors are elected to implement, amongst other things, planning policies. They can properly take part in the debates which lead to planning applications made by the Council itself. It is common ground that in the case of some applications they are likely to have, and are entitled to have, a disposition in favour of granting permission. It is possible to infer a closed mind, or the real risk a mind was closed, from the circumstances and evidence. Given the role of Councillors, clear pointers are, in my view, required if that state of mind is to be held to have become a closed, or apparently closed, mind at the time of decision.”
The judge summarised that “The test for apparent bias is whether the relevant circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility that the decision-maker was biased” (¶68), but that “Bias is a different, although related, concept to predetermination.” He found that the Chair did indeed seem to have been “predisposed in favour of the application, but in my there is no clear indication that he had predetermined it, and such indications as there are suggest otherwise.” (¶69)
Further, the Chair and planning officers had stressed that “if the application was going to be refused then it should be refused on planning grounds. To the extent that those members who were predisposed against the application found it humiliating to be reminded of this principle then that is a consequence of the tension which sometimes arises between the democratic process and the obligation on councillors to implement planning policies” (¶71).
In conclusion, the planning process in this case had been controversial and discordant to say the least, but the resultant procedural irregularities and biases of the councillors involved did not go so far as to vitiate the grant of planning permission itself. While the Isle of Wight Council’s planning committee meeting may not have reached viral fame, it is nevertheless a reminder (if anybody needed one) of the ever-present tensions between local politics and proper planning procedure.
Ella Grodzinski is a barrister at 39 Essex Chambers.
