A PLANNING case recently made it clear how seriously judges approach any appearance of bias by public decision-makers. The case concerned the grant of planning permission by the Welsh Assembly for a company to carry out open cast mining near Merthyr Tydfil. The proposed development had attracted public comment and concern which led to a challenge in the court by a campaigner — Mrs Condron.
One of the issues in the case was whether the decision should be struck down because of real possibility of bias by one of the members of the Assembly’s Planning Decision Committee. The committee had to consider, at a meeting, an inspector’s report in relation to the planning application. A protester against the open cast mine claimed in a statement filed with the court that she had had a chance meeting with the chair of the planning committee lasting only about 90 seconds. She said that during that discussion they had discussed the application for planning permission and that the chair had said that he “was going with the inspector’s report”. No evidence was produced to rebut this evidence and the implication of the claim was that the chair had made up his mind before the meeting.
Lack of bias by decision-makers is a pillar of “natural justice” (the other being the right to a fair hearing). A breach of natural justice can be grounds for quashing a decision. At court the parties agreed on the test to be applied by the judge in relation to bias. The question was whether “the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility” that the planning committee was biased. Thus, actual bias did not have to be proved. The judge decided that he had to “look beyond pecuniary or personal interests” of the committee members and consider whether there was a real possibility that they were biased “in the sense of approaching the decision with a closed mind and without impartial consideration of all relevant planning issues”.
On the fairly slim factual basis of the discussion between the chair and the protester, the judge was able to conclude that “the committee had among its members one who appeared to have predetermined the issue with which it had to deal”. The fact that the member was the chair (with a casting vote) “could only incline the informed observer more readily to conclude that there was a real possibility of bias”. The decision of the planning committee was therefore quashed and effectively they had to take the decision from scratch again.
The message for decision-makers must be to be very careful who you talk to about forthcoming decisions, as even brief conversations may come back to haunt you.
Stephen Cragg is a barrister specialising in public law at Doughty Street Chambers. E-mail: firstname.lastname@example.org