Neutral Citation Number:  EWHC 913 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Friday, 30th March 2007
B E F O R E:
MR JUSTICE COLLINS
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THE QUEEN ON THE APPLICATION OF LINDA WARE
NEATH PORT TALBOT COUNCIL
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Computer-Aided Transcript of the Stenograph Notes of
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MR D WOLFE (instructed by RICHARD BUXTON SOLICITORS) appeared on behalf of the CLAIMANT
MR A PORTEN QC (instructed by BOROUGH COUNCIL) appeared on behalf of the DEFENDANT
MISS S FORD (instructed by NATIONAL GRID LEGAL SERVICES) appeared on behalf of the INTERESTED PARTY
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J U D G M E N T
(As Approved by the Court)
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1. MR JUSTICE COLLINS: The claimant seeks by this claim to quash two decisions of the council of 19th September 2006, granting planning permission and a hazardous substances consent to enable National Grid to construct what is known as "an above ground insulation". This is a facility to connect a high pressure gas pipe which was running from Milford Haven, some 120 kilometres away, to the local gas supply system. This involves reduction of the pressure and so plant and machinery has to be installed to achieve that.
2. The claimant lives near the proposed development in a village called Cilfrew. She and many villagers have objected to the proposal. She does not seek to challenge the need for the installation, but opposes the particular site on the ground that it is too close to the village; in an attractive part of the country side; and there are other sites available which could be used and which would not have similar defects.
3. National Grid make the point that the installation is an integral element of a much larger project for the connection of two liquid natural gas import terminals at Milford Haven. They should be operational by September 2007. They are an important part of the government's energy policy. There will be, it is said, real difficulties for National Grid if it is unable to carry out its obligations to have the system in place by September. I note this, but it cannot, as Miss Ford recognises, prevail if the claimant persuades me that the decision of the council was flawed.
4. The claim was lodged on 4th October 2006. The claimant had attended the meeting of the council's planning committee when the two decisions were made. What she observed led her to believe that there had been procedural irregularities, in that four councillors from the Rate Payers Group were approached by officers, after the meeting had started, and following conversations, which she, of course, was unable to hear, they left the meeting.
5. An article in the local paper on 28th September 2006 included statements from one of the four, Councillor Tutton, in which he said that the monitoring officer had strongly advised him not to vote, and a statement also from the chief executive of the council, saying that he believed the advice not to take part in the voting had been correct and would withstand a claim of maladministration to the ombudsman.
6. On 25th October 2006 Dobbs J, very sensibly, ordered that statements be obtained from the four councillors, and this was done. Since then the council officers concerned have also lodged statements. Mr Porten QC, on behalf of the council, applied, in accordance with a subsequent order of Burton J, that there should be cross-examination. However, it seemed to me that there was no issue of fact which needed to be determined, since there was no real difference in the accounts being given. There were perhaps some differences of emphasis, which are hardly surprising when dealing with an incident which occurred over a short space of time some months ago. In the result, Mr Porten accepted that cross-examination was not necessary and did not pursue the application.
7. National Grid's applications were obviously contentious and there was considerable opposition, in particular from the villagers in Cilfrew. On 22nd February 2006 the Rate Payers Group of the council held a meeting. This was believed by certainly three of the four councillors concerned to be a routine meeting. They were not aware that the organiser had hoped to bring some residents of Cilfrew to that meeting. In any event, that is what happened and their purpose was to lobby the councillors and to give reasons why the proposals should be opposed.
8. None of the four members of the planning committee who were present made any observations, save for Councillor Tutton, who at the conclusion told the villagers that all the councillors had a "greater understanding" of their problem and that he was sure that some of the councillors who were not on the planning committee would help them.
9. It is clear that no one said anything which could conceivably have been interpreted as a pre-determination of or even a pre-disposition in relation to the proposals. No such suggestion is made and there is, in any event, no evidence to support it.
10. The reason why the matter was brought to the attention of the monitoring officer of the council was because a councillor, who was not from the Rate Payers Group, had in error attended that meeting instead of one she should have been attending. It appears that she went to the wrong room. The monitoring officer recorded what that councillor had told her in an enclosure -- I think it had been an email -- in a letter sent to Councillor Tutton as leader of the Rate Payers Group on 14th March 2006.
11. The email set out what information had been given to the monitoring officer. What was said was this (reporting what she had been told):
"'the meeting started by Councillor D Keogh apologising for the absence of the Chair and Vice Chair and that he would assume the role, he then proceeded to ask the three people (whom I did not recognise) to introduce themselves and carry on. They introduced themselves as Secretary, Chair, of a group they then stated that 'everyone is aware of the Kenfig Pump line' on which I then declared an interest as I realised that this was a planning matter, I was informed that 'I could listen but not say anything'. The chair of the group went on to say that the pipeline was very near to the houses and they had photos which were being distributed around the room. At that time I realised I was in the wrong meeting and left.'"
The monitoring officer continues:
"The member has orally informed me of her concern that the three people referred to above appeared to be member of an action group, and had files, documents and photographs with them. The photographs were freely circulated around those present while the non ratepayer member was in the meeting. This member's concern is also there were rate payer Councillors in the meeting who are members of the Planning Committee. There were also other persons present who were not Councillors and one person that member recognised to be an ex rate payer Councillor. In such circumstances it appeared to that member that a rate payer political group meeting was taking place."
The email continued that attention must be drawn:
"Both under the Guidance 'Probity in Planning' and Council's Planning Code that members who have predetermined issues, specially relating as to how they will deal with an application prior to attending the Planning Committee will be unable to fully participate in the decision making by voting at Planning Committee on that application. Hence hen Planning Committee members must be especially careful as to their conduct prior to a Planning Committee so that they remain impartial and uncommitted until they hear all the issues relevant to the application for the first time at Committee.
Hence it is not for nothing that a culture has developed in local government of not dealing with planning matters at political group meetings. The guidance and Code referred to above, the Ombudsman and the Courts recognise the danger of pre discussions outside of Committee especially in controversial applications. Any abuse in this respect could lead the Council open to findings of maladministration or legal challenge.
For your information our Planning Code says:-
'Generally pre application discussions and those conducted during the course of determining an application prior to it being reported to the planning committee, should be between applicants/objector and other third parties and officers. Where members are involved in such discussions, Section 4 of this Code (lobbying of members) will apply.'.
The guidelines are based on the preferred meeting scenario of officers being present especially as regard potentially contentious meetings where officers must make a note of discussions or telephone conversations."
Later, she continues:
"The real difficulty as I see it with discussions in a political forum on live planning applications before their determination at committee is that such discussions take place behind closed doors and can give rise to other member and public misconceptions relating to the same, that a political, rather than 'on its merits' view, is being taken on an application and that members are aligning themselves together for voting on a predetermined basis.
Depending on how far the discussions went in the group meeting referred to, could also have consequences for your members who are members of the planning committee, that if they went as far as predetermination then they will be able to only to speak and not vote on this application when it comes before Committee."
She goes on to ask Mr Tutton to sort the matter out with his Rate Payers Group and to put him on notice that the members would need to declare that they had met parties opposed to the application, if this is what did happen, and depending on what they did at the meeting, to say that they either did not commit themselves to those parties, in which case they carry on as normal or they had gone too far and therefore should make the declaration that they would speak, if they wished to, but not vote. In the latter case they should leave the chamber before the vote was taken.
12. What is said in that email was clearly entirely appropriate because, at that stage, the monitoring officer did not have full information as to what had actually occurred at that meeting and was indicating that there were possible dangers, if there had been any anything said by any of the councillors on the planning committee which might indicate any predetermination.
13. Mr Wolfe has suggested that the need for a declaration, referred to at the end of that email, is not something which was in truth required. On the other hand, it is obviously sensible that, if there is any possibility of concern, and in this case there was because a councillor who was a member of a different group in the council had raised concerns, some such declaration should in due course be made.
14. The Code of Practice which is referred to in that email deals with discussions prior to determination. The point is made, and it is an obvious one, that it is inevitably part of the democratic process that councillors who represent a particular ward or area of a council will be approached by their constituents who have concerns about, among other things, planning applications. They will want to know what the concerns of those constituents are. That is an inevitable and a proper part of the democratic process. That is recognised in the Code of Conduct. What councillors must be careful to avoid, if they are members of a planning committee, is saying anything which indicates, or could be thought to indicate that they have a particular view in advance of the decision that they are to make. There is no question but that in this case, no such observation was made by any of the councillors who were at that meeting.
15. The Code endeavours to provide for protection against perceptions that there have been or may have been any pre- determination. That is why it is suggested, in 3.2, which was the paragraph cited in the email by the monitoring officer that generally pre-application discussions should have present an officer, so there would be an independent view of what had happened. But that is not regarded as essential. It can happen, and indeed it did happen on this occasion, that the matter arose unexpectedly, so far as the planning committee members were concerned. There was not, for that reason, the preparation which might otherwise have been thought desirable in having an officer present.
16. Paragraph 3.2 refers to section 4, relating to lobbying of members. That makes the point in 4.1, of the importance of recognising that lobbying is a normal and perfectly proper part of the political process. But it goes on to say, and this is the underlying guidance, that "such lobbying can unless care and common sense are exercised by all parties concerned lead to the impartiality and integrity of a councillor being called into question." That is, of course, what all councillors must avoid.
17. The next step was the meeting of the planning committee on 29th August. At that meeting the four councillors in question made the necessary declarations. What they said, and this is recorded in the minutes, was that although they had met with the objectors, they had not expressed any opinion on the application nor had they pre-determined it. As I have already said, it is clear that that was indeed the case.
18. At that meeting the committee decided that the applications should be deferred so that a site visit could take place. The Code deals with site visits in paragraph 8. It is pointed out that site visits can cause delays and additional costs, and should only be acceded to when the expected benefit was substantial, for example, where the impact of a proposed development was difficult to visualise from the material available to the committee, or where relevant issues could not be expressed adequately in writing or where a proposal was particularly contentious. The procedure to be adopted, as paragraph 8.4 indicates, is that:
"Where the Planning Committee agreed to a site visit, the reasons shall be recorded in the Minutes."
It in fact is exceedingly rare for a site visit to be made by all the members of the committee. Normally, if a site visit is considered to be necessary, a number of the members of the committee are deputed to carry it out and report back to the other members. But sometimes it is obviously desirable that everyone should have the opportunity of seeing the site where the development is due to take place.
19. Unfortunately in this case the Code was not followed and no reasons were given for the decision that a site visit by the whole of the committee should take place. It is therefore not clear what in truth were the reasons. Was it only because this was a contentious application? Or were there real concerns that without such a visit, it would not be possible to understand fully the points made by each side in relation to the proximity to the village, intrusion in the countryside and so on?
20. The decision in question, in any event, led to an initial view by the monitoring officer that those who, for whatever reason, were unable to or did not go on a site visit should not take part in any vote. That was later modified to the views recorded in a letter of 13th September, addressed to all members of the planning committee.
21. What was said (although it related to a site visit, not in relation to Cilfrew, but was making what clearly was regarded as and taken as a general point) was as follows:
"The second point to make relates to site visits. I previously advised Members that it was my view that they should not participate in debate and decision making if they had not attended the site visit. I would emphasise that I am not seeking to prevent Members from voting if they had not attended the site visit but have cautioned that failing to do so might call into question the decision making."
She then goes on to indicate that all members should take the opportunity of making a visit to the site in question.
22. I am afraid that, it seems to me, that advice was not particularly helpful. She says, on the one hand, she is not saying: you cannot vote, but on the other hand, if you do, the decision might be called into question. It is understandable that councillors receiving that advice should be left in some doubt as to what their proper course should be.
23. Councillor Tutton was in fact one who had not managed to make a visit but he was satisfied that he could properly assess the issues. The other member who had not been able to visit, Councillor Hopkins, had it seems decided in any event not to vote at the meeting of 19th September. She was concerned, as she said in a second statement, which she provided for the purposes of this case, that her integrity had been compromised, through no fault of her own, by her attendance at the February meeting.
24. Before the meeting on 19th September, Mr Michael, the deputy monitoring officer, had been approached by Councillors Tutton and Hopkins, the two who had not attended the site meeting. It was indicated that strong advice was in terms of legally secure decision making that there should have been attendance at the site if they were to vote. At the commencement of that meeting Councillor Tutton drew attention to the declaration that had been made at the August meeting and indicated that he was repeating that on behalf of himself and his colleagues. The minutes of the meeting record that Councillor Tutton, the leader of the Rate Papers Group, also referred to meeting between Cilfrew residents and his group members.
25. That, in my view, should clearly have sufficed. Unfortunately another officer who was present thought that all four should have made the declarations although they had been made at the meeting in August. It is suggested that there was indeed a need that at each decision making meeting of the council, any declaration such as this should be made, notwithstanding that it might have been made at a previous meeting covering the same issue.
26. I have not been referred to any document which sets that out as a clear practice of the council. It may be that there are reasons why it is sensible. It is said that it is intended to ensure that at each meeting the members of the public who are present will know that any such declaration has been made. I can see that there might be some sense in it, but I am bound to say that it seems to me that it is not strictly necessary.
27. However, the officer in question believed that it was necessary and so decided to approach the four councillors and, as he put it, "to have a quiet word with them". This was after the meeting had been commenced. His motives, as he sets out in his statement, were simply to facilitate their staying in the meeting, to remind them that they individually and openly had previously made the declaration, to ask them if they might think about restating that declaration, as they had personally not done so yet and to remind them that the advice of the monitoring officer was that they should do so personally, and thirdly, to be protective of them in case they had forgotten to declare personally and so to enable them to put the record straight. He also took with him the wording of the statement that they had made at the meeting in August.
28. They asked him, he says, if it would be better if they withdrew and he said that that was a matter entirely for them. But even though they had attended a meeting with objectors, if they were clear they had not pre-determined a view, which they affirmed to be the case, then they were clear to stay. He says .
"I asked them to think about restating their individual non pre determination position as this would get it on the record for this meeting and they were being clearly open."
29. It is apparent that the members were concerned about this approach. It after all did draw attention to the problem which they thought had been sorted out by their declaration at the August meeting. As a result, it is apparent that they wanted some further advice from the monitoring officer and so it was that they gestured to Mr Michael, who was the deputy monitoring officer, to come down and have a word with them. This Mr Michael did. His evidence is that there was a very brief conversation. He asked them whether it was about the meeting and the pre-determination issue. They asked whether they should leave the meeting to be safe. Mr Michael said there was a problem with having the meeting, that is to say the February meeting, without officers present, but the main issue was expressing any views before the planning meeting. They said they had not said anything. Mr Michael said that: well, if that was the position, then okay. But then this crucially: the only other guidance he could give was that they would have to say what was said at the meeting with residents if there was a complaint perhaps to the ombudsman. It was matter for them to decide. They then indicated that they had decided to leave. What motivated that largely was what they regarded as the advice that there was the possibility of a complaint to the ombudsman, coupled with the mantra, as it has been put, which is drummed into councillors when they are given advice by the monitoring officer: "when in doubt, get out."
30. That particular mantra was designed to deal with the problem of personal interest in a decision. But it is understandable that it was believed to apply generally and the draft statement from the monitoring officer, who sadly died before she could confirm its contents, makes that clear.
31. The councillors accept that they were not told that they must leave and that it was left to them to make their own decisions. But they were clearly influenced by concerns that there might be a perception of pre-determination and therefore there was a doubt, and because of that doubt, they decided it was better to leave and not to vote.
32. It is of course important that any decisions by local authorities which may involve judgment, where there are opposing views, must be made fairly and without pre- determination. Councillors must listen to the arguments on each side before reaching a decision and so must enter upon the meeting on which the decision is to made with open minds. They must be prepared to be persuaded by what is shown to be the best argument. They may have a pre-disposition to a particular view, but they must be prepared to modify or change that in the light of the arguments and evidence presented. So they must be careful to ensure that, not only have they acted with propriety but they have not done anything which would make a fair-minded and informed observer, who had considered the facts, conclude that there was a real possibility of bias. That is the test which is applicable as laid by down by the House of Lords in Porter v Magill  2 AC 357.
33. It is, in my view, equally important that councillors should not be inhibited from carrying out the duties imposed upon them by the democratic system, by over cautious advice from monitoring officers. It is only if there really is a real risk that the informed and fair-minded observer would believe that there was bias that they should not participate. I think in this connection there is force in Mr Wolfe's submission that the "when in doubt get out" mantra is inappropriate when applied to what third parties might think. It is clearly appropriate when a member has to decide whether he has a personal interest which may disqualify and perhaps appropriate where his acts or omissions might cast doubt on the propriety of his approach.
34. I have no doubt that the four councillors did feel under pressure not to participate. Where it seems to me that the advice given was clearly wrong, was in raising the spectre of a complaint to the ombudsman. Whether a complaint might be a made or whether judicial review claim might follow cannot be a relevant test. It is only if there is a real risk that any complaint or claim might succeed that there should be withdrawal. In reality, as it seems to me, the proper advice that should have been given was that since they had clearly decided that they had done nothing wrong (and, indeed they had clearly done nothing wrong,) then there was no reason at all why they should not stay and vote. There should not have been reference to the possibility of a complaint to the ombudsman which could only have put some pressure upon the councillors and raised with them, in their minds, as it did, concerns that such a complaint might follow and they might have to deal with it. Of course any such complaint is a matter which any councillor would consider to be a serious matter.
35. So far as the site visit is concerned, it is difficult to see why that was regarded as essential. There is a statement from Mr White, the head of planning in the council, in which he describes the visit in question. He concluded:
"The application site cannot be viewed from any footpath or public highway, and the only public access area is the open access area some 1 km to the north west. The site is approached along a private track of some 580 meters over private land and which has a locked gate at a point near the public highway. Whilst the points referred to above are set out in the Committee report, it is only by visiting the site that the impact on the countryside and the relationship to properties, including the community of Cilfrew, can be fully appreciated. Such access cannot be afforded without gaining access over private land requiring the owner's permission."
One sees, no doubt, the force of that. On the other hand, plans, photographs, reports from trusted fellow councillor could, as far as I can see, deal adequately with the matters that were raised. Certainly Councillor Tutton appears to have formed the view that that was, so far as he was concerned, the situation. In all the circumstances, I am far from persuaded on the material before me that the site visit was indeed so essential as to make it wrong for a councillor to participate in the decision making process without having carried out such a visit.
36. Certainly, it is possible, on given facts, that a site meeting is essential. Mr Porten has drawn my attention to a decision of this Court Chichester District Council v The First Secretary of State  JPL 389, a decision of Mr Andrew Nicol QC, sitting as a Deputy Judge. The claim in the case lay against the Secretary of State because an inspector had been asked by the council to make an accompanied visit in order to view the interior of a building. The issue was whether it was an agricultural building or was, in reality, someone trying to build a dwelling-house and pretend it was an agricultural building and thus avoid the constraints that applied in what was in the countryside. A dwelling-house would have been contrary to the relevant planning policies.
37. It is clear from the facts of that case that the inspector could not reach a proper decision without looking at the interior, albeit he had asserted that he could, albeit recognising, I should say, that he was guilty of a procedural error in failing to carry out the accompanied visits. If he had looked inside, the council's contention was that he would have appreciated that the opening for the alleged garage doors was much too small to permit the entry of farm vehicles; the room with the fireplace was far too small to accommodate any farm vehicle; the electrical fittings gave the impression of domestic use; the space for access to the roof space could accommodate a staircase; the feed preparation area was eminently suitable for a kitchen; the entire layout was exactly what one would expect in a house, including a hall, a shower, a lavatory and internal door openings of domestic scale. It is not entirely surprising, in those circumstances, that the court took the view that an accompanied visit had indeed been necessary and that the inspector's decision granting planning permission was fatally flawed.
38. It is very much a question of the circumstances dictating what should be the decision in relation to a site visit. As I say, in this case, I do not think that that authority really assists. In any event, it is difficult to see that, as a matter of principle, a committee can bind its members by making a decision in relation to a site visit, so that individual members who have not, perhaps for good reason, been able to make that site visit, cannot participate in the decision. At most they can indicate that it is desirable, and it must be for the individual member to decide whether, on the facts, the fact that he has not been to the site should disqualify him.
39. Mr Porten's submissions are helpfully summarised in his skeleton argument. Essentially he asserts that the advice given to the members was correct and in any event is not susceptible to judicial review, and that the court should only intervene if persuaded that any members decision not to vote was perverse or irrational. He makes the point that it is apparent that the members were not directed that they should not participate and it was left to them to make their decisions. Accordingly, it cannot be said that their decisions were in any way perverse or irrational.
40. I have already indicated that, in my view, the advice was wrong in the impression it clearly gave, and was intended to give to the members, that there was a real possible problem if they participated, having regard, in particular, to the attendance at the February meeting. But it was, as Mr Porten submits, advice. He has drawn my attention, in particular, to a decision of Elias J in R (United Cooperative Ltd) v Manchester City Council  EWHC 364 Admin.
41. The issue in that case was one of personal interest because some members of the planning committee were members of the co-operative and accordingly since the application was made by United Co-operatives Ltd they might be thought to have an interest. The main concern was that some of the members might have had a contribution to their election expenses made by the co-operative movement and indirectly by United Co-operative. So one can see there was a real concern in relation to personal interest.
42. But the passage particularly relied on is at paragraph 13, where the learned judge said this:
"I would accept that if there were a clear direction to the members that they should recuse themselves, then that would indeed be unlawful. That was the position in a case of R (Transport and General Workers Union) v Walsall...  ERLR 329. In that case certain members of the Council's Education and Community Services Committee were told that they were not allowed to vote on a certain catering decision, and the evidence was that they would have voted against, had they been entitled to do so. In those circumstances the court granted relief. They had been excluded from participating in a decision in which they were entitled to play a full part.
14. This is not, in my judgment, this case. Whatever the source of the advice, and however powerful the advice may be from a Council given to councillors, I do not think it is right to put it in the category of a direction. It is for the Councillor to weigh up that advice in light of perhaps other advice available to him, and exercise his or her own judgment. The issue, it seems to me, therefore is whether advice short of a direction given by a Council to its councillors, assuming it to be wrong advice, ought in principle to be subject to judicial review by a body such as UCL.
As I have said, I am going to assume that it is arguable that the advice was incorrect. Even so, Mr Supperstone QC, for the defendant submits that there are a number of grounds on which this application should fail."
He goes on the deal with one of the issue which was prematurity and continues in paragraph 23:
"Second -- and as I have said these are interrelated points -- it does not seem to me that the advice is such that it will inevitably be followed by a councillor. There is no reason why the councillor should not take legal advice from elsewhere. Perhaps specifically in this case, there is no reason why the claimant themselves, if they considered that this is a problem that members of theirs who are councillors face from time to time, should not obtain their own advice, and disseminate it to councillors placed in this sort of position. I do recognise, of course, that the advice coming from the Council will always carry significant weight, but I do not think it would be right for me to assume that there could not be contrary advice which could also be considered, in certain context at least, as being influential."
Mr Porten supplements that by reference to the argument in the case of which he has a transcript, were Elias J made these observations:
"I appreciate that from the practical point of view a councillor may feel that it is like an offer from the Mafia, by which I am not intending to make any improper comments about Manchester City Council you understand, but simply an offer he cannot refuse. There is in law, I think, a significant difference. He can take his own advice. Some councillors might be a bit more bolshie than others. Some might be willing to say to their legal advisers: 'I think you are quite wrong about this and I intend to go ahead.' I am not quite sure what happens then. Presumably he goes ahead and the council cannot stop him if he takes the view, and it is up to somebody either to report to the standards committee or someone to seek to have a decision quashed on the grounds there was an improper decision reached by somebody sitting on the committee."
A little bit later:
"Because it was a direction [this after reference being made Walsall case] people were not sitting who otherwise but for the fact they were told they were not allowed would have been. That seems to me rather different from people who are advised to think carefully before they choose to sit and indeed are advised that the council's best view is they will be acting unlawfully if they do, and choose to do so."
43. While I recognise the force of those observations, it seems to me that it must depend on the individual circumstances of any case. What happened here was after the meeting had commenced, and at a time when clearly none of the councillors had any opportunity to seek any independent advice. They were approached after the meeting had commenced and were given advice which was intended to raise in their minds a question mark, at the very least, as to whether they should properly continue to participate. They viewed it as an indication that they should not participate. That was, as it seems to me, an entirely reasonable view for them to take. In addition, as they mentioned to the monitoring officer, they were aware of the "when in doubt, get out" approach that was considered to be the appropriate approach.
44. It seems to me, in those circumstances, that this was, in all the circumstances, and I emphasise that I am relying on what are the exceptional circumstances in this case, tantamount to them being informed that they had better not remain and better not play a part in the decision-making. It is plain that they had wanted to remain and wanted to play a part. I should add that, of course, they have not indicated, and it would have been wholly improper if they had, what their vote would have been. They have not listened yet to the arguments and so, if they had indicated before this Court what they had been intending to do, that would indeed itself have been some indication of possible pre- determination. So, as I say, I am not aware of what they would have done. But the decision on the planning application was eventually carried by 13 votes to 12. So it is obvious that their absence might have affected the result. Of course, if they had voted in favour then there would have been no difference. If, on the other hand, they had voted against, and it may be that they would have voted in different ways -- who knows -- it is possible that a contrary decision would have been reached.
45. It seems to me that if the wrong advice was a cause of the decision not to vote, that can affect the lawfulness of the decision that is eventually reached. If one wants to put it in terms of irrationality of the decision made, it can be put into that category if one remembers that the definition of "irrationality" includes having regard to an immaterial consideration. The immaterial consideration here would be the advice that was given that the possibility of a claim to the ombudsman should disqualify.
46. In those circumstances, I am persuaded that this is a decision which should not be allowed to stand and that the matter should be reconsidered and that all councillors who have an interest in the matter and who have not done anything which can properly disqualify them from taking part, should have the opportunity to consider it, so that there is a proper decision following the process that should be applied. I am bound to say that it is apparent in this case that the informed observer might well think that something had gone wrong and believes that this was a decision which had not been reached following a full, proper and fair process. That, in itself, does not necessarily mean that relief can be obtained from this Court, but it is a factor which I think it is proper to bear in mind when deciding what the result should be. Accordingly, in those circumstances, this claim succeeds. I should perhaps simply add this as a gloss. I have focused on the planning decision which was, as I say by 13 votes to 12. The other decision is largely parasitic, in fact probably entirely parasitic on the planning decision and obviously must fall with that decision.
47. I should only add this. The Court would not interfere merely because after the event a councillor or a number of councillors indicated that they had misunderstood the position, whether factual or advice given. If that advice was a perfectly proper advice, or if the facts had been properly and satisfactorily set out in the officer's report, there would be no room, in my view, for judicial review merely because councillors decided, after the event, or indicated after the event that they had misunderstood the situation. That would be to open the door to claims which really would put the whole process in some confusion.
48. MR WOLFE: Can I formally ask for an order quashing the planning permission, and there is just one caveat. Miss Ford raised a question in relation to works have been done on the site, and including stripping land, which if simply left unattended would then cause pollution to local waterways. Our clients would like the opportunity to maintain environmental protection pending redetermination.
49. MR JUSTICE COLLINS: That is obviously necessary. I am quite sure -- normally, of course, all works must come to an halt now because there is no permission. But it is clearly right, and I am sure the council will take no steps to prevent, indeed will, on the other hand, encourage steps to be taken to protect the environment in the meantime.
50. MR WOLFE: Miss Ford suggested her client -- I put words in her mouth, speak ahead -- it may be easier to do it this way. Her clients would like something on the face of the order. It seems that could be contemplated.
51. MR JUSTICE COLLINS: I have no objection to that. What I suggest between you, you devise a form of words and you can put it up to me this afternoon, if necessary. Or if you agree it probably is not necessary to do that.
52. MR WOLFE: I am grateful. My Lord, can I also ask an order that the defendants pay the claimant's cost, assessed, if not agreed, and for legal taxation of the balance of those costs.
53. MR JUSTICE COLLINS: I do not think you challenge that order, can you, Mr Porten?
54. MR PORTEN: My Lord, no.
55. MR WOLFE: I think I am right in saying that Cilfrew is C-I-L-F-R-E-W. It is easier to pronounce.
56. MR JUSTICE COLLINS: It makes it much easier to pronounce. I had assumed it being Wales there are lots of double Ls about but I was obviously wrong.
57. MR WOLFE: Then the other thing, I gave you the wrong date, it was 14th March, not the 16th.
58. MR JUSTICE COLLINS: I will put that in when I correct the transcript.
59. MR PORTEN: I cannot oppose the application for costs. May I invite your Lordship to give me permission to appeal. In my submission, the points which are made are arguable, certainly not fanciful, and there is some importance in this, in particular for monitoring officers and the observations of your Lordship about over cautious advice. Bearing in mind too in this case the question to the monitoring officer has been: what is the worse that can happen? What advice has been given in those circumstances.
60. MR JUSTICE COLLINS: I take the point, Mr Porten, that it may well be thought that I have gone slightly beyond previous authorities in this case, although I emphasise, and I emphasised, that it is dependent on what I regard as the special facts of this case. Nonetheless, there is, I accept, a point of principle that could be said to arise.
61. Mr Wolfe, what do you say about leave to appeal? It does not mean an appeal will be pursued.
62. MR WOLFE: My Lord, in my submission, it should not be. The judgment is absolutely clear. I hope you have gone beyond the existing authority, because in effect you do not apply -- regards what the court do. An application was made to quash the decision had it gone the other way. That is straightaway an application for Porter v Magill and all that follows. My submission that is not an application in principle at all.
63. MR JUSTICE COLLINS: It may be said to go beyond what Elias J decided.
64. MR WOLFE: That was only a permission application hearing.
65. MR JUSTICE COLLINS: That does not matter, it was still -- true, but it was -- I assume that he approved its publication. Otherwise I should not have looked at it.
66. MR WOLFE: I have no idea on the formalities of it.
67. MR JUSTICE COLLINS: But, I mean, I have decided that the advice given was wrong on the basis that it set really too low a standard. That may be said to be quite an important point for monitoring officers. I should have made clear, perhaps I did not, I am not sure, that I am not persuaded, and indeed I should have added something, may be I shall to this effect.
68. MR WOLFE: That is absolutely right.
69. MR JUSTICE COLLINS: But it is partly to deal with the point that you made, that or appeared to be making, that if there did in this respect pre mention of law was based on wrong advice. I want to make it clear in this Court of claim it would only succeed if there was wrong advice.
70. MR WOLFE: In my submission that clarification puts beyond doubt the wider implication. In my submission it is very much a case on the facts.
71. MR JUSTICE COLLINS: I will incorporate that in the judgment.
72. MR WOLFE: Permission to appeal should not follow.
73. MR PORTEN: I think I have made my point, we would like the option.
74. MR JUSTICE COLLINS: Yes. Mr Porten, I have made clear that this is based entirely on its own exceptional facts and I do not think I have applied any principle which is a new principle. If you wish to pursue this further, you must ask the Court of Appeal for permission.