A developer submitted a planning application for permission to carry out opencast mining at a site near Merthyr Tydfil. The proposed development generated a great deal of local opposition. The application was called in under s 77 of the Town and Country Planning Act 1990 for determination by the defendant assembly. A public inquiry was held, after which the inspector recommended that permission be granted subject to conditions. In accordance with its standing orders, the assembly delegated its decision on the application to a planning decision committee (PDC) consisting of four members of the assembly. The chair of the PDC was CJ, the Minister for Environment, Planning and Countryside in the Welsh Assembly Government. At a meeting on 3 February 2005 the PDC resolved that it was minded to allow the application subject to conditions and the completion of a section 106 agreement. A ‘minded to grant’ letter to that effect was issued on 7 February 2005. The PDC authorised the details of the formal permission, including review of the section 106 agreement and the final formulation of the conditions, to be dealt with by officials on its behalf. The formal grant of planning permission followed on 11 April 2005. The claimant, who was one of the objectors to the development, appealed under s 288 of the 1990 Act against the grant of permission, on five grounds.
Lindsay J dismissed the appeal on four of the grounds, but allowed it on the fifth, namely that the PDC’s decision was vitiated by the appearance of bias arising out of a remark made by CJ to an objector, JJ, the day before the PDC meeting. It was JJ’s evidence that CJ had told her that he ‘was going to go with the inspector’s report’. The assembly appealed.
The central issue on the appeal was whether the judge was right to find an appearance of bias on the basis that CJ had said the words attributed to him.
The appeal was allowed.
In deciding whether an allegation of apparent bias had been made out, the relevant circumstances were those apparent to the court upon investigation, and were not restricted to The circumstances available to the hypothetical observer at the original hearing.
In the instant case, the judge had fallen into error by disregarding relevant circumstances or in his assessment of their significance. He appeared to have concentrated unduly on the encounter between JJ and CJ on 2 February 2005 and how it would have appeared to an observer at the time, rather than taking into account the totality of circumstances apparent to the court upon investigation. A fair-minded and informed observer, having considered all the facts as they were now known, would not conclude that there was a real possibility that CJ himself or the PDC as a whole had been biased when reaching the decision to grant planning permission. Viewed in its wider context, the brief remark by CJ that was at the centre of the case provided an insufficient basis for the suggestion that the decision had been approached with a closed mind and without impartial consideration of all relevant planning issues.