The Court of
appeal allowed an appeal by Persimmon against the judgment of Jackson J.
( EWHC 3166 (Admin) by which he quashed a planning permission for a large
mixed use development at Coatham Enclosure,
The Council did not participate in the appeal.
The Court of Appeal (Pill, Rich and Longmore LLJ) gave detailed consideration as to what is the proper test to apply where it is alleged that a decision maker appears to have a closed mind so-called “apparent predetermination”.
The Court of Appeal reviewed the domestic authorities going back to Franklin v Minister of Town and Country Planning  AC 87 as well as a number of Commonwealth authorities. The Court of Appeal held that it was not bound by the decision of the Court of Appeal in Condron v National Assembly  LGR 87 as the proper test was a matter of concession in that case.
Pill LJ said:
“62. … There is no doubt that Councillors who have a personal interest, as defined in the authorities, must not participate in Council decisions. No question of personal interest arises in this case. The Committee which granted planning permission consisted of elected members who would be entitled, and indeed expected, to have, and to have expressed, views on planning issues. When taking a decision Councillors must have regard to material considerations and only to material considerations, and to give fair consideration to points raised, whether in an Officer’s report to them or in representations made to them at a meeting of the Planning Committee. Sufficient attention to the contents of the proposal, which on occasions will involve consideration of detail, must be given. They are not, however, required to cast aside views on planning policy they will have formed when seeking election or when acting as Councillors. The test is a very different one from that to be applied to those in a judicial or quasi-judicial position.
- 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.
deciding whether there is a real risk that minds were closed.
- Central to such a consideration, however, must be a recognition that Councillors are not in a judicial or quasi-judicial position but are elected to provide and pursue policies.Members of a Planning Committee would be entitled, and indeed expected, to have and to have expressed views on planning issues…
- The judge properly acknowledged the need to be “cognisant of the practicalities of local government”.Where he erred, in my judgment, was in finding that there were present “additional unusual circumstances” which required the permission to be quashed. The danger of the “notional observer” test is that the role of elected Councillors may not fully be taken into account. That could lead to any Councillor, elected on a pro-scheme manifesto, creating a serious risk of a Council’s grant of permission being quashed if he participated in the decision to grant. That would not be in the public interest or accord with the law.”
The Court of Appeal also considered the impact of the fact that the planning decision and the signing of the development agreement had taken place in the pre-election purdah period.
The case also raised issues related to the proper approach to the undertaking of an appropriate assessment under the Conservation (Natural Habitats &c) Regulations 1994.
Richard Drabble QC and James Maurici appeared for the successful Appellant, Persimmon Homes Teeside Limited instructed by Ward Hadaway.