Officer Apparent Bias Can Vitiate a s.193(7) CLEUD Revocation Where Members Rely on an Unfair and Unbalanced Report

1. Introduction

Ocean One Hundred Ltd, R (On the Application Of) v New Forest National Park Authority [2026] EWCA Civ 493 is an unusual planning judicial review appeal concerning the revocation of a certificate of lawfulness of existing use or development (“CLEUD”) under s.193(7) Town and Country Planning Act 1990 (“TCPA 1990”).

The origins lay in a 2007 application by Mr Jonathan Cox for a CLEUD under s.191 TCPA 1990 on land at North Ripley, Bransgore (a 2.57 ha site). Although the application could be read as seeking certification only for storage of touring caravans on part of the land, the New Forest National Park Authority (“NPA”), acting as local planning authority, issued a 2008 CLEUD in significantly broader terms—certifying, for most of the site, a lawful use “as a caravan site” (a term of art connoting stationing for human habitation, not mere storage).

In 2019 redevelopment works triggered local concern; in 2020 a resident (Lord Manners) pressed the NPA to revoke the CLEUD; and in 2023 the NPA’s Board resolved to revoke, adopting reasons “as outlined” in a report prepared by its Executive Director (Strategy and Planning), Mr Steven Avery. Ocean One Hundred Ltd (the later owner) sought judicial review of the revocation.

The High Court (Jay J) rejected the claim. On appeal, Ocean One Hundred narrowed its case chiefly to apparent bias by Mr Avery and its effect on the Board’s decision-making. The Court of Appeal (Holgate LJ giving the principal judgment, with Stuart-Smith LJ and King LJ concurring) allowed the appeal.

2. Summary of the Judgment

The Court of Appeal allowed the appeal on ground 5, holding that:

  • Jay J’s unchallenged findings meant that Mr Avery’s conduct created an appearance of bias (applying Porter v Magill).
  • Even though the Board (not Mr Avery) was the formal decision-maker, it was no answer to say the biased officer did not take the decision: the Board relied on his report and reasoning.
  • The report and materials provided to members were not fair and balanced and failed to identify and address main issues the Board had to resolve (including the scope of the original 2007 application and related implications for s.193(7)).
  • As a result, the Board’s decision was tainted by the appearance of bias and was procedurally unfair and unlawful; the Court of Appeal therefore upheld the challenge and allowed the appeal.

The Court rejected other grounds (including an argument that missing documents meant there was “no evidence” to support revocation), and it also rejected freestanding procedural fairness complaints under other grounds, while noting that some of those matters reinforced the overall bias picture.

3. Analysis

3.1 Precedents Cited

(a) Defining the certified “caravan site” right

  • Wyre Forest District Council v Secretary of State for the Environment [1990] 2 AC 557: relied upon for the distinction between land used as a “caravan site” (stationing for human habitation and land used in conjunction) and mere storage. This mattered because the 2008 CLEUD’s breadth turned a storage claim into a residentially significant use right.

(b) CLEUDs and revocation: the governing framework

  • R (Ocado Retail Limited) v Islington London Borough Council [2021] EWHC 1509 (Admin); [2021] PTSR 1833 (“Ocado”): treated as the correct legal analysis of the CLEUD/revocation scheme. The Court of Appeal adopted Ocado’s account of:
    • the applicant’s burden of proof on the balance of probabilities;
    • the LPA’s power to refuse if not satisfied;
    • the narrow revocation gateways in s.193(7) (material false statement / material information withheld), using objective tests;
    • “materiality” meaning the information could (not would) have affected the outcome or the terms of the certificate;
    • revocation not being available to correct the LPA’s own mistake of law or a change of mind.
    Holgate LJ added an important emphasis: because s.193(7) requires the falsity/withholding to be “on the application for the certificate”, the decision-maker may have to resolve what the application actually was for (and consider materiality in that context).

(c) Duty to give reasons and addressing main issues

  • R (CPRE Kent) v Dover District Council [2017] UKSC 79; [2018] 1 WLR 108: cited for the standard that reasons must deal with the main issues in dispute. It also underpinned the proposition that where members simply adopt an officer report, they are usually taken to have endorsed its reasoning.
  • South Bucks District Council v Porter (No. 2) [2004] UKHL 33; [2004] 1 WLR 1953: cited for the general test of adequate reasons; in this case, important because the Board adopted the report’s reasons wholesale.

(d) Apparent bias: the governing test and contextual application

  • Porter v Magill [2001] UKHL 67; [2002] 2 AC 357: supplied the core test (“fair-minded and informed observer… real possibility of bias”).
  • R (Buckinghamshire County Council) v Secretary of State for Transport [2014] UKSC 3; [2014] 1 WLR 324: used to reinforce that the bias test is applied in context, taking account of the decision-maker’s constitutional position and the nature of the decision.
  • R (Lewis) v Redcar and Cleveland Borough Council [2008] EWCA Civ 746; [2009] 1 WLR 83: cited as an example where policy/political predisposition and lobbying do not necessarily disqualify a democratically accountable planning authority. Holgate LJ explained why s.193(7) revocation is different: it is primarily an objective evidential/statutory test (not a planning merits determination), with no appeal, and therefore demands particular vigilance against apparent partisanship.
  • R (Legard) v Kensington and Chelsea Royal London Borough Council [2018] EWHC 32 (Admin); [2018] PTSR 1415: distinguished because the statutory context there obliged the authority to assist a neighbourhood forum, affecting the bias analysis.
  • London Historic Parks and Garden Trust v Secretary of State for Housing, Communities and Local Government [2020] EWHC 2580 (Admin); [2021] JPL 580: referred to as an example where statute imposes stricter “functional separation” safeguards (in EIA). While not directly applicable, it informed Holgate LJ’s discussion of possible procedural safeguards in sensitive revocation contexts.

(e) Procedural fairness not exhaustive of statutory procedure

  • Bank Mellat v HM Treasury (No.2) [2013] UKSC 39; [2014] AC 700 and Hopkins Developments Limited v Secretary of State for Communities and Local Government [2014] EWCA Civ 470; [2014] PTSR 1145: cited to show that procedural fairness obligations may go beyond express procedural rules (here, beyond the 2015 Order’s notice/representation requirements).

(f) Officer reports and judicial approach to errors

  • Morge v Hampshire County Council [2011] UKSC 2; [2011] PTSR 337 and R (Alconbury Developments Ltd and others) v Secretary of State for the Environment, Transport and the Regions [2001] UKHL 23, [2003] 2 AC 295: used to underscore democratic legitimacy and the practical role of officer reports.
  • R v Mendip District Council ex parte Fabre (2000) 80 P & CR 500, R (Mansell v Tonbridge and Malling Borough Council [2017] EWCA Civ 1314; [2019] PTSR 1452 and R (Whitley Parish Council) v North Yorkshire County Council [2023] EWCA Civ 92; [2023] JPL 1081: cited for the conventional “benevolent reading”/“significantly misleading” approach to officer reports in mainstream planning decisions. Holgate LJ’s key move was to explain why s.193(7) revocation reports are different: members are more dependent on correct identification of the objective statutory tests and “main issues”, and an error of law or failure to address a main issue will generally vitiate the decision without needing an additional “significantly misleading” inquiry.

(g) Material considerations and prejudice

  • R (Friends of the Earth Limited) v Heathrow Airport Limited [2020] UKSC 52; [2021] PTSR 190: cited for the public law principle on legally obligatory considerations; applied to characterise the omitted “main issues” as matters the NPA had to consider.
  • Malloch v Aberdeen Corporation [1971] 1 WLR 1578, George v Secretary of State for the Environment (1979) 77 LGR 689 and Hopkins Developments Limited v Secretary of State for Communities and Local Government [2014] EWCA Civ 470; [2014] PTSR 1145: used to explain why many standalone procedural complaints failed—absent proof of substantial prejudice—while still potentially contributing to the overall bias narrative.

3.2 Legal Reasoning

(a) The nature of s.193(7) revocation and why it heightens the fairness requirement

The Court of Appeal framed s.193(7) revocation as a “sensitive, unusual and complex” process (echoing Jay J and endorsed by King LJ) because:

  • A CLEUD carries a conclusive presumption of lawfulness (s.191(6)).
  • Revocation is only permitted on narrow gateways (material falsity/withholding “on the application”).
  • There is no statutory appeal and no compensation regime.
  • The decision-maker must first determine objective statutory tests (where planning policy has no role), only later reaching a discretionary stage where planning merits may be considered (Ocado).

This setting made the Board particularly reliant on its officers to: (i) identify the correct legal tests; (ii) identify the real disputed issues; and (iii) present evidence and competing arguments with objectivity.

(b) Apparent bias of an officer can taint a committee decision where the committee relies on the officer’s report

The High Court had found that, had Mr Avery been the decision-maker, apparent bias would be established. The Court of Appeal held that the analysis could not stop there. The legal question became whether the Board’s decision was “untainted” given that:

  • Mr Avery prepared the report, recommended revocation, and supplied the reasoning; and
  • The Board adopted the report’s reasons wholesale.

On the facts, the report and supporting materials were not “fair and balanced”; they failed to equip members to decide the main issues independently. In those circumstances, the appearance of bias infected the decision-making process, rendering the revocation unlawful.

(c) The “main issues” omitted: the scope of the 2007 application and its implications

A central omitted issue was what Mr Cox actually applied for in 2007. Holgate LJ identified plausible readings: (i) storage only; (ii) storage plus a broad “caravan site” use; or (iii) storage plus a limited certified-club site use. This mattered because s.193(7) asks whether false statements were made or information withheld “on the application for the certificate” and materiality must be assessed in relation to that application.

The Court stressed that the statute does not suggest the LPA can unilaterally enlarge the land specified in the application; the applicant bears the burden and risks of revocation/criminal sanction and therefore should control the scope of the claim. If the CLEUD as issued was wider than the application, the correct analysis might involve LPA error rather than applicant deception—something s.193(7) cannot be used to cure (Ocado).

(d) Selective and unsupported inferences reinforcing the unfairness

Holgate LJ gave detailed examples where the report tended to present pro-revocation conclusions as if evidentially grounded when they were not, including the suggestion that enforcement-file information “does not appear to have been shared” with the CLEUD team. The Court considered that, particularly given the bias findings, members required more objective guidance and proper articulation of evidential uncertainties.

(e) Why other grounds failed

  • Ground 1 (no evidence due to missing documents) failed: despite missing records, there remained evidence (local resident statements, contemporaneous notes, site visit, and inferences). The problem was not “no evidence”, but that the NPA had not yet conducted a lawful evaluation addressing the main issues.
  • Grounds 2 and 4 (procedural unfairness/disclosure) failed as freestanding grounds for lack of substantial prejudice, though aspects were relevant to the overall bias picture (explicitly endorsed by Stuart-Smith LJ).
  • Ground 3 (errors in reasons/legal errors) was not determinative given the Court’s conclusion that the decision was already vitiated by the biased, incomplete and unbalanced report and consequent failure to address mandatory issues.

3.3 Impact

(a) Practical rule for LPAs: revocation reports demand a higher standard of neutrality and completeness

The decision clarifies that where members adopt an officer’s reasoning for a s.193(7) revocation, the officer report must do more than avoid being “significantly misleading” in the usual planning-application sense. It must:

  • identify and fairly present the main disputed issues that engage the statutory tests;
  • explain competing readings of key documents (especially the original CLEUD application);
  • avoid asserting conclusions that are not supported by evidence (and fairly highlight uncertainties);
  • provide members with the material documents necessary to decide lawfully (or an accurate and balanced summary where appropriate).

(b) Apparent bias risk management in s.193(7) cases

While the Court did not prescribe a rigid separation-of-functions regime, it signposted safeguards LPAs should consider in complex revocation cases, including transparency in evidence-gathering, timely disclosure, careful allocation of who investigates/recommends/decides, and robust record-keeping. The message is that where rights are being removed without appeal, the authority must be “seen to be scrupulously fair” (King LJ).

(c) Litigation consequences

Future challengers are likely to rely on this case to argue that:

  • apparent bias in an officer can invalidate a committee decision where the committee relies on that officer’s report; and
  • failures to identify the “main issues” in s.193(7) revocation decision-making are legal errors, not merely matters of report-drafting discretion.

4. Complex Concepts Simplified

  • CLEUD (Certificate of Lawfulness of Existing Use or Development): a statutory certificate under s.191 TCPA 1990 confirming that a use or development is lawful (often because it is immune from enforcement by the passage of time). While in force, lawfulness is “conclusively presumed”.
  • s.193(7) revocation: a power to revoke a CLEUD only if, “on the application”, there was a materially false statement/document or material information was withheld. It is not a power to correct the authority’s own mistake or reassess merits.
  • Materiality (Ocado): information is “material” if, had it been correct/provided, the authority could have refused the certificate or issued it in different terms (not whether it definitely would have done so).
  • Apparent bias (Porter v Magill): the question is whether a fair-minded and informed observer would think there is a real possibility of bias. It concerns appearances and public confidence, not proof of actual wrongdoing.
  • “Caravan site” vs “storage”: a “caravan site” involves stationing for human habitation (and associated land use), whereas storage is simply keeping caravans on land without residential occupation—legally distinct and potentially very different in planning impact.
  • Certified location / exempted organisation (1960 Act context): certain limited caravan uses (typically up to five caravans for recreational purposes by members of a recognised club) may be treated differently under caravan site licensing and, via longstanding permitted development provisions, may not require express planning permission.

5. Conclusion

The Court of Appeal’s central contribution is to articulate, in the specific and stringent context of s.193(7) CLEUD revocation, how apparent bias and report inadequacy intersect. Even where elected members are themselves unbiased, a revocation decision will be unlawful if it is reached by adopting a report produced by an officer whose conduct creates an appearance of bias and whose report is not fair, balanced, and legally complete on the main issues the statute requires the authority to resolve.

The case is also a cautionary tale about record-keeping, disclosure discipline, and the need to confront—rather than glide over—fundamental questions such as what the original CLEUD application actually sought and whether revocation is being used impermissibly to rectify the authority’s historic error rather than a misstatement or withholding “on the application”.