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Legard, R (On the Application Of) v The Royal Borough of Kensington and Chelsea
Factual and Procedural Background
This claim concerns the decision by the Defendant on 10th December 2015 to permit the St Quintin and Woodland's Neighbourhood Plan ("The Neighbourhood Plan") to proceed to a referendum. The Neighbourhood Plan, promoted by the Second Interested Party, proposed designating a parcel of land off Nursery Lane ("The Site") as a Local Green Space ("LGS") pursuant to paragraph 77 of the National Planning Policy Framework ("the Framework"). The Plaintiff owns the Site, and the First Interested Party has a contractual relationship with the Plaintiff to pursue residential development of the Site. The designation as LGS was inconsistent with residential development proposals, making it controversial.
Judicial review permission was initially granted on 17th March 2016 on grounds including failure to properly assess whether the Site met LGS criteria and inadequate reasoning. The Grounds were amended in June 2016 to include allegations of apparent bias and breaches of fairness. The hearing was postponed pending a Court of Appeal decision and resumed with further disclosure and submissions, leading to multiple hearings between July and October 2017.
The procedural history includes detailed interactions between the Defendant, the Second Interested Party, the Plaintiff, and the First Interested Party concerning the Neighbourhood Plan's development, consultation, examination, and the role of the Examiner appointed to assess the Plan. The Defendant's officers initially opposed the LGS designation, but following the Examiner's report and consultation with Historic England and local residents, the Defendant resolved to accept the Examiner's recommendations and proceed to referendum.
Legal Issues Presented
- Whether the Defendant was apparently biased in favour of the Second Interested Party during the Neighbourhood Plan process and decision to proceed to referendum.
- Whether the Defendant breached requirements of fairness in the decision-making and examination process.
- Whether the Examiner correctly interpreted paragraph 77 of the National Planning Policy Framework in relation to the Site's designation as Local Green Space.
- Whether the Defendant failed to provide adequate reasons for its change in position supporting the LGS designation contrary to earlier officer views ("the volte-face").
- Whether the Defendant acted ultra vires in relation to the selection of the Examiner and the decision-making process.
Arguments of the Parties
Claimant's Arguments
- The Defendant was apparently biased in favour of the Second Interested Party due to the privileged and extensive role of Mr Peterson (representing the Second Interested Party), including undue influence over the Examiner selection, examination process, and key decision report.
- The Defendant breached fairness by allowing the Second Interested Party confidential and repeated access to officers and members, without equivalent opportunity for the Plaintiff or First Interested Party, including private submissions to the Examiner and influence over procedural matters.
- The Examiner misinterpreted paragraph 77 of the Framework by failing to separately assess whether the Site "served" the local community, and by providing inadequate reasons for the LGS designation.
- The Defendant's officers consistently opposed the designation but did not express their professional views during the examination, and later reversed their position without adequate reasons.
- The selection of the Examiner was improperly influenced by the Second Interested Party, breaching statutory requirements.
- The Defendant failed to comply with the duty of candour by withholding relevant documents until late disclosure.
Defendant's Arguments
- The Defendant's engagement with the Second Interested Party and Mr Peterson was proper, reflecting the statutory duty to provide advice and assistance to qualifying bodies promoting Neighbourhood Plans.
- Lobbying and representations by the Second Interested Party were legitimate and did not amount to apparent bias or unfairness; local authority officers and members are accustomed to such interactions and maintain objectivity.
- The Examiner was properly appointed with the consent of the Second Interested Party and the process complied with Schedule 4B of the Town and Country Planning Act 1990.
- The Examiner correctly interpreted paragraph 77 of the Framework, reading the criteria as overlapping rather than cumulative separate tests; the reasons given were adequate and detailed.
- The Defendant's change in position ("volte-face") was lawful and based on new material considerations including the Examiner's report and Historic England's views, as well as local community support evidenced by a petition.
- The Defendant did not breach the duty of candour; late disclosure arose from evolving issues and the volume of material, without deliberate concealment.
- Allegations of bias or unfairness lack objective foundation when viewed by a fair-minded and informed observer.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Porter v Magill [2001] UKHL 67; [2002] 2 AC 357 | Test for apparent bias: whether a fair-minded and informed observer would conclude there was a real possibility of bias. | The Court applied this objective test to assess alleged bias by the Defendant and its officers and members, concluding no real possibility of bias existed. |
| R (Bewley Homes PLC) v Waverley Borough Council [2017] EWHC 1776 | Duty to give reasons by Examiner limited to explaining recommendations and summarising main findings. | The Court adopted this interpretation to assess the adequacy of the Examiner's reasons, finding them intelligible and sufficient. |
| Tesco Stores Ltd v Dundee City Council [2012] UKSC 13 | Planning policy interpretation is a question of law, requiring objective reading in context. | The Court applied this principle in interpreting paragraph 77 of the Framework, favouring the Defendant’s construction. |
| R (Lewis) v Redcar and Cleveland Borough Council [2008] EWCA Civ 746 | Distinction between political predisposition and predetermination; councillors expected to have views but must approach decisions with open mind. | The Court considered this in evaluating the conduct of local authority members, concluding no closed mind or predetermination was shown. |
| R (Island Farm Development Ltd) v Bridgend County Borough Council [2007] LGR 60 | Requirement for positive evidence of closed mind to establish bias or predetermination in elected members. | The Court applied this standard in assessing the Defendant’s members' conduct, finding no such evidence. |
| R v Secretary of State for the Home Department ex parte Doody [1994] 1 AC 531 | Principles of fairness in administrative decisions, including right to be informed of case to answer and to make representations. | The Court applied fairness principles to assess procedural fairness in the Neighbourhood Plan process. |
| R (Jory) v Secretary of State for Transport, Local Government and the Regions [2002] EWHC 2724 | Fairness spectrum in planning appeals; importance of opportunity to comment on critical issues before decision. | The Court applied this to assess whether procedural fairness was breached, concluding no unfairness causing prejudice. |
| Competition Commission v BAA Limited and Ryanair Limited [2010] EWCA Civ 1097 | Apparent bias test reaffirmed; attributes of fair-minded and informed observer. | The Court applied this test and the attributes of the observer in considering bias allegations. |
| Broadview Energy Developments v Secretary of State for Communities and Local Government [2016] EWCA Civ 562 | Lobbying of decision-makers may give rise to bias allegations but does not necessarily invalidate decisions absent real possibility of bias. | The Court considered lobbying in context and found no real possibility of bias affecting the Defendant's decision. |
| National Assembly for Wales v Condron [2006] EWCA Civ 1 | Consider all circumstances known to the court, not just those known to parties or hypothetical observers. | The Court applied this to consider the full factual context in assessing bias and fairness. |
Court's Reasoning and Analysis
The Court undertook a detailed and contextual analysis of the extensive factual background, statutory framework, and case law relevant to neighbourhood planning, apparent bias, fairness, and planning policy interpretation. It acknowledged the Defendant’s statutory duty to provide advice and assistance to the qualifying body (Second Interested Party) and recognized the legitimate role of lobbying and representation in local government decision-making.
In relation to apparent bias, the Court applied the objective test from Porter v Magill, considering whether a fair-minded and informed observer would conclude there was a real possibility of bias. The Court found that the Defendant’s officers and members maintained objectivity despite persistent lobbying by Mr Peterson and the Second Interested Party. The Court rejected the claimant's submissions that the Defendant was apparently biased, noting the absence of positive evidence of a closed mind or improper influence affecting the decision.
Regarding fairness, the Court concluded that the procedural conduct, including private correspondence and representations by the Second Interested Party, did not amount to unfairness causing prejudice to the claimant. The Defendant afforded the claimant and First Interested Party appropriate opportunities to engage at critical stages, including the examination and key decision.
The Court interpreted paragraph 77 of the National Planning Policy Framework as requiring the three criteria to be read together rather than as separate tests, rejecting the claimant’s narrower interpretation that the Site must currently "serve" the community in a free-standing sense. The Court found the Examiner’s reasons clear, adequate, and legally sound.
On the alleged "volte-face," the Court found the Defendant’s change in position lawful and rational, driven by the Examiner’s report, Historic England’s consultation, and significant local support, all relevant new material considerations justifying proceeding to referendum.
The Court also concluded that the selection of the Examiner complied with statutory requirements and that the Defendant did not breach its duty of candour; late disclosure was explained by the volume of material and evolving issues rather than concealment.
Holding and Implications
The Court DISMISSED the claim for judicial review brought by the Plaintiff challenging the Defendant's decision to allow the Neighbourhood Plan to proceed to referendum, including the designation of the Site as Local Green Space.
The decision confirms the lawful exercise of the Defendant’s statutory functions in the neighbourhood planning process, including the proper interpretation and application of paragraph 77 of the National Planning Policy Framework. It underscores the importance of the objective test for apparent bias and the recognition of legitimate lobbying and political engagement in local authority decision-making. No new precedent was established beyond the application of well-settled legal principles to the facts of this case. The direct effect is that the Neighbourhood Plan, including the LGS designation of the Site, may proceed to referendum as decided by the Defendant.
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