Persimmon Homes Teesside Ltd v Lewis, R (on the application of)

Factual and Procedural Background

This appeal arises from a judgment quashing planning permission granted by a local council ("the Council") to a development company ("the appellants") for a mixed-use redevelopment project at Coatham Enclosure. The permission, granted by the Council's Planning Committee at a special meeting during the pre-election period, was subject to over 40 conditions. The respondent challenged the grant on grounds including alleged bias or predetermination by the Coalition members of the Committee and failure to comply with conservation regulations. The original judge quashed the permission on the basis of apparent bias or predetermination. The Council opposed the quashing but did not appear on appeal. The appellants appeal the quashing, and the respondent has filed a respondent's notice challenging the Council's compliance with habitat conservation regulations.

Legal Issues Presented

1. Whether the Planning Committee's decision to grant planning permission was unlawful due to actual or apparent bias or predetermination by Committee members, particularly in the context of the decision being taken during the pre-election period.
2. Whether the Council, as competent authority, lawfully complied with regulation 48 of the Conservation (Natural Habitats &c) Regulations 1994 in making an appropriate assessment of the implications of the development on a nearby Special Protection Area (SPA).
3. The appropriate legal test to apply to claims of bias or predetermination in the context of elected local authority decision-makers taking planning decisions.

Arguments of the Parties

Respondent's Arguments

• The grant of planning permission was unlawful due to an appearance of bias or predetermination by Coalition members of the Planning Committee, who had effectively closed their minds to the planning merits, motivated by political considerations during the pre-election period.
• The Council failed to properly apply regulation 48 of the 1994 Conservation Regulations by not making an appropriate assessment or ascertaining that the development would not adversely affect the integrity of the SPA.
• The timing of the Planning Committee meeting during the pre-election period breached the Council’s own guidance and gave rise to a real possibility of bias or predetermination.
• The Council’s entering into a development agreement before the election demonstrated political motivation to bind the hands of the incoming administration and supported the claim of predetermination.

Appellants' Arguments

• The test for bias or predetermination applicable to elected local authority members is one of actual bias or predetermination, not apparent bias, given their democratic role and political accountability.
• The Planning Committee members had not closed their minds and approached the decision with an open mind, considering all relevant planning merits.
• The decision to hold the meeting during the pre-election period was lawful, justified by logistical reasons including the availability of the Monitoring Officer and the need to avoid undue delay.
• The Council had complied with regulation 48 by delegating assessment to qualified officers and consulting appropriate conservation bodies, whose recommendations were considered by the Committee.
• The development agreement was confidential and its existence did not prove predetermination or political motivation to an extent invalidating the decision.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analysed the nature of bias and predetermination in the context of elected local authority members making planning decisions. It acknowledged that members naturally have political predispositions and that these do not amount to unlawful bias if members consider all relevant material with an open mind. The court emphasized the distinction between judicial/quasi-judicial decision-makers and democratically accountable councillors, noting that the latter are not required to be impartial in the judicial sense but must fairly consider planning merits.

The judge below had found a real possibility of bias based on several factors, including the timing of the meeting during the pre-election period, political controversy, unanimous coalition support, and a development agreement signed before the election. The appellate court found these factors insufficient to establish apparent bias or predetermination. It gave weight to the evidence that the meeting was held at the earliest practical date with proper advice, that members received training, and that the Committee heard representations and considered the planning merits.

Regarding the conservation regulation claim, the court found that the Council had delegated the appropriate assessment to qualified officers who consulted the designated conservation bodies. Those bodies withdrew objections subject to conditions, which were imposed. The Committee had expert advice and reasons to conclude the development would not adversely affect the SPA, satisfying regulation 48.

The court held that the fair-minded and informed observer would not conclude there was a real possibility of bias or predetermination, nor that the Council failed in its statutory duties under the conservation regulations.

Holding and Implications

The appeal is allowed.

The court reversed the quashing of the planning permission, holding that the Planning Committee's decision was lawful and not vitiated by apparent bias or predetermination. The decision to hold the meeting during the pre-election period was justified by practical considerations and did not create a real risk of closed minds. The Council complied with its obligations under the Conservation (Natural Habitats &c) Regulations 1994. The respondent's challenge on those grounds was dismissed.

The ruling reinforces the principle that elected local authority members are entitled and expected to have political predispositions and that the test for bias must be adapted to their democratic role. It confirms that apparent bias requires clear and unusual circumstances to invalidate planning decisions and that routine political factors and timing issues do not suffice. No new precedent was established beyond the application of established legal principles to the facts.