Three (relatively) recent cases – and one old chestnut
(Pic: Alison Ferguson)
Three (relatively) recent English cases are of interest to us north of the border when thinking about decision making, particularly but not solely in a local government context.
Bias and Predermination
In Webb, R. (On the Application Of) v London Borough Of Bromley  EWHC 2091 (Admin) the court held that a planning committee decision to grant permission for an endoscopy unit was not tainted by bias, even though one councillor was a governor of the NHS trust that was the applicant.
Cllr Anthony McPartlan declared an interest as a governor of the NHS Foundation trust, but continued to participate in the meeting and indeed spoke in favour of the application (in terms of the Scottish Councillors’ Code of Conduct, any interest would have meant that he should have withdrawn from the meeting).
The officers’ recommendation was for refusal. However, the committee voted 8 – 7 in favour of approval. It appeared that, as well as his own governorship, Cllr McPartlan’s wife was a patient governor of the trust, and that they were co-trustees of a charity aimed at helping leukaemia sufferers and the ‘chronically ill.’
Following the well known test in Porter v Magill, Mr Justice Lane took the view that the reasonable observer would not consider there was the appearance of bias:
‘In conclusion, I find that the hypothetical observer would not consider there to be a real possibility that Councillor McPartlan was biased towards the application to build the endoscopy unit at the PRUH because of his wife's experiences and the existence of the Billie's Fund charity. I do not consider that, viewed together, the position of Councillor McPartlan as a governor and his and his wife's involvement in Billie's Fund would cause the hypothetical observer to find a real likelihood of bias. Their overall view would be that Councillor McPartlan, like very many others, has an interest in local healthcare provision. The fact that his interest took the form it did is not indicative of bias.’
He also found no evidence of Cllr McPartlan having predetermined the outcome of the planning application.
Removal of the right to vote
Decision making on any planning application is fraught with difficulty. In The Spitalfields Historic Building Trust, R (On the Application Of) v London Borough Of Tower Hamlets the planning authority had made a rule in its standing orders that councillors who had not been present at a previous meeting which considered a planning application could not participate in decision making. The standing orders were made in terms of the Local Government Act 1972 (the equivalent of our 1973 Act).
Counsel for the applicant initially argued that the rule itself was irrational; and that the statute did not empower the council to remove the basic right to vote in certain situations for councillors.
The court quickly concluded that the standing order was not irrational. As regards the statutory provision, Lord Justice Coulson said that the plaintiffs’ argument had now been driven to an ‘extreme’ position ‘that, since the right to vote was implicit in the 1972 Act, it could only be restricted or removed by express statutory provision and not otherwise. In effect, [their] argument was that a restriction on voting of this kind could only be made by statute, and not by standing order.
‘That is a very wide-ranging submission, with potentially significant consequences. Given that the statutory exceptions are so modest, it would mean that, potentially, a large swathe of local authority voting restrictions of this kind, in force all over the country, would be unlawful. I do not accept this submission. I can see no basis for it in the 1972 Act.’
Decisions taken by officers and rationality
Finally on recent cases, in R(Romeo Dance Academy Ltd) v Milton Keynes, the Council had approved an application for a night homeless shelter near a dance academy. The Academy claimed that the Council had breached its own Scheme of Delegation, in that a planning officer had taken the decision when the Council’s Scheme said any applications likely ‘in the opinion of the delegated officer’ to be ‘of a controversial nature,’ had to be referred to members for a decision.
Ultimately the decision turned on whether the officer’s decision not to refer the matter to committee was ‘Wednesbury unreasonable’ or not. Taking into account the fact that most of the objections were from customers of the Academy, and that there had been an attempt to ‘garner’ objections from customers, the court held that the decision did not achieve the ‘high test’ of Wednesbury unreasonableness, and the decision to grant permission stood.
The Old Chestnut
And finally, for anyone who, like me, wasn’t clear on whether the three clear days for agenda issue were working days or not, the relevant case is actually quite elderly, namely R. v Swansea City Council, ex p Elitestone Ltd. (1993) 66 P. & C.R. 422.
In short, you don’t include the day of issue or the day of the meeting – there has to be three clear days between them. And it’s working days only.