When the great American writer Mark Twain (Samuel Langhorne Clemens) was mistakenly reported as having died he told the New York Journal of 2 June 1897 that: ‘The report of my death was an exaggeration’.
The same might be said about the common law rule of bias and apparent bias. In November 2010 Sir Eric Pickles (then secretary of state for communities and local government in the coalition government) (pictured) published his plans ‘to clarify the law so that councillors are able to get on with the job of representing their residents without fear of being challenged or their decisions being overturned because of accusations of inflexibility or unreasonable bias’.
Pickles pledged in his forthcoming Localism Bill to ‘clarify the law to give councillors the assurance they need to feel confident about campaigning on local issues and championing the rights of residents’. However, in the event, what became section 25 of the Localism Act 2011 (prior indications of view of a matter not to amount to predetermination) merely codified the existing common law position on bias and predetermination.
Since the 1 July 2008 judgment in Persimmon Homes Teesside Limited v R (Kevin Paul Lewis)  EWCA Civ 746 (which effectively raised the evidential bar for those claiming bias or predetermination in local authority decisions), what was once a busy litigious area has now quietened down considerably.
Quietened maybe, but not died, as illustrated by a decision in the Planning Court on 9 October. In Kelton v Wiltshire Council and others  EWHC 2853 (Admin), Cranston J quashed a decision to grant planning permission on the ground of apparent bias.
Bias and apparent bias
The duty on public authorities to avoid bias in their decision-making is essentially part of their duty to act fairly. The modern law of bias and apparent bias (conduct which reasonably conveys an appearance of bias) was settled by Lord Hope in Porter v Magill  UKHL 67, where he indicated that the ‘question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased’.
Although the reference was to a ‘tribunal’, the courts have adopted this test in considering whether any decision of a public body is potentially vitiated by apparent or actual bias. Bias may not always be conscious since (per Lord Steyn in Lawal v Northern Spirit  UKHL 35): ‘Public perception of the possibility of unconscious bias is the key.’
Predetermination (where a decision-maker effectively decides on an issue in advance and closes his or her mind to any other possibility) is also unlawful. Nevertheless, mere predisposition is not since the mind of the decision-maker will then remain open at all material times.
Persimmon Homes Teesside remains the leading case on local authority bias and predetermination, and specifically recognises the contextual difference between judges sitting judicially and councillors fulfilling their democratic functions.
As Lord Justice Pill said: ‘The importance of appearances is, in my judgment, generally more limited in this context than in a judicial context.’ For while the ‘appearance created by a member of a judicial tribunal also appearing as an advocate before that tribunal… may make his judicial decisions unacceptable… the appearance created by a councillor voting for a planning project he has long supported is, on analysis, to be viewed in a very different way’ (emphasis added).
Lord Justice Rix, agreeing, said that ‘there can be no pretence that… democratically accountable decision-makers are intended to be independent and impartial just as if they were judges or quasi-judges. They will have political allegiances, and their politics will involve policies, and these will be known’.
In his view the requirement is not impartiality but to ‘address the planning issues before them fairly and on their merits, even though they may approach them with a predisposition in favour of one side of the argument or the other’.
Kelton v Wiltshire Council and others
Kelton concerned a challenge to a local authority planning decision on the ground of apparent bias. In a brief summary, a councillor on the council’s planning committee (Magnus Macdonald, whose vote carried the decision in favour of granting outline planning permission for the development in question) was a director of the Selwood Housing Association which had an interest in the affordable housing part of the development.
As director, councillor Macdonald received some £3,000 per annum.
In all the facts and circumstances, Cranston J found that councillor Macdonald had no direct pecuniary or proprietary interest in the planning application so as to be automatically disqualified from participating in the decision. Neither did he have a disclosable pecuniary interest under section 31 of the Localism Act 2011. However, there was an issue of apparent bias.
But while in the court’s view, ‘councillor Macdonald’s directorship of Selwood will not be an issue in the great majority of housing applications likely to come before the committee, even those with an affordable housing element… [t]he position in this case is quite different’.
This was because, on the facts, ‘Selwood, with councillor Macdonald as a director, was not simply an affordable housing provider. Here it was the only provider which had been willing to give assistance on the scheme, had expressed a clear interest in delivering it, had been named by the applicants as their potential partner, and had written in support and attended the planning committee meeting when it was considered’.
So Selwood’s position was consequently ‘superior to that of any other interested providers of affordable housing because of its previous involvement and its prospects of winning the contract when the affordable housing part was tendered’. It was because of this that ‘councillor Macdonald’s private interests were engaged, as a director of Selwood and not just his interests in the cause of affordable housing’.
Cranston J observed: ‘The reasonable and fair-minded observer, having the background facts, would have been aware that Selwood had committed time, resources and expertise’ to working with the developers over the design of the affordable housing part of the scheme. In the view of Cranston J, ‘it was highly unlikely that Selwood would have gone to all the trouble it did unless it was seriously interested in delivering the affordable housing part of the scheme and had reason to believe that it stood a good chance of winning the tender once planning permission was granted’.
In all the circumstances, therefore, the court found that ‘it was wrong for councillor Macdonald to have participated in the meeting’ and the planning consent was quashed on this basis.
Following Persimmon Homes Teesside and section 25 of the Localism Act 2011, bias and predetermination will rarely be fatal to local government decisions. However, Kelton does demonstrate the need for everyone proposing to participate in local authority decisions to examine their position with scrupulous care. This should be in the light of how proposed involvement is likely to be seen by critical external observers.
For although the evidential bias hurdle may now be much higher, misjudgements can still kill decisions.
Nicholas Dobson, Freeths