Some years ago, the law concerning the appearance of bias in decisions was high on the radar of local government. On 13 December 2001, the House of Lords in Porter v Magill [2002] 2 AC 357 established the enduring test for apparent bias as being whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility of bias.
However, since then, apparent bias, having been such a canonical part of the legal scenery, may sometimes lose visibility and slip below notice. But if decisions of local and other public authorities are taken without proper regard to the real possibility of bias, this may fatally affect planning and other decisions.
This is what happened on 23 April when lord justices Holgate and Stuart-Smith, and Lady Justice King in the Court of Appeal found in R (Ocean One Hundred Ltd) v New Forest National Park Authority [2026] EWCA Civ 493 that a decision of the New Forest National Park Authority (NPA) to revoke a Certificate of Lawfulness of Existing Use or Development (CLEUD) under section 193(7) of the Town and Country Planning Act 1990 was unlawful because of apparent bias and procedural unfairness. This was because the officer’s report was not fair and balanced, and therefore failed to enable NPA board members to reach independent views on issues which they needed to consider and determine, untainted by apparent bias.
In overview, on 4 July 2007, Jonathan Cox applied for a CLEUD under section 191 of the 1990 act on land near North Ripley, Bransgore in the New Forest National Park. He claimed lawful use for the storage of caravans based on at least 10 years’ continuous use. On 1 August 2008, the NPA granted a CLEUD in broader terms than applied for, certifying the whole site as a ‘caravan site’ apart from a touring caravan storage area. In December 2018, Park One Developments Ltd became the landowner and in Easter 2019 began extensive redevelopment works for 83 permanent mobile homes. This prompted an NPA investigation and enforcement action. On 30 November 2020, Lord Manners, a local resident, requested the NPA revoke the CLEUD under section 193(7). This enables a CLEUD revocation if, on the application, there was a statement or document materially false or material information was withheld. The NPA had lost or destroyed documents relating to the CLEUD application, including site inspection file notes and communications between Cox and the CLEUD team.
On 18 October 2023, the NPA resolved to revoke the CLEUD ‘on the basis of all the reasons as outlined’ in the report of Steven Avery, the NPA’s executive director (strategy and planning), namely, alleged materially false statements or withheld material information. Ocean One Hundred Ltd (which had become the site owner on 23 December 2021) applied for judicial review to quash the revocation. The High Court rejected all challenge grounds. As to Avery’s report, the judge concluded that if the officer had been ‘the ultimate decision-maker’ in this case, he would have found apparent bias. However, the judge concluded that because he was not the decision-maker, the apparent bias ground was not made out.
It was clear following R (Ocado Retail Ltd) v Islington London Borough Council [2021] EWHC 1509 (Admin) that the power to revoke may be used only on one or both of the grounds set out in section 193(7). It may not be used because the local planning authority wishes to revisit the merits of the application or has changed its mind about the findings of fact it made or the inferences it drew, nor may it be used to correct an error of law in the determination of the application under section 191. In the Court of Appeal’s view, where planning authority members are deciding on a CLEUD revocation, they will have to apply the objective statutory tests in section 193(7) to determine whether the power to revoke is engaged, considering the pros and cons relating to the main issues raised by the parties. The officer’s report needs to set out those matters in a fair and balanced way.
However, at first instance, the judge had made a number of findings of apparent bias, including that the officer had sent updates to the pro-revocation side only and had altered the draft with their suggestions; that the officer had provided material to the pro-revocation side confidentially and had also inappropriately deleted one important email chain. In the view of the Court of Appeal, NPA members did not receive a report which was fair and balanced so as to avoid their CLEUD revocation decision being tainted by Avery’s apparent bias. Those materials did not identify material matters that the members needed to assess, nor did they provide objective guidance on how those issues should be considered or their implications for the exercise of the power under section 193(7).
The court said that the failure of the officer’s report to identify and address material issues means that it was not fair and balanced. It failed to enable NPA members to reach independent views on the matters they needed to consider and resolve, untainted by the officer’s apparent bias. The process substantially prejudiced the appellant in its opposition to the CLEUD revocation. There ‘plainly was an appearance of bias on the officer’s part which tainted [his] report and the reliance upon it by the members of the board’. The appeal was therefore allowed since the judge had erred in failing to find that the NPA’s handling of the revocation process was unfair and unlawful.
Nicholas Dobson writes on local government, public law and governance
No comments yet