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Apparent Bias in Planning Inquiries

Hereward Phillpot QC

The High Court (Ouseley J) has handed down judgment in the case of Satnam Millennium v. Secretary of State for Housing, Communities and Local Government [2019] EWHC 2631, and provided some important clarification on the approach to apparent bias challenges relating to planning inquiries.

The case concerned an application under s.288 TCPA 1990, challenging a decision of the Secretary of State to dismiss an appeal against refusal of planning permission for up to 1200 dwellings.  Although the application succeeded on grounds relating to the Secretary of State’s approach to the issue of deliverability, the main point of general interest and wider application lies in the unsuccessful attempt to argue that the Inspector’s conduct during the Inquiry and Site Visit gave rise to the appearance of bias (see pages 40-99 of the Judgment).

In rejecting that ground of challenge, Ouseley J dealt with the following points of approach:

  1. The cases of Simmons v. SSE [1985] JPL 253 and British Muslims Association v. SSE (1988) 55 P&CR 205 were both decided by reference to a now superseded test for apparent bias, rather than the modern test of looking at matters from the perspective of the objective and fully informed observer.  It is not certain if the outcome of those cases would have been the same, and neither case can be regarded as useful applications of the modern test.
  2. The suggestion made by Vincent Fraser QC, sitting as a Deputy High Court Judge in R (Tait) v. SSCLG [2012] EWHC 643 (Admin) that the general approach from the cases was that “if an inspector has a conversation about the case with one party in the absence of the other, that raises a real risk that justice will not be seen to be done” is “far too general a comment to be of assistance, and draws too heavily on old cases to provide a useful test.”
  3. Ouseley J “very much [doubted] the value of the continued citation of cases which precede or which did not expressly apply the test in Porter v. Magill”.
  4. Where the decision is made by the Secretary of State, and the allegation of apparent bias concerns the actions of his Inspector, it is necessary to ask whether the fair-minded observer, knowing all the facts and the composition and remit of both the advisory body and the deciding body, would conclude that there was a real possibility that, if the advice was tainted by apparent bias, the decision had also been affected.
  5. If a party witnesses conduct in a public inquiry that is said to give rise to apparent bias, but decides not to raise its concerns with the Inspector, it thereby waives its right to complain about them.  Parties cannot simply remain silent and let the case continue to run, in the hope that they might nevertheless win.  There is no public interest in having to re-run an Inquiry because of apparent bias, if the factor leading to a concern about apparent bias can be disposed of at the time.
  6. The approach to waiver might, however, be different if raising the concern would not have enabled it to be remedied during the Inquiry.

The case also provides useful commentary on the legitimate scope for a degree of informality, humour and interaction between an Inspector and parties to a public inquiry, both inside and outside the inquiry, and during an accompanied site visit, without giving rise to an appearance of bias. 

Hereward Phillpot QC appeared on behalf of the Secretary of State.