UK: Bias and Local Authority Decisions

Last Updated: 20 September 2006
Article by Nicholas Dobson

On 25 August 2006 Collins J significantly recharted the application of bias in local authority decision-making when he departed from the leading Georgiou case to accept assertions from the decision-making councillors in question that they had not entered a meeting with closed minds.

The case in question was R (Island Farm Development Ltd) v Bridgend County Borough Council [2006] EWHC 2189 (Admin) which concerned a decision by the Council to refuse to sell to a developer land the Council had previously been in negotiations to sell. This was following a change in political control where local opposition to the proposed development had featured prominently in the local elections. Whilst the case has not altered the fundamental ingredients of bias, Island Farm, if correctly decided, would appear to make it much more difficult for bias to be established in local authority decisions.

It will be recalled that Richards J in Georgiou v Enfield LBC [2004] EWHC 779 in the light of the objective nature of questions of apparent bias had not attached any 'significant weight' to members' witness statements where they stated that they had approached the planning decision in question with open minds. However, Collins J doubted this approach and accepted the evidence before him that 'each member was prepared to and did consider the relevant arguments and each was prepared to change his or her mind if the material persuaded him or her to do so.' Consequently, Collins J was not '. . .prepared to accept that there was apparent bias or predetermination which vitiated the decision.'

In Porter v Magill [2002] 1 All ER 465, Lord Hope had said that whilst the auditor's reasons for rejecting allegations of bias were relevant, nevertheless:

'. . .an examination of them shows that they consisted largely of assertions that he was unbiased. Looking at the matter from the standpoint of the fair-minded and informed observer, protestations of that kind are unlikely to be helpful.'

Consequently, Lord Hope had given no weight to the auditor's reasons. However, Collins J distinguished Porter v Magill in the context of local authority decision-making, remarking that Porter 'was a very different situation' involving 'what amounted to a quasi-judicial decision by the Auditor'. He therefore found it easy in such a case to see why the appearance of bias tests should apply to full extent.

In the course of his judgment, Collins J considered various authorities including the leading case of R v Waltham Forest LBC ex parte Baxter [1988] 1 Q.B. 419 where Sir John Donaldson MR had found that the system of party group discipline did not in itself cause predetermination. For:

'. . . So long as councillors are free to remain members despite the withdrawal of the whip and so long as they remember that whatever degree of importance they may attach to group unity and uniformity with group policy, the ultimate decision is for them and them alone as individuals, I cannot see that there is any undermining of statutory safeguards.'

This is clearly a difficult area. Councillors have a local democratic mandate which is a forceful consideration. Referring to Baxter, in R v Local Commissioner for Local Government for North and North East England, ex parte Liverpool City Council (Court of Appeal, 24 February 2000) (which was not referred to in Island Farm) Henry L.J. said that:

'The line is clear - a local authority councillor is entitled to give weight to the views of party colleagues, but should not abdicate responsibility by voting blindly in support of party policy or party whip'.

However, equally, he sounded a note of caution:

'In some planning applications, particularly those with resource implications, party policy will be a material consideration, but certain planning applications (and I would have thought this was one) would be outside party policies, and it is hard to see how then "heavy and perhaps decisive pressure" at the pre-meeting caucus would be a "material consideration" to be taken into account when exercising the Section 70 powers to determine planning applications under the Town & County Planning Act, 1990.'

Nevertheless, in the circumstances, on issues of 'apparent bias' and allegations of predetermination, Collins J found that:

'The minutes and the record of the conclusions, unless they are a sham, show that the matter was considered without any preconceptions and that the members of the committee did not simply assume that the sale should not be approved.'

This led Collins J to the rather strong statement that:

'. . .in the context of a case such as this I do not believe that bias can exist because of a desire to ensure if possible that the development did not take place. If that approach had been taken, it would have been lawful.'

This was in the light of the important principle that '. . .a judge should not allow his views of the merits of the policy to colour his decision. . .' since '. . .that would be an unwarranted interference in the democratic process.' However, whilst there is certainly a distinction between a predisposition (but with an open mind when the decision is made) and unlawful predetermination, it must surely always be a question of evidence and the particular facts and circumstances as to whether bias or apparent bias can reasonably be said to have tainted the decision in question.

In the circumstances, as indicated, Collins J accepted the evidence of the members in question and was not therefore prepared to accept that there was apparent bias or predetermination which vitiated the decision.'

The decision of Collins J essentially seems to boil down to whether or not in a local authority bias case the evidence of those concerned in the decision (and consequently accused of bias) can be given weight. Collins J chose to accord such weight. However, accepting the distinction between predisposition and predetermination, it is important for decisions of public bodies not to be perceived as tainted by irrelevant considerations. Presumably also it is wise to treat the assertions of those accused of bias with suitable caution. And whilst there is a difference between audit and planning functions, nevertheless, both are to be exercised properly in the public interest having regard to their own material considerations.

In Georgiou Richards J had found that:

'. . .there was a real possibility that the planning committee or some of its members were biased in the sense of approaching the decision with a closed mind and without impartial consideration of all relevant planning issues.'

Richards J had nevertheless counselled 'appropriate caution' since 'it is important not to apply the test in a way that will render local authority decision-making impossible or unduly difficult'.

It is submitted that this is the right approach and is to be preferred to the approach of Collins J in Island Farm. Given the need for local authority decisions not only to be fair and unbiased but also to appear so (and taking account of the cost and administrative inconvenience of a successful bias challenge) Georgiou is more likely than Island Farm to keep members on legally safe ground. For if lawyers can find themselves struggling with the Jesuitical distinction between predisposition and predetermination, members with their political blood up may well come unstuck.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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