National Assembly for Wales v Condron & Anor [2006] EWCA Civ 1573

Case No C1/2006/0086[2006] EWCA Civ 1573
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
[2005] EWHC 3007 (Admin)
ON APPEAL FROM THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION, ADMINISTRATIVE COURT
MR JUSTICE LINDSAY
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Monday 27 th November 2006
Before
LORD JUSTICE WARDLORD JUSTICE WALLLORD JUSTICE RICHARDS
Between
National Assembly for WalesAppellant(1) Elizabeth CondronRespondents(2) Miller Argent (South Wales) LimitedRespondent
(Transcript of the Handed Down Judgment ofWordWave International LtdA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7421 4040 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Timothy Corner QC and Philip Coppel (instructed by the Treasury Solicitor) for AppellantCharles George QC and Alexander Booth (instructed by Richard Buxton Solicitors) for First RespondentKeith Lindblom QC, Rhodri Price Lewis QC and James Pereira (instructed by DLA Piper Rudnick Gray Cary LLP) for Second Respondent
JudgmentLord Justice Richards :
[1]This is an appeal by the National Assembly for Wales (“the Assembly”) from an order of Lindsay J quashing the Assembly’s grant of planning permission for the carrying out of opencast mining and related removal and reclamation operations at a site of some 400 hectares at Ffos-y-fran, near Merthyr Tydfil. The proposed development generated a great deal of local opposition. The first respondent, Mrs Condron, was one of the objectors. The second respondent, Miller Argent (South Wales) Limited (“Miller Argent”), is the developer.[2]The detailed background is set out very clearly in Lindsay J’s main judgment (see [2005] EWHC 3007 (Admin)). A brief summary will suffice at this stage. The planning application was submitted by Miller Argent in April 2003. It was “called in” under section 77 of the Town and Country Planning Act 1990 for determination by the Assembly. An inspector was appointed to conduct a public inquiry. In his report, submitted in November 2004, the inspector recommended that planning permission be granted subject to conditions. In accordance with its standing orders, the Assembly delegated its decision on the application to a Planning Decision Committee (“the PDC”) consisting of four members of the Assembly. The Chair of the PDC was Mr Carwyn Jones AM, the Minister for Environment, Planning and Countryside in the Welsh Assembly Government. At a meeting on 3 February 2005 the PDC resolved that it was minded to allow the application subject to conditions and the completion of a section 106 agreement. A “minded to grant” letter to that effect was issued on 7 February 2005. The PDC authorised the details of the formal permission, including review of the section 106 agreement and the final formulation of the conditions, to be dealt with by officials on its behalf. The formal grant of planning permission followed on 11 April 2005.[3]Mrs Condron thereupon brought a challenge under section 288 of the 1990 Act to the grant of planning permission. The matter came before Lindsay J, who considered the grounds under five headings. He dismissed the challenge under four of those headings but found in Mrs Condron’s favour under the fifth, by which it was contended that the PDC’s decision was vitiated by the appearance of bias arising out of a remark made by Carwyn Jones to an objector the day before the PDC meeting. The Assembly now appeals against the judge’s finding on that issue. The appeal is supported by Miller Argent and resisted by Mrs Condron.[4]In addition, by a respondent’s notice Mrs Condron seeks to uphold the judge’s order on the basis that he ought to have acceded to aspects of her challenge under three of the four headings on which he found against her. I shall defer any consideration of those issues until I have dealt with the issue of apparent bias.

Appearance of bias: introduction

[5]The claim of apparent bias arose out a remark allegedly made by Carwyn Jones to Mrs Jennie Jones, a retired civil servant who lives in Merthyr Tydfil within sight of the proposed development and was a member of a local protest group. Jennie Jones’s evidence was that on 2 February 2005, the day before the PDC met to consider the planning application, she was involved in a demonstration outside the Assembly’s office building in Cardiff. She was invited inside the building by an Assembly member in order to get out of the cold. As she entered the building she saw Carwyn Jones and approached him. What happened next was described in her witness statement as follows: “When I first approached him I spoke in English and I asked him whether I could have a word about the scheme. He asked me whether I was from Merthyr Tydfil and I replied that I was. He did not appear that interested in talking to me. I asked whether he would be willing to continue the conversation in Welsh and he then became more responsive. It was a reasonably brief conversation but during this I explained that he had two little boys and asked him whether he would be concerned about the proposal being developed close to their school. He agreed that it was a concern but concluded, in English, that he was ‘going to go with the Inspector’s Report’. I was disheartened about the discussion and when I returned to our group I explained my conversation to them. I was not surprised to hear that the Planning Decision Committee had approved the Scheme, in my view Mr Jones had already made up his mind. He was also the chair of the group and may have had the opportunity of having the casting vote. … From what Carwyn Jones told me it was absolutely clear that he was not bringing an unbiased properly directed and independent mind to the consideration of the matter. Since he was Chairman of the Planning Decision Committee this was particularly unfortunate” (my emphasis). The point made in relation to Carwyn Jones’s position as Chair of the PDC related not only to a concern that the Chair might have an influence over the debate but also to the fact that the PDC consisted of only four members and if there was an equality of votes the Chair had a casting vote.[6]Following the encounter on 2 February, Jennie Jones’s group made a complaint to the Assembly on the ground that Carwyn Jones had breached the Code of Conduct for members of the PDC by discussing a case with an interested party. The complaint was passed on to the Assembly’s independent Commissioner for Standards, Mr Richard Penn (“the Commissioner”), who investigated the matter and set out his findings in a letter of 13 May 2005. His conclusion was that the complaint was inadmissible since it did not meet one of the criteria laid down in the complaints procedure, namely that “it appears at first sight that, if all or part of the conduct complained about is established to have been committed by the Member, it might amount to a breach of any of the matters encompassed within Standing Order 16.1(i) or (ii)”.[7]The Commissioner said that he had reached that conclusion after a preliminary investigation in the course of which he had interviewed Jennie Jones and other representatives of her group; the Clerk to the Environment, Countryside and Planning Committee (who also clerked the PDC meeting); an official of the Environment, Countryside and Planning Division who was the key adviser to the PDC; and Carwyn Jones himself. As to the relevant facts, the Commissioner stated:
“There is a considerable consensus between Jennie Jones and Carwyn Jones AM about the conversation that took place between the two of them on 2 February 2005. Both said that they met entirely by chance … and that the discussion was brief lasting no more than 90 seconds with no witnesses to what was said. Jennie Jones told me that she could see that Carwyn Jones AM was obviously uncomfortable at talking to her and was ‘itching to get away’. Both agree that the conversation started in English but switched to Welsh soon after. Both agreed that the planning application in respect of Ffos-y-Fran was touched on and that Carwyn Jones AM referred to the Planning Inspector’s Report. However there is disagreement about exactly what Carwyn Jones AM said to Jennie Jones. Jennie Jones claimed that Carwyn Jones AM told her that he was ‘going with the Report of the Inspector’ – she took this to mean that he was going to accept the recommendations in the Report – whereas Carwyn Jones AM said that as soon as he recognised that Jennie Jones was a part of the demonstration against the Ffos-y-Fran application that was taking place outside the building he reverted to English and told her that he could not discuss the matter and that he had not yet read the Inspector’s Report. Both agree that the conversation then ended and he walked out of the Milling Area.”
[8]The Commissioner then referred to certain provisions of the Code of Conduct, to which I will need to return later in this judgment. He said that he had carefully considered all the evidence he had collected. He went on: “It is indisputable that Carwyn Jones AM neither sought nor agreed to a meeting with Jennie Jones as clearly demonstrated by the evidence of both Jennie Jones and Carwyn Jones AM. The meeting was wholly accidental and unplanned. There is disagreement about what was said in part of the conversation that resulted from this accidental meeting but Carwyn Jones AM is adamant that as soon as he realised there was a danger he would be discussing the planning application for the Ffos-y-Fran application he terminated the conversation as quickly as was politely possible. Jennie Jones herself said that Carwyn Jones AM was clearly uncomfortable and ‘itching to get away’. The evidence from the Committee Clerk and from the Environment, Countryside and Planning Division official reinforces the claim by Carwyn Jones AM that he did not form a final view on the application until the conclusion of the Planning Decision Committee. The meeting of the Committee was unusually prolonged as Carwyn Jones AM (who chaired the meeting) and the other Assembly Members on the Committee fully explored the many issues and representations about the scheme before coming to a final decision. Carwyn Jones AM is also adamant that any views expressed by Jennie Jones in the brief conversation on 2 February 2005 did not affect his own consideration of the matter the following day” (original emphasis).[9]The Commissioner concluded: “I have considered whether the mere fact of a meeting and a conversation with someone protesting about an application, however brief and unplanned, could constitute a breach of the Code of Conduct for Members of the Planning Decision Panel by Carwyn Jones AM. I have concluded that it could not. In my view the key test is set out in paragraph 5 of the Code … and I have found no evidence that Carwyn Jones AM failed ‘to act, fairly and even handedly, by bringing an unbiased, properly directed and independent mind to … consideration of the matter’” (original emphasis).[10]It was very soon after the Commissioner’s decision letter that the challenge under section 288 of the 1990 Act was brought against the Assembly’s grant of planning permission. An allegation of bias was included in the grounds of application, though it was not expressed in the terms ultimately advanced before Lindsay J and the grounds made no reference to the conversation between Jennie Jones and Carwyn Jones on 2 February. That conversation was, however, the subject of a witness statement from Jennie Jones which was filed in early July 2005. The Assembly responded in November 2005 with a witness statement from Mr Gareth Rogers, the Deputy Clerk to the Assembly’s Committee on Standards of Conduct, who explained the framework of the complaints procedure and exhibited the Commissioner’s decision letter of 13 April 2005 (which the claimant had already put in evidence). There was no witness statement from Carwyn Jones himself.[11]That was the main evidence before Lindsay J relevant to this issue. At the start of the section of his judgment dealing with the issue, the judge recorded that there was no difference between the parties as to the legal test, which was to be found in Porter v Magill [2002] 2 AC 357 per Lord Hope of Craighead at para 103:
“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.”
The type of bias alleged was described by the judge as “possible predetermination”. He adopted a passage in Georgiou v Enfield LBC [2004] LGR 497, where I myself applied Porter v Magill in a planning context and said at para 31 that it was necessary to consider – “whether, from the point of view of the fair-minded and informed observer, 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.”[12]As to how a possible predetermination was said to have manifested itself in this case, the judge referred to the evidence of Jennie Jones. He then referred to the Commissioner’s decision letter. It will be necessary for me to come back in greater detail to the judge’s treatment of that letter, but it is helpful to note a few points at this stage.[13]First, the judge did not find in the Commissioner’s letter any evidence of a clear denial by Carwyn Jones of Jennie Jones’s account of the words spoken by him during the conversation on 2 February. As the judge put it at paras 63-64: “I accept that the Commissioner did find that there was a ‘disagreement’ as to what was said but that, of itself, does not oblige the conclusion that Carwyn Jones A.M. had denied that the had said the words which Jennie Jones had attributed to him. So far as one can tell Carwyn Jones A.M. did not say words to the effect, for example, that he could not have said that he would go with the Inspector’s Report because he did not at the time know what its conclusion was or that he did not then know what conclusion the Inspector had arrived at or that he had not received the officers’ reports summarising the Inspector’s Report but merely said that he could not discuss the matter and that he had not read the Report, a 70 page document. Nor did he say that he could not discuss the matter as he had not read the report. Merely to assert that he had not read the Inspector’s Report cannot, in my view, be taken to be even an oblique denial of his saying the words which Jennie Jones had attributed to him, a denial which would have been so easy to make had it been open to him. Of course, if the import of the reference to his not having read the Report was that he was going to go with the Report even though he did not know what it contained, that would in no way weaken the allegation against him of pre-determination …. I reiterate that there has been no evidence from Carwyn Jones A.M. in opposition to Jennie Jones’ witness statement of the 6th July, not even after the way the Claimant would put her case to me on ‘bias’ had become entirely clear, nor has there been an application for Jennie Jones’ cross-examination” (original emphasis).[14]Secondly, the judge observed at para 60, by reference to the terms of the complaint, that the question before the Commissioner was whether there had been a discussion of the case with an interested party; the Commissioner was not, strictly speaking, required to be concerned with whether there had been anything said or done that signified possible predetermination. In relation to the Commissioner’s conclusion, which he described as going outside what was strictly necessary to deal with the particular complaint, he said at para 66 that it did not deal with the question with which the judge was concerned, namely the appearance of bias.[15]Having regard to those and other matters, the judge rejected an argument advanced on behalf of the Assembly that he should accept the Commissioner’s conclusion as conclusive on the issue of bias. He said that he had to come to his own decision on the evidence before him. He examined various submissions by counsel for the Assembly and counsel for Miller Argent, before reaching a conclusion expressed as follows (para 75):
“Having heard the argument I conclude that there was an unacceptable possible pre-determination in the Planning Decision Committee that authorised the grant of planning permission that finally emerged on the 11th April 2005. A fair-minded observer, hearing the words which Jennie Jones attributes to Carwyn Jones A.M., on learning that the Minister was to be Chair of the PDC dealing with the application the next day, and even recognising that the PDC could be expected to follow the Inspector’s Report unless there were planning reasons not to, would, in my view, conclude that there was a real possibility that that member of the PDC was biased. He would think the member would be approaching the question of permission with a closed mind and hence also without impartial consideration of all relevant planning issues. His hearing that the Minister had not read the Inspector’s Report would not serve to deny the possibility of bias that he would have concluded existed. That Miller Argent’s application had excited a good deal of controversy and was far from being such that the balance of its merits and demerits could only possibly point one way made the absence of bias more than usually important.”
[16]The judge’s judgment had been reserved at the conclusion of the hearing before him. It was listed to be handed down on Wednesday 21 December 2005. In accordance with the usual practice, the judge made a draft of his judgment available to the parties in advance of hand-down. It was sent to the parties on the afternoon of Friday 16 December. On the afternoon of Tuesday 20 December the Assembly’s solicitors faxed to the judge a witness statement of Carwyn Jones responding to Jennie Jones’s allegation as to the words he used during their conversation on 2 February. In that statement he said:
“In relation to the allegation, as it is now phrased in paragraph 4 of Ms Jones’ statement, I can categorically say that I did not say to her, either in English or in Welsh, that I was ‘going to go with the Inspector’s report’ nor did I say anything of the sort which might have conveyed to Ms Jones the impression that I had already made up my mind either way in respect of the planning application which the Planning Decision Committee was due to consider the following day. In fact, at that stage I had not even read the Inspector’s report, as I stated to the Commissioner for Standards when he interviewed me in relation to the complaint … and as is recorded in the Commissioner’s decision letter ….”
[17]On 21 December the judge was faced with an application by counsel for the Assembly that he should admit Carwyn Jones’s statement into evidence rather than proceeding to hand down judgment in the form of the existing draft. Unsurprisingly, the application was supported by Miller Argent but opposed by Mrs Condron. After hearing substantial argument, the judge delivered an ex tempore judgment refusing the Assembly’s application: that judgment, which is conveniently referred to as his “supplementary judgment” even though it was given immediately before he handed down his main judgment on the section 288 challenge, is reported at [2006] JPL 1512. The judge thereupon handed down the main judgment in materially the same form as the draft that had been made available to the parties.

Appearance of bias: grounds of appeal

[18]The Assembly’s case on the appeal was presented by Mr Corner QC. Neither he nor his junior appeared in the proceedings before Lindsay J. Four grounds of appeal were advanced against the judge’s decision on the bias issue. Three of them (grounds 1, 3 and 4) were directed at the main judgment as handed down; one of them (ground 2) at the supplementary judgment refusing to admit the late statement of Carwyn Jones into evidence.[19]In summary, it is contended by ground 1 that the judge failed to make an express finding whether Carwyn Jones said to Jennie Jones on 2 February 2005 that he was “going to go with the Inspector’s report”; by ground 3 that the judge erred in concluding that the Commissioner’s decision letter did not disclose evidence of a clear denial by Carwyn Jones that he had said the words attributed to him; and by ground 4 that the judge adopted a flawed approach and reached the wrong conclusion in finding that those words, if said, would lead a fair-minded and informed observer to conclude that there was a real possibility that the PDC was biased.[20]It is contended by ground 2 that, if the judge did find that Carwyn Jones said the words attributed to him, he erred in making such a finding without admitting Carwyn Jones’s witness statement into evidence; alternatively, if the judge was entitled to not to admit that statement into evidence, the Court of Appeal should nonetheless admit it now as fresh evidence.

Ground 1: lack of express finding of fact

[21]Mr Corner’s submission is that the alleged utterance by Carwyn Jones was at the heart of the case of apparent bias as presented to the court and it was essential to make a finding on it. Although the judgment discusses over the course of several paragraphs whether it is more likely than not that Carwyn Jones did utter the words, it does not lead to any clear finding on the issue. It is not clear that the judge confronted the necessity of making a decision as to whether the words were in fact uttered. In failing to make an express finding the judge fell into error.[22]In my judgment it is plain on a fair reading of the judgment that the judge did find on the balance of probabilities that Carwyn Jones spoke the words attributed to him by Jennie Jones. It is true that the judge did not spell out that finding in express terms, and it would have been better had he done so. But his reasoning led clearly to that finding and his conclusion on apparent bias would not make sense without it. Thus the finding is to be derived by necessary implication from the judgment.[23]I have referred already to the judge’s repeated references to the absence of a clear denial by Carwyn Jones of the account given by Jennie Jones, including his rejection of a submission that such a denial was to be found in the Commissioner’s decision letter. Having considered that letter, the judge stated at para 68 that he had to come to his own decision on the evidence before him and referred to “the exiguous facts” which a fair minded and informed observer would have to consider. At para 70 he rejected some extremely weak submissions by counsel for the Assembly that there was material inconsistency in Jennie Jones’s account of what had been said and that there might have been a mistake in translation. At para 71, in response to a submission by the same counsel that Carwyn Jones’s remark was no more than a “throw-away” remark, the judge observed that such a remark can be more revealing that a more prepared or studied one might be. At para 72 he recorded an acceptance by counsel for Miller Argent that there had been no denial by Carwyn Jones of his having said the words attributed to him, and proceeded to reject a submission that the words might amount to no more than an indication of a mere predisposition rather than a possible predetermination. Although the judge referred to the words “attributed to” Carwyn Jones rather than to the words “spoken by” him, it seems to me that the judge’s reasoning throughout these passages involves an implicit acceptance that the words attributed to Carwyn Jones were in fact spoken by him.[24]The position is clearer still in the judge’s conclusion at para 75, which I have already quoted. The judge concluded that a fair-minded observer, “hearing the words which Jennie Jones attributes to Carwyn Jones A.M.” (my emphasis), would conclude that there was a real possibility of bias. If the judge had not found that the words were spoken, his conclusion would simply not make sense. A further clear indication that such a finding had been made is to be seen in para 76, where the judge said that the grant of planning permission should be set aside even though “this is a very large consequence for a very small remark” (my emphasis). Again this would not make sense in the absence of a finding that the remark had been made.[25]Mr Corner referred us to Flaherty v National Greyhound Racing Club Ltd [2005] EWCA Civ 1117, in which Scott Baker LJ stated at para 33:
“In my judgment it is an important exercise in an ‘apparent bias’ case to identify with some precision those facts on which the suggestion of bias can be based. The judge did not expressly carry out that exercise in this case. However, the basis for his finding of apparent bias appears by implication to be the material that he has set out in paragraphs 57 to 61 of his judgment.”
[26]In my view Flaherty gives no assistance to the Assembly’s case on this issue. I am in full agreement as to the importance of identifying with some precision the facts on which the suggestion of bias is based. The problem in Flaherty was that the allegation was based on a number of matters and the judge did not identify clearly the matter or matters on which the finding of apparent bias was based. In the present case, by contrast, the allegation was based on only one matter, namely the words allegedly spoken by Carwyn Jones, and the finding of apparent bias could be based only on that matter. Moreover, nothing that was said in Flaherty casts any doubt on the legitimacy of identifying a relevant finding of fact by necessary implication from a judgment even if it has not been spelled out in express terms.[27]I would therefore reject the Assembly’s case on ground 1.

Ground 3: misinterpretation of Commissioner’s decision letter

[28]As I have already said, the judge did not accept that the Commissioner’s letter contained evidence of a clear denial by Carwyn Jones that he had spoken the words attributed to him by Jennie Jones. The judge acknowledged that the Commissioner recorded a disagreement about what was said, but he pointed to the absence of any specific words of denial by Carwyn Jones and observed that Carwyn Jones’s assertion that he had not read the inspector’s report did not amount even to an oblique denial of his saying that he was “going with the report of the inspector”.[29]Mr Corner submitted that the judge’s interpretation of the Commissioner’s letter on this point was erroneous. I agree with that submission. As I read the letter, Carwyn Jones must have denied saying the words attributed to him by Jennie Jones. It is worth repeating the relevant passage: “However, there is disagreement about exactly what Carwyn Jones AM said to Jennie Jones. Jennie Jones claimed that Carwyn Jones AM told her that he was ‘going with the Report of the Inspector’ – she took this to mean that he was going to accept the recommendations in the Report – whereas Carwyn Jones AM said as soon as he recognised that Jennie Jones was a part of the demonstration against the Ffos-y-Fran application that was taking place outside the building he reverted to English and told her that he could not discuss the matter and that he had not yet read the Inspector’s Report” (my emphasis).[30]The reference to a “disagreement”, followed by two contrasting accounts linked by “whereas”, indicates clearly to me that Carwyn Jones had denied Jennie Jones’s account of what he said and had put forward an alternative account. This is reinforced by the further reference, on the next page of the Commissioner’s letter, to “disagreement about what was said in part of the conversation that resulted from this accidental meeting”. In my view the Commissioner would have dealt with this very differently if the account given to him by Carwyn Jones had left room for the possibility of the middle position identified by the judge, in which Carwyn Jones said notonly that he had not yet read the inspector’s report but also that he was going with the inspector’s report – a position that would be inherently very strange and is not supported even by the evidence of Jennie Jones herself.[31]It is of interest, though not strictly a matter of legal relevance, that Jennie Jones understood the Commissioner’s letter in the same way as I do. In her witness statement she refers to the letter and states:
“He noted that the Ffos-y-Fran scheme was discussed, although Mr Jones must have denied saying what he did to me and instead told the commissioner that his comment to me was that he had not yet read the Inspector’s report.”
[32]One of the submissions made by Mr George QC was that, for the purposes of his decision on the admissibility of the complaint, it was not necessary for the Commissioner to establish precisely what was said in the encounter between Jennie Jones and Carwyn Jones: the complaint was that Carwyn Jones had discussed the case with an interested party, and given the accidental nature of the encounter it was evident that that complaint had to fail irrespective of what precisely was said during the encounter. In my view that is too limited an analysis and, in so far as it seeks to downplay the significance of the Commissioner’s exposition of the facts, it is mistaken. Whilst this was a preliminary investigation into a complaint and the Commissioner did not have to resolve any area of factual disagreement that he identified, he evidently considered it necessary to explore in some detail the extent to which the facts put forward in support of the complaint were accepted by Carwyn Jones and, where they were not accepted, what alternative version of the facts was given. That he did so is entirely understandable, since it was relevant both for his assessment of the complaint as formulated, i.e. breach of the requirement not to discuss a case with an interested party, and because he took it upon himself to consider whether there could have been a breach of any other principles to which members were required to adhere under the Code of Conduct.[33]Although I take the view that the judge was wrong to read the Commissioner’s letter as containing no evidence of a clear denial by Carwyn Jones of having spoken the words attributed to him, it does not follow that the judge was wrong to find on the balance of probabilities that those words were indeed spoken. Mr Corner submitted that if the judge had not erred in his interpretation of the Commissioner’s letter he might have reached a different conclusion on whether the words were spoken, since it was a fundamental part of the judge’s reasoning that Carwyn Jones had at no time made a plain denial of having spoken the words in question. In my judgment, however, it is unrealistic to suggest that the judge’s conclusion might have been different if he had read the Commissioner’s letter in the way that I do.[34]The point is straightforward – so straightforward that I find it very surprising that the Assembly’s legal advisers allowed this situation to arise at all. The claimant’s case that Carwyn Jones had spoken the words in question was supported by a witness statement from Jennie Jones herself, complete with statement of truth. There was no application to cross-examine her and no other direct challenge to her evidence. Against that evidence had to be placed the Commissioner’s letter recording, as I have interpreted it, a denial by Carwyn Jones when questioned by the Commissioner on the subject. Self-evidently, such second-hand evidence of a denial could not carry anything like the same weight as the unchallenged witness statement of Jennie Jones. If there was to be a direct challenge to her evidence the obvious course, as the judge made clear, was to file a witness statement by Carwyn Jones, as was eventually sought to be done after receipt of the draft judgment. In the absence of such a statement it was inevitable, in my view, that a finding on the balance of probabilities had to be made in favour of the version given by Jennie Jones.[35]This is a convenient place in which to dispose of one small point concerning the version given by Jennie Jones. According to her witness statement, Carwyn Jones said that he was “going to go with the inspector’s report”. The Commissioner’s letter recorded her as saying that he had told her that he was “going with the report of the inspector”. Like the judge, I see no material difference between those formulations; but in the circumstances I shall use the formulation in her witness statement.[36]Accordingly, whilst respectfully disagreeing with that part of the judge’s reasoning that was directed to the Commissioner’s letter, I do not think that this provides a sufficient basis for interfering with his implicit finding that Carwyn Jones did say the words attributed to him. For that reason the Assembly’s partial success on ground 3 is ultimately of no help to it. The judge’s conclusion as to appearance of bias must be considered on the basis that Carwyn Jones did say to Jennie Jones that he was “going to go with the inspector’s report”.

Ground 4: whether the judge was right to find an appearance of bias

[37]That brings me to what I regard as the central issue in this appeal, namely whether the judge was right to find an appearance of bias on the basis that Carwyn Jones did say the words attributed to him.[38]Neither before the judge nor before us was there any disagreement as to the correct legal test; and I have referred already to what the judge said about that test. Nevertheless I think it important to look in a little more detail at what the test involves. It is helpful to start with a passage from Flaherty v National Greyhound Racing Club Ltd (cited above). The court was concerned in that case with a tribunal hearing, but the principles applied were general ones. Having referred to the basic test stated by Lord Hope in Porter v Magill (cited above), Scott Baker LJ continued, at para 27:
“The test for apparent bias involves a two stage process. First the Court must ascertain all the circumstances which have a bearing on the suggestion that the tribunal was biased. Secondly it must ask itself whether those circumstances would lead a fair minded and informed observer to conclude that there was a real possibility that the tribunal was biased …. An allegation of apparent bias must be decided on the facts and circumstances of the individual case …. The relevant circumstances are those apparent to the court upon investigation; they are not restricted to the circumstances available to the hypothetical observer at the original hearing ….”
[39]That emphasis on the circumstances as they appear to the court after investigation finds expression in various ways in the judgment of Lord Hope in Porter v Magill. The claim of apparent bias in that case was based on a statement in which the district auditor, during the course of his investigation into alleged misconduct, announced his provisional findings at a press conference. It was contended that this suggested that he had a closed mind and would not act impartially in the rest of his investigation. In rejecting that contention, Lord Hope endorsed at para 105 what Schiemann LJ had said in the Court of Appeal, to the effect that whilst there was room for a casual observer to form the view after the press conference that the auditor might be biased, the conclusion to be drawn from an examination of the material before the court was that there was no real danger of bias. Similarly, Lord Hope referred in para 104 to strands in the Strasbourg jurisprudence, on the one hand giving some support for the proposition that the standpoint of the complainant was important and on the other hand emphasising that what is decisive is whether any fears expressed by the complainant are objectively justified. He said that the complainant’s fears were clearly relevant at the initial stage when the court had to decide whether the complaint was one that should be investigated, but they lost their importance once the stage was reached of looking at the matter objectively.[40]Further guidance is to be found in the judgment of Lord Hope in Gillies v Secretary of State for Work and Pensions [2006] UKHL 2. The claim of apparent bias in that case was directed towards the medical member of a disability appeal tribunal, Dr Armstrong. Lord Hope stated at para 17:
“The critical issue is whether the fair-minded and informed observer would conclude, having considered the facts, that there was a real possibility that Dr Armstrong would not evaluate reports by other doctors who acted as [examining medical practitioners] objectively and impartially against the other evidence. The fair-minded and informed observer can be assumed to have access to all the facts that are capable of being known by members of the public generally, bearing in mind that it is the appearance that these facts give rise to that matters, not what is in the mind of the particular judge or tribunal member who is under scrutiny. It is to be assumed … that the observer is neither complacent nor unduly sensitive or suspicious when he examines the facts that he can look at. It is to be assumed too that he is able to distinguish between what is relevant and what is irrelevant, and that he is able when exercising his judgment to decide what weight should be given to the facts that are relevant.”
[41]What, then, are the relevant facts to be gleaned from the material available to the court in the present case?[42]I take as my starting-point the actual words found to have been spoken by Carwyn Jones to Jennie Jones, which were put by the judge into direct speech as “I’m going to go with the report of the inspector”. It was argued before the judge, and repeated before us, that those words go no further than a predisposition on the part of Carwyn Jones to follow the inspector’s report and that a predisposition is to be distinguished from a predetermination or closed mind. The judge rejected the argument, stating at para 72 that the words “suggest a mind made up” and “suggest that so far as the speaker was concerned a conclusion had been reached, and that, on her unchallenged evidence, is how Jennie Jones interpreted them”. I respectfully take a different view. In the light of the guidance to which I have referred, I would not place any weight on how Jennie Jones reacted to the words spoken. And when they are viewed objectively and in their context, the words appear to me to be consistent with the speaker having a predisposition to follow the inspector’s report without necessarily having a closed mind on the subject.[43]We were referred to various cases in which the distinction has been drawn between a legitimate predisposition towards a particular outcome (for example, as a result of a manifesto commitment by the ruling party or some other policy statement) and an illegitimate predetermination of the outcome (for example, because of a decision already reached or a determination to reach a particular decision). The former is consistent with a preparedness to consider and weigh relevant factors in reaching the final decision; the latter involves a mind that is closed to the consideration and weighing of relevant factors. The cases include R v Secretary of State for the Environment, ex p Kirkstall Valley Campaign Ltd [1996] 3 All ER 304 at 320-321, Bovis Homes Ltd v New Forest Plc [2002] EWHC 483 (Admin) at paras 111-113, and R (Island Farm Development Ltd) v Bridgend County Borough Council [2006] EWHC 2189 (Admin) at paras 25-32. I do not propose to quote from them, since I regard the general nature of the distinction as being clear enough.[44]Mr George submitted that in some of the cases the court has been influenced in its approach by a recognition that allowance needs to be made in order to reconcile the responsibilities of public authorities as decision-makers with the workings of the democratic process and the fact that declarations of policy are frequently made in the course of that process. That may be so, but in my view it does not affect the validity of the distinction between predisposition and predetermination.[45]In addition to the words themselves, it is necessary to bear in mind the context in which they were spoken. As regards immediate context, these were a few words spoken towards the end of a short and rather tense conversation, following a chance encounter and without preparation or warning. The judge observed that a “throw-away” remark can be more revealing than might have been a more prepared or studied one. For my part, I think that a remark made in circumstances such as these needs to be treated with a considerable degree of caution. It is a case where the wider picture is particularly important in assessing the significance of the words used.[46]As for that wider picture, reference should be made first to the inspector’s report, which came down with a clear conclusion in favour of the proposed development. At paragraph 356 of the report, the inspector stated:
“Overall, I conclude that the scheme would be in accordance with [the] development plan and national policy and that the benefits would far outweigh the objections. Suitable planning conditions would minimise and mitigate any detrimental impacts. For the above reasons and having regard to all matters raised, I conclude that planning permission should be granted for the proposed development.”
[47]In the light of that report, which Carwyn Jones had received as the responsible Minister, there would be nothing surprising about his having a predisposition in favour of the grant of planning permission as recommended by the inspector.[48]More important, however, is the evidence found in the Commissioner’s decision letter as to what happened at the PDC meeting the day after Carwyn Jones had his conversation with Jennie Jones. In a passage that I have already quoted in full, and based on the evidence given to him by the clerk to the PDC and the official who acted as key adviser to the PDC, the Commissioner stated that the meeting was “unusually prolonged” as Carwyn Jones and the other members “fully explored the many issues and representations about the scheme before coming to a final decision”. That tells against any predetermination on the part of Carwyn Jones or the PDC as a whole.[49]Lindsay J appears to have considered that evidence to be irrelevant on the ground that it would not have been available to the fair-minded and informed observer. He stated:
“66. … Thirdly, it is clear that in his having recourse to representations from Carwyn Jones A.M., from the Committee Clerk and from the official the Commissioner was having access to information quite outside what one could fairly postulate to be available to and to come to the mind of the hypothetical fair-minded and informed observer. Fourthly, the evidence to the Commissioner seems to have included a detailed account of what had occurred at the PDC’s meeting, a thing not only likely to have been in breach of the strict confidentiality provisions of SO 17.14 but which would not have been open to the hypothetical observer and which has been denied to the objectors …. 67. … [The Commissioner] had, as I have mentioned, evidence which would not have been open to the hypothetical fair-minded and informed observer. The evidence before him would seem to have included matters which should not have been before him and which not only would have been denied to the hypothetical observer but, as I have mentioned, were denied to the objectors.”
[50]In my judgment the judge was wrong to adopt that approach. The court must look at all the circumstances as they appear from the material before it, not just at the facts known to the objectors or available to the hypothetical observer at the time of the decision. In treating the Commissioner’s account of the PDC meeting as irrelevant, the judge left out of consideration an important part of the overall circumstances.[51]Standing Order 17.4, to which the judge referred, provides that a PDC shall meet in private and its members shall be under an obligation to observe the confidentiality of any discussion by the committee. Given the nature of the Commissioner’s responsibilities I would be surprised if that was to be read as precluding investigation by him of what happened at a PDC meeting; but whatever the legal position in that regard, the fact is that he did carry out such an investigation and he set out the results of it in his letter, which was sent to the very group of objectors which had made the complaint. It seems to me that the information obtained by the Commissioner about the course of the PDC meeting is not only a relevant matter but also one to which substantial weight can properly be attached even though the information is provided second-hand through the Commissioner’s letter rather than at first-hand from those present at the meeting.[52]A further relevant matter, though one that may not have been advanced in this way before the judge and was therefore not addressed in this context by him, concerns the qualifications for membership of the PDC. By Standing Order 17, the members of the panel from which the PDC was drawn were those “(a) who are members of the Assembly committee having responsibility for planning matters; (b) who have completed a course of relevant training approved by the Chair of the Assembly committee having responsibility for planning matters; and (c) who have agreed to be bound by the current Code of Conduct for members of Planning Decision Committees issued by the Presiding Officer”. Even the most basic course of training in planning matters would bring home the importance of approaching decisions with an open mind and having regard to all relevant considerations. This would be reinforced by the requirements of the Code of Conduct, to which the Commissioner gave detailed consideration in his letter and which include the following: “2. The objective is to ensure that every decision is properly taken and to avoid the risk of a successful legal challenge. Our aim is to ensure that the parties involved in planning cases are dealt with fairly, justly and openly; that all the evidence is fully considered and that decisions are based only on material planning considerations to which all the parties have access. The law protects these principles and decisions can be challenged in the Courts if they are not followed. … 5. Members of a Planning Decision Committee must: act, and be seen to act, fairly and even handedly, by bringing an unbiased, properly directed and independent mind to their consideration of the matter ... 7. Members of the Planning Decision Panel should avoid commenting on any planning application, or matter that might become the subject of a planning application, in case they might be considered to have pre-judged the matter if it subsequently came before the Assembly. If that were the case, the member could not take part in making the decision ...” (original emphasis).[53]In the context of allegations of apparent bias against members of courts or tribunals, weight has been placed on the judicial oath of office and the fact that professional judges are trained to judge and to judge objectively and dispassionately: see, for example, per Ward LJ in Jones v DAS Legal Expenses Insurance Co Ltd [2003] EWCA Civ 1071, at para 28(vi), citing from a judgment of the Constitutional Court of South Africa. Whilst the position of members of a planning committee, even at the level of the Assembly, is of course very different from that of judicial office-holders, the fact that they have received relevant training and have agreed to be bound by a code of conduct is a consideration to which some weight can properly be attached when determining an issue of apparent bias.[54]Those are the various circumstances that seem to me to be of particular significance for the overall assessment. I was not persuaded by Mr Lindblom QC’s submission that significance should also be attached to certain additional documents, in particular the officers’ report to the PDC, the “minded to grant” letter of 7 February 2005 and the letter of 11 April 2005 by which planning permission was actually granted; save perhaps to the extent that the documents post-dating the PDC meeting are consistent in their terms with there having been prolonged discussion of the issues at the meeting as stated in the Commissioner’s letter.[55]I have referred to a number of respects in which, in my view, the judge fell into error by disregarding relevant circumstances or in his assessment of their significance. He appears to have concentrated unduly on the encounter between Jennie Jones and Carwyn Jones on 2 February 2005 and how it would have appeared to an observer at the time, rather than taking into account the totality of circumstances apparent to the court upon investigation. That view is supported by two further passages in his judgment. At para 68 he stated:
“… I have to come to my own decision on the evidence before me … as to whether a fair-minded and informed observer, having considered the exiguous facts, would have concluded on the 2nd February that there was a real possibility that the PDC, meeting for the first and only time the next day, had, amongst its members, one who had appeared to have pre-determined the issue with which it had to deal” (my emphasis). A similar focus on 2 February is apparent from the way in which he expressed his conclusion at para 75: “… A fair-minded observer, hearing the words which Jennie Jones attributes to Carwyn Jones A.M., on learning that the Minister was to be Chair of the PDC dealing with the application the next day … would, in my view, conclude that there was a real possibility that the member of the PDC was biased ….”
[56]The question whether the PDC’s decision was vitiated by an appearance of bias is essentially a question of law, requiring a correct application of the legal test to the decided facts; and to answer the question incorrectly is itself an error of law (see Gillies v Secretary of State for Work and Pensions, cited above, at para 6).[57]In the circumstances I feel entitled, indeed required, to reach a decision on the issue as raised in this appeal by forming a fresh assessment of my own by reference to the various circumstances that I have mentioned. The conclusion I have reached is that a fair-minded and informed observer, having considered all the facts as they are now known, would not conclude that there was a real possibility that Carwyn Jones himself or the PDC as a whole was biased when reaching the decision to grant planning permission. Viewed in its wider context, the brief remark by Carwyn Jones that is at the centre of the case provides an insufficient basis for the suggestion that the decision was approached with a closed mind and without impartial consideration of all relevant planning issues.[58]I would therefore accept the Assembly’s case on ground 4.

Ground 2: the new evidence

[59]The conclusion I have reached on ground 4 is based on the material that was before the judge and was considered by him in his main judgment. Since that conclusion is sufficient for the purposes of the Assembly’s appeal, it is strictly unnecessary for me to deal with the Assembly’s challenge to the judge’s supplementary judgment refusing to admit the late witness statement of Carwyn Jones. I think it right, however, to cover the point.[60]It will be recalled that a witness statement by Carwyn Jones, containing a categoric denial that he had spoken the words attributed to him by Jennie Jones, was filed on the afternoon before the main judgment was due to be handed down (and four days after the draft of that judgment had been made available to the parties).[61]Carwyn Jones’s witness statement did not contain any explanation of why it had not been filed earlier. In fairness to him, however, I should set out the explanation that he gave later, in a second witness statement, which was not available to Lindsay J but is sought to be adduced in support of the present appeal:
“5. The fifth ground of challenge did not refer to my conversation with Jennie Jones. Accordingly, I saw no need to produce a statement dealing with that conversation. 6. Sometime in July 2005, the Appellant’s solicitors were served with a number of statements on behalf of the Claimant. One of these was a short Witness Statement from Jennie Jones, dated 6 July 2005. I was not supplied with a copy of the Witness Statements at the time and, in the ordinary course of events, I was not expecting to be provided with a copy of them. That said, having now seen the content of Jennie Jones’s Witness Statement, I can see that I should have been supplied with a copy of it at the time of its service and that I should have been given the opportunity to give my account of what took place. Had that occurred, I would have stated (and I would have wanted to state) that I did not utter the words that I was ‘going to go with the Inspector’s report’ or any words to that effect. 7. The first time I was advised that I might need to make a statement was on 19th December 2005. At this time I was returning to the United Kingdom from Dubai. 8. Upon my return to Cardiff on 20th December 2005, I met with a lawyer from the office of the Directorate of Legal Services of the National Assembly for Wales and provided my Witness Statement immediately. This was also the first time that I saw a copy of Jennie Jones’s Witness Statement.”
[62]Whilst that statement provides an explanation from Carwyn Jones’s personal viewpoint, it does not touch on the reasons why the Assembly’s legal advisers and officials did not supply a copy of Jennie Jones’s witness statement to Carwyn Jones, or ask him to make a witness statement in response to it, at an earlier stage of the proceedings. It must have been either a deliberate and in my view seriously ill-judged tactical decision or a serious oversight. It would be wrong to speculate further. In any event, as I have said, Lindsay J did not have before him even the explanation given in Carwyn Jones’s second witness statement.[63]In his ruling the judge referred to a number of authorities, including Royal Brompton Hospital National Health Trust Service v Frederick Alexander Hammond & Others [2001] EWCA Civ 778and Robinson v Fernsby & Another [2003] EWCA Civ 1820. Those authorities are discussed at some length in Vol 1 of the 2006 White Book at para 40.2.1. In summary, and at the risk of over-simplification, they indicate inter alia that there is jurisdiction to re-open a case and to alter a judgment that has been made available in draft to the parties (or even a judgment that has been handed down, provided the order has not been perfected), but that the power should be exercised only where there are exceptional circumstances or there are at least strong reasons for doing so.[64]Mr Corner conceded that the judge directed himself correctly as to the relevant principles, but he submitted that the judge’s reasoning was unsatisfactory and that his conclusion was wrong. The justice of the case demanded that the witness statement be admitted into evidence. It went directly to the issue of fact at the root of the ground on which alone the judge allowed the claim. The judge had reached his conclusion on the basis that there had been no clear denial by Carwyn Jones, yet the witness statement contained just such a denial; and to proceed to a substantive judgment on a basis contradicted by the witness statement was at the least highly artificial. Moreover this was an important matter not only for the private parties involved but also for the public, both because of the importance of the development and because the issue went to public confidence in government and in the Minister personally. Admission of the statement would have been in accordance with the overriding objective. If the statement had been admitted, the resulting issue could have been dealt with relatively shortly (there would have had to be a further hearing for cross-examination of Carwyn Jones and probably of Jennie Jones as well). There could have been an appropriate costs order and there would have been no prejudice to the claimant. The judge himself acknowledged that there was “a powerful case for admission of the evidence” (para 16 of the supplementary judgment). His analysis of factors telling in the other direction was defective in various respects and did not establish reasons of sufficient cogency to outweigh the case for admission of the evidence.[65]I do not propose to set out the judge’s detailed reasoning or to engage in a detailed analysis of the various criticisms that Mr Corner made of it. I note that this was an ex tempore judgment and that the focus should be on the substance of the points addressed by the judge rather than on the precise mode of their expression. The essence of the matter was captured in the penultimate paragraph of the judgment:
“There are, therefore, a number of issues that I need to balance. Doing the best I can to take into account the factors that have been laid before me, and bearing in mind that the court normally does have a strong wish to allow evidence in if it is material, as this evidence would undoubtedly be, nonetheless it seems to me right that using the mechanism now employed for handing down judgments is not intended to give an opportunity for issues otherwise lost to be sought to be recovered and, going back to the passages that I have cited from the Royal Brompton case and the Robinson case, it seems to me right here that one must have regard to the need for finality. Here again I note that no witness statement has been given as to exactly how this deficiency came about, but were applicants generally to feel, after seeing the draft judgment in their cases, that there is evidence that could perhaps have turned the balance one way or another and that without even a witness statement to explain its absence they could then adduce that evidence, there would be a very great demerit and finality would be put even further away.”
[66]I am satisfied that the judge gave proper consideration to the various issues canvassed before him and that there is no basis for interfering with his exercise of discretion. Indeed, I would go further and express agreement with the conclusion he reached.[67]Mr Corner submitted that, even if Lindsay J was right not to admit the witness statement in evidence, this court should now admit it. He conceded that he could not satisfy the test in Ladd v Marshall [1954] 1 WLR 1489 for the admission of fresh evidence, since it was impossible to say that the evidence could not have been obtained with reasonable diligence at the trial; but he argued that the Ladd v Marshall test is not applied as a strict rule in judicial review and similar proceedings. In my judgment it is unnecessary to spend any time on the scope or detailed application of the Ladd v Marshall test. Once it is found that the judge was entitled, for the reasons he gave, to refuse to admit Carwyn Jones’s witness statement into evidence before him, it seems to me to be self-evidently inappropriate for this court to admit that same witness statement into evidence on the appeal. Carwyn Jones’s second witness statement does not materially affect the position and there has been no other change in circumstances. I would dismiss out of hand the application to adduce fresh evidence.[68]It follows that in my judgment the issue of apparent bias has to be determined by reference only to the evidence that was before Lindsay J. If it is considered unsatisfactory that an issue of this kind should be resolved on a factual basis that the Minister disputes but has not been able to address in evidence to the court, the blame for that lies squarely with the Assembly for the way in which it has chosen to conduct the litigation. It may, however, be of some consolation to the Minister that even on the factual basis that he disputes I am satisfied, for the reasons I have given under ground 4, that the claim of apparent bias is not made out.

Appearance of bias: conclusion

[69]For the reasons given under ground 4, I would allow the Assembly’s appeal on the issue of apparent bias. That makes it necessary for me to consider Mrs Condron’s respondent’s notice and the alternative bases on which she seeks to uphold the judge’s order.

The issues raised by the respondent’s notice

[70]The issues raised by Mrs Condron’s respondent’s notice relate to(1) an alleged failure to take proper account of certain policy guidance concerning buffer zones around mineral workings,(2) the implications of proceedings in the Assembly on 16 March 2005 concerning proposals for primary legislation that would empower the Assembly to impose buffer zones, and(3) an alleged failure to have regard to certain post-inquiry submissions.[71]Underlying all those legal issues is a matter of intense practical concern to local residents, namely the proximity of the development to some of their homes. The issue is particularly acute for the settlement of Mountain Hare on the western edge of the site and for a group of residences called Incline Side on the south western side of the site.

The judge described the position as follows:

“4. The residents of Mountain Hare, as they turn their eyes towards the site, see first, a little higher than they are, the A4060(T) trunk road (two lanes width in each direction) and then, running parallel to the road, the boundary of the site, and then, almost immediately inside that boundary, a steep man-made bank to a height of about 15-17 metres above the level of the road. There is no constant distance between the edge of the site and the proposed edge of workings; that distance varies greatly from one part of the site to the other. So far as concerns Mountain Hare, the proposed workings, partly consisting of the shifting of the earth and overburden currently in place and partly, then, of opencast mining, will take place a little short of the top of that steep bank, then moving further away as works progress. At Mountain Hare the closest limit to the proposed working lies at a distance of some 40 metres or so, give or take a few metres, further back from the boundary of the site. One objector, Mr W.T. Evans, at Mountain Hare, whose house faces the trunk road, has the front wall of his house about 37 metres from the site boundary and at perhaps 60-70 metres from the nearest point of the proposed workings. Certainly there will be proposed workings which will lie well within 100 metres of the front wall of his house. 5. 14 dwellings lie in the band of being between 0-100 metres from the proposed workings on the site (12 at Mountain Hare, 2 at Incline Side), some 27 dwellings in the band between 100-200 metres, thus making 41 dwellings within 200 metres of the proposed workings on the site. The Inspector notes there to be 61 dwellings within 200 metres of the site boundary. To judge somewhat crudely from the scale on the plans, no house of the 15 or so at the Mountain Hare cluster north of the roundabout is more than about 150 metres from the proposed workings.”
[72]The concerns of those living so close to the site are entirely understandable and it is clear from his judgment that the judge had them well in mind. At the same time, however, it is right to stress that the role of the court is to examine the legality, rather than the factual merits, of the decision to grant planning permission.

Buffer zones: Minerals Planning Policy Wales

[73]The first of the grounds raised by the first respondent’s notice is an alleged failure of the Assembly properly to interpret and take into account existing policy in Minerals Planning Policy Wales (“MPPW”), published in December 2000. That issue is not considered in terms by the judge when dealing with the numerous submissions addressed to him under the heading of buffer zones. Mr Corner suggested that that was because it was in fact a new point. We were assured by Mr George, however, that the point was among those taken by him before the judge, and I am prepared to consider it on that basis.[74]MPPW para 40 states:
“… Buffer zones have been used by mineral planning authorities for some time to provide areas of protection around permitted and proposed mineral workings where new development which would be sensitive to adverse impact, including residential areas, … should be resisted …. The maximum extent of the buffer zone would depend on a number of factors: the size, type and location of workings; the topography of the surrounding area; existing and anticipated levels of noise and dust; current and predicted vibration from blasting operations and availability of mitigation measures. Buffer zones will of necessity vary in size depending on the mineral being extracted and the nature of the operation, but must be clearly defined and indicated in Unitary Development Plans …. Further guidance on the factors that should be taken into account when defining buffer zones for particular minerals will be provided in Technical Advice Notes.”
[75]There are really two steps in Mr George’s submissions. The first is that MPPW laid down a policy that a minimum buffer zone should be provided between mineral workings and residential areas. No relevant unitary development plan and no Technical Advice Note for coal mining had been issued since the publication of MPPW, but the principle was established by MPPW itself. A letter written by Carwyn Jones as Minister for Environment, Planning and the Countryside had acknowledged that MPPW set out “[c]urrent national policy ... for buffer zones around all types of mineral development, their extent to be defined in development plans”.[76]The second step in Mr George’s submissions is that the Assembly, in reaching the decision to grant planning permission without imposing a buffer zone, failed to appreciate that this involved a departure from the policy. The inspector’s report did not make that clear and failed to highlight to members of the PDC that they could impose a buffer zone. Neither the officers’ report to the PDC nor the “minded to grant” letter nor the actual grant of planning permission contained any recognition of the fact that MPPW supported the principle of buffer zones or of the fact that the decision involved a departure from national policy on that issue.[77]I see no great difficulty about the first step in those submissions, provided that the effect of MPPW is not overstated. MPPW can certainly be said to favour buffer zones and even to advocate their adoption. To that extent it contains relevant policy guidance, even though, as Mr Corner submitted, its focus is on the identification of buffer zones in unitary development plans and it also envisages the adoption of more specific guidance by way of a Technical Advice Note for coal mining.[78]I cannot, however, accept the second step in Mr George’s submissions. In my view the relevant policy was both properly understood and taken properly into account in the decision-making process.[79]The inspector’s report contains a factual section on MPPW. One of the parts of MPPW to which reference is made is para 40, which in the inspector’s words “advocates the use of buffer zones to provide areas of protection around mineral workings and says these should depend on the nature of the operation”. He reverts to this in his conclusions, stating at para 319:
“Some objectors have drawn attention to the inclusion of a 500 metre buffer zone around opencast sites proposed in the latest draft of Scottish Planning Policy 16, Opencast Coal, and suggest that Wales should follow suit. In fact, MPPW already advocates the use of buffer zones around mineral workings to avoid conflict with residential areas but advises that their size will depend on the nature of the particular operation. In the circumstances at Ffos-y-fran, where reclamation objectives for that particular area of land are also involved, the assessment of the possible impacts themselves is an acceptable approach, as relying on broad-brush guideline distances would take no account of the particular local circumstances.”
[80]In that passage the inspector acknowledges the MPPW policy in favour of buffer zones but gives reasons why he does not consider a buffer zone to be appropriate in this particular case. Those reasons have to be read in the light of the rest of the report and can be seen to have two elements to them. First, this was not simply a scheme for coal extraction but also one for land reclamation which, as explained elsewhere in his report, was in accordance with the aims and policies of the local plan; and if the development was to achieve the restoration of the land, the land had to be worked upon. Secondly, as also explained elsewhere in his report, the inspector looked carefully at the possible impacts that the workings would have on the health and living conditions of local residents, in particular as regards dust, noise and blasting, and felt able to conclude that the proposed mitigation measures, which would be subject to detailed control by planning conditions, would ensure that the effects were not significant or unacceptable. His reasons, though briefly stated, are adequate, intelligible and rational. They disclose no misinterpretation of MPPW or failure to take it into account or failure to make clear that the inspector was departing from what was advocated in MPPW. Accordingly I see no error of law in the inspector’s approach to this issue.[81]Nothing that happened thereafter generated any error of law on the issue by the PDC. The officers’ report to the PDC agreed generally with the inspector’s report and recommended acceptance of his conclusion. It also drew specific attention at para 35 to the issue of buffer zones, referring to MPPW and summarising the inspector’s view. The “minded to grant” letter of 7 February 2005 stated expressly in para 5 that “[s]ubject to the comments below the Planning Decision Committee agree with the Inspector’s conclusions and accept his recommendation”; in para 7, that the PDC “see no reason to disagree with the Inspector’s conclusion that the general effect on the health of the community would not be significant and that, with the imposition of appropriate conditions, the effect on living conditions of nearby residents from dust, noise and blasting would not be unacceptable”; and in para 12, that subject to certain amendments the PDC “agree with the Inspector that the conditions listed in the Annex to his report would provide adequate and necessary controls over working methods aimed at minimising and mitigating impacts on the environment and local amenity and should be imposed”. The letter of 11 April 2005 containing the actual grant of planning permission added nothing material. What one sees throughout is an adoption by the PDC of the inspector’s approach. If, as I would hold, the inspector’s approach was lawful, then so too was that of the PDC.[82]In the context of this and the next issue, Mr George made much of what was said by Alun Ffred Jones, one of the members of the PDC, in the course of an Assembly debate on 16 March 2005:
“On the buffer zone, with reference to Ffos-y-fran, which has raised the temperature this afternoon, let us make one thing clear: there is currently no guidance on this matter. However, the local authority, as the planning authority … could have indicated that it wanted a buffer zone, but it was impossible, as far as I know, according to official guidance, for the planning decision committee to impose such a condition as it was not mentioned in the inspector’s report. That is the situation as I understand it.”
[83]Alun Ffred Jones had also stated in a letter dated 14 February 2005 to Mr W.T. Evans that “[t]he other problem for those opposing the scheme [at Ffos-y-fran] is that the Government of Wales does not have a policy on buffer zones between open cast sites and residential areas”.[84]The remarks made by Alun Ffred Jones in the course of the debate and in his letter display a regrettable degree of ignorance or confusion on his part, both as to the existence of guidance on buffer zones and as to the power to impose a condition concerning buffer zones. But in my view they do not provide a basis for challenging the PDC’s decision. What the PDC did and the reasons for it are to be derived from the inspector’s report and the committee’s own documents accepting and giving effect to that report. All those documents, as I have indicated, display a correct understanding of the guidance and the legal position concerning buffer zones. It is that material, rather than statements made by one of the PDC members outside the PDC meeting and some time after it, which constitutes the proper basis for determining the lawfulness of the PDC’s decision.

Buffer zones: the Assembly debate of 16 March 2005

[85]The next ground raised in the first respondent’s notice is based on a debate in the Assembly on 16 March 2005 on the issue of buffer zones. It is said that in the light of that debate the PDC ought to have reconsidered its resolution of 3 February 2005 that it was minded to grant planning permission for the development.[86]It is common ground that it was still open to the PDC to reconsider its resolution up to the time when planning permission was actually granted by the letter of 11 April 2005. The approach to be adopted where a new consideration arises between the date of the resolution and the date of grant was discussed by the Court of Appeal in R (Kides) v South Cambridgeshire District Council [2002] EWCA Civ 1370, [2003] 1 P&CR 19. On its facts that was a very different case, involving a five year gap between the planning committee’s resolution in principle to approve a planning application and the issue of a decision notice by the delegated officer granting planning permission; and in the interim there had been major changes in terms of national policy guidance and other circumstances. The case is nevertheless important for the principles laid down in it.[87]Jonathan Parker LJ, giving the leading judgment, referred first to the duty of an authority under section 70(2) of the 1990 Act to have regard to all material considerations when dealing with a planning application. He held that this duty extends up to the issue of the decision notice granting planning permission. He continued: “121. In my judgment a consideration is ‘material’, in this context, if it is relevant to the question whether the application should be granted or refused; that is to say if it is a factor which, when placed in the decision-maker’s scales, would tip the balance to some extent, one way or the other. In other words, it must be a factor which has some weight in the decision-making process, although plainly it may not be determinative. The test must, of course, be an objective one in the sense that the choice of material considerations must be a rational one, and the considerations chosen must be rationally related to land use issues. 122. In my judgment, an authority’s duty to ‘have regard to’ material considerations is not to be elevated into a formal requirement that in every case where a new material consideration arises after the passing of a resolution (in principle) to grant planning permission but before the issue of the decision notice there has to be a specific referral of the application back to committee. In my judgment the duty is discharged if, as at the date at which the decision notice is issued, the authority has considered all material considerations affecting the application, and has done so with the application in mind – albeit that the application was not specifically placed before it for reconsideration. … 126. In practical terms, therefore, where since the passing of the resolution some new factor has arisen of which the delegated officer is aware, and which might rationally be regarded as a ‘material consideration’ for the purposes of s.70(2), it must be a counsel of prudence for the delegated officer to err on the side of caution and refer the application back to the authority for specific reconsideration in the light of that new factor. In such circumstances the delegated officer can only safely proceed to issue the decision notice if he is satisfied that(a) the authority is aware of the new factor,(b) that it has considered it with the application in mind, and(c) that on a reconsideration the authority would reach (not might reach) the same decision” (original emphasis).[88]The question in the present case is whether the Assembly debate on 16 March 2005 amounted to a new factor which might rationally be regarded as a “material consideration” and which ought to have caused the delegated officers to refer the application back to the PDC rather than proceed with the issue of the letter of 11 April 2005 granting planning permission. (In fact the PDC would have had to be formally reconstituted for the purpose, since it ceased to exist on issue of the “minded to grant” letter. But nothing turns on the procedural technicalities. Had officers considered it necessary to refer the matter back to the PDC, such a result could no doubt have been achieved.)[89]The context of the debate was that the Assembly was considering proposals to be submitted by the Welsh Assembly Government for the enactment of primary legislation by the Westminster Parliament. An amendment called for a bill enabling the Assembly “to set a 500 metre separation distance between proposed sites and residential settlements”. As Carwyn Jones, the relevant Minister, observed at the outset of the debate on that amendment, the Assembly already had the power to impose such a buffer zone, and the legislation sought by the amendment would therefore require or commit the Welsh Assembly Government to seek legislation to obtain a power that the Assembly already had. Nonetheless the amendment was passed, by a bare majority.[90]Mr George told us that the reason for the debate was that a number of members wanted to highlight the case for extensive buffer zones around opencast workings. He submitted that the outcome of the debate was the clearest possible indication that the majority view in the Assembly was that buffer zones were appropriate for opencast mining, including at sites such as Ffos-y-fran, to which specific attention was drawn in the course of the debate. There were also suggestions in the debate that, even if the powers already existed, the existence of the legislation sought by the amendment would ensure that buffer zones were applied. One of the members, Janet Davies, asked the Minister for an assurance that, if powers already existed, he would implement a 500 metre buffer zone at Ffos-y-fran. Another, Alun Ffred Jones, made the mistaken comment which I have already quoted to the effect that it was impossible for the PDC to impose a buffer zone at Ffos-y-fran as it was not mentioned in the inspector’s report. The First Minister, in replying to the debate, showed a misunderstanding of the legal position concerning the Ffos-y-fran application when he informed members that planning permission had been confirmed by the PDC and could not be reversed. It is fair to note that he also referred to the difficulty he faced in talking about the Ffos-y-fran decision itself, evidently because of the requirement to respect the confidentiality of the PDC proceedings, but he felt able to say “I do not believe that the issue of the buffer zone and the role of the planning decision committee was as it is now being painted, namely that it was not considered”. He went on to express general agreement with buffer zones but indicated that their width should depend on the circumstances of the case.[91]Mr George submitted that the Ffos-y-fran application ought to have been referred back to the PDC for reconsideration in the light of that debate, especially given the majority view in favour of buffer zones, the First Minister’s own support for the principle of buffer zones, and the fact that one of the members of the PDC had shown a misunderstanding of the existing power of the PDC to impose a buffer zone. In the real world this was a call for the Ffos-y-fran decision to be reconsidered. It was a new material consideration and indeed an important one, and there might have been a different outcome had the matter been reconsidered.[92]The judge rejected Mr George’s submissions on this issue for two main reasons. First, he said that buffer zones formed only a relatively minor part of the totality of the arguments and evidence before the inspector. Secondly, he said that the new factor was one which would “very probably” have made no difference to the PDC’s decision. Mr George submitted that the first reason was irrelevant because the whole point was that the importance of the issue had now become plain in the light of the Assembly debate; and that the judge had adopted the wrong test in his second reason, the correct question being whether the decision would inevitably have been the same (see e.g. Smith v North East Derbyshire Primary Care Trust [2006] EWCA Civ 1291, para 10).[93]Whilst agreeing with the judge’s conclusion on the issue, I do so for somewhat different reasons. In my judgment the Assembly debate was not a new factor capable of amounting to a material consideration in relation to the Ffos-y-fran application. It was a political debate about a request for primary legislation for the conferment of powers which the Assembly already had. It touched on issues already considered by the PDC and included some strong expressions of view about those issues, but it did not lay down any new planning policy and did not give rise to any new planning considerations. As I have held in rejecting the previous ground, the PDC had already given lawful consideration to the question of buffer zones and had accepted the inspector’s approach to the issue. That approach was premised on the existence of a power to impose a buffer zone and recognised the policy in MPPW in favour of buffer zones, but also had regard to the individual circumstances of Ffos-y-fran in reaching a decision that a buffer zone was not appropriate in the particular case. In relation to none of those matters did the debate change anything.[94]It is of course unfortunate that the First Minister advanced the legally erroneous argument that the Ffos-y-fran planning permission had been confirmed and could not be reversed. That error was not, however, material since responsibility for initiating a referral back to the PDC lay with the planning officers and there is nothing to show that they were under the same misapprehension as the First Minister; and in any event, as I have indicated, there was no good reason why the matter should be referred back to the PDC.[95]As to the remarks made by Alun Ffred Jones, I have explained in the context of the previous ground why in my view they do not provide a basis for challenging the PDC’s decision. To apply that reasoning to the present context, it seems to me that, where the inspector’s report and the PDC’s own documents accepting and giving effect to that report all display a correct understanding of the guidance and the legal position concerning buffer zones, it cannot be said that erroneous statements made by one of the members of the PDC outside the PDC meeting and some time after it amounted to a new material consideration requiring the matter to be referred back to the PDC.[96]I should mention finally that Lindsay J dealt at some length in his judgment with Bolton Metropolitan Borough Council v Secretary of State for the Environment (1990) 61 P&CR 343, on which Mr George had placed substantial reliance in his submissions before the judge. Bolton was also referred to in Mr George’s skeleton argument before us, but was touched on only briefly in his oral submissions. I think it unnecessary to set out the detail of the case, for which I can rely on para 24of the judgment below. It suffices to say that the Green Paper proposals that were at the centre of that case involved a fundamental change in the relevant powers of public authorities and therefore in the circumstances affecting the compulsory purchase order with which the case was concerned. That situation is readily distinguishable on its facts from the present case where, for the reasons I have given, the Assembly debate did not in my view give rise to any material change of circumstances.

Post-inquiry submissions

[97]The third and last ground in the first respondent’s notice is that the PDC failed to have regard to post-inquiry submissions made by objectors regarding(i) the existence of previously undisclosed former landfill sites on the application site and(ii) the relevance to the proposals of an epidemiological study called “the Newcastle Study”.[98]These matters were dealt with at some length by Lindsay J in his judgment and it will be unnecessary for me to repeat much of the detail. Part of the argument before the judge has fallen away, in that Mr George made clear before us that he was no longer contending that there was a breach of the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999. His remaining contention was simply that there was a failure to take the post-inquiry submissions into account as a material consideration. That contention faces formidable obstacles.[99]First, there was no duty to take account of post-inquiry submissions at all. Rule 17(4) of the Town and Country Planning (Inquiries Procedure) (Wales) Rules 2003 provides that “[w]hen making its decision, the National Assembly may disregard any written representations, evidence or any other document received after the close of the inquiry”.[100]Secondly, the documents make clear on the face of it that, despite the absence of any duty to do so, the PDC did in fact take account of all post-inquiry submissions. A letter dated 12 January 2005 from Carwyn Jones to the Department of Trade and Industry stated that the PDC would take them into account. The officers’ report to the PDC stated at para 64 that numerous letters of objection had been submitted since the inquiry, mainly on grounds of health, pollution and residential amenity, and that “[t]he matters raised were mostly dealt with at the inquiry and in our view would not materially affect the decision”. The submissions relevant to this ground were listed in a schedule of post-inquiry correspondence; and whilst there is no evidence that the schedule and copies of the correspondence referred to in it were shown to, or made available for inspection by, members of the PDC, there is equally no evidence that they were not. Finally, the “minded to grant” letter of 7 February 2005 stated in terms, at para 11:
“The Planning Decision Committee have reached their decision taking account of all correspondence received after the inquiry had closed and they are satisfied that the correspondence raised no new evidence or new matter of fact which would materially affect their decision.”
[101]Despite that documentary material, Mr George invited the court to infer that the PDC cannot in fact have had regard to the relevant post-inquiry submissions. In my judgment it is impossible to draw such an inference in this case. In order to explain why that is so, I turn to consider briefly the relevant post-inquiry submissions and the way the judge dealt with the issues.[102]The issue of former landfill sites is examined at paras 37-45 of Lindsay J’s judgment. At the public inquiry and in the inspector’s report a lot of attention had been directed towards the existence of former waste tips on the application site, the removal of which was part of the reclamation objective of the proposed development. Following the inquiry, Mr W.T. Evans wrote a letter dated 30 January 2005 to Carwyn Jones, drawing attention to evidence that waste had been deposited over 40 years ago at a tip that had not previously been identified. The judge rejected the contention that there had been a failure to take that letter into consideration. He pointed to the fact that the “minded to grant” letter of 7 February 2005 stated clearly that the PDC had taken into consideration correspondence received after the inquiry. He went on (at para 45):
“They thus were stating that Mr Evans’ letter had been taken into account. There is no proof that that was not so. Whereas, on a subject of real significance, it can often be right to assume that a body’s failure to mention it indicates a failure by that body to have considered it, for the reasons I have given I cannot see that the existence of a small hitherto undisclosed former tip close to a larger known one and consisting of the same type of tipped material as being so significant that it entitles one to jump from its not being expressly mentioned to a conclusion that it had not been taken into account at all.”
[103]I agree. The inspector had heard a lot of evidence about the presence of former waste tips on the application site, the removal of which was part of the reclamation objective, and he had covered the issue in considerable detail in his report. He was satisfied that the proposed development would not give rise to significant health risks and that surface and groundwater resources would be adequately safeguarded. One of the conditions recommended by him and accepted by the PDC was a condition designed to ensure the protection of groundwater resources in the event that any contamination of a nature not previously identified was encountered during the development. In all the circumstances there was nothing about the additional material that required the PDC to deal with it expressly, and it was perfectly rational to take the view that it would not materially affect the decision.[104]The issue concerning the Newcastle Study is examined at paras 46-52 of the judgment below. This was a study carried out in north east England to examine the effects of dust on communities close to opencast coal workings. It was the subject of detailed consideration at the inquiry and in the inspector’s report. Professor Harrison, one of the expert witnesses called by Miller Argent at the inquiry, relied extensively on the study and referred in his main proof of evidence to a number of published papers describing it, including one in 2000 and another in 2003. Dr Holman, another expert witness called by Miller Argent, also referred to the 2000 paper. A copy of the 2000 paper was provided as an appendix to the proof of evidence of Dr Holman, but no copy of the 2003 paper was placed before the inquiry, and it seems that the objectors, who were not legally represented, did not think of asking for a copy at the time.[105]Following the inquiry, however, Mr W.T. Evans engaged in correspondence with one of the authors of the 2003 paper and was sent a copy of the paper. In a letter dated 25 January 2005 to the Planning Inspectorate he made further submissions based on that correspondence and the 2003 paper. First, as regards the health effects of the proposed development, it was submitted by reference to the further material that reliance on the Newcastle Study had been flawed, since the study related only to children and related to sites that were considerably further away from residential communities than at Ffos-y-fran and where the workings were of much shorter duration than was proposed for Ffos-y-fran. Secondly, reliance was placed on passages in the 2003 paper detailing complaints by residents about the environmental impact of workings, in particular as regards dust deposition.[106]In his conclusions on this issue, Lindsay J stated (at para 52):
“Mr Lindblom says, rightly in my view, that Professor Harrison had in mind the distances between workings and residences both as described in the Newcastle papers and as they would be at Ffos-y-fran. He came to a rational and informed professional conclusion which was not successfully questioned at the Inquiry and the Inspector was entitled to accept his evidence. It is not for me, says Mr Lindblom, now to question Professor Harrison’s professional judgment. I accept that argument. The Newcastle Studies were not new material and had been sufficiently taken into account by Professor Harrison on whose conclusions and those of Dr Holman the Inspector was entitled to rely.”
[107]Again I agree. I would add that in my view there was sufficient in the material actually available at the inquiry to make clear that the Newcastle Study related to children and to indicate the distances of the sites from the residential communities concerned, if not also the duration of the workings at those sites. Moreover the 2003 paper can hardly be described as new, given that it was referred to expressly by Professor Harrison not just in his list of references but in the body of his proof of evidence. In any event, the Newcastle Study was taken into account in the detailed consideration given by the expert witnesses at the inquiry, and by the inspector in his report, with regard to the effects of dust on health and amenity. In all the circumstances I am satisfied here too that there was nothing in the additional material that required the PDC to deal with it expressly, and that it was perfectly rational for the PDC to take the view that it would not materially affect the decision.[108]Neither in relation to former landfill sites nor in relation to the Newcastle Study, therefore, is there in my view any basis for going behind the clear indications in the PDC’s documents, in particular in the “minded to grant” letter of 7 February 2005, that the post-inquiry submissions had been taken into account. Accordingly, this final ground of challenge to the PDC’s decision must also fail.

Conclusion

[109]I would allow the Assembly’s appeal on the issue of apparent bias and would also find in the Assembly’s favour in relation to all the matters raised in the first respondent’s notice. In my judgment Mrs Condron’s challenge to the decision to grant planning permission for the Ffos-y-fran development must fail and the order of Lindsay J quashing the decision must be reversed.

Postscript: venue

[110]A final point I should mention concerns the venue for the hearing of this case both at first instance and on appeal. Both hearings took place in London. Yet there are procedures in place to enable Welsh judicial review cases and similar statutory challenges to be heard in the Administrative Court in Wales (see Supperstone, Goudie & Walker, Judicial Review, 3rd ed., paras 20.19.1-20.19.2 for the relevant references); and there are sittings of the Civil Division of the Court of Appeal from time to time in Wales. In my view the present case cried out to be heard in Wales both at first instance and on appeal, and it is a matter of considerable regret that efforts were not made to have it listed for hearing accordingly. Practitioners and listing officers alike need to be alert to this issue.

Lord Justice Wall :

[111]I have had the great advantage of reading in draft the judgment of Richards LJ. I find myself in complete agreement with it. I add a short judgment of my own out of courtesy to Lindsay J and to explain why, like Richards LJ, I part company with the judge on the question of apparent bias.[112]I have to acknowledge that, when I first read the papers in preparation for this appeal, I was attracted by ground 1 in the appellant’s notice. It had clearly been open to the judge to say in terms that he was making a finding of fact on the balance of probabilities that Mr. Carwyn Jones had spoken the words attributed to him by Mrs. Jennie Jones. He had not done so. At first blush it seemed to me at least arguable that a critical element in the determination that there had been apparent bias was, accordingly, missing.[113]Having heard full argument, however, and having read Richards LJ’s judgment, I am satisfied that it is in fact plain on a fair reading of the judgment that the judge did make such a finding, and that his conclusion on apparent bias would simply not made sense without it. Equally, I respectfully agree with Richards LJ firstly, that the proper conclusion to draw from the Commissioner’s report is that Mr. Carwyn Jones had denied uttering the words attributed to him; and, secondly, that a finding that there was a denial (which the judge should have made) is in no sense inconsistent with his finding of fact that the words were spoken.[114]I respectfully agree with Richards LJ that the key to this case is to be found in ground 4 of the appellant’s notice, and with respect to the judge it is clear to me that in the passages from paragraphs 66, 67, 68 and 75 of his judgment, which Richards LJ has cited in paragraphs 49 and 55 above and which I will not set out in full again, the judge applied the wrong test. The extracts which Richards LJ has cited from Porter v Magill, Flaherty v Greyhound Racing Club Ltdand Gillies v Secretary of State for Work and Pensions all make it quite clear, in my judgment, that the test to be applied on the facts of this case is not what the fair-minded and informed observer would have concluded on 2 February 2005, but what the same observer would conclude having considered all the facts as they are now known.[115]In this particular instance, as it happens, and whatever the propriety of the disclosure of the material contained in the Commissioner’s letter, the key facts are(1) that the material was disclosed; and(2) that it was disclosed to the protesters themselves. In my judgment, therefore, the judge was plainly wrong in paragraph 67 of his judgment when he dismissed the evidence contained in the Commissioner’s letter of 13 May 2005 to Mrs. Austin with the words: - …. He (the Commissioner) had, as I have mentioned, evidence which would not have been open to the hypothetical fair-minded and informed observer. The evidence before him would seem to have included matters which should not have been before him, and which would not only have been denied to the hypothetical observer but, as I have mentioned, were denied to the objectors.[116]If the correct test was, as the judge appears to suggest in paragraph 75 of his judgment, limited to the effect on the fair-minded observer who heard the words spoken by Mr. Carwyn Jones on 2 February and who learned that the Mr. Jones was to be the chair of the PDC dealing with the planning application on the following day, the judge’s conclusions in paragraphs 67 and 68 would be correct. But plainly that is not the correct test, and even though the judge, in paragraph 68 of his judgment, imports into his consideration his own knowledge of the contents of the letter of 13 May 2005 from the Commissioner, he nonetheless appears to exclude it as relevant to the test, contained in the same sentence, that the “fair-minded and informed observer, having considered the exiguous facts, would have concluded on 2 February” that there was a real possibility of bias on the part of the Chair of the PDC.[117]I am therefore satisfied that the judge’s misapprehension as to the correct test vitiates his conclusion on the apparent bias issue. It is thus open to us to reach our own conclusion on the issue, and for the reasons given by Richards LJ, I too would find that the allegation of apparent bias is not made out. Accordingly, I would allow the Assembly’s appeal on this one ground.[118]That said, I would like to emphasise my particular agreement with everything Richards LJ says about ground 2 of the appellant’s notice. In my judgment, it is manifestly unacceptable for a party to use the opportunity provided by the court for editorial and typographical corrections to be suggested in a draft judgment prior to hand-down as a means of re-opening an issue on which that party has lost, and which it had ample opportunity to address during the trial. I regard Lindsay’s “supplemental” judgment as a tour de force. I find myself in complete agreement with it, and equally wholly out of sympathy with the predicament in which the Assembly found itself. Whatever the real reason for that predicament, the Assembly plainly had only itself to blame for it.[119]There is nothing I can add to Richards LJ’s exemplary judgment on the cross-notice, save to say that I agree with it. Like him, therefore, I would allow the appeal on ground 4 only.

Lord Justice Ward :

[120]I agree with my Lords that we should allow this appeal and restore the decision of the National Assembly’s Planning Decision Committee granting planning permission, subject to conditions, for the carrying out of open cast mining and related removal and reclamation operations at Fos-y-fran. In deference to Lindsay J., I will state shortly my reasons for disagreeing with his finding that the PDC’s decision was tainted with apparent bias.[121]This was not a case where actual bias was alleged, still less established. It was and is a case of apparent bias. The test is well settled and was indeed common ground here and below. It was stated in paragraph 103 of the speech of Lord Hope of Craighead in Porter v Magill [2001] UKHL 67, [2002] 2 AC 259, and explained by Scott Baker L.J. in Flaherty v National Greyhound Racing Club Ltd [2005] EWCA Civ 1117 at paragraph 27 as Richards L.J. has already set out in paragraphs 11 and 38 above. The question is, therefore, whether the reasonable, fair-minded and informed observer would conclude that there was a real risk that Carwyn Jones AM was biased because his mind was closed by his predetermination to endorse the Inspector’s Report. That judgment must be made looking at the matter objectively balancing his comments to Mrs Jennie Jones against any contrary evidence.[122]The starting point must be his remark that he was “going with the Inspector’s Report”. The meaning of those words are not certain. They are capable of meaning either that he had made up his mind with the implication that it was closed to any argument or merely that his preliminary view was in favour of the Report but that his mind was still open to argument. It does not seem to me, construing the words in the context in which they were said, that the latter meaning is so clear that the possibility of his having predetermined the issue can be described as fanciful. The words themselves must, therefore, give rise to the real possibility of bias and the judge was right so to find. That, however, is not the end of the matter and therein lay the judge’s error. The informed observer would not make up his mind having regard solely to what he heard, but to all the relevant facts and circumstances of the case and as Scott Baker L.J. has said: “The relevant circumstances are those apparent to the court upon investigation; they are not restricted to the circumstances available to the hypothetical observer at the original hearing. …”.[123]The question then is:
“What are the relevant circumstances?”
. Whatever my reservations expressed during the course of the argument, I am now fully satisfied that it is permissible to take account of what actually happened when the PDC made its decision. In Porter the Court did not confine itself to what occurred at the press conference when the provisional views of the auditor were expressed: the way he took his final decision was also relevant. As Lord Hope said in paragraph 105:
“He [the auditor] was at pains to point out to the press that his findings were provisional. There is no reason to doubt his word on this point, as his subsequent conduct demonstrates.” (Emphasis added by me).
[124]So too in Gillies v Secretary of State for Work and Pensions [2006] UKHL 2, [2006] 1 WLR 781 where the possible bias of the medical member of the Disability Appeal Tribunal was in issue, the facts taken into account by the House of Lords included an analysis of the actual decision of the Tribunal.[125]Thus I am now fully satisfied that it is permissible to have regard to the unchallenged report of the Commissioner for Standards that the deliberation of the PDC was:
“… unusually prolonged as Carwyn Jones AM (who chaired the meeting) and the other Assembly Members on the Committee fully explored the many issues and representations about the scheme before coming to a final decision.”
[126]One cannot read too much into that. True it is that if the meeting of the PDC had been all over in a matter of minutes, then the inference that minds had been made up in advance would be the stronger. That the deliberations lasted so long smacks much more of open minded debate than of blind, pig-headed adherence to pre-cast, set views. It militates against the possibility of bias.[127]The nature of the issue to be resolved is another relevant factor. Here there had been a full inquiry held before the Inspector. The Merthyr Tydfil County Borough Council supported the application for planning permission. No substantive objection was offered by any of the statutory consultees. The opposition case was fully presented at the inquiry. The conclusion of the Inspector’s thorough Report was to recommend the planning permission being granted. The officers of the Assembly’s Planning Division accepted that conclusion subject to conditions. Of course it was open to the members of the PDC to come to a concluded view that the recommendation should not be accepted but they would need good planning grounds to do so and it would not come as a surprise to the fair-minded informed observer that a provisional view was in favour of endorsing the recommendation. It would perhaps be surprising if it were otherwise. In those circumstances, “I am going with the Inspector” is much more likely to mean, “On all I have read and all I know at the moment, but subject to further argument, I am going with the Inspector”.[128]The observer who is neither complacent nor unduly sensitive or suspicious can, however, be taken to appreciate that, even though the members of the PDC are not judicial officers who have taken their judicial oath, nonetheless they had by the Standing Orders of the Assembly completed a course of relevant training, they had agreed to be bound by the current Code of Conduct and that required their “bringing an unbiased, properly directed and independent mind to their consideration of the matter.” It would be a total abnegation of those duties to enter the Committee Room with a mind immovably made up. This was a highly sensitive decision to take and the fair-minded observer would assume that it would be taken fairly and justly.[129]It would have been obvious to all that the developers’ proposals would arouse passion in the local community. Indeed, in the conversation with which we are concerned, reference was made to its impact on the children in the locality. Lord Hope defined impartiality in Gilles in this way at paragraph 23:
“Impartiality consists in the absence of a predisposition to favour the interests of either side in the dispute.”
Yet there was nothing anywhere to suggest that Carwyn Jones had taken side one way or the other.[130]Carwyn Jones’ words were unwise, even injudicious, and hearing them might well have caused eyebrows to rise. But the informed observer would pause and stand back, then look at all the facts objectively. He would know that professional detachment and the trained ability to exercise independent judgment lie at the heart of the exercise of his function as a decision-maker especially in a case of such importance and sensitivity for the local community that it required the PDC to decide it. Bearing all matters in mind, the fair and informed observer would not, in my judgment, find that there was a real possibility that the Chairman of this Committee had predetermined the issue. The facts do not give rise to a real possibility of bias.[131]For those short reasons and for the reasons much more fully set out by Richards L.J., with which I agree, I would allow this appeal. I wish to express particular agreement with the postscript to his judgment. If ever there were a case to be heard in Wales, this was it and I repeat my apologies expressed at the conclusion of the hearing to all of those who had needlessly to travel to London.

Cited in 25 later judgments

and 16 more of the most senior