‘Members were therefore bound to have regard to advice of the planning officers with regard to planning applications. The whole point, however, of having local authority members as ex officio members of the Authority is to ensure that the Authority’s primary focus on conservation is tempered by an appreciation of the needs and wishes of local people as expressed by their democratically elected representatives. There is nothing intrinsically wrong therefore if the Planning Committee does not invariably follow the advice of its officers. The purpose of the Code of Conduct is to ensure that members act solely in the public interest: it is not to frustrate them from carrying out the role for which they were elected or appointed. When reaching its decision to grant planning permission, members of the Committee recorded their reasons for the decision in the minutes of the meeting of28th January 2004 (in accordance with paragraph 8(c) of the Code of Conduct). The reasons for granting consent include consideration of the impact of the development on the National Park, what they considered to be the economic benefits of the development and that none of the statutory consultees objected to the development. Having regard to those reasons, I see no evidence that the members’ opinion and the way they voted on the application were based on anything other than what they regard as the merits of the case and what they see as the public interest (as opposed to their own private personal interests) or that they have failed to have regard to officers’ advice. I do not therefore consider there has been a breach of paragraph 8 of the Code of Conduct.’
‘[The planning authority] is at liberty to depart from the development plan if material considerations indicate otherwise. No doubt the enhanced status of the development plan will ensure that in most cases decisions about the control of development will be taken in accordance with what it has laid down. But some of its provisions may become outdated as national policies change, or circumstances may have occurred which show that they become outdated as national policies change, or circumstances may have occurred which show that they are no longer relevant. In such a case the decision where the balance lies between its provisions on the one hand and other material considerations on the other which favour the development, or which may provide more up-to-date guidance as to the tests which must be satisfied, will continue, as before, to be a matter of the planning authority.’
‘In the practical application of section 18A it will obviously be necessary for the decision maker to consider the development plan, identify any provisions in it which are relevant to the question before him and make a proper interpretation of them. His decision will be open to challenge if he fails to have regard to a policy in the development plan which is relevant to the application or fails properly to interpret it. He will also have to consider whether the development proposed in the application before him does or does not accord with the development plan. There may be some points in the plan which support the proposal but there may be some considerations pointing in the opposite direction. He will require to assess all of these and then decide whether in light of the whole plan the proposal does or does not accord with it. He will also have to identify all the other material considerations which are relevant to the application and to which he should have regard. He will then have to note which of them support the application and which of them do not, and he will have to assess the weight to be given to all of these considerations. He will have to decide whether there are considerations of such weight as to indicate that the development plan should not be accorded the priority which the statute has given to it. And having weighted these considerations and determined these matters he will require to form his opinion on the disposal of the application. If he fails to take account of some material consideration or takes account of some consideration which is irrelevant to the application his decision will be open to challenge. But the assessment of the considerations can only be challenged on the ground that it is irrational or perverse. Counsel for the Secretary of State suggested in the course of his submissions that in the practical application of the section two distinct stages should be identified. In the first the decision-maker should decide whether the development plan should or should not be accorded its statutory priority; and in the second, if he decides that it should not be given that priority it should be put aside and attention concentrated upon the material factors which remain for consideration. But in my view it is undesirable to devise any universal prescription for the method to be adopted by the decision-maker, provided always of course that he does not act outwith his powers. Different cases will invite different methods in the detail of the approach to be taken and it should be left to the good sense of the decision-maker, acting within his powers, to decide how to go about the task before him in the particular circumstances of each case. In the particular circumstances of the present case the ground on which the reporter decided to make an exception to the development plan was the existence of more recent policy statements which he considered had overtaken the policy in the plan. In such a case as that it may well be appropriate to adopt the two-stage approach suggested by counsel. But even there that should not be taken to be the only proper course. In many cases it would be perfectly proper for the decision-maker to assemble all the relevant material including the provisions of the development plan and proceed at once to the process of assessment, paying of course all due regard to the priority of the latter, but reaching his decision after a general study of all the material before him. The precise procedure followed by any decision-maker is so much a matter of personal preference or inclination in light of the nature and detail of the particular case that neither universal prescription nor even general guidance are useful or appropriate.’
‘In his speech Lord Clyde rejected the Secretary of State’s submission that the new section always requires a two-stage approach, the first stage being for the decision-maker to decide whether or not the development plan should be given it statutory priority. This appeal shows that there are cases, of which this is a striking example, when the first stage must be for the decision-maker to decide whether the proposed development is or is not in accordance with the development plan. Sometimes, of course, the answer to that question will be obvious (for instance, the development plan may have a bald and unqualified prohibition on open-cast mining or quarrying in a conservation area). But more often the development plan will (as in the City of Edinburgh Council case, and as in this case) contain exceptions, qualifications, overlapping or even contradictory policies and issues on which value judgments have to be made. In such cases it is desirable that planning officers should state their perception as to whether or not any proposed development is in accordance with the development plan, and that the planning authority should state whether or not it accepts and agrees with the officers’ advice. I do not intend to give any encouragement to the lengthy recital of policies as a matter of rote. What is important is for it to be apparent how the decision-maker has approached the important new statutory duty imposed by section 54A.’
‘36. The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the ‘principal important controversial issues’, disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on the relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision.’
‘The NPA will only permit major development schemes in the NP in exceptional circumstances. Proposals will not be permitted unless the following criteria are met in full: (1) the proposal is in the public interest, and would contribute to an overriding national need; (2) the cost and scope for the development outside the NP has been examined and no suitable alternative site is available; and (3) the cost and scope for meeting the need in some other way has been examined and no suitable alternative is available; (4) the proposal’s contribution to national need can clearly be demonstrated to outweigh any harm or risk to the local or wider environment; (5) direct and indirect adverse impacts during construction, operation and decommissioning can be minimised to an acceptable level. Proposals should also have full regard to the reasons for and purposes of NP designation.’
‘In National Parks or AONBs, special considerations apply to major development proposals which are more national (‘National’ in this context means UK) than local in character. Major developments should not take place in National Parks or AONBs except in exceptional circumstances. This may arise where, after rigorous examination, there is demonstrated to be an overriding public need and refusal would be severely detrimental to the local economy and there is no potential for locating the development elsewhere or meeting the need in some other way. Any construction and restoration must be carried out to high environmental standards. Consideration of applications for major developments should therefore include an assessment of: the need for the development, in terms of national considerations, and the impact of permitting it or refusing it upon the local economy; the cost of, and scope for, providing the development outside the designated area or meeting the need for it in some other way; Any detrimental effect on the environment and the landscape, and the extent to which that could be moderated.’
‘He referred to the Development Control Officer’s comments about the “edge” of the National Park, which he felt were irrelevant. The Park was important to many people, most of all to those who lived within it. The applicant said that the jobs to be created would be genuine full-time jobs and this was what the people of Pembrokeshire needed. The area desperately needed full time employment at full industrial rates, and it was needed within the National Park. Whilst it was delightful to have visitors to the National Park, the people who lived permanently within the Park needed to have a decent standard of living and the proposed development would help towards that goal. He considered that the matter of creating a precedent was for the other National Parks to deal with. He felt that it was for the Committee to determine this application, on its own merits.’
‘1 The application had demonstrated an over-riding public need and exceptional circumstances in terms of: the benefit it would bring to the economy of the National Park and Pembrokeshire as a whole, an area with a per capita GDP far below the national average, and suffering much rural poverty, unemployment and deprivation. this benefit being in terms both of the direct employment at Bluestone and the wider opportunities to the local economy from the outward-looking intentions of the developers in respect of working with recreational activity providers, local food industries, public transport operators etc. the benefit more widely for Wales and the United Kingdom, by providing a form and quality of visitor experience within a growth sector of the tourism industry, which is presently not well provided for in Wales or the United Kingdom as a whole. 2 the Committee considered that the applicants had demonstrated that there was a clear case for siting the development in close association with the existing Oakwood attraction, and that this particular location was the only one that met the applicant’s detailed siting criteria. 3 the Committee concluded from an exhaustive assessment of the landscape, biodiversity, archaeological and historic built environment, agricultural land, drainage, noise and other environmental impacts that the development was sensitively sited and would not have a significant net adverse effect on the environment of the National Park, taking into account the measures set out within the proposed conditions of consent and Section 106 Agreement which would both substantially mitigate against adverse impact and offer substantial opportunities for enhancement. 4 the opportunities that the development would present to serve as a model of best environmental practice and exemplar of sustainable development principles.’
‘Publication perception of the possibility of unconscious bias is the key. It is unnecessary to delve into the characteristics to be attributed to the fair-minded and informed observer. What can confidently be said is that one is entitled to conclude that such an observer will adopt a balanced approach. This idea was succinctly expressed in Johnson v Johnson(2000) 201 CLR 488 , 509, para 53, by Kirby J when he stated that “a reasonable member of the public is neither complacent nor unduly sensitive or suspicious”.’
‘I do, however, consider that by the time of the September 1999 meeting [of the District Council], a fair-minded observer, knowing the background, would have considered that there was a real danger of bias from her external interest as a member of the New Forest Committee.’
‘to consider in addition 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. That is a question to be approached with appropriate caution, since it is important not to apply the test in a way that will render local authority decision-making impossible or unduly difficult. I do not consider, however, that the circumstances of local authority decision-making are such as to exclude the broader application of the test altogether.’ – paragraph 31. He continued: ‘32. On that basis I do have concerns about what happened in this case and the objective impression that is conveyed. Although the CAG’s remit was to consider only the conservation implications of the applications, its conclusion was expressed in simple terms of support for the applications, without any qualification. Both the note of the CAG meeting on 27 May and the report of the planning committee on 17 June state that CAG “continued to support” the applications. Moreover, although there is nothing to show that a vote was taken within the CAG, there is equally nothing to show that any of the members present dissented from that conclusion: the support appeared to come from all those present, including the three members who were also members of the planning committee. When it came to the meeting of the planning committee, nothing was said about the limited function of the CAG or about the need for those with dual membership to put on one side the support expressed in the CAG and to examine all the relevant planning issues before reaching the planning decisions. 33. In those circumstances I take the view, though not without a degree of hesitation, that a fair-minded and informed observer would conclude that there was a real possibility of bias, in the sense of the decisions being approached with closed minds and without impartial consideration of all the planning issues, as a result of the support expressed by the CAG being carried over into support for the applications in the context of the planning committee’s decisions.’
‘I consider that the claimant’s case of apparent bias or predetermination has been made out.’
‘PROJECT BLUESTONE – WATERWORLD Cabinet convened in private session under terms of Paragraphs 5, 7 and 9 of Part 1 of Schedule 12A to theLocal Government Act 1972 to consider this item. DECISION That the loan arrangements, and conditions related thereto, set out in the report of the Director of Finance and Leisure be approved. Reason for Decision: To support economic and leisure development in the County.’
‘The replies to your six questions are as follows:- 1. The Council’s Cabinet, at a meeting on14th October 2002 , considered in private session, a report relating to a possible loan to help fund the construction of Waterworld but not other parts of the Bluestone development. The matter was taken in private session by virtue of paragraphs 4, 7 and 9 of Part 1 of Schedule 12A of theLocal Government Act 1972 . The Cabinet decided to make available a loan of£1million over a 5 year period, with interest, secured by a charge on the Waterworld complex. The loan was only to be made available in the event of construction being undertaken and was to be structured in order to ensure that use of Waterworld by the general public would be available throughout the year. 2. The loan was dependant on the granting of planning permission for Waterworld. That planning permission was granted by the County Council in July 2003. 3,4 & 5 The detailed provisions of the loan have not yet been negotiated and I do not anticipate those provisions being determined for some time. 6. the confidential report which was submitted to the Council’s Cabinet in October 2002 would have been sent to all members of the County Council.’
‘The participation of the Councillors would create a real risk of bias both because of their well publicised support for the whole project, and ….. .’
‘With regard to the reference made in paragraph 32 of the claim, I accept that my views were known, as I expressed them overtly in the public arena, however I did not go out of my way to publicise them. I did not state my views, nor had I finalised them, until I had heard all the evidence.’
‘7. It is said at paragraph 32 of the Claim the Councillor Allen-Mirehouse and myself were “known supporters of the project”. That is a mere assumption. In fact I expressed myself neither for nor against until I heard all arguments at the National Park Authority meetings. I also challenge the allegation of our “well publicised support for the whole project” at paragraph 55(3) of the Claim. None was forthcoming over and above our conduct in the public forum of the Committee meetings.’