Council for National Parks Ltd v The Pembrokeshire Coast National Park Authority

On 28 January 2004 the Development Control Committee of the Pembrokeshire Coast National Park Authority resolved to grant outline planning permission for a development known as Bluestone Holiday Village, or, more simply, Bluestone. Outline permission was formally granted on 29 June 2004. In these proceedings for judicial review the Council for National Parks Limited seek to have the decision of the Park Authority and the consequent grant of permission quashed. This is resisted by the Park Authority and by the interested parties. The interested parties are, first, Mr J. William McNamara, Bluestone Holdings Limited and Alfred McAlpine Construction Limited, who have been referred to as the developers, and, second, the Pembrokeshire County Council. Permission for the application was granted by Richards J. on 28 May 2004.

The attack on the Park Authority’s decision is on two grounds. One is the alleged failure of the Authority to comply with section 54A of the Town & Country Planning Act 1990. The second is the alleged apparent bias of two members of the Authority, who voted in favour of the grant of permission and were also members of the County Council.

The court is not concerned with the merits of the application for the grant of planning permission for Bluestone. But it is helpful to say at the start that the divide is to a substantial extent between those who consider that the need to preserve the integrity of the National Park is here outweighed by the economic benefit it would bring to an area in need of economic benefit, and those who do not think that it is. Those who are in favour of the application consider that the harm to the Park would be less than those who are of the other view. Bluestone would be on an eastern boundary of the Park and very close to an established theme park named Oakwood. That is a considerable simplification of the issues, but it provides a measure of understanding of the background.

The plan for Bluestone provides for the construction of a holiday village on a 200 hectare (500 acre) site lying just to the west of the A4075 road approximately 7 miles to the east of Haverfordwest and about 3 miles west of Narbeth. The heart of the development will be a ‘traditional style’ village which will be centred around the renovated medieval Newton North church. The village will have leisure, retailing, catering, and health and beauty facilities, and also 60 cottage or studio self-catering units. The village will be pedestrianised and accessible to staying guests only. In addition to the 60 units, there will be 340 two and three bedroomed timber lodges. There will also be a sewage treatment plant and a lake. A key aspect of the project is that it is sited immediately to the north of the Oakwood Leisure Park, which may be described as a theme park. Oakwood has been established for some time, and has 400,000 visitors a year. It was developed by Mr McNamara, but he is no longer involved with it. There are also two further aspects to the project. One is a construction called Snowdome which will be built to the south west of Oakwood. The other is called Waterworld and will be built to the south of Bluestone and to the north east of Oakwood. Snowdome and Waterworld are separate from Bluestone but it is at present intended by the developers that the three proceed together as integral parts of one project.

The boundary of the National Park runs on a roughly south west to north east line to the south of Bluestone, which would border the boundary. Oakwood is, and Snowdome and Waterworld would be, all outside the National Park, as would be the main ancillary road works. The planning authority for Bluestone is thus the National Park Authority, and the planning authority for Snowdome, Waterworld and the ancillary road works is the Pembrokeshire County Council.

The Pembrokeshire Coast National Park consists of four parts. Three parts are essentially coastal, though the most northern part runs some way inland. The coastal parts are divided by Milford Haven and the urban area of Fishguard. The fourth part is essentially inland. It encompasses the Cleddau estuary and lies to the east and south of Haverfordwest and to the east and north of Milfordhaven. There is an arm of this part which follows the Eastern Cleddau river to the north east. Bluestone is on the south eastern edge of that arm.

The Pembrokeshire Coast National Park was designated in 1952 under the provisions of the National Parks and Access to the Countryside Act 1949. The Park Authority was established by the Local Government (Wales) Act 1994 and by the National Park Authorities (Wales) Order 1995. Its members are appointed. Two thirds are appointed by the local authority, that is, the Pembrokeshire County Council, and one third is now appointed by the National Assembly for Wales. There are fifteen members. So ten are appointed by the Council, and five by the National Assembly. The quorum for meetings is five. Paragraph 2(4) of Schedule 7 to the Environment Act 1995 requires local authorities to have regard to the desirability of appointing members to National Park Authorities who have electoral divisions wholly or partly within National Park boundaries.

Section 5(1) of the 1949 Act as substituted by section 61 of the Environment Act 1995 provides:

The ten members of the Park Authority appointed by the County Council included Mr John Allen-Mirehouse and Mr William Roberts. Their electoral divisions as county councillors are each within the Park. They are each members of the Council’s ‘cabinet’, its executive body of ten councillors. Mr Allen-Mirehouse is deputy leader of the council. Mr Roberts has now ceased to be a member of the Park Authority. It is they who are at the centre of the allegations of apparent bias.

The claimant, the Council for National Parks Limited, is a charity and is a company limited by guarantee. It began life in 1936 as the Standing Committee on National Parks and its object was to campaign for national parks in Britain. It achieved that with the passing of the 1949 Act. It remained in existence to monitor the process of designation and to ensure the upholding of the purpose for which the Parks are established. The Committee was transformed into the Council for National Parks Limited in 1977. Its main task is now to work to protect and enhance the National Parks of England and Wales. It is made up of 47 conservation and amenity bodies, 28 co-opted individuals and 23 honorary members. It considers that the Bluestone proposal is contrary to the National Parks’ statutory purpose, contrary to planning guidance as to major development in National Parks, and is unjustified and may encourage further inappropriate major developments with National Parks. So it has brought this challenge to the legality of the Park Authority’s decision.

When I come to consider the case made by the claimant it will be necessary to consider some aspects of what occurred in detail. As this stage I intend only to set out the order of events so that the framework is clear.

The first discussions between the developers and the Park Authority’s officers took place in March 2001. The officers emphasised the very different planning regime operating in a National Park to that in the areas of other planning authorities.

On 14 October 2002 the County Council cabinet considered in a private session an application by the developers of Bluestone for a loan of £1 million. It approved the loan. Mr Allen-Mirehouse and Mr Roberts were among those who resolved to approve it.

The application to the Park Authority for outline planning permission for Bluestone is dated 14 November 2002. On 15 November 2002 the County Council received an application for outline permission for those parts of the project which are outside the boundary of the National Park, that is Waterworld, the Snowdome, and the associated road works. It was no doubt also dated 14 November.

The application to the Park Authority was supported by a substantial environmental statement running to several volumes, of which the first had some 200 pages. This dealt with environmental issues such as ecology, water quality, drainage and waste, and with archaeology and landscape. There was a lengthy transport assessment. There was a review of planning policy and of the alternative sites which had been examined. It also contained material dealing with the economic impact of the project, in particular the amount of employment which it was said that would provide, namely 600 jobs in its first phase. This was supported by a separate report by consultants. This section of the report was of particular importance. For, as I have said, the divide which appeared between those who opposed the grant of permission and those who supported it was largely a divide between those who considered that the economic benefit outweighed the need to preserve the integrity of the Park and those who thought that it did not.

There were some who considered that the National Assembly for Wales should call in the decision for decision by the National Assembly prior to any determination by the Park Authority. It did not do so. The reason appears to have been, in short, that this was a local matter best determined locally by a planning authority which knew its area, although it was apparently not quite as simple as that. I refer to a letter written by the Assembly’s Planning Division dated 23 July 2003 addressed to the Campaign for the Protection of Rural Wales, and to a letter similarly addressed from the Minister for Environment, Planning and Countryside dated 22 September 2003.

On 8 July 2003 the County Council’s Planning and Rights of Way Committee resolved by 22 votes to 2 to grant outline planning permission for Waterworld, Snowdome and the ancillary road works, subject to a section 106 agreement and conditions. Mr Allen-Mirehouse and Mr Roberts were not members of the Committee. Because the development would be contrary to the Council’s Development Plan, the grant was not within the power of the Committee and was referred to the full Council. On 17 July 2003 the Council resolved to approve the decision of the Committee. The reasons for approval were those set out in the Director of Development’s report. His report had accepted that the proposal would have an impact on the area within the National Park. It accepted that there was conflict with the Council’s Development Plan policies as to agricultural land and landscape impact. It recommended approval because ‘the economic benefits that would accrue from developing such a major all year round tourist and leisure facility, outweigh those conflicts.’ Mr Allen-Mirehouse and Mr Roberts voted in favour. There was no requisition for a recorded vote. It appears from elsewhere that the vote was unanimous. Because the grant of permission was contrary to planning guidance, it was necessary to refer it to the National Assembly for Wales. The National Assembly declined to call in the decision. It was not until 25 June 2004 that two section 106 agreements were signed. The outline planning permission was granted on that day.

In preparation for the consideration of the Bluestone application by the Park Authority the Authority’s Development Control Officer prepared a comprehensive report of 67 pages. It recommended that the application should be refused on a number of grounds, the first being that it was contrary to the statutory purposes set out in section 5 of the 1949 Act and contrary to the relevant planning policies.

The application was due to be considered by the Park Authority’s Development Control Committee on 29 September 2003. All fifteen members of the Authority are members of the Development Control Committee. Thirty-six members of the public spoke at the meeting on 29 September. The outcome was that consideration was deferred until the environmental impact assessment was complete. The minutes of the meeting are not in evidence and I do not know whether Mr Allen-Mirehouse or Mr Roberts or indeed any members of the Authority expressed views on the merits of the application.

By a letter dated 9 October 2003 addressed to the Authority’s Monitoring Officer by a local company, it was alleged that Mr Allen-Mirehouse and Mr Roberts should have stood down because they had approved the loan by the County Council to the Bluestone developers. Further matters were relied on in respect of Mr Allen-Mirehouse, but they do not merit mention. In consequence the Officer obtained the advice of Mr Robert McCracken Q.C. In an opinion which was dated 26 November 2003 in its original form, Mr McCracken advised that Mr Allen-Mirehouse and Mr Roberts should not participate in the Park Authority’s consideration of the Bluestone application. He considered that because of the loan position there was a real danger of bias on the part of all the County Councillor members. He devised a scheme involving selection of Councillors who would receive dispensations to enable the quorum of six to be obtained. The developers then obtained an opinion from Mr John Steel Q.C. He took the opposite view to Mr McCracken. Both opinions were published.

At a meeting of the Park Authority on 26 November 2003 it was resolved by six votes to four that the Authority’s Standards Committee should meet to consider applications for dispensation to take part in the consideration of the Bluestone application and that the meeting of the Development Control Committee on 1 December should be postponed. Mr Allen-Mirehouse and Mr Roberts were among those who opposed the resolution.

The Standards Committee of the Authority met on 1 December 2003. Two County Councillors, Mr Cawood and Mrs Major, sought dispensations to take part in the decision on Bluestone, the need for dispensations arising from their being County Councillors. The Monitoring Officer advised that the fact that other members had not sought a dispensation would not prevent them from participating if they considered that they had no personal interest to disclose, but that there might be consequences to them doing so. The dispensations were granted.

On 8 December 2003 the Development Control Committee of the National Park considered the Bluestone application. Prior to the meeting the Head of Conservation had provided members with a further report of four pages dealing with information provided since her earlier report. The report concluded with eight reasons in support of her recommendation that the application be refused. Disclosures of interest was the first matter to be considered at the meeting. The Monitoring Officer repeated the advice I have mentioned. Mr Roberts said that he considered that he had a right to participate. Mr Owen was a member of the Park Authority appointed by the National Assembly. He had been appointed to the claimant Council by the Park Authority. He too considered that he had a right to participate in accordance with the advice that he had received from the Monitoring Officer on his position. I will return to the detail of that position. The meeting moved to the merits of the application. The Development Control Officer summarised her views. Mr Allen-Mirehouse commenced the debate and spoke in favour of granting planning permission. Mr Roberts also spoke in favour. Other members spoke including Mr Owen. Mr Allen-Mirehouse summed up in favour of the application. He gave seven reasons for granting the application. It was resolved by eight votes to four to grant permission subject to a section 106 agreement and appropriate conditions. The eight were all county councillors. The four had all been appointed by the National Assembly. Because the decision was a significant departure from planning policy, two things were then necessary. The decision had to be deferred to the next meeting of the Committee under the Terms of Reference of the Committee – which provided in effect for a cooling-off period. The decision had also to be referred to the National Assembly for Wales. The next meeting was on 17 December. The Chief Executive suggested that it go over to 28 January 2004 because of the timings involved. This was initially opposed by Mr Allen-Mirehouse and Mr Roberts. It was resolved that there be a progress report on 17 December, and the consideration of the application be adjourned to 28 January.

On 10 December 2003 the Park Authority’s Development Control Officer wrote to the National Assembly informing it of the decision. The reasons for the decision were stated to be those given by Mr Allen-Mirehouse at the close of the debate on 8 December. On 14 January 2004 a letter was written informing the Development Control Officer of the decision of the Minister for Environment, Planning and Countryside not to call in the decision. The letter stated:

On 26 January 2004 a letter was written to the Park Authority by solicitors for the claimant Council asserting that a decision to grant permission would be unlawful on two grounds. The first was that the decision would take into account irrelevant considerations, would be inconsistent with the Authority’s approach elsewhere, would fail to consider the alternatives to meet any claimed need, and would be perverse. The second ground was the involvement in the decision of County Councillors who had not obtained a dispensation. The letter concluded by saying that a decision to grant permission would be the subject of a challenge by judicial review. The letter was circulated to members.

The agenda for the meeting on 28 January 2004 outlined the history and earlier advice. It set out the seven points taken from Mr Allen-Mirehouse’s summing up on 8 December 2003. It provided a summary of conditions which might be attached to any grant. It set out the Head of Conservation’s answers to the seven points. It recommended that the application be refused and gave eight reasons for doing so. At the meeting the officer addressed the members and recommended refusal. The Acting Monitoring Officer referred to the situation as to conflict of interest, and the advice given. Mr Allen-Mirehouse said that he had considered his position and felt able to take part. He referred to a future decision by the Ombudsman. This arose because a number of persons had referred the position to the Ombudsman. Mr. Allen-Mirehouse then referred to the merits of the application. He emphasised in particular the employment benefit which it would bring. Mr Allen-Mirehouse moved that the planning permission be granted. That was seconded by Mr Roberts. There was a discussion as to the conditions, and limited expressions of view as to the merits. The resolution was passed by seven votes to three.

On 11 March solicitors for the claimant Council wrote to the Park Authority saying that, unless they were assured within 7 days that planning permission would not be granted, proceedings for judicial review would follow. The letter asked that the Park Authority provide its reasons for the decision as required under the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999. Regulation 21(1)(c) requires that, where an Environmental Impact Assessment application is determined by a local planning authority, the authority shall make available for public inspection a statement containing, among other matters, ‘the main reasons and considerations on which the decision is based.’ This regulation and the need for such a statement had been referred to by Mr McCracken Q.C. in his opinion of 26 November 2003. It is accepted that the Bluestone application was an Environmental Impact Assessment application.

In preparation for a meeting of the Park Authority on 24 March 2004 further advice was sought from Mr McCracken. He advised that a statement complying with the Regulations must be prepared. He suggested that, as he had taken the leading role, Mr Allen-Mirehouse might draft reasons to be approved at the meeting, or it might be delegated to an officer. The latter course was followed and a document covering all matters in regulation 21(1)(c) was prepared.

At the meeting on 24 March 2004 a summary of the Ombudsman’s findings was read. The Ombudsman found that the Authority’s Code of Conduct had not been broken. The meeting next considered the claimant Council’s threat of judicial review. The opinion of Mr McCracken of 24 March was quoted. The Solicitor to the Authority advised members that they should not be swayed by the threat of judicial review unless there had been a material change of circumstances or members were minded to revisit their previous resolution. Mr Allen-Mirehouse proposed that the Authority did not alter its decision. This was seconded by Mr Roberts and the resolution was passed. The statement of reasons previously drafted was then read by the Head of Conservation. Mr Allen-Mirehouse said that he found them acceptable and moved that the statement be adopted as representing the Committee’s decision. The members present who had been at the meeting on 28 January accepted that the reasons accurately reflected the debate at that meeting. It was then resolved that the statement of reasons be confirmed. Six of the ten members present on 28 January were also among the twelve present on 24 March.

The Ombudsman’s report on the complaints which had been made to him was also dated 24 March 2004. The Ombudsman considered whether the County Councillor members of the Authority had had personal interests in the Bluestone decision in the sense of ‘personal interest’ as defined in paragraphs 11 and 12 of the Authority’s Code of Conduct. Those paragraphs were in the form scheduled to the Conduct of Members (Model Code of Conduct)(Wales) Order 2001. He considered that the prior grant of planning permission by the County Council did not amount to such an interest, likewise the decision to grant a loan to the developers. He also considered whether the Councillors had considered the Bluestone application on its merits as required by paragraph 8 of the Code. He concluded that they had. It is worth setting out how he put it:

Outline planning permission was granted for Bluestone by the Park Authority on 29 June 2004. The grant was subject to 37 conditions.

Section 70(1) of the Town and Country Planning Act 1990 empowers a local planning authority to grant planning permission with and without conditions or to refuse it. Section 70(2) provides:

Having heard Mr David Wolfe’s submissions on behalf of the claimant Council I think that they really contained two different ways of putting the case under section 54A. The first was that in reaching its decision the Park Authority had not followed a lawful process in accordance with decided cases. The second was that by taking account of the benefit to the economy of the National Park and Pembrokeshire as a whole as a reason for not making the decision in accordance with the development plan, the Authority had acted contrary to law.

The decision-making process

City of Edinburgh Council v Secretary of State for Scotland [1997] 1 W.L.R.1447 is a decision by the House of Lords as to Scots law. However, the relevant provision, section 18A of the Town and Country Planning (Scotland) Act 1972, is in the same terms as section 54A, both being inserted by the Planning and Compensation Act 1991, and the speeches are equally authoritative as to English law. In his opinion, at page 1451 Lord Hope stated that the purpose of the amendment was to enhance the status of the development plan, but it was still a matter of judgment to be exercised by the decision taker. He said:

Mr Wolfe also relied on R v Leominster District Council ex parte Pothecary [1998] J.P.L. 335 at 347, where Walker L.J. stated as follows after having referred to the City of Edinburgh case:

Mr Wolfe submitted that to make a decision that was valid in law a planning authority must:

Although Mr. Wolfe made clear that he was not suggesting that this was a “reasons case” in the sense of a case where the decision was attacked on the ground that an inadequate statement of reasons had been provided, it is worth looking briefly at the law applicable in such cases. It has been most recently reviewed by the House of Lords in South Bucks District Council v Porter [2004] 4 All E.R. 775, [is this the best reference] the fourth in a line of decisions by the House. Lord Brown provided a summary of the law in paragraph 36, and it has its relevance here:

The development plan was here the Park Authority’s Local Plan as adopted in 1999 and also the Dyfed Structure Plan of 1990. There were further relevant plans which were referred to at the start of the Conservation Officer’s report presented to members in September 2003. The report referred to, and stated the effect of, section 54A and it quoted section 5 of the Act of 1949. Among the provisions from the 1999 Local Plan referred to in the body of the report and set out at is end was GE4 which is headed ‘Major Development Proposals’. There was agreement before me that Bluestone was a major development. GE4 provides:

Under the heading of ‘The Question of Need’ the report quoted paragraph 5.5.6 of Planning Policy Wales 2002, which it was agreed before me that the Parks Authority was bound to take into account in reaching its decision. This states:

It was not suggested by Mr Wolfe that there were matters of planning guidance, inside or outside what was the ‘development plan’ for the purpose of section 54A, which the members were not asked in the report to consider. It was a very comprehensive report. Further it and the report for the meeting on 8 December 2003 and that contained in the agenda for the meeting on 28 January 2004 had made it very clear to members that to approve the application would be contrary to the local plan. As an example, the minutes of the meeting on 28 January 2004 record the Head of Conservation as stating that ‘at the December meeting, the members decided that there were material considerations which had sufficient “weight” to override the policy framework.’

Mr Patrick Clarkson Q.C. who appeared for the Park Authority accepted that the development was contrary to the local plan, in particular to GE4. For he accepted that there was no overriding national need: the need to provide more employment in Pembrokeshire did not amount to that. Mr John Steel Q.C. who appeared for the developers at first took the position that the development was not contrary to the local plan. He later took the stance that it did not matter whether it was or was not: for either it was not, or there were local economic considerations which the Members were entitled to consider outweighed it. I accept that the development was contrary to a provision of the plan which was of particular relevance, namely GE4, because it could not be said that the proposal “would contribute to an over-riding national need.”

It is clear that the members knew what the policy considerations were. It is clear that they considered them. There were differences of opinion as to the weight to be given to them. Thus there were differences as to the weight to be attached to the fact that the development was to be situated at the edge of the Park and where it was. It is also clear from the debate on 8 December 2003 that the Members had the question of alternative sites in mind : I refer to what Mr. Owen said. But the main point, which was addressed by both sides, was the economic impact of the development, that is what it would offer by way of employment in the context of Pembrokeshire’s need for decently paid employment.

I am satisfied that reading the reports, minutes and reasons to which I have referred as whole it cannot be shown that the Authority failed to have regard to any material consideration having independent weight. I think also that it is clear that the Members accepted that the grant of permission was contrary to the development plan comprised as I have said. It is clear that those in favour of the application considered that the economic benefits, that is, in the main, employment, outweighed the contrary considerations contained in the development plan.

I will next set out various passages in support of this. First, the points made by Mr. Allen-Mirehouse in his summing up on 8 December 2003 :

Next, Mr. Allen-Mirehouse as recorded in the minutes of the meeting on 28 January 2004:

Lastly, the reasons adopted on 24 March 2004 :

I have set out these passages for a second reason, namely that Mr. Wolfe submitted that the reasons of the Members who were in favour of the application changed. In my view the reasons given were consistent. If economic benefit is equated with jobs, as here it should be, Mr. Wolfe could not point to any material change.

I conclude that, leaving aside for the moment the point I will consider next, The Park Authority reached its decision by a process that was fully in accordance with law.

The economic benefit not a permissible reason.

The submission made in paragraphs 33 to 38 of the claimant’s skeleton argument was to this effect. Where a development plan provides that a type of development only shall be permitted if certain conditions are satisfied and they are not satisfied, then the subject matter of such a condition cannot amount to a “material consideration” under section 54A to justify the grant of permission contrary to the plan. This proposition did not appear in the paragraphs relating to the claimant’s case under section 54A as it was set out in the grounds attached to the claim form; namely paragraphs 16 to 19 and 57 to 60.

The submission was developed in reliance on policy GE4 of the local plan, which is set out in paragraph 38 above. Under GE4 a proposal should only be permitted where the five criteria listed are met in full. The first is that the proposal is in the public interest and should contribute to an overriding national need. The second is that the cost and scope of the development outside the National Park has been examined and no suitable alternative is available. Mr. Wolfe relied particularly on the first. He submitted that, if there was no national need, a local, that is here a Pembrokeshire need, could not be relied on as a material consideration which justified not giving effect to the plan. The reasons adopted at the meeting on 24 March 2004 included that the site was the only location which met the applicant’s detailed siting criteria (which included close proximity to Oakwood).

In support of the submission Mr. Wolfe relied on Buckland v Boswell v Secretary of State for the Environment [2001] EWHC Admin 524, [2002] J.P.L. 570, and among the four cases there heard together, on the Smith case. That was a challenge to the decision of an inspector upholding an enforcement notice requiring the removal of a caravan occupied by a gypsy family. The family, particularly the wife, had serious health problems. The site was within the Green Belt. Under relevant policies there was a presumption against inappropriate development in a Green Belt. It was accepted by the policies that it might be necessary in “exceptional circumstances” to accept the establishment of gypsy sites in designated areas of restraint. The inspector held that the personal circumstances of the family did not constitute very special, or exceptional, circumstances sufficient to overcome the strong policy presumption against inappropriate development in the Green Belt. One ground of application to the court was that the inspector should have gone on to consider whether the family’s personal considerations were material considerations which indicated that permission should be granted in accordance with the latter part of section 54A. Sullivan J. rejected the submission. He said:

The argument here is that, if Bluestone does not meet the GE4 criterion of an over-riding national need, then the economic benefit to Pembrokeshire cannot be relied on as a material consideration which the Park Authority was entitled to take into account in deciding not to follow the policy. As was put in paragraph 36 of the skeleton argument “a consideration which has been properly taken into account within the terms of a policy (and the policy nonetheless lead to a presumption against development) cannot then come back into play again as a material consideration justifying not giving effect to the policy…”.

I am not concerned with the Green Belt situation, and I think that there is a danger in extracting a general principle from the paragraphs I have quoted from the judgment in the Buckland case. I was not referred to any other case where such a principle has been applied. In my view an approach on the following lines is permissible in a case such as the present. The authority must consider the terms of the relevant policies and apply them to the circumstances of the case. That might lead to the view that the application of the policies requires permission to be refused. Here, that might be on the ground among others that no national need has been shown as required by GE4. On the facts here that would mean that the economic case was considered insufficient under the terms of the policy because it was not a national need. But the local economic case would remain “a material consideration”. So here the authority was then entitled to, and bound to, consider whether the economic advantages of the development, in particular by way of employment for those within the Park and outside, nonetheless justified the grant of permission in the circumstances. To hold otherwise results in an authority being bound to follow the policy unless there is a material consideration which is irrelevant to the application of the policy itself, or, putting it another way, which stands outside the policy, and which suggests the policy should not be followed in the circumstances. That is not what section 54A says and I do not consider that it is to be construed as having that effect. The economic benefit that Bluestone might bring by way of employment in Pembrokeshire was “a material consideration” which the Park Authority were entitled to take into account in deciding whether, in all the circumstances, the development plan should be followed, or whether it should not. In my judgment that is the effect of section 54A and it is consistent with the judgments in the City of Edinburgh case.

I will begin with a review of the relevant law as to bias, and will then consider the case advanced on behalf of the claimant. I should start with the decision of the House of Lords in Porter v Magill [2002] 2 A.C. 357. This established that “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” - per Lord Hope at page 494. In Lawler v Northern Spirit [2003] 1 C.R. 856, in giving the single opinion of the Judicial Committee of the House of Lords, Lord Steyn stated at page 862:

In Bovis Homes Ltd v New Forest District Council [2002] EWHC 483 (Admin) Ouseley J had to consider three attacks on the local plan adopted by the Council. The first was an allegation of legally inadequate reasons. The second was that the Council had approached the matter with a closed mind. The third was that there was apparent bias on the part of the chairman of the relevant Council Committee, Councillor Drake, who was a member of the New Forest Committee, an entirely separate body. Given the facts of the Bovis case, I think that both the second and third of these are relevant here. The issue for the District Council was whether land known as ‘the Land North of Totton’ should be included within the Heritage Area of the New Forest. The New Forest Committee had made representations to the Council in support of the inclusion, and Councillor Drake had been present when that had been agreed on. Under the heading of ‘Bias’ Ouseley J did not consider that her membership of the New Forest Council automatically disqualified Councillor Drake from participation in the Council’s decision making process (paragraph 87). But he concluded in paragraph 88 of his judgment :

Georgiou v London Borough of Enfield [2004] EWHC 779 (Admin) concerned the decision by the Borough’s planning committee to grant listed building consent for a change of use of a property, Truro House, and for the erection of a mental nursing home in its grounds, and appropriate planning consent. There were four grounds of attack on the decision, one of which was apparent bias. The allegation of bias arose from the dual membership of the Borough’s planning committee and the Borough’s conservation advisory group which had considered the applications first. At two meetings of the conservation advisory group it had been decided to support the development. In paragraph 30 of his judgment Richards J. held that predetermination was a form of bias and so it was necessary to look beyond pecuniary or personal interest, and so it was necessary:

Lastly I should mention the further decision of Richards J. in Ghadami v Harlow District Council [2004] EWHC 1883 (Admin). He applied the statement of the law that he had provided in paragraph 31 of his judgment in Georgiou. He held that there was a real possibility that a councillor had approached the matter with a closed mind: ‘I consider that the claimant’s case of apparent bias or predetermination has been made out.’ The facts are a long way from those in the present case.

The case here is that a fair minded and informed observer would have concluded that there was a real possibility that at least two members of the Park Authority’s Development Control Committee, Mr. Allen-Mirehouse and Mr. Roberts, were biased. It is not alleged that they were in fact biased. The matters relied on as giving rise to a perception of bias are :

The nature of the bias that is alleged is that the two councillors ‘were biased in the sense of approaching the decision [by the Park Authority] whether to grant planning permission … with a closed mind and without an impartial consideration of all relevant planning issues.’ – claimant’s written submissions, paragraph 28. The law as stated by Richards J. in paragraph 31 of his judgment in Georgiou is relied on. The claimant’s case is that the combination of the matters which I have set out would have led a fair-minded and impartial observer to conclude that there was a real possibility of bias in the sense stated. It is not alleged that any one matter by itself would have led to that conclusion. So, in particular, it is not alleged that their conduct relating to the loan would have led to that conclusion; nor their conduct as County Councillors in voting for the grant of planning permission by the County Council. Nor is it alleged that, because they were County Councillors who had voted for the Council to grant permission for Waterworld, Snowdome and the ancillary works, they were thereby barred from taking part in the Park Authority’s decision. Likewise with the loan.

The approach which I will adopt in considering the submission of apparent bias here with its reliance on a combination of matters is to consider the facts relating to each matter separately and to see what weight it may carry towards the claimant’s case. I will then consider them as a whole.

The proposed loan to the developers and Bluestone was considered by the cabinet of the County Council at its meeting on 14 October 2002. Mr. Hughes, the leader of the Council was present with Mr. Allen-Mirehouse, the deputy leader, Mr. Roberts and six others. The relevant part of the minutes read:

It is the evidence of the developers that there was nothing unusual in the decision as to the loan being taken before planning permission was granted. Both Mr. Clarkson and Mr. Steel, leading counsel experienced in planning work, also said that it was common for local authorities to consider loans prior to considering planning permission. There was no evidence nor was I addressed to any commercial reasons for such a practice. It may well be that it assists developers because then they know that, if they get planning permission, that part of the finance for their project is likely to fall into place. It may also help them in negotiating further finance. If so, that in itself suggests a pre-disposition in favour of the development because the loan is being considered at an early stage in order to help the developers. The practice does also have the danger that those who are involved in the decision are likely to have formed a favourable view prior to their consideration of the planning issues and that favourable view may well carry forward, at the least subconsciously. For although the financial considerations involved in a loan for a project and the planning considerations will not be the same, there may be something of an apparent about-turn in approving a loan for a project and then refusing it planning permission. Here the loan related to Waterworld and so the direct link is with planning permission for Waterworld. The application for planning permission for Bluestone was at a further remove. That brings in the link, through members between the County Council and the Park Authority. The problem would generally be avoided if authorities considered loans for developments only after they had decided to grant planning permission. To avoid the problem here, that would have had to have been after both the County Council and the Park Authority had determined the planning applications. As I have said, I do not know what difficulties a practice of delaying consideration of loan applications would cause, and the court must be sensitive to the practicalities of local government. I should also record that at an early stage the National Assembly for Wales made an offer of of £16.5 million grant aid for Bluestone, subject to planning permisssion. As I have said, the National Assembly had power to call in the application for planning permission for decision by the Assembly.

It is important that the approval of the proposed loan for Waterworld was made subject to planning permission for Waterworld. The approval of the loan could be said to affect the grant of planning permission for Waterworld as well as the subsequent grant of planning permission by the Park Authority for Bluestone. The essential factor was that Councillors should have in mind that the criteria for approving the loan and for granting planning permission were quite different, and should have in mind the need to approach the two questions independently. If it was shown that that was not so, the position would be similar to that in Georgiou, where the decision as to conservation was held to vitiate the decision on planning. The County Council’s decision would be vulnerable, as would that of the Park Authority. It is important to remember that it is not submitted that the involvement of the two councillors with the loan by itself disentitled them from taking part in the Park Authority planning permission decision.

The next point is Mr. Allen-Mirehouse’s and Mr. Roberts’ support for the grant of planning permission by the County Council. They were not on the Council’s Planning and Rights of Way Committee but approved the grant when it came before the full Council as described in paragraph 17 above. The relevant part of the minutes of the Council meeting simply records that it was resolved to endorse the decision of the Planning and Rights of Way Committee.

The starting point must be the fact that the Park Authority is constituted so that two thirds of its members are County Councillors. The position of those Councillors as County Councillors should not generally inhibit them in carrying out their full functions as members of the Park Authority, and vice versa. The situation with Bluestone is unusual in that what is effectively one development straddles the Park boundary. As Councillors who are members of the Park Authority would be very aware, the policies relating to developments inside and outside the Park are markedly different. It follows that in such a situation it might be appropriate to grant permission in respect of part of a development outside the Park and appropriate to refuse it in respect of part inside the Park. If Council members had to consider the County Council application first, they would have in mind that, when they came to consider the parallel application for the part inside the Park, different considerations would apply and the hurdle would be much higher. Provided that approach is taken, there can be no objection to the same persons taking part in both decisions. So I think that the claimant is right not to have submitted that involvement in the Council’s grant of permission meant that the Councillor members of the Park Authority could not take part in the Authority’s decision. I have referred in paragraph 30 above to the Ombudsman’s decision. As I have stated, he considered the matter in terms of the Code of Conduct. I agree that the Councillors did not have a ‘personal interest’ as defined in the Code. He also considered whether they had reached their decision on the basis of the merits as required by paragraph 8 of the Code. He concluded that they had and I have quoted his reasons. I think that this is the key. Provided that the Councillor members did have the distinctions between granting permission inside the Park and granting permission outside the Park in mind, provided they did consider the application to the Park Authority on its merits taking account of the development plan for land within the Park, and provided they did not simply apply the decision already reached by the Council, they would have performed their duty and bias by way of a closed mind would not be shown. The issue is whether it is established that Mr Allen-Mirehouse and Mr Roberts did not take that approach. A similar exercise was carried out in Porter v Magill to determine whether an observer would have concluded that the auditor was biased: I refer to paragraph 105 of the opinion of Lord Hope.

There were three meetings at which the merits were considered: those of 29 September 2003, 8 December 2003 and 28 January 2004. I include that of 29 September but it appears likely that it was only members of the public who spoke at this meeting as the Authority members were advised that their decision should be deferred until the environmental impact assessment was complete. The key meeting is that of 8 December. To avoid lengthening this judgment unduly I will quote only the first and last two paragraphs of the record in the minutes of Mr Allen-Mirehouse’s remarks:

Mr Roberts expressed himself more briefly. The minutes record:

It is illustrative here to refer to the position of Mr Elwyn Owen. He was a member of the Park Authority appointed by the National Assembly. He was nominated by the Park Authority as a member of the claimant Council and co-opted to its Executive Committee. He appreciated that his dual membership might give rise to a problem in relation to Bluestone. Quite properly he wanted to be able to play his part in the Park Authority’s decision. He therefore withdrew from meetings of the claimant Council when Bluestone was discussed, and took no part in the Council’s decision to oppose the development. At the meeting on 8 December 2003 the Park Authority’s monitoring officer informed the meeting that he had considered Mr Owen’s position and had advised him that he could participate fully in the meeting. Mr Owen addressed the meeting at some length when the merits of Bluestone were under consideration, taking up a page of the minutes. He addressed himself to the planning considerations and its is clear that he was doing so properly. He began by welcoming the fact that the application was being discussed in a mature, thought-provoking and good-natured way. If it had appeared that he was simply taking the line he was simply because he was a member of the claimant Council and regardless of the merits, that would have shown bias. The measures he had taken would not have prevented that. So in that way his position was not fundamentally different from that of Mr Allen-Mirehouse.

The next heading is “their well-publicised support for the whole project”. This phrase comes from the Opinion of Mr. McCracken of 26 November 2003, which was provided on the instructions of the Park Authority’s Monitoring Officer. Under the heading at its start ‘Summary and recommendation’ it was stated: ‘The participation of the Councillors would create a real risk of bias both because of their well publicised support for the whole project, and ….. .’ There is however, no other evidence that the two councillors gave any public support for the project other than at the County Council and Park Authority meetings to which I have referred. There is no evidence that they spoke at other public meetings or gave interviews to the media or wrote letters to the press. A statement made by Mr. Allen-Mirehouse was put in evidence. Paragraph 14 reads:

“The conduct of Mr. Allen-Mirehouse and Mr. Roberts at the meeting of 26 November 2003 in opposing consideration of procedural matters by the Standards Committee”. The relevant minute of the Park authority meeting on that day reads:

Next is their conduct in taking a leading role at the meeting on 8 December. This must particularly relate to Mr. Allen-Mirehouse. I do not see that anything arises by itself from the fact that Mr Allen-Mirehouse took a leading role. If he was entitled to take part and took part with the proper considerations in mind, he was entitled to take a leading role. It is necessary to look to see how he conducted himself at the meeting, to see whether he appeared as someone who was attempting to push through the decision regardless of the merits or someone who was properly considering the merits, both for and against the application. I have already considered what appears from the minutes. I consider that the minutes show that he took a proper and balanced approach.

The further point is made under this heading that Mr Allen-Mirehouse sought to short-circuit the process of notifying the National Assembly. The Assembly had to be given notice of the decision so it could decide whether to call it in. The Assembly had 21 days in which to decide whether to do so. Mr Allen-Mirehouse, seconded by Mr Roberts, moved that the matter should come back on 17 December. That would not have given enough time for the Assembly to respond. His recorded reason was that the Assembly had been aware of the application for over a year, and it might be added, had decided not to call it in at the earlier stage. His explanation given in his statement is that having heard the officer’s explanation of the procedure he agreed that the matter go over to a meeting the end of January provided that there was an up-date at the next meeting on 17 December. That was wholly proper.

The sixth matter is the leading role taken by Mr Allen-Mirehouse and Mr Roberts on 28 January 2004 in promoting the grant despite the officer’s critique of their reasons. The Councillors were entitled to continue to disagree with the officer. The debate shows that the officer’s points were considered. The point adds nothing to those which have preceded it.

The seventh point is the split 8 to 4 between the Council-appointed members and the Assembly-appointed members. This is consistent with the Council members being influenced by the Council’s decisions, but it does not establish it. It is necessary to look to see how the Council-appointed members reached their view, an exercise which I have done. In the circumstances the divide simply shows a division of opinion between two viewpoints: the economic benefit as opposed to the integrity of the Park.

The eighth point is that nothing was said at the 8 December and 28 January meetings of the need to put on one side the Council’s decision and to examine the planning issues. This is probably derived from paragraph 32 of the judgment of Richards J. in Georgiou quoted in paragraph 56 above. It is plain that members did concentrate on planning issues. I do not consider that it was necessary here for anything to be said about the Council’s planning decision.

The ninth point is that nothing was said by either Mr Allen-Mirehouse or Mr Roberts to suggest that they were aware of the need to approach the planning question with an open mind. The issue is whether it is established that they approached it with closed minds. I have addressed that.

The last point is the alleged shifting of the basis on which members were asked to grant permission, particularly by Mr Allen-Mirehouse. I have considered this in connection with the case made under section 54A. I concluded in paragraph 47 that the reasons were consistent.

For the reasons I have set out I do not consider that individually the ten matters relied on would suggest to the ‘fair-minded and informed’ observer that there was a real possibility of bias by reason of an approach with closed minds. The cumulative effect is more difficult to gauge. Grains that may be insignificant by themselves may be bound together to make a significant ball. In the end I think it comes down to whether the Council-appointed members, in particular Mr Allen-Mirehouse and Mr Roberts, took a proper approach at the relevant meetings. The Council’s approval of the loan and the Council’s grant of planning permission would provide reasons, explanations, for the members having closed their minds if they had done so. They do not show that the members did close their minds. I have examined the evidence as to how the decision was approached. I concluded that a ‘fair-minded and informed observer’ would find that their approach to the Bluestone planning issue was a proper one, concerned with the merits, and not with closed minds. The case as to bias fails.

In paragraph 111 of his judgment in Bovis, which I have quoted, Ouseley J. referred to the distinction between a closed mind in the sense of a ‘determination to adhere to a particular view’ and ‘a legitimate predisposition towards a particular point of view’. I accept that distinction as a valid one, particularly in the field of local authority planning decisions. Thus a councillor might be elected on an ‘affordable housing’ ticket. That would not disentitle him from taking part in planning decisions involving low-cost housing, but he would need to be careful to consider the planning merits of the particular application. The distinction can be shortly stated, but it may not be easy to apply in practice. It is made more difficult by the process by which local authorities reach their decisions by a vote following debate, which may be brief. There is a marked contrast with the process of an inspector’s inquiry and the ensuing report where reasoning can be set out at length. I think that the court can do no more than look to see whether it appears that the member or members did give proper consideration to the planning merits. That is the approach I have intended to follow.

In my judgment, first, the Park Authority’s decision to grant planning permission for the Bluestone development was reached in compliance with section 54A of the Town & Country Planning Act 1990 and, second, the case of apparent bias on the part of two members of the Authority is not made out.