Elizabeth Condron v National Assembly for Wales & Anor

This is an application under Section 288 (1) of the Town and Country Planning Act 1990 against the decision of the 11^th April 2005 of the National Assembly for Wales (“the Assembly”), which granted planning permission to a developer, Miller Argent (South Wales) Limited (“Miller Argent”), to carry out opencast mining and related removal and reclamation operations at a large site near Merthyr Tydfil called Ffos-y-fran. The Developer’s proposals had generated a great deal of comment and interest, both in support and against, and there had been an Inquiry at which numerous objectors, both individually and by way of informal associations, spoke against the development. They were not legally represented. The planning permission had been “called-in” so as to be determined by the Assembly itself which, by way of its standing orders, then delegated the matter to a committee convened to deal with this particular application, the Planning Decision Committee. Planning permission was granted but subject to many conditions.

On the 19^th May 2005 one of the objectors, Mrs E.C. Condron, lodged Grounds of Appeal (since amended). She appears before me by Mr George Q.C. leading Mr Booth. The developer, who had been represented at the Inquiry by Mr Price-Lewis Q.C., is now represented by Mr Lindblom Q.C., Mr Price-Lewis Q.C. and Mr J. Pereira. The Local Authority, Merthyr Tydfil County Borough Council, supporting the grant of permission, was represented at the Inquiry by its Head of Planning; it is not now represented. The National Assembly for Wales, which made the decision of the 11^th April, is represented by Mr Rhodri Williams.

The Ffos-y-fran site consists of some 400.6 hectares of land, largely elevated urban common land, to the east of the Merthyr Tydfil and about 2 kilometres from that town’s centre. Dowlais is closer than that, to the north-west of the site. Along the site’s western edge now runs the A4060 (T) trunk road, the width of which alone separates the settlement of Mountain Hare from the site. To the north-east of the site and immediately adjoining it is the Trecatti landfill. There has been little discussion about the lay-out of the east and of the furthest southern part of the site but at the south of the western part of the site there is a road called “the Bogey Road”, running roughly east-west along the boundary of the site and on which is to be found a clutch of residences called “Incline Side”. The application site lies wholly within Merthyr Tydfil County Borough and the greater part of it is classed as derelict and unsightly, containing in part (and grassed over to a greater or lesser extent by a merciful nature) former waste tips, not always detectable by the naked eye, and the residues of earlier operations.

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 wide 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.

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.

The most common wind (up to 25% of the time) is from the South West; the second most common (15%) is from the North East. The former leaves Mountain Hare and Incline Side upwind of the site, the latter leaves them downwind of it.

On 30^th April 2003 Miller Argent submitted its planning application, which, on 1^st December 2003, was called in by the Assembly under the provisions of section 77 of the 1990 Act. It was called in because the proposed development raised issues of more than local importance in that it would have wide effects beyond the immediate locality. The Local Planning Authority, Merthyr Tydfil County Borough Council, decided to support the proposal. Mr Clive Nield BSc, C.Eng, MICE, MCIWEM (“the Inspector”) was appointed to conduct an Inquiry (“the Inquiry”) and in that capacity sat for 8 days in September 2004 to hear witnesses and argument. On the 8^th November 2004 he lodged his report (“the Inspector’s Report”) with the Assembly. He recommended that planning permission should be granted subject to conditions which he annexed.

On 3^rd February 2005 the Planning Decision Committee of the Assembly (to the composition of which I shall need to return) met. They had before them the Inspector’s Report and the Assembly’s Planning Division’s Officers’ Report. The officers agreed with the Inspector that the scheme proposed would be in accord with the development plan and national policy and that the benefits outweighed the objections. About 60 letters of objections to the Scheme had been received by the Assembly as well as a Petition against it with some 3,400 signatures. The Committee (“the PDC”) were advised by the officers that the matters raised since the close of the Inquiry had mostly been dealt with at the Inquiry and in the officers’ view would not materially affect the decision. The PDC resolved (adopting the officers’ recommendation) to indicate to the parties that it was minded to grant planning permission subject to submission of a completed section 106 Agreement and subject also to the conditions proposed by the Inspector, with amendments suggested by the officers. The PDC authorised the detail of the grant of formal permission to be dealt with, including review of the section 106 Agreement and the final formulation of the planning conditions, by officials on its behalf.

By a letter of 7^th February 2005 the Chairman of the PDC, Mr Carwyn Jones A.M., wrote to Miller Argent, with a copy to Merthyr Tydfil’s Head of Planning, indicating that Miller Argent was invited to conclude a section 106 Agreement as described in the letter within 3 months and that on receipt of a satisfactory one a grant of planning permission implementing the PDC’s decision of 3^rd February would issue. The letter indicated that the PDC had reached their decision taking account of all correspondence raised after the hearing had ceased and that they were satisfied that it raised no new evidence or new matter of fact which would materially affect their decision. There was still no planning permission formally granted.

On 16^th March 2005 there was a debate in the Assembly of some relevance to the case before me. The Assembly from time to time makes proposals (“bids”) to the Westminster Parliament as to primary legislation which it suggests should be passed with respect to Wales. On the 16^th March the Assembly had before it in substance a proposal from the First Minister “to pursue theseproposals with the UK Government and press for primary legislation which reflects the particular needs of Wales ….”. Many amendments were proposed so as to signify what “these proposals” were to be. Jocelyn Davies A.M. had proposed, inter alios, an amendment 7 which was described by the Assembly’s Minister for Environment, Planning and Countryside, Mr Carwyn Jones (the same gentleman as the Chairman of the PDC) as referring to the need for the Assembly to be able, effectively, to impose a 500 metres separation distance between opencast workings and residential homes. The Minister opposed the amendment on a point of order on the basis that the Assembly already had that power. The Assembly’s Presiding Officer ruled that the amendment was in order and it was then debated. I shall return to some of the things said in the debate but it suffices at this stage to say that after a rather bad tempered debate (there were accusations of daftness, cynical posturing and dishonesty) there was a very tight vote, 29 for, 28 against and no abstention. The Assembly was thus proposing to request Westminster to enact primary legislation enabling the Assembly to set a 500 metres separation zone between proposed opencast mining sites and residential settlements.

On 31^st March 2005 a section 106 agreement acceptable to the Assembly (signified by way of the officer to whom the question of approval had been delegated) was signed by the parties to it and on 11^th April 2005, by that officer’s letter, the Assembly, by its Head of Branch 1, Planning Division, granted planning permission, allowing one condition to be removed whilst insisting on the continued inclusion of another.

On 19^th May 2005, as I have mentioned, Mrs Elizabeth Condron, who lives about 500 metres from the site, lodged the claim which, as amended, is now before me. It had seemed as if her standing to bring the claim was going to be disputed but in the event it was not.

The Claimant brings her claim on broad and not wholly separate grounds which I shall now turn to under 5 headings.

A “buffer zone” or separation zone is a strip or area of land to be left undisturbed between whatever particular operations are being considered – here opencast mining and earth and landfill workings – and houses; it is usually spoken of by reference to a minimum width. The Claimant’s first ground raises questions as to a buffer zone in 4 ways. Firstly, she says that the Inspector (and thus, in turn, the Assembly’s officers, the PDC and the Assembly itself) failed to take account of the fact that the Environmental Statement filed in connection with the Planning Application had recommended a buffer zone. Secondly, that the Inspector acted unreasonably in failing to adopt the Environmental Statement’s recommendation as to a buffer zone. Thirdly, that the Inspector based his conclusions as to a buffer zone on the basis of error of fact and, fourthly, that he failed to take into account Department of Environment guidance which supported the imposition of a buffer zone of some 100-200 metres in width.

The Environment Statement was composed to comply with the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999. The required Non-Technical Summary, 48 pages long even without its maps and diagrams, refers, under the heading of “Air Quality” to “the recommended 100-200m buffer zone” (paragraph 24.5) but did not explain the zone further and did not include a buffer zone described as such amongst the legends on its various maps. The full version of the Environmental Statement referred to a Department of Environment document and to dust generation associated with the removal of soil and overburden, overburden stockpiles, coal extraction and blasting and with the handling and processing of coal and to odours including those arising on disturbing previously land filled areas. It made frequent reference to “the recommended 100-200m buffer zone” – see paragraph 19.5.2 - where, under the heading “Dust”, the term is used three times. At paragraph 19.7, under the heading “Summary Conclusions” the authors – Peter Brett Associates – refer to “most of the nearby dwellings [lying] outside the recommended 100-200m buffer zone”. Plainly, says Mr George, the Environmental Statement, given those references, had recommended a buffer zone, moreover, one of not less than 100 metres.

That there is a document published by the Department of Environment Minerals Division in December 1995 entitled “The Environmental effect of Dust from Surface Mineral Workings – Summary Report and Best Practice Guide” is common ground. The Non-Technical Summary does not refer to it but the full version does, as guidance. That, says Mr Williams, is all it is, guidance. Its primary aim, he points out, is to provide guidance to the Department of Environment. As such, it is not only merely guidance but, strictly speaking, he adds, it is not applicable to Wales. It fails, he says, to create an obligation as to a buffer zone. He refers to its paragraph 3.2 where one finds:-

“Where appropriate, the distance between sensitive uses and dust generating activities should be maximised, and incorporated within the site design. Ideally the results from a dust assessment study can be used to define minimum “stand-off” distances. In the absence of such information a stand-off distance of 100-200m between sensitive uses and medium-high dust generating activities of a continuous nature is recommended (see section 4.7). This can be reduced if appropriate and effective mitigation measures are identified and implemented.”

The drift of the section 4.7 referred to is that most dust problems can be dealt with by way of precise and unambiguous planning conditions. Mr Lindblom, too, points out that there is no statutory requirement as to buffer zones in Wales. There is, he shows, a published “Minerals Planning Policy” for Wales of December 2000 (“MPPW”), which refers to buffer zones and provides guidance on mineral policy in Wales but it creates no obligation in relation to them and in any event points out that their size will necessarily vary from case to case. Further guidance, said the MPPW, was expected from Technical Advice Notes for coal and aggregates but none has yet been published for Wales for opencast coal mining.

The Environmental Statement itself, whilst undoubtedly referring to the Department of Environment’s recommended buffer zones, did not, on a careful reading, itself recommend any particular buffer zone for application at Ffos-y-fran and accordingly the Inspector (and, in turn, those successively considering the matter) could not have failed to take into account that it had. Nor could the Inspector and others unreasonably have failed to adopt the Environmental Statement’s recommendation as to a buffer zone as there was none.

As to the third form of complaint as to buffer zones – that the Inspector had reached his conclusions on buffer zones on the basis of an error of fact – it consists, firstly, in drawing attention to the fact that the Inspector thought that the nearest dwellings likely to be affected by dust and as to air quality by the development were at Incline Side. That is wrong, says Mr George; far too little attention, he says, was paid to Mountain Hare. The nearest house was Mr Evans’, at Mountain Hare, close to the Mountain Hare roundabout. Mr Evans’ house is, as I have mentioned, about 60-70 metres from the point at which, on the steep bank opposite his house, earth and overburden will be shifted and that is closer to workings than will any house be at Incline Side. However, the difference in the two distances is relatively small and I have nothing before me that suggests that in terms of dust deposition and air quality the difference in the effects as between, say, 60-70 metres and 125 (roughly the closest house to workings at Incline Side) will be of any significance. It is the case that the nearest dwelling to workings was closer to them than the Inspector had in mind and that he was therefore not considering the “worst-case scenario” as to dust deposition or air modelling that he thought he was but there is nothing before me to establish that the difference between what he had in mind and what is the fact is of any significance.

The second part of the alleged factual error consists of an assertion that, contrary to the belief of the Inspector, workings would take place within 125 metres of houses. What the Inspector had said is this:-

“The site boundary is 36 metres from the nearest house but coal would not be extracted close to the site boundary, and for most of the time the workings would be considerably more than 125 metres from houses.”

It is correct that the site boundary is 36 metres or so from the nearest house, Mr W.T. Evans’, and it is also the case that coal would not be extracted close to the site boundary. It is true, again, that for most of the time the workings would be considerably more than 125 metres from even Mr Evans’ house as the proposed direction of workings is to move, as work progresses, away from Mr Evans’ house and towards the centre of the site. Mr George can complain that to say that “coal would not be extracted close to the site boundary” misses the point in that there will be workings – shifting of earth and overburden – closer to Mr Evans’ house than the extraction of coal will be but I do not see the distinction as being of true materiality given that lopping the top off the bank opposite his house cannot be expected to be an operation of any great duration and, as I have mentioned, thereafter workings will be moving in a direction away from his house. I accept that there are errors of fact to the extent I have described but they are, as it seems to me, only minor and without significance; the Inspector was thoroughly aware that there were houses within the 100-200 metres buffer zone which, as a matter of guidance, the Department of Environment generally recommended and I do not see the errors as sufficient to deny to the Inspector his conclusion that the best approach to the problem of dust deposition was, rather than some buffer zone, the imposition of particular planning conditions to be attached to the planning permission and which could fully take into account the local topography and the local wind and weather conditions which play a large part in the likely distribution of dust or odours.

As for the Inspector’s failure to take the Department of Environment guidance into account, he, of course, had the Environmental Statement in front of him with its references to the Department of Environment’s guidance. He specifically refers to it in his paragraph 9.4. But the guidance itself acknowledged that “stand-off” distances could be reduced below 100-200 metres, as I have cited, “if appropriate and effective mitigation measures are identified and implemented”. That was the route which the Inspector preferred. He said:-

“3.1.9.

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 suggests that Wales should follow suit. In fact MPPW already advocates the use 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 of Ffoss-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.

…….

…….

3.4.9.

A total of 72 suggested conditions are put forward in the Statement of Common Ground, and these were discussed at some length in the Public Inquiry. Various alterations, additions and deletions were agreed by the main parties, and these are reflected in the Annex of Conditions attached to this Report. All of these conditions meet the tests prescribed in Welsh Office Circular 35/95, The Use of Conditions in Planning Permissions. They would provide adequate and necessary controls over working methods aimed at minimising and mitigating impacts on the environment and local amenity should the National Assembly resolve to grant permission .

……..

3.5.4.

Dust, noise and blasting from operations on the site would have the potential to be detrimental to the living conditions of nearby residents. However, extensive measures would be taken to minimise the creation and spread of dust and to minimise the transmission of noise and the effects of blasting operations. These would be subject to detailed control by means of planning conditions, which would include limiting working hours. On all these matters I conclude that effects would not be significant or unacceptable.

It cannot be said that the route chosen by the Inspector was irrational, still less that it was “Wednesbury” unreasonable.

This first head of complaint, related one way or another to buffer zones and distances, in my judgment fails.

At the 16^th March, whilst the PDC had already become minded to grant planning permission, none had yet been granted. It is, I think, common ground and I accept that the Assembly at that date could have withdrawn the issue of planning permission from the PDC and could, for example, have asked for further information from Miller Argent, could have required further discussions with that company or could have undone the reference to a decision which it had indicated it was minded to reach. Section 62 (8) of the Government of Wales Act provides, inter alia, that delegation of a function by the Assembly does not prevent the exercise of that function by the Assembly. Against that possibility Mr George draws my attention to Bolton Metropolitan BC –v- S of S for the Environment and Great Manchester Waste Disposal Authority (1990) 61 P & CR 343 C.A..

In the Bolton case the Waste Disposal Authority – the “WDA” – had made a compulsory purchase order as to some 104 acres of Bolton’s land. The CPO was confirmed. At the time the WDA had power over several districts within Greater Manchester to direct where they should tip. Bolton had wished to oppose the CPO but had come to an agreement with the WDA (an agreement which, per Glidewell L.J. “It would not be proper to dignify with the term of a contract”) whereby the WDA, using its powers to direct others where they should tip, would ensure active tipping of the site over 15 years of a 16½-year licence to be granted by Bolton and that the land would be reinstated after the end of the tipping and at the end of the licence would be re-conveyed back to Bolton. Bolton did not at all care for losing the land but it faced up to what it thought to be virtually inevitable and the so-called agreement would at least ensure the completion of all tipping and the return of the land to Bolton at the earliest practicable date. The agreement hinged on the WDA’s authority to direct refuse to the site; if that was done the site would assuredly be filled up within the period of the licence and it could then be returned to Bolton as early as could be hoped. The evidence clearly showed that the directing ability of the WDA was at the heart of the case. On the basis of the agreement (which the Inspector in that case was not told about) Bolton withdrew its objection but before the Secretary of State issued his Decision Letter and whilst he was therefore considering the Inspector’s Report his department issued a “Green Paper” as to the functions of WDAs. Collection authorities such as the Manchester Districts, rather than being under the then-current duty to deliver waste to WDAs would instead be required to seek competitive tenders for their tipping. Bolton’s case was summarised by Glidewell L.J. at p. 347 as follows:-

“Bolton’s case is that if the Green Paper proposals become law they will remove the ability of the authority to direct that refuse should all come to its site from the various districts and thus remove from what will become the waste disposal company the power to ensure that the land be refilled within any particular period of time. It follows, Bolton argues, that the basic reason for its withdrawal of its objection would disappear.”

On learning of the Green Paper Bolton spoke to a civil servant within the Department of the Environment pointing out the significance of the Consultation Paper and explaining Bolton’s concerns. No letter was written to Secretary of State. As to that Glidewell L.J. continued:-

“What effect it would have had one cannot say, but clearly it would have been difficult for it totally to be disregarded.”

– p.354. Hodgson J. at first instance had quoshed the CPO.. At p. 354 Glidewell L.J., with whose judgment McCowan L.J. and Sir Roualeyn Cumming-Bruce agreed, said:-

“As to the second issue, that is to say, might that have made a difference to the Secretary of State’s decision, if this matter had been communicated to whoever the decision maker truly was – and it appears that it never did in fact reach him or certainly there is no clarity as to whether it did – then it in my view follows that it might well have made a difference to his decision. In the sense in which I have used that phrase, there was a real possibility that it would have made a difference to his decision.”

As, earlier in his reasoning, Glidewell L.J., setting out his summary of the effect of the authorities, had held that a decision maker ought to take into account a matter which might cause him to reach a different conclusion than that which he would reach if he did not take it into account, he accordingly dismissed the appeal and hence the CPO remained quashed. It is notable that the trigger of change was the Green Paper yet its proposals could well have been altered during the course of the consultation which was the purpose of its publication. Its proposals might never have become law even assuming that the Government-of-the-day did not change or change its mind in the interval between publication of the Green Paper and whatever date on which Parliamentary time was available for and was given to its enactment.

Basing himself on Bolton, Mr George says that there was a material supervening event between the PDC being minded to grant planning permission and the later grant, namely the debate and resolution of the Assembly of the 16^th March. Both inevitably came to the notice of the members of the PDC as every member of it was present at the Assembly on the 16^th March and voted on the resolution, some for and some against. That the Assembly was proposing to request Westminster to enact primary legislation enabling the Assembly to a set a 500 metres buffer zone was a matter, says Mr George, which, if taken into account by the PDC, had it been reconvened to reconsider the grant of planning permission before anything further was done, would have been, as had the Green Paper been in Bolton, a matter difficult for it totally to disregard. What the result of such reconsideration would have been, says Mr George, one cannot say (as was also the case in Bolton) but it might well have made a difference to the decision and hence was, as was the Green Paper in Bolton, a post-inquiry matter that should have been considered before the planning permission issued. The failure of the PDC to consider it, he says, vitiated the grant of planning permission. It matters not, says Mr George, that the primary legislation invited to be enacted had not been enacted by Westminster or might never be enacted or might be other than as the Assembly had requested; that was the case with the Green Paper also in Bolton and did not deny to the Green Paper the description of it being something difficult to be totally disregarded and which might have made a difference to the decision.

It is an attractive argument but in my judgment it fails for two related reasons. Firstly, as a matter of degree, whilst buffer zones as a means of avoiding dust and air quality problems, have loomed large in the argument before me, they formed only a relatively minor part of the totality of the arguments and evidence before the Inspector. Buffer zones and dust, in other words, never approached the centrality and importance which the reasons for Bolton’s dropping its objections in the Bolton case and the effect on those reasons of the Green Paper had in that case. Secondly, if one supposes that the PDC had been reconvened to consider the impact, if any, of the debate and resolution and if one then attempts to envisage the conduct of that reconsideration it is difficult if not impossible to think that the members of the committee would have concluded other than that they already had power to impose a buffer zone of any size appropriate to the facts of the case. It was the chairman of the PDC who himself, as I have mentioned, had opened the debate with the assertion that there was no need for primary legislation of the kind spoken of because the power which the primary legislation was to be invited to confer already existed. Whilst in the course of the debate it is apparent that there was some confusion about whether planning permission had already been granted and as to the powers of the Assembly and the PDC in the interval before it was, I cannot see that there had been a reconsideration, perhaps with the officers being consulted, it would have emerged other than that if the PDC truly had planning reasons for imposing a 500 metres (or any other size) buffer zone they could have it. It cannot, I think, have fairly been supposed that Westminster would enact primary legislation that obliged a buffer zone of any particular size to be imposed even where there was no planning reason for it. In contrast with the Bolton case, the new factor was, in my judgment, not one such that one could say it might well have made a difference to the decision; it was, in my view, a factor which would very probably have made no difference to the decision. For these reasons this second ground fails.

The Claimant’s third ground is that the Inspector (and his successors in considering the matter) failed to have regard to the existence of and current operations at the Trecatti landfill site, adjoining the application site to the north-east.

Mr George, citing a draft of the Scottish Planning Policy on opencast coal mining in support, stresses the importance, when odours fall to be considered, of the cumulative effect on the area being borne in mind. It is not enough to look only at what an application site itself might emit; he says that the cumulative effect of its emissions with all others in the area has to be examined. But, says the Claimant, odours from Trecatti, an actively-used landfill site, were not here considered. The Environment Agency in March 2005 (after the Inspector’s Report but before the grant of planning permission) had conducted a report on odour and gas surveys in the Dowlais area. Trecatti had been identified as a possible source. The report found a link between Trecatti and hydrogen sulphide and other flammable gas emissions in the area and that levels were intermittently high enough to cause complaints based on the World Health Organisation guidelines. Of course, the Inspector cannot be criticised for not considering a report which had not been written by the time he completed his own report but, says Mr George, an objector, Mr T.W. Roberts, read out his proof of evidence to the Inquiry. It referred to the Scottish Policy as (it was said) not allowing opencast working alongside a landfill site and making the point that, if Scotland banned that, then surely Wales should not allow it to start. The point was made in the broad context of air quality and health.

That the Inspector was aware of the existence of and activity at the Trecatti landfill site is plain; he specifically refers to it under the heading “Other effects on Residential Amenity” in his paragraph 332 but, says Mr George, only in the context of Trecatti being a landfill site to which degradable domestic waste found at Ffos-y-fran could be removed. The cumulative effect of emissions, says Mr George, was never considered.

For the Assembly, Mr Williams draws attention to other references to Trecatti by the Inspector (his paragraphs 13 and 118). For Miller Argent, Mr Lindblom referred to yet other mentions – paragraphs 26 and 78. The Inspector was thus very aware that Trecatti was an active landfill site and he had conducted 2 site visits to Ffos-y-fran. He had specifically dealt with the topic of blasting at Ffos-y-fran affecting Trecatti and accepted advice that the effect would be insignificant. Geotechnical stability and other expert views laid before the Inspector showed or referred to Trecatti. Mr T.W. Roberts’ proof as read to the Inquiry did not refer to odour from Trecatti and, says Mr Lindblom, there was nothing in that proof which required the Inspector, already mindful of Trecatti for many different reasons, to inquire into odour from Trecatti as a possible contributor to the cumulative effect of all proposed operations on air quality and health. There was nothing, in other words, says Mr Lindblom, to disturb the Inspector’s conclusion (his paragraph 332) that Miller Argent’s proposals would not raise any meaningful risk to either the environment or the health or the amenity of local residents.

No evidence of the emission of any odours by the Trecatti landfill was led before the Inspector, still less of emissions that travelled so as potentially to be available to be added to any from the proposed operations at Ffos-y-fran. Nor was odour from Trecatti identified as a matter of complaint from objectors; Mr Roberts’ proof of evidence did not refer to odour from Trecatti. The Inspector in his 2 site visits presumably failed to detect odour from Trecatti as a subject which, independent of the absence of objection to it, nonetheless required to be examined. The Inspector had “sometimes” noticed “a slight odour” when he was inspecting the known former landfill sites within Ffos-y-fran (his paragraph 94) but there is nothing to suggest that anything from Trecatti was a component of what he then detected and, if anything, the fact that the odour was mentioned only by reference to Ffos-y-fran’s erstwhile landfills suggests that the slight odour was not detected in other parts of Ffos-y-fran and hence that there was nothing detectable coming over from Trecatti.

That, by March 2005, the Environment Agency had found Trecatti’s emissions intermittently to be at a level such as could, on the basis of WHO parameters, cause complaint does not, strictly speaking, prove that that was so before the Inspector reported on 8^th November 2004 and I reiterate that the Inspector cannot be criticised for failing to take notice of an Environment Agency report which did not then exist. It was unfortunate that the Environment Agency’s report of March 2005 had not been concluded early enough to have been drawn to the Inspector’s and to objectors’ attention but I acquit the Inspector of the complaint that he failed to take into account a matter that ought to have been considered. In my judgment there is nothing about odour from Trecatti that barred the Inspector from arriving at his conclusion that the Miller Argent proposals would not raise any meaningful risk to the health or the amenity of local residents or that renders that conclusion questionable on the ground that a material consideration was left out of account. This ground of claim thus fails.

Under this ground of claim it is urged that the Assembly failed to have any or sufficient regard to submissions made by objectors after the 8^th November 2004 (the Inspector’s Report) and before the 11^th April 2005 (the grant of Permission). Matters said to have been such that they should have been regarded but were not can be divided into two broad categories. Firstly, there is what I can call “the Newcastle study” and, secondly, the effect of hitherto undisclosed former landfill sites within Ffos-y-fran. But before I turn to either I must look at a class of information which has, by law, to have regard paid to it before planning permission is granted, irrespective of its emerging only post-Inquiry.

In terms of the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999, Miller Argent’s application was a Schedule 1 development and hence an EIA development and, in turn, an EIA application within the definition provisions of Regulation 2. Accordingly under Regulation 3 (2) the Assembly, taking the place of the Secretary of State, was obliged not to grant planning permission “unless [it has] first taken the environmental information into consideration ….”. The definition of “environmental information”, after providing for information from the developer and from bodies required to be invited to make representations, continues “… and any representations duly made by any other person about the environmental effects of the development”. What is the import of the words “duly made”? They are not further explained and it is far from easy to be categoric about their effect. It cannot, for example, be supposed that, where there has been an inquiry, they in all circumstances preclude all representations from objectors received only after the inquiry was concluded. Both the environment and effects upon it can change unforeseeably from time to time and late representations might be as to matters that arose or could have been discovered only after the inquiry had finished and which therefore were such that the objectors or supporters could not fairly be expected to have addressed them earlier.

It seems to me that the words “duly made” require a test, a balance to be struck, one including a number of factors amongst which will be the materiality and importance of the late material in relation to environmental effects on the proposed development and on the granting or refusal of planning permission. A place also has to be given, on a spectrum from ease at one end to impossibility at the other, as to the ability or otherwise of the late matter to have been previously drawn to the attention of the relevant authority, Inspector or Secretary of State. Any delay (and the explanation for it) between when it could first have been made the subject of a representation and when it was in fact so made will also need to be reflected. In broad terms, the more crucial the late information, the more likely would a Court conducting such test or balance be to tolerate or excuse the delay and not to rule that the representation had not been “duly made”. On the other hand, a person who is merely “any other person” within the definition and who has delayed his representations, either for tactical reasons or otherwise, always runs some risk of finding, even if those representations would have been “environmental information” if made earlier, that they may be left out of account as not having been “duly made”.

I shall first apply that test or balance to the representations made as to hitherto undisclosed former landfill sites within Ffos-y-fran.

Undisclosed former landfill sites

It was well known that within Ffos-y-fran there were, largely covered over by the effects of vegetation and time, former landfill sites the disturbance and removal of which, before the underlying coal was mined by opencast methods, might create problems. The evidence disclosed three former sites towards the western side of Ffos-y-fran, the areas of which were identified on maps and plans and marked as Tip 13, the Hoover Waste Tip and the Merthyr Waste Tip. But in his witness statement in this application, made on the 6^th July 2005, well after planning permission had been granted, Mr Clive Thomas, whose family have lived in the area for generations, remembered waste being tipped at sites other than those identified during the Inquiry. One of them, he says, is about 20 metres to the south of Tip 13; he has drawn a plan indicating it as Tip 4. It was used for dumping waste, he says; he dreads to think how toxic it was. It was always a dark colour. In addition, he says, there is a huge waste mound, again to the south of Tip 13, some 20 metres high and covering about ½ hectare. He marks that on a plan as Tip 5. He says one can see the waste coming through the topsoil. He thinks that it is quite likely to contain hazardous matter. He says that none of the waste dumped in the tips he has marked as Tips 4 and 5 was considered at the Inquiry or by the PDC. The disclosed Tip 13, he says, was used by the ICI works in the 1950s and 1960s; waste came in tankers and barrels and all types of chemicals and acids, he says, were dumped there. Toxic waste from other factories such as Croda was also tipped there, he claims, including asbestos. He says there is nothing to suggest that the same type of material was not dumped in the hitherto undisclosed tips, Tips 4 and 5. What is concerning, he says, is that no-one really knows what is in any of the tips. He had not given evidence to the Inquiry on the subject of the undisclosed tips but understood that his brother, Roy Thomas, was going to do so. He had relied upon his brother to give the evidence. However, the day before the Inquiry was due to start, his brother, he says, had a visit from Miller Argent. He says:-

“I know they negotiated a financial settlement to buy the properties in return for not giving evidence at the Public Inquiry and for agreeing not to disclose any information about the site. It was a long time after the Public Inquiry had finished before I found out what my brother had done; that is, to agree to sell his silence and then move to leave the people of Mountain Hare, Twynyrodin and the children of the three schools in the locality with the health hazard that he knew would happen.”

That the Inspector was aware of the difficulties that could be caused by disturbance of former waste disposal sites is clear. The Local Authority’s own evidence said it was vitally important for such issues, which might have potential to raise concern in relation to health and wellbeing, to be very carefully considered. The Inspector deals with the objections that had been raised in respect of the disclosed erstwhile landfill sites. He concluded that the operations in relation to such sites would take about 6 months and would be carried out in accordance with the latest good practice and regulatory requirements. He noted that the Environment Agency had raised no objections and concluded, as I have cited already, that he did not consider the proposals involved any meaningful risk to either the environment or the health or amenity of local residents.

However, after the Inquiry was concluded but before planning permission was granted, on the 30^th January 2005 Mr W.T. Evans of Mountain Hare wrote to Mr Carwyn Jones A.M., Minister of the Environment, Planning and Countryside, to inform him that Mr Clive Thomas, the deponent whose evidence on this application I have summarised above, had taken him, Mr Evans, to Ffos-y-fran and had pointed out that close to Tip 13 there was another buried and mounded tip which Mr Thomas had identified to him and which, so said Mr Thomas, had been used to tip the same sort of chemical waste as had been tipped into Tip 13. Mr Evans also related in the letter how Mr Clive Thomas had said to him that his brother Roy Thomas had been, so to speak, “bought off” and that Clive Thomas had not known about that until later. By that letter there was drawn to the attention of the Minister and, by way of his membership of the PDC, to the attention of the PDC, a representation as to one further possibly toxic undisclosed tip, namely Tip 4. There is no doubt but that the letter of the 30^th January was received.

The other undisclosed tip, Tip 5, is said to have been brought to the Assembly’s notice by way of another letter, a letter of the 31^st January from Mr Clive Thomas to the Assembly. Unfortunately though, Mr Clive Thomas did not keep a copy of the letter and there is no evidence that it was received by its addressee. Mr Williams’ argument asserts that it was not received. I have no material on which I could conclude that it was received. The proper course, therefore, is to examine the question of undisclosed tips on the basis that Mr Evans’ Tip 4 was the only tip that was both previously undisclosed and drawn to the attention of the PDC before planning permission was granted.

The argument as to the undisclosed tip could lead, as I see it, to two questions. Firstly, and accepting that the information given as to Tip 4 was about the environmental effects of the development, was Mr Evans’ representation on the subject “duly made” such that it was environmental information that had to be taken into consideration under Regulation 3 before any grant of planning permission, however late it arrived before the actual grant. Secondly, even if it did not on that account have to be taken into account, was it information such that the PDC, properly instructing itself, could reasonably have concluded, as it did, that there was no post-Inquiry fact or matter emerging from the correspondence, which included Mr Evans’ letter, which would have materially affected its decision.

As to that second possible question, it is, in effect, one of Wednesbury unreasonableness and Mr George has more than one once emphasised that he was not raising any question of that kind. That leaves only the first question, which involves whether the representation had been “duly made”.

Mr Evans believed that by 30^th January 2005 (but not more than only a little before) he had grounds to assert that there had been a Tip 4. He had no grounds for believing that its existence had been drawn to the attention of Miller Argent by way of the results of the developer’s bore-hole testing of the site or otherwise or that the developer or anyone else had brought its existence to the attention of the Inspector. He himself had put in a witness statement with attached photographs to the Inquiry but he had not mentioned Tip 4 if only, no doubt, because there is no reason to think he then knew of it. He had lived at his address for only 22 years whereas Tip 4 (he was told) had been used some 18 years and more earlier than that. But can it be urged that the new and late information has been shown to be really significant? If the hitherto undisclosed Tip 4 had had tippings of the same character as the far larger former Tip 13 close by and if, as was the case, the disturbance of Tip 13 (and the Hoover and Merthyr former tips) had occasioned no objection from the Environment Agency and was expressly found by the Inspector to create no meaningful risks, it is not, in my view, possible to regard the late disclosure of Tip 4, even assuming it was as threatening as Mr Thomas had described it to be to Mr Evans, as likely to be of any real further significance in terms of its environmental effect. The 6 months might have to be a little extended but otherwise what new risk would there be? If I have been right in my description of the sort of factors that need to be taken into account in judging whether a late representation has been “duly made”, then in my judgment Mr Evans’ late disclosure here was not one that was “duly made”. On that footing it was not such that, despite its lateness, it had to be taken into consideration under Regulation 3 (2) supra.

The PDC, under the Town and Country Planning (Inquiries Procedure) (Wales) Rules 2003, had, by Rule 17 (4) the power (an unfettered discretion) to disregard any written material received after the close of the Inquiry. It could thus have ignored Mr Evans’ letter at any rate if, as I have held, the latter was not a representation “duly made” so as to be “environmental information”. It cannot be that persons can insist on late information outside that which has to be considered being taken into account, however late and however peripheral, as otherwise planning permissions could be almost endlessly postponed. I have not been told that the PDC did decide to disregard Mr Evans’ letter, (indeed, as I shall come on to next, I have, in effect, been told it was not disregarded) but in my judgment they could not have been criticised if they had disregarded it; it was too late.

But in any event, there is no adequate proof that it was not taken into consideration. The PDC in paragraphs 10 and 11 of its letter of the 7^th February 2005 clearly stated that it had taken the environmental information into consideration and also the correspondence received after the Inquiry. 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 the existence of a relatively 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. This limb of the post-Inquiry submissions therefore fails and I turn to the other, the “Newcastle study”.

The Newcastle Study

The Inspector correctly noted that there are no statutory objectives for general dust or odour but that the Department of Environment had issued guidance (to which I have already referred). In the absence of a reliable applicable methodology as to dust emissions from opencast workings he referred to “the Newcastle Study”, a study carried out into particular levels “in communities close to and away from opencast local mining sites in North-East England”. He found that the Newcastle Study had established that the average concentration might be 2.1 to 2.5 milligrams per cubic metre higher in opencast coal mining communities than in otherwise similar communities further away from the mining. The Inspector referred to the Newcastle Study at several points in his report, noting that it had found that on average PM10 particulate levels were “slightly higher” in communities close to active opencast sites than at others further away but that it had found little evidence for association between living near an opencast site and any increased prevalence of respiratory illness. A small increase of the kind found in the Newcastle Study, he wrote, would be unlikely to cause a measurable change to the incidence of asthma symptoms, adding:-

“To put the matter in context, the small increases in emissions predicted at Ffos-y-fran would be less than normal day-to-day changes in air pollution that occur because of changes in the weather.”

The predicted emissions to which he was there referring were emissions at the rate of 4 milligrams per cubic metre, which he described as “a conservative allowance, almost double that found in the Newcastle Study”, conservative, in that context meaning a figure erring, if at all, on the safe and pessimistic side. In the Newcastle Study the communities had been down-wind of the mining whereas at Ffos-y-fran they were upwind, which, said the Inspector, made the 4 milligrams assumption very conservative.

The Inspector heard criticism of the Newcastle Study which he held to be unfounded; the Newcastle findings had been fully accepted by the Department of Health’s Committee on the Medical Effects of Air Pollution. The experts who had given evidence to the Inquiry had had little regard for the views of those critical of the Newcastle Study and the Inspector thus gave little weight to them. In this way the Study contributed to his conclusion that the general effect of Miller Argent’s proposals on the health of the community as a whole would not be significant. The officer’s report to the PDC had also referred to the Study.

What had been referred to and what was available to the Inspector was a 2000 Newcastle paper. Quotations from it, it seems, were also made orally during the Inquiry by Miller Argent’s expert witnesses. A number of papers relating to opencast mining and related dust deposition and health in the Newcastle area had been referred to as sources in the proofs of evidence of Miller Argent’s expert witnesses, available to objectors some 4 weeks before the Inquiry began. In one paper it was said that the selection criteria of communities near opencast sites were “distance between the site boundary and the centre of the community less than 750 metres; no major intervening dust source; prevailing wind from the opencast site to the community; site active at time of monitoring”. The workings there looked at had life cycles of 3, 4 or 5 years.

In December 2004, after the Inquiry had closed, the local paper, the Merthyr Express, had an item on Miller Argent’s proposals which quoted from a 2003 Research paper written by Dr Suzanne Moffatt and Ms Pless-Mulloli of the University of Newcastle. It built upon the 2000 paper of which Ms Pless-Mulloli had been a co-author. It included reference to “proper time and proximity restrictions” which, if respected, should lead to opencast mining having no effect on childrens’ health. The objector Mr W.T. Evans, having read the item in the local paper, wrote to Dr Moffatt asking questions, including what those proper restrictions were. That led to Mr Evans receiving a copy of the 2003 paper. On reading it, Mr Evans was struck by the difference between distances from workings to residences in the Newcastle cases and at Ffos-y-fran. Another difference was the proposed length of operations between the Newcastle cases and the Ffos-y-fran case. At Newcastle the distances were of the order of the order of 750-1400 metres; at Ffos-y-fran as little as under 100 metres, with the centre of the community at Merthyr Tydfil within 750 metres of proposed workings. The life cycle at Ffos-y-fran was of some 17 years minimum, to be followed by 5 years of aftercare.

On the 25^th January 2005 (still well before the PDC considered the application) Mr W.T. Evans wrote to the Assembly’s Planning Inspectorate making a number of points including, under the heading “New Evidence”, that the Newcastle sites and the Ffos-y-fran one were not truly comparable. He included copies of the letters he had received from Dr Moffatt. The letter was received by the Assembly; it is listed in the “Post-Inquiry correspondence” which purports to have been taken into account by the PDC. But, argues Mr George, the PDC’s letter of the 7^th February to Miller Argent makes no reference whatsoever to the Newcastle Study or its incomparability or to any view that in consequence the Newcastle Study could not be relied upon as the Inspector had done. It would be nothing short of perverse, says Mr George, to have taken the late assertions as to incomparability into account and yet to have concluded, as the PDC said that it did, that there was no new post-Inquiry fact that materially affected its decision.

Mr Lindblom points out that the 2000 paper was referred to during the Inquiry. It referred to distances between the communities studied and the boundaries of the opencast sites there in question. He points out that the Inspector received evidence from Professor Roy Harrison, Centenary Professor of Environmental Health at Birmingham University, whose evidence included references to both the 2000 and 2003 Newcastle papers (and also to another 2000 one). He points out that Professor Harrison accurately summarised the evidence of those papers as being that there was little, if any, effect of opencast mining on the respiratory health of children in exposed communities. Professor Harrison’s own conclusion was that the potential effect of the Miller Argent proposals on the health of either children or adults was likely to be minimal, far smaller than could be detected by any feasible epidemiological survey. Professor Harrison had also put in “rebuttal” evidence which referred, in continuing to support the conclusions and relevance of the Newcastle papers, to the distances between the exposed populations there and the points of operational activity. His conclusion, after surveying several criticisms, remained that the level of risk associated with the air pollution from opencast mining was very low. Dr Claire Holman, whose doctorate was by way of research into air pollution (and who was either the or one of the authors of the Environmental Statement) also gave evidence to the Inspector that Department of Environment research had shown that at virtually all opencast mining sites dust was not considered to be a major problem although occasional problems might occur.

I shall not conceal my sympathy with Mr George’s argument. It is, no doubt, true to say that the objectors could have required full copies of all Newcastle papers to be made available to them during the Inquiry and could have then raised questions on the issue of the incomparability of the Newcastle cases with the Ffos-y-fran case. But they had no legal representation and, as it seems, merely heard such oral quotations from the Newcastle papers as the Miller Argent witnesses chose to select and recite. It is easy to imagine, had they had legal representation, that there would have been a lively cross-examination of Professor Harrison on the incomparability issue. However, the application to me is not some general reopening of the Inquiry, still less of the Inquiry as in other circumstances it could perhaps have been. 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. Nothing in the late letter from Mr Evans on the issue therefore gives rise to any argument that can be successful on this application. On this aspect, too, the post-Inquiry submissions furnish no ground for success on this application. That leaves only the fifth and last ground, somewhat inaccurately but conveniently called “bias”.

The “bias” alleged is said to have existed in a member of the PDC and hence in the PDC itself, although I must immediately emphasise that I have not needed to be concerned with whether any member or the PDC was in fact biased but with whether the events which I shall relate indicated a real possibility of bias. The kind of bias said to have manifested itself is that which consists of a possibility that questions which should properly have been approached by members of the PDC with open minds and with an impartial consideration of all relevant planning issues had instead been decided with one of the four members having settled upon his conclusion even before the Committee had met. I shall call that type of bias “possible pre-determination”.

There is, I think, no difference between the parties before me as to what is the current test for bias; it is to be found in the speech of Lord Hope in Porter –v- Magill [2002] 2 A.C. 357 H.L. at p. 494 paragraph 103 where he says:-

“The question is whether the fair-minded and informed observer, having considered the facts, would conclude there was a real possibility that the Tribunal was biased.”

That test was applied in a planning committee context by Richards J. in Georgiou –v- Enfield LBC [2004] LGR 497 at paragraphs 15 and 28; I gratefully adopt the passage at paragraph 31where Richards J. says:-

“I therefore take the view that in considering the question of apparent bias in accordance with the test in Porter –v- Magill, it is necessary to look beyond pecuniary or personal interests and 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.”

Richards J. concluded that if such a real possibility of bias had been so proven then although, strictly speaking, relief remained a matter of discretion, it would be very likely to be inappropriate to do other than to procure the decision in question to be retaken in circumstances that did not give rise to an appearance of bias – page 523, paragraph 95.

Before I turn to the circumstances alleged to indicate possible pre-determination I need to say something as to the rules about how PDCs are called into existence in Wales and how they should behave. The Assembly has or should have amongst its members individuals who have had training and who have agreed to be bound by the Code of Conduct prescribed for PDCs – Assembly Standing Order 17 Annex A paragraph (1). Together those individuals make up a planning decision panel. A member of the panel is to be disqualified from being a member of a particular PDC if there are circumstances which could be seen to call in question the member’s ability to consider the application objectively and impartially.

When the Minister responsible for planning matters receives the report of the Inspector he prepares a brief summary which is given to panel members and to the Clerk of the Assembly Committee responsible for planning matters (SO 17.3). That clerk then gives the Business Minister the names of 4 members of the panel who appear to him to be qualified to serve on a PDC to rule upon the particular application in question (SO 17.4). The Business Member then tables a motion inviting the Assembly to establish a PDC consisting of those 4 (SO 17.6). It is intended that the constituents of any particular PDC shall consist of two Labour Party members (1 of whom is to be the Minister unless he is otherwise disqualified) and a total of two members from the other parties who make up the Assembly, namely Plaid Cymru, the Conservative Party and the Liberal Democrat Party. There is nothing about party membership which absolves members from the requirement that they should not conduct themselves in a manner which would seem to call into question the members’ ability to consider the application objectively and impartially.

In many cases in and outside Wales where planning permission is granted or withheld by a local authority committee the parties to the application will either have access to the meeting itself at which the matter is determined or at least to a minute of the meeting but that is not the case where an application is “called in” for decision by the Assembly. Standing Order 17.14 provides:-

“A planning decision committee shall meet in private and its members shall be under an obligation to observe the confidentiality of any discussion by the committee and of any documents considered by the committee with the exception of the committee’s decision letter when adopted together with any documents to which it refers.”

Standing Order 17.13 provides that the Chair of the PDC may vote and that if there is an equality of votes he may exercise a casting vote.

I now turn to how it is said that a possible pre-determination manifested itself. The only direct evidence I have consists of a witness statement of Jennie Jones of the 6^th July 2005. She is a retired Civil Servant who lives in Merthyr Tydfil; Ffos-y-fran is visible from her bedroom window. She was a member of the informal association, the “Parents and Residents Anti-Opencast Campaign”. As such she was one of a group of concerned residents demonstrating outside the Assembly’s Head Office in Cardiff on the 2^nd February 2005. Whilst there she met a friend who was a member of the Assembly and who invited her into the Assembly building to get out of the cold. As she entered the building she met Mr Carwyn Jones A.M., the Minister, as I have already noted, responsible for Planning and who, the following day, was to be the Chair of the 4 person PDC given the task of ruling upon the Miller Argent application. Jennie Jones’ evidence continues 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.”

Then, describing the later events, she continued:-

“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.”

At the end of her witness statement she says:-

“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.”

Her witness statement also describes how her group decided to make complaint to the Assembly’s Scrutiny Committee and how the Assembly’s Commissioner for Standards had responded to their complaint in a letter of the 13^th May 2005.

I have no evidence from Mr Richard Penn, the Commissioner, or from Mr Carwyn Jones A.M. but I do have the letter of the 13^th May. I prefer to deal with what the Commissioner’s own letter says were the events he dealt with and the reasons he had for coming to the conclusions there arrived at rather than the second-hand version offered by the Deputy Clerk to the Assembly’s Committee on Standards of Conduct. The Commissioner ruled that the complaint made was inadmissible in that (quoting from the Complaint Procedure) it did not appear:-

“(vi)

….. 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).”

It is to be noted that the complaint that was so ruled inadmissible was a complaint that Mr Carwyn Jones A.M. had breached the Code of Conduct which states that:-

“Members of the Planning Decision Committee should not discuss a case with any interested party.”

The question before the Commissioner was therefore whether there had been a discussion of a case with an interested party; he was not, strictly speaking, required to be concerned with whether there had been anything said or done that signified possible pre-determination. The Commissioner concluded that the complaint was inadmissible as it had not met that test (vi).

The letter of the 13^th May then sets out an account of the investigation which the Commissioner had conducted. He had interviewed a number of representatives of the “Parents and Residents Anti-Opencast Campaign” including Jennie Jones. He interviewed another 3, the Clerk of the Environment, Countryside and Planning Committee, another person who was a key adviser to that Committee and Mr Carwyn Jones. The Commissioner’s letter continues:-

“There is a considerable consensus between Jennie Jones and Carwyn Jones A.M. about the conversation that took place between the two of them on the 2^nd February 2005. Both said that they met entirely by chance – Jennie Jones had been invited into the Area by another Assembly member “to get out of the cold” and Carwyn Jones A.M. just happened to pass by Jennie Jones on his way to a meeting when he was “button-holed” by her – 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 A.M. 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 A.M. referred to the Planning Inspector’s Report. However there is disagreement about exactly what Carwyn Jones A.M. said to Jennie Jones. Jennie Jones claimed that Carwyn Jones 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 A.M. 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. Both agreed that the conversation then ended and he walked out of the milling area.”

Neither then (so far as one can tell from that account) or before me was there evidence of a clear denial by Mr Carwyn Jones A.M. that he had said that he was “going with the Report of the Inspector”. Nothing could have been simpler than to deny those words had he been minded to do so. Nor either, it seems, did he say to the Commissioner that such words could not be construed as indicating and were not intended to mean that he was going to accept the Inspector’s recommendations. Instead he said that he could not discuss the matter and had not by then read the Inspector’s Report. Mr Williams argues that that assertion has to be taken to be a denial of his having said the words which Jennie Jones had attributed to him.

I cannot accept that. I accept 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 he 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 should add that Jennie Jones was interviewed by the Commissioner on the 13^th April whereas Carwyn Jones A.M. was not interviewed until the 26^th April. It seems unlikely that Jennie Jones had put to her that Carwyn Jones A.M. would say or had said that he had not read the Inspector’s Report as there is no indication that Carwyn Jones A.M. set out, in advance of his interview with the Commissioner, what his version of events was going to be. I reiterate that there has been no evidence from Carwyn Jones A.M. in opposition to Jennie Jones’ witness statement of the 6^th 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.

The Commissioner, whilst, as it seems to me, going outside what was strictly necessary merely to deal with the particular complaint lodged before him, 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 A.M.. I have concluded that it could not. In my view the key test is set out in paragraph 5 of the Code (the guidance in paragraphs 6 and 7 is simply that – guidance – rather than a set of inviolable rules) and I have found no evidence that Carwyn Jones failed “to act, fairly and even-handedly, by bringing an unbiased, properly directed and independent mind to consideration of the matter.”

Before coming to that conclusion the Commissioner had said:-

“The evidence from the Committee Clerk and from the Environment, Countryside and Planning Division official reinforces a claim by Carwyn Jones A.M. 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 A.M. (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 A.M. is also adamant that any views expressed by Jennie Jones in the brief conversation on the 2^nd February 2005 did not affect his own consideration of the matter the following day.”

These passages make a number of things clear. Firstly, that although paragraph 5 of the Code says that members of a Planning Decision Committee must “act and be seen to act, fairly and even-handedly ….”, the Commissioner’s conclusion at the end of that first citation relates only to Carwyn Jones A.M. not having been biased; he does not in terms say that Mr Jones could not have been seen to be biased. Secondly, the Commissioner’s conclusion that there was no evidence that Carwyn Jones A.M. had failed to act fairly was a look at whether there had been actual bias; I am concerned with whether there was a real possibility of a conclusion by the hypothetical observer that Carwyn Jones A.M. had been biased, a different question as it is one more concerned with the appearance of bias than with actual bias. 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. Fifthly, the Commissioner’s conclusion that views expressed by Jennie Jones had not affected Carwyn Jones A.M.’s consideration of the matter seems irrelevant; so far as one can tell no-one had ever suggested that anything Jennie Jones had said had could have affected what views Carwyn Jones A.M. arrived at. That Carwyn Jones A.M. was “adamant” on that irrelevant subject if anything underlines that he had failed to be adamant as to a denial of his uttering the words which Jennie Jones attributed to him.

Mr Williams insists that I should accept the Commissioner’s conclusion as conclusive of the issue of bias as it is argued before me. He points out that the Commissioner had the advantage of seeing and hearing both Carwyn Jones A.M. and Jennie Jones and, moreover, saw them at only a short interval after the events of the 2^nd February. Of course, that the Commissioner concluded as he did is a fact that I must and do take into account in coming to a conclusion but I do not feel that I would be unfree to conclude other than as he did even if (which is not the case) he had decided the very same questions I need to decide. But the question strictly before him was not the same as that which is before me. He received evidence – from Carwyn Jones A.M. and others – that includes evidence which I cannot evaluate as it is not before me. I have no knowledge of the manner in which the interviews were conducted in the sense of what was put to whom in the course of them. He 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. And I have to recognise that even though the Assembly has been fully represented by Solicitors and Counsel able to advise Carwyn Jones A.M. as Minister, still no plain denial of his having said the words which Jennie Jones had attributed to him has emerged.

In all these circumstances it seems to me that I have to come to my own decision on the evidence before me, which includes the letter of the 13^th May 2005 from the Commissioner, as to whether a fair-minded and informed observer, having considered the exiguous facts, would have concluded on the 2^nd 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. That such one was a Minister and Chairman of the PDC with a casting vote could only incline the informed observer more readily to conclude that there was a real possibility of bias.

That bias is in issue only as to one member of a committee of 4 does nothing to save the committee’s decision, at all events when it is not and cannot be proven that an unbiased simple majority voted in favour of planning permission being granted - see, for example, Bovis Homes Ltd –v- New Forest District Council and Another [2002] EWHC 483 (Admin) per Ouseley J. paragraphs 97 and 103-106. The Assembly’s rule as to privacy in relation to a PDC’s deliberations makes further investigation of such a kind impossible.

Mr Williams asserts that there is inconsistency in what Jennie Jones alleges was said; in her July witness statement she says that Carwyn Jones A.M. said, in English, that he was “going to go with the Inspector’s Report” whereas the Commissioner records her as saying that Carwyn Jones A.M. was “going with the Report of the Inspector”. Even if I suppose that the Commissioner accurately reported verbatim in his letter of the 13^th May what Jennie Jones had said to him at his interview with her on the 13^th April 2005 I would not regard the difference as a material inconsistency; the sense of the two barely differs. Mr Williams says that there may have been a mistake in the translation from the Welsh but it seems that the words in issue were spoken in English; they were English words that both Jennie Jones in her witness statement and the Commissioner in his letter put into quotation marks.

Mr Williams argues that Carwyn Jones A.M.’s remark was no more than a “throw-away” one, but that is far from saying that it did not truly represent his intention; a “throw-away” remark can be more revealing than might have been a more prepared or studied one.

Mr Lindblom accepted that there had been no denial by Carwyn Jones A.M. of his having said the words which Jennie Jones attributed to him but he argues that the words could amount to no more than an indication of an inoffensive pre-disposition on the member’s part and, that being so, I should not take the words to be an objectionable possible pre-determination unless I could be quite sure that a mere pre-disposition was ruled out which, he said, could not be the case. The difficulty is, though, that the words attributed to the member (if I may be begin with direct speech of the kind that must have been uttered) namely “I’m going with the Report of the Inspector” or “I’m going to go with the Inspector’s Report” suggest a mind made up. They suggest that so far as the speaker was concerned a conclusion had been reached and that, on her unchallenged evidence, was how Jennie Jones interpreted them. There was, therefore, presumably nothing about the member’s body language that suggested hesitancy or indecision. They were words far more conclusive than would be, for example, “I’m thinking of going with the Inspector’s Report” or “ I’mlikelytogo” with it. Had the words attributed to the Member been capable of being fairly regarded as merely ambiguous in terms of whether his mind was made up then I would have seen some force in Mr Lindblom’s argument but I do not feel able to find the ambiguity which the argument requires.

The unusual provision, although planning permission was in the hands of the legislature (namely the Assembly and its PDC) rather than in the hands of the Executive, such that there was nonetheless no way outsiders could find out how the business of the PDC had been conducted, would be likely, as it seems to me, to serve, if anything, to increase the weight outsiders (including the hypothetical observer) would be likely reasonably to ascribe to whatever little escaped the veil of secrecy. In such a circumstance greater attention would be likely to be paid to what otherwise might have been seen to be only slight and possibly discountable indications of the mental approach of the members of the PDC to the matter coming before them.

Whilst I approach the question of bias with the caution to which Richards J. referred in Geogiou supra, I cannot see that to require PDC members not to express themselves as Carwyn Jones A.M. has failed to deny that he did is to impose any unworkable or impracticable standard upon Assembly members. Indeed, my approach is no more restrictive than is the Planning Decision Panel’s own Code of Conduct, to which its members are required to subscribe, which, at its paragraph 7 provides:-

“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. Members may make representations on cases in their constituencies ….. as they cannot take part in making those decisions.

8.

……. If a Member of the Planning Decision Panel has made or is associated with other policy statements that are relevant to a particular case, he or she might be considered to have pre-judged the issue in that respect and could not take part in making the decision.”

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 11^th 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.

I have already mentioned, by reference to Georgiou, that it will usually be inappropriate, when pre-determination has been found, not to quash the decision in question and, whilst I recognise that this a very large consequence for a very small remark, I see no reason not to set aside the permission of the 11^th April and accordingly I do set it aside.

I add, although these factors have played no part in my conclusion to set the planning permission aside, that there is material that suggests that Members of the PDC had misunderstood their position in ways that could only conduce to the appropriateness of the Assembly being given the opportunity to re-think the matter. Thus in the debate in the Assembly on the 16^th March 2005 it was indicated that one Member of the PDC, A.F. Jones A.M., thought that it was impossible “according to official guidance”, for the PDC to have imposed a condition as to a buffer zone “as it was not mentioned in the Inspector’s Report”. The “official guidance” has not been identified and, had there been a planning reason for a buffer zone, the PDC could have imposed one even as late as the 16^th March 2005. In the same debate the language of the First Minister suggests that he thought that planning permission had already been granted (he speaks of planning permission as “passed” and “confirmed”) which, of course, at that point, was not the case. Later in the debate he spoke of it being impossible to say that the Assembly could “reverse” planning permission whereas, at the time, there was no planning permission and the Assembly could, had it chosen, have recovered the matter from the hands of the PDC and back to itself. Even earlier than the debate, on the 14^th February 2005 the same A.F. Jones A.M. had written to the objector Mr W.T. Evans saying, as Mr Williams accepts was wrong, that the PDC was not able to seek better or further information on health or any other matters related to the application.

For the reasons I have given I allow the application and quash the planning permission of the 11^th April 2005. I shall need to discuss with Counsel an appropriate form of order such as will procure that the question of planning permission may be considered afresh in such a way that a decision free from even the appearance of bias will be able to emerge.