Ortona Ltd, R (on the application of) v Secretary of State for Communities & Local Government

MR JUSTICE COLLINS: This is a claim pursuant to Section 288 of the Town & Country Planning Act 1990 against the decision of an inspector refusing planning permission to the claimant in relation to the development of a relatively small area in the centre of Cromer, Norfolk.

The area in question is at present set out as a bus station. I say that because the bus station use ceased in April 2006. The issue in the appeal was essentially whether that use was dead or whether the existence of the possibility of an active bus station coming back on the site was one which properly should preclude the planning permission in question. It is not necessary to go into the details of the precise nature of the development. Suffice to say that at the end of his determination the inspector said:

The main issues the inspector recorded were the effect of the proposed development on public transport, highway safety and the free flow of traffic in Cromer town centre.

The bus station in question is or was on a relatively small site. It was not entirely satisfactory in the sense that there were, for example, no toilet facilities and no facilities for taxis to pick up and set down no parking available for those who wished to bring a car and then use a bus. Because of the size of the site it was not possible to use it to the sort of capacity that might have been desirable. I say that because there was evidence which was not entirely satisfactory in the sense that the inspector was not able to reach a conclusion upon it as to whether National Express (the long distance bus service) were able to or did use the site in question.

The station was until April 2006 used by a company called First Bus who were the leaseholders of the site. They had permitted two other operators to make use of the site. They allowed that for no payment from those other operators albeit, in accordance with the terms of the lease, they would have been entitled to demand payment for such other use. They decided that it was not commercially viable or necessary for them to continue to make use of the bus station. Accordingly, they gave up the lease. The other operators who had made use of the bus station made no representations to the claimant or to anyone as to what they should do as a result. Accordingly, the use then ceased.

It was the claimant's case that in those circumstances the appeal site was no longer a bus station; the operators had chosen to cease using it as such. Accordingly, they took the view, because there was no indication going any other way, that the use would not resume and the site would remain vacant. They had entered into discussion with the council about the possibility of improving on-street stopping places for buses to use and to be able to lay up and to give rest to drivers. But it is clear that the use of on-street facilities was less satisfactory even than the facilities available at the bus station in question.

There was however a possible alternative site for a bus station which was a car park some 120 metres nearer the railway station and that much further from the town centre. It was a larger site but would need money spent in providing the necessary facilities and in obtaining planning permission. It appears - certainly the evidence as recorded by the inspector would seem to be - that that site was owned by the district council. Accordingly, it would have been open to the district council to grant itself planning permission to enable a bus station to be constructed insofar as construction was needed on that site. Certainly it was not a site which would have been one which gave rise to a likelihood of objection from anyone.

What was said in paragraph 12 by the inspector, having set out the matters relevant to that possible alternative site, was that it would entail a loss of car parking spaces but would be closer to the railway station. There were public toilets available and CCTV coverage. It would be better for wheelchair users, the provisions for whom were not entirely satisfactory at the site the subject of the appeal. The main disadvantage was said to be that it was 120 metres further from the town centre and it involved something of an uphill walk. The inspector concluded:

The point of that was that it was apparent that the loss of the appeal site as a bus station would not necessarily mean the loss of an opportunity to have a bus station in the centre of Cromer, if that was considered necessary. It might cost something, but it was open to the district council in all the circumstances to achieve that as owners of the alternative site and, no doubt having negotiated with the bus companies as to what they needed on that site, to persuade them that they would have an advantage in using it; no doubt, at some cost to them. I presume they do not pay anything much for the use of on-street parking. Those were the main issues. It can be boiled down to whether the existing site upon which a bus station infrastructure to some extent existed should be kept - because the alternative was undesirable in as much as on-street parking produced traffic problems - and whether in those circumstances the contention of the claimant that the bus station use effectively had come to an end and would not come into being again was one that could be accepted.

The inspector's reasons for rejecting the appeal are contained essentially in paragraphs 13 to 15 of his determination. I should read those paragraphs:

The claimant has raised three grounds of attack upon the inspector's decision. First, it is submitted that there has been an erroneous approach to the loss of the bus station. The inspector ought to have considered whether there was any probability that if planning permission were refused the bus station use would be resumed. That submission was supported by the second ground, namely that there was a failure to give adequate reasons for concluding that there was a reasonable prospect that the bus station use would be resumed. As Mr Kolinsky recognised, grounds 1 and 2 really shaded into each other.

There is an entirely separate matter which I will deal with separately which asserts that the inspector should not have decided the matter because he was a former employee of the county council who were, as highway authority, the main objectors to the proposal. Indeed the planning authority's dismissal of the application was based on the objection raised by the county council as highway authority. It is said that the fact that the inspector heard the appeal and then decided in favour of the county council, in effect accepting entirely the grounds which they put forward, gave rise to an apparent bias. I should emphasise that it is not suggested that the inspector was in any way biased. That is not what is alleged and it does not need to be alleged if the circumstances are sufficient to persuade the court that there was an appearance of bias and that in those circumstances the inspector ought not to have dealt with this appeal.

The first two grounds were refined in the course of argument. It was in the end not essential to the claimant's case, nor did he rely upon the need to show a probability that the bus station use would continue. There are a number of authorities touching on this issue. The leading case is Westminster City Council v British Waterways [1985] AC 676 and observations of Lord Bridge in which he made the point that, where there was a contest between the planning merits of two competing uses, to justify refusal of permission for use (b) on the sole ground that use (a) ought to be preserved, it must be necessary at least to show on the balance of probability that if permission was refused for use (b) the land in dispute would be effectively put to use (a). That deals with competing uses.

The situation here is not quite that. The question here is whether there should be retained the possibility that the bus station use could continue because it was said that that use was one which was dictated by the relevant plan. Where the provisional plan provides for the need to retain and protect a particular site, one is looking to the future and the probability test laid down in Westminster is not necessarily the appropriate test.

The distinction drawn by Mr Honey is that between what is set out in the first part of Section 70 (2) of the Act, namely the requirement that the authority has regard to the provisions of a development plan so far as material, and the second part, any other material consideration. If it is a question of another material consideration, then the Westminster test may become relevant. Where it is a question of looking at the provisions of the plan the test is not so clearly appropriate.

In that context my attention has been drawn by both sides to a decision of Christopher Lockhart-Mummery QC in Nottinghamshire County Council v Secretary of State for the Environment [2002] 1 P&CR 389. That case involved an application for planning permission for residential development on land that was allocated for use as a primary school in the adopted Local Plan. The planning period ended in 2006. The applicant, the local authority, had taken the view that the land was surplus to educational requirements. Thus it was appropriate to develop it for the purpose of housing. The inspector found as a fact that although the site was suitable for housing it would be premature to eliminate the option to provide a school. He concluded that a new primary school was likely to be needed in or close to the urban area of Newark in the period 2006-2011. While that was after the end of that particular plan, he dismissed the appeal.

The applicant applied to the High Court on the basis, primarily, that as the inspector had found residential use to be appropriate it should only have been rejected in favour of an alternative use if, on the balance of probabilities, the refusal would result in the land being put to that alternative use.

That application was dismissed on the basis that the balance-of-probabilities approach did not extend to cases of competition between alternative potential future uses of land, and the possibility of the future use would normally be a material planning consideration. Obviously the weight given to it would vary. Generally speaking, one is well aware that weight is a matter for the judgment of the inspector or the Local Planning Authority. The court is most reluctant to intervene and will rarely, if ever, do so on questions of weight; normally it would only be where weight was given but it was plain that no weight should have been attached or no weight was given where it was clear that some weight should have been attached. Once an inspector or planning authority decides that the matter is material, normally the weight to be attached is not something which can be gone into on appeal.

In paragraph 36 of his judgment Mr Lockhart-Mummery said this (page 404 of the report):

It is, I think, important before going further to note the planning policies that the inspector regarded as relevant. Indeed, he picks them up from the case put forward by the county council. First of all, there are the Norfolk Structure Plan Policies No T1, 2, 5 and 6, "T" being those relevant to transport. Policy T1 is the overall strategy which really does no more than require that the strategy should include and take into account the transport modes in the following hierarchy. The third, after walking and cycling, is public transport, including bus services. It is difficult to see what relevance that has to this particular case. There would be no conflict, save in that, on the inspector's view, it would remove a necessary part of the provision of bus services inasmuch as there would not be a bus station on this site.

Policy T2 relates to the assessment of development against its effect on traffic generation and alternative modes of access. It seems to me - and I did not understand Mr Honey to want to develop any argument to the contrary - that that in reality is a policy which has nothing to do with the matters in issue before the inspector.

Policy T5 is one which seeks to encourage what is called a modal shift from private car to public transport. This is to be done, among other ways, by providing improved accessible passenger facilities at public transport stop stations and interchanges, encouraging integration between all forms of public transport (including bus and rail services) and between public transport and other modes, improving access to buses in city, town and district centres and identifying and protecting sites for bus stations and park-and-ride sites. It is the protection of sites for bus stations that is particularly relied on by Mr Honey.

Finally, Policy T6 provides:

Since it is said by the inspector in the course of his determination that the appeal site has existed with potential limitation in terms of full provisions for wheelchair users - which could be remedied by use of the Cadogan Road site - it is exceedingly difficult to see how he could conceivably decide that the development in question would be contrary to Policy T6.

The other relevant policy is Policy 135 of the North Norfolk Local Plan. That provides under the heading "Bus Services" -

The inspector has concluded that the removal of the appeal site as a possible bus station would result in conflict with at least some of the structure plan policies or rather the aims of some of the structure plan policies. The probability test is not, in the circumstances, appropriate.

It seems to me that one can cut through this by recognising that the matter has to be decided on the basis of a factual situation. The position here is that on the one hand the claimant was arguing - on the evidence - that the bus station use had come to an end and that no bus operator appeared to be willing to continue the use of this bus station. There were alternative arrangements that could be made certainly temporarily by the provision of enhanced on-street parking facilities. Indeed, that had been the situation for at least 15 months or so since the cessation of the use of the bus station in April 2006. There was, in addition, the possibility of the Cadogan Road car park site being developed as a new bus station.

In those circumstances there was no reasonable possibility that the bus station would be required on this site, nor was it a particularly satisfactory site to have a bus station retained on it. That was particularly so when one recognised that the proposal would enhance the character of the conservation area and would protect the setting of the listed building - the Old Town Hall - which was adjacent to the bus station site. It seems to me that in those circumstances the "realistic possibility" approach is undoubtedly the correct one. If there was on the material before the inspector a justification for him forming the view that the harm resulting from the loss of the bus station was such that it was sufficient, in principle, to overcome the advantages in terms of the enhancement and protection of the conservation area, then the objections could and should prevail if there was a realistic possibility of the bus station use recommencing on the site.

One looks to see what the inspector relied on as justifying that conclusion. Those matters are set out in paragraph 13 which I have read. First, he makes the point that no direct evidence was provided by any of the operators of the circumstances that led to closure or whether there would be conditions in which a use would resume. That, he held against the claimant. It seems to me it was as much a point against the council because one would have expected the council, if dismayed at the thought of losing this bus station because of the adverse effect, to have produced some material which indicated that they had, for example, made inquires of the operators and had seen whether there were problems which could be overcome which would mean that they would want to re-use the site and then to decide whether those problems could indeed be overcome. It might, for example, have been a question of cost as to whether the lease which the claimant was prepared to provide was such as meant that there was commercial sense, or whether the facilities at the station were such that they did not attract the public and the bus companies were not prepared to pay for them.

Whatever may have been the position, it is not in my judgment sufficient to say that the absence of knowledge of the circumstances and whether there would be conditions on which the use would resume is something which could only be held against the claimant in the circumstances of a case such as this. The inspector stated that support from operators would be necessary if an alternative site were to be taken forward. No doubt, that is true. Equally support from operators would be necessary if this site were to be regarded as a realistic possibility for further use. He said there are examples of towns without bus stations but conditions of public transport operations would vary according to local circumstances:

There was an alternative. It is true that the alternative was not one which could immediately be brought into use. It would need money to be spent. It would need further development. It is not the case that there could be no possible site. It may well be that on the facts of this case it should have been necessary to consider in greater depth the real possibility of the alternative site as against the real possibility of the existing site.

His final observation was that such a -

It seems to me that there is very considerable force in the submissions by the claimant that the inspector has failed properly to grapple with the issue which is important in this case, and the reasons that he gives - although they are clear in the sense that anyone could see what his reasons are - do not show that he has indeed properly taken into account the realities of the situation and the issues which had to be determined in order to reach a proper decision in this case. It may be that there was insufficient material put before him on both sides in order to ascertain the reality as to whether this particular site was sensibly able to be regarded as producing a realistic possibility of further use as a bus station. It is, in my judgment, wrong for the inspector - for the reasons I have given - to have laid that at the door of the claimant and to have rejected its submissions on the basis which certainly could equally be used against the council.

It follows, in my judgment, the inspector's decision did not grapple with the issues properly and on that basis alone it cannot stand.

I should turn to the issue of bias. The facts are that the inspector was until 2003 employed in the planning department of the county council. That was a matter which concerned the claimant because the planning consultant, Mr Scales, who was acting on the claimant's behalf, was aware that the inspector was a former employee of the county council. Mr Scales knew that because he had been a former employee of the South Norfolk District Council and so had obviously come across the inspector when each was employed with the two councils concerned. He said in a statement produced for the purposes of this claim:

The inspector has produced a statement in which he deals with this issue. He produced a contemporaneous note of the conversation with Mr Scales - not with him but with the relevant official in the planning inspectorate because that official e.mailed the inspector the concerns which had been raised by Mr Scales. What was said was this:

The inspector's response was as follows as far as material:

The summary of the interchange which is set out in a contemporaneous note does not include that last sentence, namely that they should come back if the agent had more specific concerns or was objecting to his involvement. What is recorded is that whoever the relevant official was - I think it was a Mr Farley - rang Mr Scales and, the note says -

Mr Scales has produced a subsequent statement in which he stated - because unfortunately he had a broken collar bone which was on the mend then which made it difficult for him to write - he had not made a note of that call, but he had no recollection of indicating that he was happy with being told the inspector would not be changed but he did recall asking that his query should be recorded.

The reference to "happy" seems to me really not to take the matter that far because all he may have been saying was that he was happy with the explanation, not necessarily that he was happy with the situation that existed. Indeed it is difficult to see why he would accept that he wanted it to be recorded if he was not minded to think there was anything worth taking further.

Mr Honey has submitted that he ought in the circumstances to have made a positive objection if he wanted to maintain that the inspector should not hold the hearing and should not be the person determining the appeal. If he was not informed that it was open to him to make an objection and he believed from what he was told - and it seems to me from the evidence I have that he could reasonably have held that belief - that his query, which obviously was made because of a concern at the situation and so a possible worry that there might be certainly an impression of bias, had been rejected, then there was no point in him making any further objections.

The matter does not depend in any way upon it being established that the inspector was in fact biased. I repeat, that is not suggested in the circumstances of this case. The principles relevant to a case of apparent bias are now well established. They have been helpfully set out recently in Howell v Millais, a decision of the Court of Appeal [2007] EWCA Civ 720. That was the matter involving Mr Justice Peter Smith and the contention that he ought to have recused himself in a case in which a firm of solicitors with whom he had been negotiating a possible source of employment once he had retired as a High Court judge were involved.

The fundamental issue is whether the circumstances - once all the circumstances have been ascertained - would lead a fair-minded and informed observer to conclude that there was a real possibility or a real danger (the two being the same) that the tribunal was biased.

Lord Hope in Porter v Gill [2002] 2 AC 357 (paragraphs 102-103) endorsed what was said by Lord Phillips MR in Re Medicaments etc [2001] WLR 700, paragraph 85. In Nawal v Northern Spirit [2003] ICR 856, Lord Steyn, giving the opinion of the appellate committee, indicated that the operative requirement was Article 6 of the European Convention which indicated the need for competence, efficiency by the courts in a democratic society and the public perception of the possibility of unconscious bias was the key, and that a fair-minded and informed observer must be assumed to adopt a balanced approach and one which was neither complacent nor unduly sensitive or suspicious.

In AWG Group v Morrison [2006] 1 WLR 1163, the Court of Appeal made the point that an appellate court was well able to assume the vantage point of a fair-minded and informed observer with knowledge of the relevant circumstances. The court made this point too that in most cases the answer, one way or the other, would be obvious. But if in any case there was real ground for doubt, it should be resolved in favour of refusal and that prudence normally leant on the side of being safe rather than sorry. So where the hearing had not yet begun there was scope for sensible application of a cautionary principle.

Mr Honey has drawn my attention to the Inspector's Code of Conduct published by the Department which does not deal specifically with the question of prior employments such as this, merely indicating that the need for inspectors to act in a fair, open and impartial manner was of paramount importance, that every appeal must be dealt with on its own merits and the inspector should not take on any case work, including development plan work, in which a fair-minded person knowing the background may consider that there is a real possibility of bias. A salaried inspector should not take any cases in the LPA area in which he lives or where the inspector was conducting or reporting on a development plan inquiry or examination in public, if he had a spouse or partner working in the LPA. Equally he should not take on cases from authorities where the inspector had recently conducted work or had regularly represented clients or if the inspector had a spouse or partner working at the Local Planning Authority.

Mr Kolinsky, for his part, has drawn my attention to the planning inspector's complaints procedure document which contains this in setting out what are described as frequently asked questions:

It is true that the situation here is that the inspector had not been employed by the authority for some four years or so. On the other hand, the highways issues, the policies relied on, were county council policies and they were policies which were in being at the time the inspector was working for the council. In those circumstances it is at least possible, perhaps probable, that he had concerned himself with such policies. Certainly he does not say he had not. In dealing with the concern raised by Mr Scales, someone ought to have considered the possibility of apparent bias. That does not seem to have happened.

The inspector did at the outset of the inquiry say the following:

It seems to me that there can be no question but that someone should have applied his mind to whether in the circumstances it would be more prudent to have asked this inspector to stand down. It would not have been difficult.

The suggestion made by Mr Honey that in the circumstances Mr Scales ought to have maintained an objection is one which I cannot accept. It seems to me on the facts that Mr Scales did all that he could reasonably be expected to have done in raising the matter and making it plain that he wanted it put on record. Why should he have it put on record unless it was apparent that he was concerned and might raise the concern later? It is not perhaps in the circumstances insignificant to note that the inspector has applied the policies in circumstances where some of them at least have no apparent proper application. One wonders why. The problem is one of possible unconscious bias. True, it was four years ago. True, he only had professional dealings with one of the officials who gave evidence. He says he did not know the others.

But it seems to me in all the circumstances that it cannot possibly be said that this was not a situation where there was, in terms of the approach we now have to take, a possibility of a reasonable, informed observer taking a view that there was a possibility of bias. Mr Honey has raised concerns that local authorities are getting larger and inspectors sometimes employed before becoming inspectors by planning bodies or planning concerns, advisers, consultants or whoever, who may have dealt with a number of different clients. But those difficulties are not in any case insuperable.

It may well be that in many cases no more is needed, where an objection is made, than an indication that the inspector was never involved in the particular department which is relevant for the purposes of a particular planning application. Sometimes after full information and consideration there is a waiver given. It is suggested here that there was a waiver. It is suggested that the fact that - knowing the circumstances - Mr Scales did not maintain his objection any further than he did is enough to show a waiver.

In my judgment that assertion simply cannot be made out. The test of waiver depends upon the party waiving being aware of all material facts and the consequences of the choice open to him and given a fair opportunity to reach an unfettered decision. Those are words of Lord Phillips in Peter Smith v Verder Cementation Foundations [2006] EWCA Civ 232, paragraph 29. There is no question here of any such waiver; indeed, quite the contrary. It is plain that there was not a waiver by Mr Scales in the circumstances which I have set out.

Accordingly, I take the view that a mistake was made here by the planning inspectorate and that this was a situation where this inspector should not have been deputed to deal with this appeal once the objection had been raised and once it was known that the matter turned on the objections raised by the county council. It is important that the planning inspectorate appreciate - as indeed I think they do - that they are in the same position as judges. Indeed there should in accordance with Alconbury be a general compliance with Article 6 because, albeit employed by the Secretary of State or civil servants within the Department, inspectors nonetheless have independence akin to that provided for judges. The approach that the Department has set out in the notes is to treat them as if they were judges and they should adopt the same approach that judges would adopt in deciding whether they should recuse themselves.

The point is not whether they would be biased. I am quite sure that in almost every case that would not be a possibility but that is not the test. For that reason too, in my judgment, this decision cannot stand and must be quashed.

MR KOLINSKY: I am grateful. In terms of consequential matters I make an application for costs on behalf of the claimant.

MR JUSTICE COLLINS: You cannot resist that, Mr Honey.

MR HONEY: There are a number of points in relation to the quantum of costs, but I do not resist it.

MR JUSTICE COLLINS: I assume it would be detailed assessment.

MR HONEY: Given the matter, perhaps that is the most convenient way to deal with it.

MR JUSTICE COLLINS: I am never very keen to deal with a substantial claim, I imagine this is a fairly substantial claim, on the basis of summary assessment. I really do not think a judge has the necessary expertise or - usually - information to judge whether time spent etc is reasonably spent.

MR HONEY: We would be content with that. There were certainly a number of issues that I was going to take with the number of hours spent.

MR JUSTICE COLLINS: I am not sure I would accede but I take on board the details. As I say, frankly, I am not in a position to judge it. That would normally be gone through with a costs judge.

MR KOLINSKY: I am content with assessment of the claimant's costs, detailed assessment if not agreed.

MR JUSTICE COLLINS: That is the order I will make.

MR HONEY: I have an application to make for permission to appeal in relation in particular to the bias point.

MR JUSTICE COLLINS: I have been applying principles which have been set out for a long time to the facts of this case. You will have to persuade the Court of Appeal if you want to go further. There is nothing new in what I said.