The Planning Court has recently approved a consent order quashing the grant of planning permission by the Secretary of State following a judicial review claim brought on the grounds of apparent bias. This is certainly noteworthy in planning terms as successful cases on bias are few and far between, despite the ground being alleged in many claims. My colleague Ingrid Lekaj considers the details below.
The claim related to a proposal for a mixed use development and the provision of just over 1,500 homes at West Ferry Printworks, London. The appeal was scrutinised at a three week inquiry in August 2019. The Secretary of State recovered the appeal which was considered by Inspector David Prentice who wrote a detailed report recommending refusal as the proposal had a negative impact on heritage assets. Some of the towers were 42 feet high and the development was considered to obstruct certain views such as those from Tower Bridge and the Naval Base College. The proposal also fell muted on the affordable housing provision. Ultimately, the Inspector found that the benefits of the proposal did not outweigh the positives.
However, the Secretary of State allowed the appeal and planning permission for the development was granted on 14 January 2020. What became apparent at the time of the decision was that the Council was due to adopt a new Community Infrastructure Levy charging schedule on 17 January 2020. Prior to that date, the development would have been zero-rated but if granted permission after adoption, it would have attracted a CIL contribution of between £30 to £50 million.
The Secretary of State accepted following the claim being brought that the timing of the decision had been expedited to occur before the adoption of the schedule, suggesting there was a real possibility of bias towards the developer. The decision has therefore been quashed and remitted for redetermination by a different minister. Those with an interest in the development will, I am sure, be keenly awaiting the decision, to ascertain if permission is granted a second time round, albeit subject to a substantial CIL contribution.
Although this case is specific to its facts, it is a useful example of the high bar that applies to bias claims, as established in Porter v McGill.
The Secretary of State has now accepted, in response to a claim issued by the Council under section 288 of the Town and Country Planning Act 1990, that the timing of the decision would lead the “fair-minded and informed observer” to conclude that there was a “real possibility” that he was biased in favour of the developer in granting planning permission.