Local Government - February 2009

R on the Application of Michael Gardner v Harrogate Borough Council [2008] EWHC 2942 (Admin)

Introduction

The latest bias case illustrates perfectly how the different redress regimes can interweave, but curiously we have to make do with a majority verdict.  Councillor Simms of Harrogate Borough Council decided that he might have had a prejudicial interest in a fellow Councillor’s planning application.  Unfortunately, by the time he came to this conclusion, he had already twice exercised a casting vote in favour of granting permission. The Ombudsman, and the Council itself, agreed that the decision should not stand.  Oddly, though, the Ethical Standards Officer had a different opinion on the Code of Conduct.  What would Sullivan J make of all this?

The facts

This is what happened.  A Conservative Councillor, Councillor Mrs Atkinson, applied for planning permission to replace a caravan in a field, in an ANOB, with a house.  Planning officers recommended refusal on policy and visual amenity grounds.  The Committee decided, on the casting vote of Councillor Simms, also a Conservative Councillor, that it was minded to grant permission.  The Planning Committee’s scheme of delegation gave the officers a second chance if their recommendations were to be rejected, so this meant a further report to a second meeting.  The second report also strongly advised refusal, but the Committee granted permission, again on the casting vote of Councillor Simms.  A local resident complained to the Ombudsman, who investigated.  Meanwhile Councillor Mrs Harrison made a similar application, for a second house replacing a second caravan in the next field.  Officers recommended refusal again.  This time Councillor Simms declared a prejudicial interest and left the meeting.  This time the Committee refused permission. 

The Ombudsman issued her report.  She referred to the Porter v Magill [2002] 2 AC 357 test for bias, and the prejudicial interest test in the Code of Conduct.  She expressed the view that Councillor Simms had had a prejudicial interest, because he regularly drove Councillor Mrs Harrison to and from meetings, and because they and their families met on average at least once a fortnight at non-Council functions and events.

There was also a complaint to the Standards Board for England.  The ESO concluded that most of their contact was not “social”, that they could not be described as “friends”, this being the test for a personal interest at that time, and that Councillor Simms had not therefore had a personal or prejudicial interest in the matter. 

On receipt of the Ombudsman’s report the Council agreed to fund an application for judicial review to quash the first decision.  The application was made by the Leader of the Council.  Although there is little doubt that this course of action will have been seen as more attractive than the alternative, revoking permission and paying compensation, Sullivan J found that the Council had genuinely formed the view that the criticisms were well founded.

At the heart of this case there was a conflict of evidence, or perhaps of definition.  The Ombudsman saw the car sharing arrangement, and the needed to decide whether there was a personal interest before he could move on to the prejudicial interest test.  Under the old Code, this depended on whether or fortnightly meetings at church functions, village gatherings, political meetings and through mutual friends, as giving rise to “a clear prejudicial interest”.  The ESO not she was his “friend”.  If she had been, then, as her well-being was clearly affected by the decision, he would have had a personal interest, and the ESO would have had to consider whether or not it was prejudicial.  If she had not been a “friend”, he would not have had a personal interest and therefore could not have had a prejudicial interest.  The ESO applied the Adjudication Panel’s test in the Islington case (APE 0211).  This identified four elements of “friendship”: someone well known to another and regarded by them with liking, affection and loyalty.  The ESO noted the car sharing, that both Councillors were churchwardens albeit at different churches, and that they had a mutual friend.  Although they “came into contact” outside Council business a couple of dozen times a year, at various functions, they had only “seen each other socially” three or four times,  at large social events, since Councillor Mrs Atkinson became a councillor in 2002, and had not known each other at all before then.  In the ESO’s view, the degree of contact evidenced acquaintance rather than “knowing each other well”.  There was sufficient “liking” for them to share a car regularly, but no evidence of particular “affection”, or of “loyalty” over and above their political affiliation.  The four elements were not supported by the evidence.  There was no personal interest.

In argument before the Court, Counsel for the Interested Parties, who owned the land in question, pointed out that there was a factual dispute about the length of the car journeys, and said that car-sharing was common in rural areas.  He drew attention to the ESO’s findings on the degree of social contact.  He pointed out that the Ombudsman had been influenced by the fact that other Councillors and members of the public had lodged complaints, but said that the complainants had not known the true facts.  He said that the facts that they were political colleagues, and that the decisions went against the officers’ recommendations, were not material.  He also dealt with three other pieces of evidence.  In 2004 Councillor Mrs Atkinson had copied Councillor Sims into a letter about enforcement action, but, he said, this did not indicate bias.  Secondly, Councillor Simms had admitted to the Ombudsman that he had “had his ear bent”, but did not say by whom.  Counsel argued that someone else might have been doing the ear bending, or alternatively that Councillor Mrs Atkinson might have bent his ear about the delay in dealing with the application, but not its merits.  Thirdly, Councillor Simms’s later acknowledgement that he might have had a prejudicial interest, and his approach to the second application, indicated caution rather than bias.

The judgement

Sullivan J was not persuaded.  He said that the degree of contact between the two could have occasioned bias even if all four elements of “friendship” were not present.  The complaints showed that Councillor Simms’s conduct was a cause of real concern.  The Ombudsman had got the law right, and that he would be slow to depart from her findings of fact and conclusions.   He noted that the Council itself thought the decision was improper.  He also noted Councillor Simms later acknowledgment that it might have been more appropriate to declare a prejudicial interest at the time.  The decisions were against officers’ policy-based advice, and taken on Councillor Simms’s casting vote, as chairman.  A fair minded observer, knowing the facts, would have concluded that there was a real possibility of bias.  The permission was quashed. 

Sullivan J also rejected the submission that, despite the finding of bias, the Court should exercise its discretion not to quash the permission, and should leave it to the Council to revoke permission.

He ordered the Interested Parties to pay the Council’s costs but only from the grant of permission onwards.  Up to that point there would be no order, but thereafter they had “fought the matter tooth and nail”.

Comment

The ratio in this case is straightforward.  Sullivan J applied the Porter v Magill test in its simple form.  In that case Lord Hope said “the question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.”  Later case law took us on a strange journey, where we met fair minded observers in the New Forest and Enfield (and, according to the first instance decisions, in South Wales and Redcar) who had a jaundiced view of local government and could easily be persuaded that something was amiss, but who developed a series of exemplary attributes listed by Jackson J inR (on the application of Kevin Paul Lewis v Redcar and Cleveland BC [2007] EWHC 3166 (Admin),  before the Court of Appeal recalibrated the Courts’ approach in Condron v National Assembly for Wales [2006] EWCA Civ 1543 and Persimmon Homes Teeside Limited v R (on the application of Kevin Paul Lewis) [2008] EWCA Civ 746.  Nor was Sullivan J attracted by Pill LJ’s approach in the latter case, which ditched the fair minded observer as a meaningless fiction.  It is difficult to quarrel with his decision that, applying the basic test to these facts, the fair minded observer would have concluded that there was a real possibility of bias.

The interesting point is the difference of opinion between the ESO and just about everyone else.  First, it is clear that the test for a breach of the Code of Conduct is not, on its own, the same as the test for bias. It answers a different question.  Secondly, the “friendship” criterion, which was necessarily crucial to the ESO’s opinion, is now just a matter of history.  It is reasonably clear that the narrowness of the APE’s definition in the Islington case, a notorious nadir in the fortunes of the Standards Board for England, brought about the change in the 2007 model Code of Conduct.  The criterion is now “close association”.  The SBE advise that “A person with whom you have a close association is someone that you are in either regular or irregular contact with over a period of time who is more than an acquaintance. It is someone a reasonable member of the public might think you would be prepared to favour or disadvantage when discussing a matter that affects them. It may be a friend, a colleague, a business associate or someone whom you know through general social contacts.”  Note the appearance of the “fair minded observer” albeit disguised as “a reasonable member of the public”.  You might well speculate that, if a fair minded observer, knowing the facts in the present case, would have thought that there was a real possibility of bias, then a reasonable member of the public, on the same facts, would have concluded that Councillor Simms would have been prepared to favour Councillor Mrs Atkinson, and that they would, therefore, have had a “close association”. 

Finally, we wonder if there will be an outbreak of local authorities seeking to quash their own decisions?  It could get very messy if this becomes common  practice.

Graeme Creer
Weightmans LLP