Perrin v North Devon District Council - Judicial Review of Planning Permission

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  Perrin, R (On the Application Of) v North Devon District Council [2026] EWHC 535 (Admin) (19 March 2026)

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[2026] EWHC 535 (Admin) | | |
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| | | Neutral Citation Number: [2026] EWHC 535 (Admin) |
| | | Case No: AC-2025-CDF-000048 |
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
PLANNING COURT

| | | Bristol Civil & Family Justice Centre
2 Redcliff Street
Bristol BS1 6GR |
| | | 19/03/2026 |
B e f o r e :

HHJ RUSSEN KC
(Sitting as a judge of the High Court)

Between:
| | THE KING (on the application of OLIVER PERRIN) | Claimant |
| | - and - | |
| | NORTH DEVON DISTRICT COUNCIL | Defendant |
| | - and- | |
| | (1) NICHOLAS KENT-SMITH
(2) JEMMA CLAIRE GRIGG | Interested Parties |

**Jack Parker (instructed by Richard Buxton Solicitors) for the Claimant
Timothy Leader (instructed by North Devon Council) for the Defendant

Hearing date: 17th February 2026
Draft judgment circulated: 9 March 2026**

HTML VERSION OF APPROVED JUDGMENT ____________________

Crown Copyright ©

3. This judgment was handed down remotely at 10.00am on Thursday 19 th March 2026 by circulation to the parties or their representatives by e-mail and by release to The National Archives.
5. ----------------------------------
6. HHJ Russen KC:
8. Introduction
10. This is my judgment on the claimant's application for a judicial review and the quashing of the decision of the defendant council, dated 4 March 2025 (" the Decision ") to grant planning permission for:
12. "the erection of open market dwelling (amended size, scale, siting and design) (amended description & plans)" (" The Development ") at "Land at Ley Lane, Patchole, Barnstaple, Kentisbury, EX31 4NB" (" the Site ").
13. Patchole is a settlement comprising three open market dwellings centred around a road junction which make up part of the parish of Kentisbury. The North Devon & Torridge Local Plan 2011-2031 (" the Development Plan ") describes the locale as follows:
15. "12.595. The parish of Kentisbury has a dispersed settlement pattern with several small settlements including Kentisbury Town, Kentisbury Ford and Patchole. Kentisbury is located on the southern fringes of Exmoor National Park to the north of the A39 between Barnstaple and Lynton and to the south of the A399 between Aller Cross and Combe Martin, ??
16. ??
17. 12.597 Services in Kentisbury are limited to a primary school, village hall, post office and petrol filling station. A wider range of services and facilities are available in Barnstaple, Ilfracombe or Combe Martin but there are limited public transport services through the village to facilitate easy access."
18. Policy ST07 of the Development Plan ('Spatial Development Strategy for Northern Devon's Rural Area') identifies 'Kentisbury/Kentisbury Ford' as a 'Village' through its inclusion within Schedule B of that policy relating to development in accordance with local spatial strategies.
20. The Interested Parties (" NKS " and " JCG " and, together, " the IPs ") were the applicants for and the beneficiaries of the planning permission granted by the Decision. Their application for planning permission was made on 14 March 2023. The defendant (" the Council ") as the local planning authority made the Decision. The claimant (" Mr Perrin ") is the owner and occupier of a dwelling near to the Site and who, along with four other local residents, objected to the planning application.
22. Permission was granted to Mr Perrin to apply for judicial review, on all four grounds advanced by him, by HHJ Jarman KC on 2 July 2025.
25. Background
26. Mr Parker on behalf of Mr Perrin said the background to the IPs' application for planning permission, including the circumstances in which the Decision under challenge came to be made some two years after the application was made, was most relevant to the claimant's fourth and last ground of challenge to the Decision (on the ground of apparent bias) but it also informed the first three grounds when considering the strategy for Kentisbury previously adopted by the Council's Planning Committee.
28. This background information is derived from pre-action and other correspondence, the parties' pleaded cases and the witness statement of Mr James Bradley (on behalf of the claimant) and Councillor Malcolm Prowse (on behalf of the Council). Cllr. Prowse is an elected independent councillor on the Council and he has been a district councillor for over 46 years. He was the Leader of the Council for 16 of them. He has previously been elected to represent around 20 rural parishes and in 2019 he was elected to represent the Bratton Fleming/Kentisbury Ward following boundary changes.
30. Neither party has applied to cross-examine the others' witness so that their evidence is to be accepted as read.
32. Prior to the IPs application, there were two previous applications for residential development on the Site made by persons other than the IPs. The first of them (Ref: 65825) was withdrawn in December 2018 and the second (Ref: 66536), which was for "Erection of one Local Needs Affordable Dwelling", was refused by the Council's planning officers acting under delegated powers on 13 October 2020. The refusal was for three reasons relating to the failure on the part of the applicants to enter into a Section 106 Agreement to secure the dwelling as a local needs affordable housing unit in perpetuity. Those reasons were quoted within the planning officer's report upon the IP's application (" the OR ") as updated for the meetings of the planning committee mentioned below, including the meeting on 12 February 2025 at which the Decision was taken.
34. Planning application ref: 65825 was therefore withdrawn before Cllr. Prowse was elected to represent Kentisbury. However, he was involved in application ref: 66536 and his recollection is that the application " ticked the box " so far as being compliant with Policy DM23 of the Development Plan was concerned. Policy DM23 relates to the Council's policy in relation to residential development in villages without development boundaries and (as explained below) the provision of affordable housing in accordance with Policy ST19 where the site is not within the principal built form of the settlement but instead " well related to the main built form of the settlemen t." The OR indeed described application ref: 66536 as being for 'Erection of One Local Needs Affordable Dwelling'. At the hearing, Mr Parker indicated that Mr Perrin was no longer relying upon those two earlier planning applications in support of his client's challenge on the ground of apparent bias.
36. In addition to those earlier applications in respect of the Site, there was also a planning application, by persons other than the IPs, for three dwellings on 'Land Adjacent to The Stables in Patchole, Kentisbury' (Ref:72698) (" the Stables Application "). That was refused by planning officers under delegated powers and the appeal against refusal was dismissed (Ref: 3288689). Like the two earlier applications in respect of the Site, reference was made to this application and its refusal in the OR. The OR quoted the following in respect of the Stables Application:
38. "A key factor for the appeal refusal for the Land Adjacent to The Stables in Patchole, Kentisbury was primarily due to the inspector's interpretation of DM23 and what is considered principle-built [sic] form. The term itself is down to the decision maker by justification of policy and material considerations, however there is no definition setting out the meaning of the term, thus lacking in clarity. The appeal site was not considered to be part of the principle-built [sic] form by virtue that it is sited on a private lane away from Ley Lane and is not fronting the road like the majority of the settlement."
39. In his witness statement, Cllr. Prowse said of the Stables Application:
41. "From my own recollection, both I and the Planning Officers viewed that proposal as out of scale with the settlement of Patchole (being 3 open market dwellings) and the site had no frontage. This view was confirmed in the subsequent appeal decision and the appeal dismissed ?.. I do not recall Policy DM23 being a significant part of the considerations as those other elements were the main conflicts."
42. JCG is a former employee of the Defendant, having been employed as a Corporate and Community Services Officer from 1994 to 2016. Members of the Council's Planning Committee (including Cllr. Prowse and his fellow councillor and sister Cllr. Spear) were aware that JCG had previously worked for the Council. Cllr. Prowse does not recall having regular contact with JCG while she worked for the Council. After JCG had left the Council's employment, she and Cllr. Prowse would acknowledge each other and exchange pleasantries when they met in the street. In a letter dated 1 March 2024, written in response to the claimant's earlier application for a judicial review mentioned below, the Council's solicitor said that " [t]aken at their highest, allegations about the conduct of Councillor Prowse and Councillor Spear merely evidence a friendly disposition towards a former employee."
44. Cllr. Prowse knows of NKS and his family through mutual friends. Cllr. Prowse regards Mr Kent-Smith as someone he knows, not a friend. They are "friends" on Facebook.
46. Prior to the IPs' application for planning permission, in around March 2023, JCG contacted Councillor Prowse by telephone to obtain advice in respect of the potential development of the Site. Cllr. Prowse provided procedural advice to her in that respect. In his witness statement he says:
48. "I advised her that procedurally, she may wish to attend a Parish Council meeting to explain to those Parish Council members that an application for planning permission was being prepared. This was in line with the Planning Code of Conduct in place at the time ie that Councillors should restrict themselves to giving advice about the process and what can and can't be taken into account."
49. JCG then contacted Cllr. Prowse to let him know that the application had been made. Cllr. Prowse says:
51. "12. I also recall that she called me to let me know that the application was made or was about to be made. That was all we discussed. I did not make any promises or indications about the application that they were about to make.
52. 13. Besides those telephone calls I had no other contact with [JCG] regarding this planning application once it was submitted. Nor did I discuss it before it was determined by the Defendant's Planning Committee."
53. The IP's made their application for planning permission on 14 March 2023. The Planning Statement submitted in support of the application (prepared by their architects) referred to Policy DM23 and said:
55. "The proposal, submitted here in outline, comprises one family home. It is within the principal-built form and thus comply [sic] with criteria (1)(a) of Policy DM23, as reinforced by Appeal Decision ?. 3288689 [i.e. the decision on the Stables Application]."
56. The IPs' application was subject to numerous objections on the part of statutory consultees and members of the public including the claimant (who, by an email dated 30 March 2023, began his objection by referring to Policy DM23 and said the Site was not within or even well-related to the principal built form of Patchole).
58. The objectors included Kentisbury and Trentishoe Parish Council who, by its chairman's letter dated 12 April 2023, said (the bold emphasis is in the original):
60. "The detailed points for opposing this application are well made by several of the objectors and for the purposes of the avoidance of establishing precedent, should be taken good note of. This is particularly true in respect of the interpretation of policy DM23. To date planners seem to have taken a very loose interpretation ? to the point of absurdity in one recent planning application ? of the definition of 'Principal Built Form' of a settlement and where the boundaries of that lie. By definition, as pointed out, a new application cannot be within the principal built form of a settlement if it is on the edge of it and therefore outside it. That would mean that the provisions of DM23(b) must apply and that is precisely the interpretation you yourselves reached on a previous application for this site.
61. The simple fact is that there has to be an even playing field. You cannot make certain stipulations for one application and then, when a second application is received for the same site, disregard them and apply a different set of criteria.
62. ??..
63. I believe that where there are 6 objections or more then it is a requirement that the application will be referred to the Planning Committee. The Parish Council's objection now makes 6. I am sure all objectors would be obliged for the relevant date in order to be able to attend and expand on their objections in person."
65. The application was then called in for determination by the Council's Planning Committee on 3 May 2023 following a request made by Cllr. Prowse on 21 April 2023. The request was made beyond the 28-day period specified in a poorly constructed paragraph 5.25 of Annexe 2 to the Council's Constitution (addressing planning applications that are not to be determined in accordance with planning officers' delegated powers) but the Council points out that the late request was agreed by the Head of Planning as permitted by that provision. It is also what the Parish Council had demanded.
67. The OR records the reason for the call-in as being "To discuss policy context". In his witness statement, Cllr Prowse says:
69. "21. I believed there was a need to discuss this application within the policy context of DM23 of the North Devon and Torridge Local Plan, as both myself and the Parish Council were unclear about the application of this policy for the area of Patchole and the application of the principle of built form and how it related to Patchole. This was in line with the Planning Code of Conduct ie that the reasons for the call-in should refer solely to matters of material planning concern."
70. In an email dated 5 October 2025, the Council's Senior Solicitor and Monitoring Officer said the reasoning behind Cllr. Prowse calling in the application was " his interpretation of Policy DM23 as applied to this application versus the planning officer's. "
72. The IPs' application was considered by the Council's Planning Committee on 6 September 2023. The meeting was not recorded and there is no transcript of it. Mr Bradley was present at the meeting. In his witness statement, Mr Bradley says:
74. "Before the start of the committee meeting [JCG] was engaged in a long and amicable conversation with a member of the planning committee (believed to be Councillor Spear). It appeared to a member of the public watching the conversation that the member in question knew one of the applicants although the relationship between them was unknown."
75. and
76. "During the meeting, Cllr Prowse made complimentary comments about [NKS's] family by name and stated that the Council should be supporting local families."
77. There is no witness statement from Cllr. Spear challenging what Mr Bradley has said. In his witness statement, Cllr. Prowse confirms he recalls stating at the meeting that the Planning Committee should support local families. He says that was a generalised statement made in the context of the relevant policies in the Development Plan, in particular Policy KKF addressed below.
79. Cllr. Prowse's witness statement was made in response to Mr Perrin's Statement of Facts and Grounds, which recited Mr Bradley's witness statement. As there has been no cross-examination of either witness and Cllr. Prowse's position on the point is not one of denial but (implicitly) a lack of recollection of saying so, I should proceed on the basis that he did make some complimentary remarks about NSK's family.
81. The OR, as it was in the form put before the Planning Committee on 6 September 2023, recommended refusal of the application for two reasons, the first of which was that the Site is not within the built form of the existing settlement of Patchole. The OR said: " It is the opinion of Officers that the built form of the village in this location ends at the eastern boundary of Lower Basepark and therefore the proposal should be considered on the basis that it is "well-related to the main built form of the settlement." That is a quote from Policy DM23 which provides that applications for development of sites so "well-related" will be supported where they are "affordable housing focused". The OR said that the proposed development did not therefore meet an identifiable need for affordable housing and is "thereby contrary to policies ST01, ST19 and DM23 of the [Development Plan]." Those policies are set out in paragraph 47 below.
83. The Planning Committee did not act upon the OR recommendation. There are no minutes of the meeting on 6 September 2023 but the Decision Notice subsequently issued recorded:
85. "that the DECISION FOR APPROVAL BE DELEGATED to the Service Manager (Development Management) in consultation with the Ward Member to negotiate changes to the application in terms of the scale, size and location of the dwelling and that if there was disagreement that the application be presented to the Committee for consideration as the Committee accepted the principle that it was within the built form in accordance with Policy DM23".
86. Mr Perrin then challenged the decision to grant planning permission by way of a judicial review pre-action protocol letter dated 8 February 2024. The Council agreed to its quashing on the basis that the Defendant had failed to provide any, or any adequate reasons for its decision to grant permission contrary to the recommendation in the OR. The decision notice was quashed by an order dated 2 April 2024 and the IPs' application was remitted to the Council for re-determination.
88. On 27 September 2024, the Claimant through his solicitors raised a number of concerns in respect of the involvement of Cllr. Prowse in the determination of the remitted application. The Council responded by letter dated 3 October 2024 which confirmed that: (1) Cllr. Prowse had previously worked with the agent instructed by the IPs (2) he was 'friends' with NKS and the applicant's agent on Facebook; (3) he and Cllr. Spear displayed what the Council described as 'a friendly disposition' towards JCG as a former employee of the Council; and (4) he had failed to attend additional training provided by the Council which had been arranged in light of the Council's acceptance that it had acted unlawfully in its determination of the planning application.
90. In his witness statement, Cllr. Prowse said of the last point the training was not mandatory and was put in place to allow councillors to acquire more detailed knowledge of the Planning Code of Conduct to supplement training he and others had already received. He said he was " involved in discussions around the content of the training and the development of the revisions to the Planning Code of Conduct that followed in May 2024 and therefore was very familiar with the content of that training." He said he could not attend the training due to personal commitments and that, added on to an ordinary Planning Committee meeting, it lasted no more than half an hour.
92. The IPs submitted amended plans in support of their application which were the subject of public consultation. The updated OR prepared for a meeting of the Planning Committee on 11 November 2024 again recommended refusal of the application. The reason for doing so was:
94. "The application site is not within the built form of the existing settlement of Patchole. The proposed development for the provision of one open-market dwelling will not meet an identifiable need for the provision for affordable housing focused development. The Local Planning Authority considers that the harm caused in not creating housing to meet the local need will result in an unsustainable form of development. The proposal is thereby contrary to policies ST01, ST19 and DM23 of the North Devon and Torridge Local Plan."
95. The transcript of the meeting on 11 November 2024 records that Mr Bradley raised the point that Cllr. Prowse and NKS were friends on Facebook, with the suggestion that there ought to have been a declaration of interest by the councillor. It also records that the planning officers summarised the OR, that there was a discussion (initiated by Cllr Prowse) about the built form of Patchole, and that the Planning Committee were advised by one officer as follows
97. "Your Officers have very clearly set out in the report their professional recommendation in terms of this site being well-related. If you want to go contrary to their professional recommendation to you, you do need to ensure that you give adequate planning reasons as to why the development is in accordance with policy DM23(a) and is it in accordance with the Development Plan as a whole and any other material considerations."
98. The committee had discussed the basis for not acting in accordance with the recommendation in the OR during an adjournment taken for that purpose in accordance with the Council's Constitution. They then resolved to grant the planning permission for reasons which were stated as follows:
100. "?? having carried out a site inspection, the Committee finds that the proposal for an open market dwelling in this location is acceptable by its accordance with policy DM23(1)(a) of the North Devon and Torridge Local Plan and with reference to the following material considerations:
101. (a) Planning Inspectorate Appeal 2022 reference APPX1118W2132288689 states, the principal built form is clustered around the junction between Ley Lane and Ford Hill/Stonecombe Hill, with properties primarily fronting these roads, and the Committee viewed the triangulation of the two storey dwelling to the north-east, a property known as Roseley.
102. (b) That Officers' significant weighting of the previous planning decision 66536 on the site is given less weight due to the findings of what a principal built form can consist of, as referenced in Planning Inspectorate Appeal 22 reference APPX1118W213288689."
103. However, following the meeting the Council obtained external legal advice in respect of the members' decision. That legal advice is privileged and was not before the court. Reference was made to it in the OR prepared for the Planning Committee on 12 February 2025, and it was appended as a confidential document to the OR. The committee members considered it in private during an adjournment of that public meeting. Mr Perrin fairly infers that the legal advice was to the effect that the Council's decision on 11 November 2024 was unlawful because the upshot was the matter was once more returned to be reconsidered by the committee at that later meeting.
105. Indeed, the OR for the meeting on 12 February 2025 referred to "a legal opinion on the reasons given and that those reasons should be re-visited by the Committee to ensure that they could be considered legally sound." The OR also referred to "the reasons element" having been overtaken by changes in December 2024 to the National Planning Policy Framework (" NPPF ") and the National Planning Practice Guidance (" NPPG ") and to the planning officers having sought an addendum to the initial advice which resulted in "an opinion on how the above changes would impact the consideration of this application for the Planning Officer and accordingly members."
107. The OR summarised the change to the NPPF on 12 December 2024 in relation to the change in methodology for calculating the Council's so-called "5 year housing land supply". The result of the change was that the Council in association with Torridge District Council " have determined they are unable to demonstrate a sufficient supply of deliverable sites for housing across their joint local planning authority areas."
109. It is not sensible for me to attempt a comprehensive summary of the (on occasions repetitive) advice in five pages of the OR that addressed the assessment of the 'tilted balance' of paragraph 11d of the NPPF which the officers considered fell to be applied in the light of the change. By that they meant "the presumption in favour of sustainable development" created by paragraph 11(d) (the material provisions of which are set out in paragraph 52 below). The OR said that the absence of a 5 year housing supply meant that Policy ST19 (affordable housing in villages) and Policy ST07 (applying to Kentisbury the 'Kentisbury/Kentisbury Ford Spatial Strategy') of the Development Plan were "out of date" for the purpose of permitting the application of the tilted balance. As already mentioned above and quoted below, Policy DM23 of the Development Plan provides for residential development on village which are well-related to the principal (or "main") built form of the settlement to have a focus on affordable housing "in accordance with Policy ST19". Alongside Policy ST19, the OR therefore also said Policy DM23 was out of date.
111. The OR accordingly gave Policies ST19 and DM23 "limited weight" in the determination of the application. Nevertheless, addressing the social perspective (in accordance with paragraph 8 of the NPPF and with their emphasis) the OR said:
113. "Whilst policies ST19 and DM23 are now out-of-date resulting from the short-fall in the 5YHLS, the principal reasoning behind the policies are for sustaining the long term viability of Local Centres, Villages and Rural Settlements remains as: ' Ensuring housing needs are addressed locally is an essential component in delivering a long-term future for communities across northern Devon. The Local Plan seeks to ensure that housing needs can be appropriately realised to support the creation of sustainable communities, providing housing in response to locally generated social needs ' [paragraph 7.38]. With regard to the above, Officers retain the position that sites that are adjacent to the principal built-form of settlements should continue to support the sustainability and future viability of such settlements. The retention of such sites for affordable housing led development is therefore given significant weight in the determination of this application."
115. The OR accepted that the development of a dwelling on the Site was accepted from the environmental perspective and accordingly given "moderate weight". However, the third of the overarching objectives under paragraph 9 of the NPPF ? the economic objective ? was given "limited weight". This was on the basis that:
117. "From an economic perspective, the construction of one dwelling and the introduction of additional residents to the village and District is likely to contribute to the local economy. However, Officers consider that insufficient information has been presented to allow for a detailed and informed judgement on the precise value of economic gain ?."
118. By way of summary, therefore, the view of the planning officers was that the "tilted balance" created by the presumption in paragraph 11d of the NPPF was (despite being triggered by the policies being out of date) offset by significant weight to be given to the retention of the Site for affordable housing rather than open market housing. This was on the basis that the Site was "adjacent" to the principal built form of settlement. It repeated the officers' view that the Site is "well-related to" the built form of the village but not "within" the built form. That was noted to have been "the critical difference between officers and the Committee " which had led to the decision on 11 November 2024.
120. The OR before the Planning Committee on 12 February 2025 therefore again recommended refusal of the application. Unlike the earlier versions, however, it concluded that " Officers are of the opinion that the determination of this application is very finely balanced."
122. At the meeting of the committee on 12 February 2025, the Council's Senior Planning Officer explained the advice in the OR. At that meeting, Mr Bradley and Mr Perrin both spoke against the application, each intimating that there would be a further application for a judicial review if the application was granted. The transcript of the meeting records Mr Perrin using language which I think can fairly be described as him laying down the gauntlet in that regard. He referred to the earlier consensual quashing of the decision taken on 11 November 2024 as being based upon the committee's inability to follow its own code of conduct and talked about the waste of the Council's money that would result from a further judicial review as being contrary to principles of good governance.
124. The committee then adjourned to discuss matters in private as their discussion addressed the privileged legal advice appended to the OR. When they returned to the public meeting two councillors spoke, one of whom was Cllr. Prowse. I address what he said in addressing Mr Perrin's Ground 4 below. The other councillor began by saying that the Planning Committee took into account the external legal advice but said it was looking at matters in a different way given the Council had no demonstrable 5 year housing land supply and the tilted balance under paragraph 11d of the NPPF applied.
126. Recognising it was departing from the recommendation to refuse contained in the OR, the committee's reasons for the Decision were recorded by one of the planning officers as follows:
128. "Thank you, Chair. So as I understand it, the reasons are: The Committee takes into account the external legal advice and the Officer's report. We are now looking at this application in a different way than the previous Committee did in November 2024, as we have new mandatory housing targets and therefore we recognise the Council cannot demonstrate a five-year housing land supply.
129. In December 2024, the Government updated the National Planning Policy Framework and as a result a material consideration is that the tilted balance is engaged in accordance with paragraph 11(d)(2) of the National Planning Policy Framework because the policies in terms of housing supply are considered to be out of date, tilting the balance between benefits and harm.
130. The application is in accordance with policy ST01, as Patchole and Kentisbury are in the Local Plan as a village which has an aspiration of community growth. Therefore, it is a sustainable development of an open market dwelling which tilts the balance in favour of approval.
131. As a result of the above, the Committee affords less weight to the environmental and social perspective in ST01 as well as policies ST19 and DM23. The Committee gives increased weight in producing another property for the vitality of the village. Therefore, the Committee does consider the benefits significantly and demonstrably outweigh the harm when assessed against the policies within the National Planning Policy Framework as a whole. Thank you, Chair."
132. At the hearing before me, the parties recognised that it is the third and fourth paragraphs in the quote above that constitute the Planning Committee's reasons for the purposes of analysing Mr Perrin's challenge to the Decision.
134. I now set out the policies in the Development Plan which were referred to in those reasons (including Policy KKF ? the 'Kentisbury/Kenstisbury Ford Spatial Strategy' ? which, on the basis that those places are identified as a 'Village' by Policy ST07 relating to the spatial strategy for North Devon's rural area, is linked to Policy DM23).
137. The Development Plan
138. The policies in the Development Plan relevant to this case are as follows:
140. " Policy ST01: Principles of Sustainable Development
141. (1) When considering development proposals the Councils will take a positive approach that reflects the presumption in favour of sustainable development contained in the National Planning Policy Framework. The Councils will always work proactively with applicants and local communities to find solutions which mean that proposals can be approved wherever possible, and to secure development that improves the economic, social and environmental conditions in the area.
142. (2) Planning applications that accord with the policies in this Local Plan (and where relevant with policies in Neighbourhood Plans) will be approved unless material considerations indicate otherwise.
143. (3) Where there are no policies relevant to an application, or relevant policies are out of date at the time of making the decision, then the Councils will grant permission unless material considerations indicate otherwise, taking into account whether:
144. (a) any adverse impacts of granting permission would significantly and demonstrably outweigh the benefits, when assessed against the policies in the National Planning Policy Framework taken as a whole; or
145. (b) specific policies in that Framework or guidance in the National Planning Practice Guidance indicate that development should be restricted."
147. " Policy DM23: Residential Development in defined Settlements without development boundaries
148. (1) Residential development in Local Centres and Villages without development boundaries will be supported on allocated sites and where:
149. (a) the site is located within the principal built form of the settlement and is not protected for any other use; or
150. (b) the site is well related to the main built form of the settlement and provides an affordable housing focused development in accordance with Policy ST19.
151. [?]"
153. " Policy ST19: Affordable Housing on Exception Sites
154. Proposals to deliver permanent affordable housing at Local Centres, Villages and Rural Settlements will be supported, subject to the following:
155. (a) the site is well related to or adjoining the defined development boundary; or where the settlement is not subject to a development boundary, the site is well related to the extent of the contiguous built form;
156. (b) the development is proportionate to the scale and nature of the existing settlement;
157. (c) there is an identified local need for affordable housing sufficient to justify the extent and nature of the proposed development;
158. (d) the housing need could not reasonably be satisfied without the exceptional release of land;
159. (e) arrangements are in place to ensure that the affordable housing, remains available to the local community in perpetuity;
160. (f) where it can be robustly demonstrated that an element of market housing is required to enable delivery of significant additional affordable housing, it will be supported provided that:
161. (i) the element of market housing is the minimum amount required to enable the delivery of the proposed affordable housing; and
162. (ii) the mix of open market dwellings, in terms of type and size, complies with the requirements of Policy ST17;
163. (g) environmental and heritage assets are not subject to significant harm, are conserved or enhanced, with particular respect to the setting and special qualities of nationally important landscapes, biodiversity and heritage designations and the undeveloped coast; and
164. (h) the use of planning conditions, obligations or other legally defensible limitations to:
165. (i) restrict occupation to households identified as being in need of affordable housing; and
166. (ii) give priority of occupation to households with a local connection."
168. " Policy KKF: Kentisbury / Kentisbury Ford Spatial Strategy
169. The local community has a vision for the community that seeks to maintain the area's character and appearance for the benefit of residents, while adopting a positive approach to development well related to the village that addresses local needs.
170. The surrounding high quality landscape along the approaches to Exmoor, the natural and built environment, local community and its facilities are particularly valued and should be protected. The spatial strategy will be delivered through:
171. (a) provision of a minimum of 6 new dwellings to meet a range of housing needs in the local community. The supply of housing will be delivered through extant planning permissions, with no new sites allocated for housing;
172. (b) support for additional employment provision to meet locally generated requirements;
173. (c) retention and enhancement of the character of the villages, their relationship with the surrounding countryside and protection of the high quality local environment including the setting of listed buildings;
174. (d) delivery of superfast broadband connections;
175. (e) support for appropriate renewable energy schemes; and
176. (f) support for maintaining and developing village services and facilities."
178. Paragraphs 12.604-5 of the reasoned justification for Policy KKF as follows:
180. "12.604 Opportunities for residential development in Kentisbury are limited. At 31st March 2017 there was a relatively modest level of housing commitments in Kentisbury parish. There are no sites allocated for housing development in the village as the Parish Council wish to consider all future housing proposals on their own merits. The requirement to provide additional housing to meet local needs and demands still remains, as does addressing aspirations for improvements to local services and facilities.
181. 12.605 Residential development proposals which are appropriate in terms of scale, location and landscape impact, it will be considered for residential development in accordance with Policy DM23: Residential Development in defined Settlements without Development Boundaries, and other relevant policies of the Local Plan. Other opportunities to secure additional housing to meet local needs will continue to be explored."
183. As Policy KKF confirmed there were no " allocated sites " within the meaning of Policy DM23, the OR addressed the IPs' application by reference to the criteria (introduced by the language " and where ") in paragraph 1(a) and 1(b) of the latter.
185. It was the application of paragraph (1)(b) of Policy DM23, linked to Policy ST19, which led the OR to conclude that (although those policies were to be given limited weight) the retention of the Site for affordable housing was to be given significant weight in the determination of the IPs' application. This was on the basis of the officers' view that the Site was well related to the main built form of the settlement rather than within its principal built form.
187. The OR gave limited weight to ST19 on the basis it was " out of date ". That is the language of paragraph (3) of Policy ST01 (setting out the Council's principles of sustainable development) and also of paragraph 11(d) of the NPPF to which the OR referred in support of the assessment of the 'tilted balance'.
189. So far as material (and in 11(d)(ii) using further language partly echoed in paragraph (3) of Policy ST01) paragraph 11 of the NPPF provides as follows:
191. " The presumption in favour of sustainable development
192. 11. Plans and decisions should apply a presumption in favour of sustainable Development
193. ???
194. For decision-taking this means:
195. c) ??..
196. d) where there are no relevant development plan policies, or the policies which are most important for determining the application are out-of-date, granting permission unless:
197. i. the application of policies in this Framework that protect areas or assets of particular importance provides a strong reason for refusing the development proposed; or
198. ii. any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in this Framework taken as a whole, having particular regard to key policies for directing development to sustainable locations, making effective use of land, securing well-designed places and providing affordable homes, individually or in combination.
199. 12. The presumption in favour of sustainable development does not change the statutory status of the development plan as the starting point for decision-making. Where a planning application conflicts with an up-to-date development plan (including any neighbourhood plans that form part of the development plan), permission should not usually be granted. Local planning authorities may take decisions that depart from an up-to-date development plan, but only if material considerations in a particular case indicate that the plan should not be followed."
201. Mr Perrin's challenge to the Decision.
202. As is perhaps to be expected when they have been formulated by reference to the two quite succinct paragraphs of reasoning set out in paragraph 44 above, there is very significant overlap between Mr Perrin's first three grounds of challenge. I have also not found it easy to adhere to his compartmentalisation of the grounds of challenge when his complaint that the committee misapplied Policy ST01 (the essence of Ground 1 and, probably, Ground 3 too) is that it failed to recognise the need for affordable housing under Policy ST19 and (on the assessment of the Site's location in the OR) Policy DM23 (i.e. Ground 2). I therefore consider the three grounds together before turning to the fourth ground based upon apparent bias.
205. Ground 1: Irrationality, irrelevant consideration and inadequate reasons in the Council's finding that the Development accorded with Policy ST01
206. Ground 2: Irrationality and a failure to provide adequate reasons in relation to the failure of the proposed development to meet an identifiable need for the provision for affordable housing focused development.
207. Ground 3: Irrationality, irrelevant consideration and inadequate reasons in the Council's finding benefits in the Development "producing another property for the vitality of the village"
209. Legal Principles
210. Section 70(2) of the Town and Country Planning Act 1990 (" TCPA 1990 ") provides that in determining an application for planning permission, the LPA "shall have regard to the provisions of the development plan, so far as material to the application, and to any other material consideration". By section 38(6) of the Planning and Compulsory Purchase Act 2004 (" PCPA 2004 "), a local planning authority is obliged to determine a planning application in accordance with the development plan unless material considerations indicate otherwise.
212. The effect of those statutory provisions was summarised by Lindblom LJ in Gladman Developments Limited v Canterbury City Council [2019] EWCA Civ 669 at [21]-[22]. In his skeleton argument, Mr Parker distilled the following uncontroversial propositions from that judgment:
214. (1) The effect of section 38(6) of the PCPA 2004 is that the development plan has statutory primacy and a statutory presumption in its favour. Under the statutory scheme, the policies of the plan operate to ensure consistency in decision-making.
215. (2) If the section 38(6) duty is to be performed properly, the decision-maker must identify and understand the relevant policies of the development plan; and must establish whether or not the proposal accords with the plan, read as a whole
216. (3) A failure to comprehend the relevant policies is liable to be fatal to the decision (see the speech of Lord Clyde in City of Edinburgh Council v Secretary of State for Scotland [1997] 1 WLR 1447, at pp.1450, and 1458 to 1460; the judgment of Lord Reed in Tesco Stores Ltd. v Dundee City Council [2012] PTSR 983, at [18], and [21] to [23]; the judgment of Lord Carnwath in Hopkins Homes Ltd. v Secretary of State for Communities and Local Government [2017] 1 WLR 1865, at [5] and [22]; the judgment of Sales LJ in Gladman Developments v Daventry District Council [2017] JPL 401, at [6]; the judgment of Richards LJ in R. (on the application of Hampton Bishop Parish Council) v Herefordshire Council [2014] EWCA Civ 878, at [28] to [33]; and Secretary of State for Communities and Local Government v BDW Trading Ltd. (T/A David Wilson Homes (Central, Mercia and West Midlands)) [2016] EWCA Civ 493, at [18] to [23]).
217. (4) The application of development plan policy is for the decision-maker but its interpretation is ultimately a matter of law for the court. The court does not approach that task with the same linguistic rigour as it applies to the construction of a statute or contract. It must seek to discern from the language used in formulating the plan the sensible meaning of the policies in question, in their full context, and thus their true effect. The context includes the objectives to which the policies are directed, other relevant policies in the plan, and the relevant supporting text. The court will always keep in mind that the creation of development plan policy by a local planning authority is not an end in itself, but a means to the end of coherent and reasonably predictable decision-making, in the public interest
218. Policy DM23 is expressed in permissive terms ("?will be supported on allocated sites ? where ? "). In Gladman v Canterbury, at [35], Lindblom LJ addressed the potential impact of such language where it does not expressly support the proposed development by saying:
220. "The policies themselves were perfectly clear. The judge's conclusion to that effect was right. As he recognized, the fact that the polices were expressed in permissive terms does not exclude the obvious corollary that proposals without their explicit support were not in accordance with them or with the plan's comprehensive strategy for housing development. As he also recognized, however, this necessary inference is only reinforced by the policy objectives and the supporting text, which emphasized the city council's intention to steer housing development to the existing urban areas and previously developed land and away from undeveloped sites in the countryside. The inference, therefore, is not neutral or positive towards development without specific support in the policies, but negative."
221. There is no statutory duty upon a planning committee to give reason for a grant of planning permission. However, a duty to give reasons may arise at common law in the circumstances of the case in question: see R. (CPRE Kent) v Dover District Council [2017] UKSC 79, at [52]-[54] where the Supreme Court approved the decision of the Court of Appeal in Oakley v South Cambridgeshire DC [2017] 2 P & CR 4, [2017] EWCA Civ 71.
223. In Oakley, the court held that a duty did arise in the particular circumstances of that case where the development would have a " significant and lasting impact on the local community ", it involved a substantial departure from Green Belt and development plan policies, and where the committee had disagreed with its officers' recommendations. Of the last point, Elias LJ (giving the leading judgment, with which Patten LJ agreed) said, at [61]:
225. "The significance of that fact is not simply that it will often leave the reasoning obscure. In addition, the fact that the committee is disagreeing with a careful and clear recommendation from a highly experienced officer on a matter of such potential significance to very many people suggests that some explanation is required ? the dictates of good administration and the need for transparency are particularly strong here, and they reinforce the justification for imposing the common law duty."
226. In CPRE v Kent, at [35]-[37], the court also addressed the standard, or adequacy, of such reasons (applicable to the decisions of a local planning authority as well as the Secretary of State or a planning inspector) as follows:
228. "35. A "broad summary" of the relevant authorities governing reasons challenges was given by Lord Brown of Eaton-under Heywood in South Buckinghamshire District Council v Porter (No 2) [2004] 1 WLR 1953, para 36:
229. > "The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the 'principal important controversial issues', disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision."
230. 36. In the course of his review of the authorities he had referred with approval to the "felicitous" observation of Sir Thomas Bingham MR in Clarke Homes Ltd v Secretary of State for the Environment (1993) 66 P&CR 263, 271-272:
231. > "? whether the decision of the Secretary of State leaves room for genuine as opposed to forensic doubt as to what he has decided and why. This is an issue to be resolved as the parties agree on a straightforward down-to-earth reading of [the decision] without excessive legalism or exegetical sophistication.""
233. In his skeleton argument Mr Parker referred to the legal principles that apply to consideration of a planning decision against the content of a planning officer's report as summarised by the Court of Appeal in Mansell v Tonbridge and Malling BC [2017] EWCA 1314 at [42]. Mr Parker recognised that the court's guidance was not directly on point as it was directed instead to what I described at the hearing as a "derivative error" where the planning committee's decision is said to be the consequence of it having been materially misled by flawed advice within the report. In the present case, Mr Perrin's case is that the OR gave accurate advice and the committee wrongly went against it. Mr Parker said the guidance still remained of more general relevance when considering his client's case that the committee had not properly understood the OR and therefore (although not led into it on a true reading of the OR) had made what the Court of Appeal described as " a significant error of fact ".
235. Proceeding on the basis of Mr Perrin's case that the OR showed a correct understanding of the policies in the Development Plan, and mindful of Mr Leader's truism that "officers advise and members decide", it seems to me that the guidance in Mansell v Tonbridge adds little in this case to the third proposition derived from Gladman v Canterbury above.
238. Findings
239. In reaching my findings on Grounds 1, 2 and 3, I bear well in mind the Council's submission that the OR contained advice and it was for the Planning Committee to decide whether or not to act upon it. As Mr Leader on behalf of the Council correctly emphasised, the officers' advice was " finely balanced ".
241. I can see how the finely balanced nature of the recommendation in the OR may reinforce a submission that the application (as opposed to interpretation) of the Development Plan, properly understood by the planning committee, is a matter of planning judgment for the committee.
243. However, although I recognise there may be some dispute as to whether the Decision should be described (per Oakley) as being on " a matter of such potential significance to very many people ", I am not convinced that the point is material to Mr Perrin's challenge that the Decision was based upon irrelevant considerations and inadequate reasons. If a planning decision goes against even a finely-balanced officers' recommendation then those affected by the decision should not be left in significant doubt about the rationale behind it. When the officers' recommendation can be seen to be based on a working through of the planning policy considerations, any such doubt about the decision which departs from it, without adequately explaining why, will leave space for a concern that some relevant policy may have been misunderstood or a relevant factor overlooked. Such misunderstandings and oversights may lead the court to conclude that the decision was irrational. If the decision is to be defended on the basis that officers advise and, in the exercise of their planning judgment, members decide, then the basic props for what is said to be a rational and lawful decision need to be clearly in place.
245. In support of Ground 1, Mr Parker had in his skeleton argument submitted that the Development Plan neither identified Patchole and Kentisbury as a 'village' or as having "an aspiration of community growth". However, in the light of Policy ST07, he only pursued the second limb saying Kentisbury was still not a village identified by such policy which supported the development of an open market dwelling.
247. In my judgment, Mr Perrin has made good his challenge under Grounds 1, 2 and 3 based upon inadequate reasons and irrationality. I have not included the complaint of "irrelevant consideration" in this finding. That is because I consider that the committee's references to " an aspiration of community growth " and enhancing " the vitality of the village " are to be read as addressing the economic perspective under paragraph 8 of the NPPF (though not also, it seems, the social perspective as I explain next) to which the OR attributed only limited weight in the assessment of the tilted balance. The point that the committee did not explain is why such growth and vitality should not come through the retention of the Site for an affordable housing development (the social perspective under paragraph 8, to which the OR attached significant weight) is in my judgment a different one that goes to inadequate reasons and irrationality.
249. So far as the inadequacy of reasons alleged under Ground 1 and Ground 3 is concerned, I should also make it clear that I therefore accept Mr Leader's submission that the committee's reference to " the vitality of the village " can fairly be read as addressing the economic conditions of the area to which Policy ST01 refers. I would also have read it, and the other reference to " community growth ", as embracing its social conditions too; but for the fact that the committee made it clear that it gave " less weight to the environmental and social perspective in ST01 ". On the social perspective, the committee was therefore taking a different view to that set out in the OR: see paragraph 38 above. I should also record here the parties' agreement that the assessment of whether or not the Site was (a) within or (b) well-related to the principal (or main) built form of the village was a matter of planning assessment which did not call for any process of legal interpretation.
251. Nevertheless, I have concluded that the reasons set out in paragraph 44 above are to be categorised as inadequate and, therefore, that the Decision should be categorised as irrational.
253. Although the written and oral submissions by each side expressed matters at considerably greater length, I have reached this conclusion for the essential reason that the planning committee did not explain the basis for concluding that the development of an open market dwelling, as opposed to one providing affordable housing, was to be given greater weight (" increased weight ") in " producing another property for the vitality of the village " than the social perspective in Policy ST01 and Policies ST19 and DM23.
255. On its assessment of the tilted balance the committee was entitled to give less weight to Policies ST19 and DM23 (as the OR had done and the committee said in its reasons it had also done) but it is not apparent from its reasons that the assessment involved it having any regard (let alone the " particular regard " required by required by paragraph 11(d)ii of the NPPF) to the relevant policy framework in relation to affordable homes.
257. Despite giving those policies lesser weight because they were out of date, the OR still gave " significant weight " to the retention of the Site for affordable housing, to a degree that tilted the balance against a recommendation of planning approval notwithstanding the presumption of sustainable development. The committee took a different view but it did not adequately explain why and thereby provide a basis for understanding the Decision on that point. The committee's reasons did not engage at all with the officers' view that the Site fell within paragraph 1(b) rather than paragraph 1(a) of Policy DM23. This was in contrast to what the Decision Notice recorded to be the outcome of the meeting on 6 September 2023 (before it was quashed) and what the committee had said at the meeting on 11 November 2024, about the Site falling within paragraph 1(a) (before external legal advice caused it to reconsider the decision made at that meeting). However, I infer that the Decision was not based upon a disagreement with the officers' view that this was a "1(b)" case on the basis that, had the committee still considered it to be a "1(a)" case, then, rather than saying Policy DM23 should be given limited weight, it would presumably have said that the policy fully supported an open market housing development (which was its approach on 11 November 2024). If, however, the committee implicitly decided that the Site was within the principal built form of Kentisbury then, as Mr Parker submitted, that should be treated as an irrational decision. I say that in the light of the recognised ineffectiveness of its earlier decisions to that effect, the view clearly expressed and explained in the OR (consistently since 6 September 2023) and the lack of any committee reasoning to the contrary.
259. I also accept Mr Parker's submission that the position adopted by the Council since the Decision is an indication that (despite saying in its reasons in support of the Decision that Policies DM23 and ST19 should be given " less weight ") the Council's policies in relation to affordable housing in a village such as Kentisbury were disregarded and given no weight at all. In the Council's Summary Grounds for Contesting the Claim, it said the following:
261. "18(4) More particularly [Policy KKF] expressly admits the grant of planning permission for new homes to meet an (undefined) range of housing needs provided (amongst other things) development is judged to retain and enhance the character of the village and the surrounding countryside and helps to support the village's services and facilities (see sub-paragraphs (a), (c) and (f))."
262. However, in the previous paragraph of its Grounds the Council said the aspiration for community growth (which it said was a proper characterisation of the spatial strategy set out in Policy KKF) was to be guided by the detailed provisions of the policy. As Policy KKF and the explanatory text in paragraph 12.605 (set out in paragraph 48 above) clearly state, the strategy for housing development in Kentisbury does not involve the allocation of any new sites for housing and involves any further residential development to be undertaken in accordance with applications for planning permission that are to be considered in accordance with Policy DM23. If the Site is not within the principal built form of the village, that means considered in accordance with Policy ST19. The Council's Summary Grounds therefore only enhance doubts about the basis of the Decision and whether it was a rational one.
265. Ground 4: Apparent Bias
266. Legal Principles
267. Mr Parker and Mr Leader were in agreement upon the test by which an allegation of apparent bias is to be judged.
269. In Porter v Magill [2001] UKHL 67; [2002] 2 WLR 37, at [99]-[105], Lord Hope explained that the test for apparent bias involves the court ascertaining all the facts which have a bearing on the suggestion of bias for the purpose of deciding whether they would lead a fair-minded observer, informed of those facts, to conclude that there was a real possibility that the decision-maker was biased. All the factors alleged to indicate apparent bias are to be considered collectively, so it is not legitimate to view them individually for the purpose of concluding that if there is nothing in them individually then there can be nothing in them in combination; see Zuma's Choice Pet Products Ltd v Azumi Ltd [2017] EWCA Civ 2133, at [43].
271. The fair-minded and informed observer is a fictional third party to proceedings who has full knowledge of all the facts before the Court and whose views are separate to those of the complainant: see Helow v Secretary of State for the Home Department [2008] UKHL 62 at [2]. On that basis, Lord Kerr observed in Belize Bank Ltd v Attorney General of Belize [2011] UKPC 36, at [36] that he is " neither complacent nor unduly suspicious ". In Resolution Chemicals Ltd v H Lunbeck A/S [2013] EWCA Civ 1515, which was a case of alleged apparent bias on the part of a judge rather than a non-judicial (or quasi-judicial) tribunal, Sir Terence Etherton C. said " the facts and context are critical " and "[e]ach case turns on an intense focus on the essential facts of the case." He warned of the need for caution in deciding cases by drawing analogies with other decided cases.
273. Counsel did not, however, agree upon the legal consequences where apparent bias on the part of just one member of the committee is established.
275. Mr Parker submitted that a finding of apparent bias on the part of Cllr. Prowse was sufficient to vitiate the Decision, though he recognised that the court still has a discretion over whether or not to quash it. He relied upon the decision of Ouseley J in Bovis Homes Ltd v New Forest District Council [2002] EWHC 483 (Admin) at [103]-104 to support that submission.
277. Mr Parker referred to the fact that Bovis Homes has recently been cited with approval by the Supreme Court in R. (Spitalfields Historic Building Trust) v Tower Hamlets LBC [2025] UKSC 14; [2025] PTSR 700. That case concerned the validity of the local authority rules restricting the voting rights of committee members in certain circumstances. The passage in the judgment of Lord Sales which referred to non-statutory rules which restrict voting rights, based upon principles of impartiality and fair-dealing, in fact referenced later paragraphs in the judgment in Bovis Homes (in a section of Ouseley J's judgment headed ' Closed Mind '). Those later paragraphs related to the distinct allegation of a pre-determination (or a closed mind) by the committee rather than the challenge to its decision because of the apparent bias shown by Councillor Drake. In Spitalfields, Lord Sales said, at [43]:
279. "?? A councillor may not vote upon a matter if, for example, they are biased or give an appearance of bias, or have a predetermined view, or have a pecuniary or other personal interest in the outcome: see, e g, R v Secretary of State for the Environment, Ex p Kirkstall Valley Campaign Ltd [1996] 3 All ER 304, 321; Bovis Homes Ltd v New Forest District Council [2002] EWHC 483 (Admin) at [111]?[112]. These general disqualifying rules extend significantly beyond the specific statutory disqualifications from voting contained in primary legislation referred to in para 39 above. The legal consequence if a councillor does vote in the circumstances where the general rules apply (at any rate, where that has a material bearing on the outcome) is that the decision taken by the local authority is unlawful and liable to be set aside."
280. As I indicated during the course of counsel's submissions, Lord Sales' qualifying words " at any rate where that has a material bearing on the outcome " accords with the approach in the authorities relied upon by Mr Leader and addressed below (in particular R (ex p. Lewis) v Redcar and Cleveland Borough Council [2008] EWCA Civ 746) where a decision is challenged on the ground that the relevant committee, or some of its members, has approached the decision with a closed mind. That is to say, the decision was pre-determined in a way which precluded impartial consideration of the issues pertaining to it.
282. Although there sometimes may be overlap (as the challenge in Bovis Homes illustrates) an allegation of apparent bias on the part of one or more members of the relevant committee is not the same as an allegation that the relevant decision was pre-determined and taken with a closed mind. In my judgment, the difference is illustrated by noting, as I did at the hearing, that the latter allegation comes close and may indeed amount to saying that there was actual bias on the part of the majority of members who were responsible for the decision being made. However, it is because members of a planning committee have been democratically elected on the basis they will pursue certain policies, and will therefore have actual leanings towards certain decision-based outcomes, that the Court of Appeal in Lewis v Redcar and R (ex p. Berky) v Newport City Council [2012] EWCA Civ 378 (also relied upon by Mr Leader and addressed below) has made it clear they are entitled to be pre-disposed in their decision-making process. They are not exercising a judicial or quasi-judicial function which requires complete impartiality. Therefore, in the absence of further evidence that the decision was taken with minds closed to the arguments against any such leanings, their pre-disposition on the issue will not sustain a challenge based upon alleged pre-determination.
284. By contrast, and as Mr Perrin's case in relation to Cllr. Prowse illustrates, an allegation of apparent bias may encompass matters that are quite distinct from any politically based pre-disposition on the part of a councillor which he or she may be taken to have at the time he or she is elected. In R. (Legard) v Kensington and Chelsea RLBC [2018] EWHC 31 (Admin), at [121]-[137], Dove J undertook a review of a number of authorities which illustrate the kind of situations where an allegation of apparent bias may be made good, applying the test in Porter v Magill.
286. Bovis Homes concerned an allegation of apparent bias on the part of Councillor Drake who was one of twenty members of the council's Planning and Transportation Committee and its chairman. That allegation was conceptually distinct from the claim that the council had predetermined the decision by coming to the vote upon it with a closed mind. So far as the apparent bias allegation was concerned, the court noted that Councillor Drake had not voted at the meeting where the committee voted to reject the local planning inspector's report because the debate was so clear cut and the decision was made by seventeen other votes, to none. She was also present at a later meeting at which the committee adhered to its decision to adopt the local plan having considered Bovis's response to the reasons given by the Council for rejecting the inspector's view on the relevant part of it.
288. Ouseley J decided that the committee's decision should be quashed by reference to the lack of adequate reasons given by the committee for rejecting the inspector's recommendation and because the facts established a closed mind and predetermination on the part of the committee. Materially for present purposes, he also found that Councillor Drake's presence at the later meeting led to the inference that there was an appearance of bias. He said that, even without the other grounds of challenge, he would not have exercised his discretion not to quash the decision, saying at [106]:
290. "I recognise the number of councillors who voted the same way, but Councillor Drake was the Chairman, and, I infer influential, in her known views, perhaps more so with newly elected Committee members. The absence of any dissent itself surprised me, in view of the Inspector's recommendations, coupled with the absence of any officer recommendation supporting their rejection. I have also had regard to the participation of Councillor Harrison, whose pre-prepared resolution was accepted. On that ground alone the matter should be considered afresh by a properly constituted committee."
291. On the point of principle that separates the parties in this case, Ouseley J said:
293. "103. I consider next that the better view of the consequences of the participation of someone whose presence gave the appearance of bias, as with that of Councillor Drake at the September meeting, is that the decision is unlawful, rather than that the decision is lawful if there was a sufficient preponderance of unbiased participants for the effect of the apparently biased councillor's participation to have been eliminated or to be shown to have had no effect upon the actual decision. In so far as such a conclusion is to be drawn as to the effect of a councillor's participation, it becomes, in my judgment, a matter for the Court's discretion whether to grant relief. The question of lawfulness is not whether there was a real danger of bias looking at the body as a whole, but whether there was a real danger of bias from a participant in the decision.
294. 104. I have not been referred to any direct authority on the point. Certainly where a participant in a judicial decision is automatically disqualified the whole decision was vitiated as in Pinochet No 2, notwithstanding the unanimous views of the other four participants. In my view that principle applies to decisions reached by a non-judicial body, one of whose members appears to be biased. Decisions of local authorities must be reached by properly constituted bodies. The participation of someone who should not have participated precludes the decision having been made as required by law and it is vitiated, subject only to the exercise of the court's discretion. There appears to be no justification for a distinction between the effect of the participation of those apparently biased and of those with a disqualifying pecuniary interest. The latter vitiates the decision (R v Hendon Rural District Council ex parte Chorley [1922] 2 KB 696), although De Smith 5th Ed page 541 refers to a divergence of opinion and also cites an earlier authority. Three biased members out of ten vitiated the decision in Hannan. In the Kirkstall Valley Campaign [1] case Sedley J records, without expressly agreeing to it, though I consider implicitly doing so, an acceptance by Mr Drabble QC for the Secretary of State at page 328A:
295. "The participation of a single member who is disqualified by bias vitiates the decision."
296. 105. It is some indication of the direction of the wind. It accords with my view."
297. Against Mr Parker's reliance upon what was said in Bovis Homes about the effect of participation by one apparently biased member of a planning committee, Mr Leader said a finding of such bias on the part of a single member of a planning committee will not necessarily vitiate its decision. He relied upon the decision of the Court of Appeal in Berky v Newport, at [30], where Carnwath LJ said the judge was right to adopt the guidance of the Court of Appeal in Lewis v Redcar, where there was full consideration of the authorities, " in preference to the dictum of Ouseley J in Bovis Homes." Carnwath LJ was addressing the submission (noted at [26] of his judgment) that appearance of bias by even one member of a committee can vitiate its decision.
299. In the light of what Carnwath LJ said in Berky, at [30], I should therefore be cautious about assuming that a finding of apparent bias on the part of Cllr. Prowse means the Decision was unlawful. That is so even when such a finding would be qualified, as Mr Parker recognises, by an all-important (and, one might think, adequately protective of the Council) discretion in the Court not to grant relief if, viewing the evidence in the round, the court is not persuaded to act upon the unlawfulness. Doing so would include consideration of the extent of Cllr. Prowse's involvement in the decision-making process and the balance of voting by other members of the Planning Committee: compare Bovis Homes at [106].
301. That said, I must confess to not finding it easy to understand the basis upon which Carnwath LJ appears to have rejected the proposition that apparent bias shown by just one member of a committee is not sufficient to vitiate the committee's decision if, which appears to be the consequence, that means the claimant must show that either the committee as a whole or at least a majority of its voting members were infected by that bias. Instinctively, I would have thought the very nature of an apparent bias allegation (viewed from the perspective of the fair-minded observer) is that the lawfulness of the impugned decision does not ultimately rest upon a "numbers game" (as an assessment of the balance of the committee's vote might be colloquially described) of the kind that Lord Sales in Spitalfields appears to have had at least partly in mind with his reference to " a material bearing on the outcome."
303. In O'Reilly v Mackman v Mackman [1983] 2 AC 237, at 275, Lord Diplock said that acting " outwith the powers " conferred by legislation includes a failure to observe the rules of natural justice. More recently, in Pathan v Secretary of State for the Home Department [2020] UKSC 41, at [155], Lord Briggs said " a decision made by a process which is in fact procedurally unfair is for that very reason unlawful ". Starting from first principles, I would have thought that establishing apparent bias on the part of Cllr. Prowse would mean that there had been a breach of the rules of natural justice, or procedural unfairness as it is now described, with the consequence that the Decision is unlawful, though not necessarily to be quashed simply because it is.
305. In Berky, the judge (whose reasoning Carnwath LJ said was unimpeachable) had found there was no persuasive material that the actions of one Councillor Richards supported a " submission of bias, apparent bias or pre-determination on the part of the decision maker ? the whole planning committee ? to be made good. " The judgment of Carnwath LJ makes it clear that the judge's finding in relation to all three allegations was based upon the guidance, referred to in the quoted passage of the judge's judgment, of Pill LJ in Lewis v Redcar.
307. As Mr Parker pointed out in his submissions to me, the focus of the discussion in Lewis v Redcar concerned an allegation of pre-determination (or "closed minds" as Pill LJ put in the passage of his judgment quoted in Berky) rather than the allegation of apparent bias. When the allegation is one of pre-determination of the challenged decision, as opposed to apparent (or indeed actual) bias on the part of one of the members of the decision-making committee, it is easy to understand why the court will wish to inquire into the state of mind of the majority who voted in favour of the relevant decision (the "numbers game").
309. In Berky, at [46], Moore-Bick LJ addressed the allegation of closed minds when noting " the decision of the planning committee was made by a majority of 8 to 1 and there is nothing to suggest that Councillor Richards exercised an undue degree of influence over other members." Whereas Carnwath LJ had grouped all three allegations rejected by the judge under the heading ' Bias ', Moore-Bick LJ doubted the correctness of the view expressed by Ouseley J in Bovis Homes specifically by reference to the closed mind allegation. The approach of Moore-Bick LJ is readily understandable.
311. The question for me, therefore, is whether the same type of analysis of impact on voting numbers is relevant (otherwise than on the exercise of the discretion to grant relief) when the allegation is one of apparent bias rather than one of a closed mind (or mind s).
313. Although the judgment of Carnwath LJ in Berky (though not that of Moore-Bick LJ) appears to suggest the lawfulness of a decision infected by the apparent bias of just one participant does indeed turn upon an assessment of its impact on the other decision-makers, I am not persuaded that can be satisfactorily reconciled with established authority on the nature and components of an allegation of apparent bias. The concept of apparent bias is based upon the appearance of things to the fair-minded and informed observer. Nor do I think that approach is consistent with what higher authority (see paragraph 89 above) confirms to be the effect of the procedural unfairness where such bias is established.
315. It is the presence of factors which give rise to a real danger of bias that results in procedural unfairness and, therefore, unlawfulness. In many of the cases reviewed by Dove J in Legard the case of apparent bias (often on the part of just one individual among a number responsible for making the decision) was made good without it being shown that the factors relied upon by the claimant materially influenced the challenged decision. To put the point a slightly different way, the fair-minded observer is not to be attributed with knowledge that the danger did not in fact materialise (assuming that to be an uncontroversial fact rather than what I suspect will more often be a contentious assertion by the decision-making body promoting the lawfulness of the decision). Protestations of a lack of bias made by the person tainted with the appearance of it are " unlikely to be helpful " (per Lord Hope in Porter v Magill at [104]). Likewise, I can see no rational basis for concluding that the unlawfulness which arises out of the procedural unfairness triggered by the appearance of such bias can be undone, so as to render the decision lawful after all, by an assessment of the "innocence" of others involved in the decision-making process,
317. In the light of the passage in the judgment of Pill LJ in Lewis v Redcar, relied upon by the judge (in relation to all three challenges of bias, apparent bias and pre-determination) and quoted by Carnwath LJ in Berky, at [29]-[30], it therefore seems to me that, on analysis, Carnwath LJ should be taken to have been simply making the point that Lewis v Redcar confirmed that pre-disposition does not necessarily equate to pre-determination; and that Ouseley J was wrong on that issue to import the principle of Pinochet No. 2 (as it applies to judicial decisions) to the decision-making process of a planning committee.
319. I therefore accept Mr Parker's submission that a finding of apparent bias on the part of Cllr. Prowse would result in the Decision being unlawful though, as Mr Parker recognises, I would still have a discretion not to quash it.
322. Findings
323. Mr Leader said the finely balanced nature of the recommendation in the OR was also relevant to this ground of challenge. Mr Parker responded by saying the point was irrelevant to an allegation of apparent bias. Indeed, he said it was even more important that there should be no apparent bias in the decision-making process over a marginal case.
325. In my judgment, the nature of the underlying decision is nothing to the point in the assessment of whether there has been unfairness through the decision-making process being tainted by apparent bias. I am not even sure that, when it comes to the exercise of the court's discretion to act upon the resulting unlawfulness by quashing the decision, the "finely balanced" observation has any relevance beyond considering how compelling the supporting vote was even if the participation of those who brought the apparent bias to the process is disregarded.
327. In my judgment, Mr Perrin's allegation of apparent bias has been established. I say that on the basis that the fair-minded observer, informed of the following matters, would conclude that there was a real possibility that the Decision was tainted by apparent bias.
329. (1) Although Cllr Prowse and Cllr. Spear were not friends with JCG they were each known to each other and the brother and sister were friendly towards JCG when they met. I say this bearing fully in mind that Cllr. Spear offered apologies for her absence at the meeting on 12 February 2025 at which the Decision was made.
330. (2) Cllr. Prowse knew NKS and his family and was "friends" with NKS on Facebook.
331. (3) Cllr. Prowse provided procedural advice to JCG (in accordance with the Council's Planning Code of Conduct) about the planning application and, after the application was made on 14 March 2023, JCG contacted him to tell him it had been made.
332. (4) Cllr. Prowse called in the application for determination by the Planning Committee. [Although Mr Parker relied upon the lateness of the calling in - by a request made on 21 April and therefore not within 28 days of the application being made - as a secondary factor, I attribute no significance to that.] In his witness statement, Cllr. Prowse says his request was in line with the Planning Code of Conduct in that the reasons for it related solely to matters of material planning concern; and that he called it in because he was unclear about the application of the policy for the area of Patchole. However, he had not called in the Stables Application, which was for three residential dwellings rather than one, and therefore arguably more significant in planning terms. In paragraph 12 above, I have set out Cllr. Prowse's explanation as to why the Stables Application was not called in. However, the terms of the OR quoted in paragraph 11 above show that Policy DM23, and whether or not the 'Land Adjacent to the Stables' was within the principal built form, show that the Stables Application raised similar policy issues as the IPs' application. Cllr Prowse also says in his witness statement that the Parish Council was also unclear about the application of Policy DM23. However, the terms of the Parish Council's letter quoted in paragraph 19 above indicate that it was instead very clear in its understanding. The questionable justification given by Cllr. Prowse for not calling in the Stables Application indicates that the fair-minded does not need to be unduly suspicious in thinking that a reason behind him calling in the IPs' application was because he knew and was friendly towards the IPs.
333. (5) Before the start of the meeting on 6 September 2023, Cllr. Spear was seen by Mr Bradley to have a long and amicable conversation with JCG.
334. (6) During that meeting Cllr. Prowse made complimentary comments about NKS's family and said the Council should be supporting local families.
335. (7) The fact that, on three occasions, the committee has reached a decision contrary to the recommendation in the OR. The first was the subject of a quashing by consent, the second was not acted upon in the light of subsequent legal advice obtained by the Council and the third (the Decision under challenge) was, so I have found, not supported by adequate reasons.
336. In my judgment also, even if this had been the only ground on which Mr Perrin had succeeded, this is not a case where the court should decline to act upon the unlawfulness by not quashing the Decision.
338. The Decision is tainted by apparent bias primarily through the participation of Cllr. Prowse in the decision-making process. I accept Mr Parker's submission that (as was the case with Councillor Drake in the Bovis Homes case) Cllr. Prowse's views were likely to carry some weight among other members of the Planning Committee given his seniority as a councillor. His own evidence about his involvement in the training of members and the development of the Council's Planning Code of Conduct before May 2024 illustrates the point.
340. I also note that after public meeting on 12 February 2025 resumed, following the members' discussion of the legal advice in private, Councillor Prowse contributed to the debate, and can therefore be taken to have influenced other members, by saying:
342. "Chairman, [pause] I, er the Officer's report does refer to ST19 and DM23 and I think it is important to note know that the advice that we've had is that those should have little weight or certainly less weight in the decision making balance and that's why the debate today is so different from the debate that we had before and that affects obviously the [pause] lack of 5 year land supply. So I think it is important, if Cllr Walker would agree, that we actually mention that we're putting less weight with ST19 and DM23 in line with the legal advice that we've had. Thank you, Chairman."
343. The upshot, in my judgment, is that this is not a case where the apparent bias established by Mr Perrin can be disregarded on the ground of immateriality.
346. Disposal
347. For the reasons set out above I therefore find the Decision was unlawful and should be quashed.
349. In the draft of this judgment circulated in advance of its handing down, I invited the parties to address and, if possible, agree a form of order reflecting my decision and disposing of all matters on the claim. I indicated that a minute of order should be lodged within 14 days of this judgment. In fact, prior to the handing down, the parties have agreed upon a form of order addressing the consequences of this judgment apart from the question of whether or not I should grant the Council permission to appeal my decision on the grounds identified by it in response to the draft judgment. The order I have made makes provision for a further determination of that application by me in the light of the parties' submissions about it. As I indicated in the draft judgment would be the case, the handing down is adjourned for the purpose of preserving the time for filing any appellant's notice and the deadline for which under CPR 52.12 will run from that determination.

Note 1 R v Secretary of State for the Environment ex parte Kirkstall Valley Campaign Ltd [1996] 3
All ER 304 [Back]

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