Planning permission quashed because of involvement of a housing association director in the planning committee

28 October, 2015
by: Cripps Pemberton Greenish

On 9 October the High Court, in Kelton v Wiltshire Council, quashed a planning permission because the involvement of a housing association’s director in a planning decision gave rise to an appearance of potential bias.


Kelton applied for judicial review of an outline planning permission for a scheme of up to 35 custom-built (including 9 affordable) homes. The developers had received free advice from Selwood Housing Association regarding the affordable housing. The developers put the affordable housing element out to tender but Selwood was the “front runner to deliver the affordable housing” according to the judge.


Objections were made against one councillor’s participation in the planning committee because he was a director of Selwood. The claim was that he had a potential interest in the outcome of the decision. His vote carried the decision.


Kelton challenged the planning permission on several grounds, including a potential bias – that is that a “fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased” (Porter v Magill [2002] AC 357).


The Court decided that the councillor was not disqualified from being on the committee merely because he was a director with a financial interest in Selwood nor as a result of his pecuniary interest as set out in section 31 of the Localism Act 2011. It might be a different story in other cases.


The High Court quashed the planning approval on the basis that there was indeed a potential appearance of bias in the councillor’s involvement in the decision making. It was in Selwood’s, and therefore the councillor’s, interest for the application to be approved.


The decision is noteworthy as it clarifies when apparent bias is likely to arise. Here, the councillor’s involvement in Selwood in particular was the issue. Selwood had taken an active role in the scheme, wanted to deliver the affordable element and, the judge said, “would, barring something unforeseen, be appointed to do so in due course”. If he had been a director of a housing association which had not been so involved, it’s likely there would have been no apparent bias.


The Localism Act also introduced a new criminal offence of failing to register relevant interests. That was not relevant in this case but it is another reason why potential bias needs very careful handling.