Ref. Kelton v Wiltshire Council [2015] EWHC 2853 (Admin)

In this case, a judicial review was advanced by the claimant – a riparian owner 700 miles downstream – on the following grounds:

1. Cllr Magnus Macdonald, who carried the deciding vote, should have been disqualified from voting on the Wiltshire Council Planning Committee. He was a director of Selwood Housing Association, an entity which had an interest in the affordable housing section of the 35 dwelling development in question. Cllr Macdonald received, as director, £3,000 per annum.

2. Contamination was a risk arising from the specialist foundations required to make the development viable.

3. The council’s Environmental Impact Assessment (EIA) screening opinion for the development was flawed.

4. Wiltshire’s conclusion that the development would not cause harm to heritage assets was flawed.

The Judge, Mr Justice Cranston, addressed each matter in turn, and his thoughts have been broken down below:

1 – Whilst Mr MacDonald had no direct pecuniary or proprietary interest in the planning application so as to be automatically disqualified from participating, the presence on the committee did raise the question of bias as defined by Lord Hope in Porter v Magill. Mr Justice Cranston summarised:

“Selwood, with Cllr Macdonald as a director, was not simply an affordable housing provider. Here it was the only provider which had been willing to give assistance on the scheme, had expressed a clear interest in delivering it, had been named by the applicants as their potential partner, and had written in support and attended the planning committee meeting when it was considered.

“In other words, its position was superior to that of any other interested providers of affordable housing because of its previous involvement and its prospects of winning the contract when the affordable housing part was tendered. Because of that, Cllr Macdonald’s private interests were engaged, as a director of Selwood, not just his interests in the cause of affordable housing. In all these circumstances it was wrong for Cllr Macdonald to have participated in the meeting.”

2 – The evidence demonstrated to Mr Justice Cranston’s satisfaction that the council’s decision on the matter of contamination was sufficiently well supported by the available information and that no significant effect was likely under the Habitats Regulations.

He stated:

“Insofar as a risk was identified in relation to the construction works, this was addressed with conditions which specifically address it.”

3 – On this point, he concluded that the screening could not be regarded as flawed.

4 – Mr Justice Cranston commented that “in my judgment there was ample evidence on which to base that conclusion and it was reasonable to reach it.” The officer’s report before the planning committee had concluded that developing the site would not harm the setting of the Bishopstrow Conservation Area or nearby heritage assets. This report was considered to be sound.

The result of these conclusions is that planning permission was quashed. Whilst points 2-4 were all disregarded, the presence of bias was sufficient to overturn the planning permission on the grounds of natural justice – nemo judex in causa sua (no one should be a judge in his own cause).

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SRJ