Tipping the scales - is all bias bad bias?
The Holocaust Memorial scheme, and what happens when public bodies apply to themselves for planning permission.
It’s been quite the month for Robert Jenrick. The Westferry Printworks saga rumbles along - and this is not a post about the (admitted) appearance of bias in the way that appeal was handled.
No, this post is about another and - if anything - even higher-profile scheme: the Holocaust Memorial proposed in Victoria Tower Gardens next to the Houses of Parliament.
This weekend’s Sunday Times was after Robert Jenrick in relation to this scheme too because, in a nutshell:
He is alleged to have “met” some of the project’s “main backers”; and
He has said repeatedly that the memorial “will be built”.
That, I suppose, might surprise you. If you didn’t know that Robert Jenrick is the applicant for planning permission. And it doesn’t - with respect to the Sunday Times - take Columbo to uncover Jenrick’s public statements of support for the scheme. He’s repeatedly posted them on his own website. Not too surprising then that he’s met some of the scheme’s “main backers” given that… you know… he is one of the main backers. And again, if anyone’s going to publicly support this scheme, you’d have thought it would be Robert Jenrick given that - let’s not forget - the MHCLG he heads is literally the applicant for planning permission.
So what’s all this about? Are public figures really expected to leave their opinions on the merits of planning applications “at the door”? Is it unlawful for Councillors or Ministers to be judge and jury in their own cause?
The problem may start with the meaning of that troublesome little word: “bias”. It covers a multitude of ideas, and the law treats some of those ideas differently. One of the OED definitions of bias is “predisposition”. Another is “prejudice”. Aren’t those two ideas more or less the same? Are they both unlawful?
A few headlines on the law:
So long as land-management functions are kept separate from decision-taking functions, local planning authorities can normally grant themselves planning permission within the law: see the 1992 General Regulations.
Where development and development control functions are united in the same body, no objection can be taken on the ground that the body has become judge in its own cause, so long as - among other things - the planning authority is particularly scrupulous in evaluating the planning merits of the application: Teeside Development Corporation cited at §241 here.
The courts have been clear for years that there’s a key distinction between pre-disposition (inevitable - and lawful - when you have policiticians with publicly-stated positions involved in the process) and pre-determination (an unacceptable - and unlawful - closing of minds to the down-sides associated with a scheme).
Planning decision-makers are not in a judicial or quasi-judicial role: Lewis v Redcar. They aren’t expected to cast aside views on planning policy they will may have picked up - and spoken about - when seeking election.
Which means, as Lord Justice Rix said, planning decision-makers (unlike judges) do not need to be impartial.
They do need to be fair, to consider the pros and cons of a scheme on the merits, and not to close their minds. But there’s no in-principle problem with either councillors or ministers being pre-disposed toward granting permission: Cummins. So long as their minds remain genuinely open to the other side of the argument.
For EIA cases, the law goes further. The 2017 EIA Regulations say that:
“Where an authority, or the Secretary of State, is bringing forward a proposal for development and that authority or the Secretary of State, as appropriate, will also be responsible for determining its own proposal, the relevant authority or the Secretary of State must make appropriate administrative arrangements to ensure that there is a functional separation, when performing any duty under these Regulations, between the persons bringing forward a proposal for development and the persons responsible for determining that proposal.”
NB the London Parks and Gardens Trust - an objector to the Holocaust Memorial scheme - now seeks permission to bring a judicial review claim arguing, among other things, that the EIA Regulations haven’t transposed Article 9a of the 2014 EIA Directive properly, but more of that below.
So what of the Holocaust memorial?
The application was called in after Westminster failed to determine it. The call-in inquiry was postponed until October due to lock-down. The MHCLG has made clear that the decision will be taken by the Housing Minister, Christopher Pincher MP, and not Robert Jenrick himself. And that a series of measures will be taken to ensure institutional seperation between them. With a fair wind, the London Parks and Gardens Trust JR may (if it’s granted permission to proceed) have been heard by the courts before the October inquiry. The Trust seeks permision to argue that the MHCLG’s institutional measures aren’t enough to guarantee fairness, and that the MHCLG has closed its mind in a way that precludes a fair decision. We’ll see what the court makes of it all.
Whatever your view of the Holocaust Memorial scheme, we’re in different waters here to the position in Tower Hamlets (where a reasonable observer would - all now agree - have concluded that MHCLG was trying to save Richard Desmond a good deal of cash in CIL payments). It is obviously very very important that we have a fair and transparent planning system for all kinds of reasons. But planners and politicians are not robots. Nor are they judges. They do not go into planning applications with a blind-fold like Lady Justice in the picture at the top of this post - particularly when they are themselves the applicant for planning permission.
In the end, planning is political. Fair procedural arrangements are crucial - particularly when the applicant and the decision-maker are one and the same. But we should not - and the courts do not - require our local or national policiticians to leave all of their pre-dispositions at the door. If we don’t like what they do with our votes, we can vote for somebody else. Which adds up to, as Churchill told us, the worst form of government. Except for all the others.
Stay well, #planoraks.
P.S.
Since publishing this post, the fantastic James Maurici QC has alerted me to his favourite case on this topic - Franklin v Minister of Town and Country Planning [1948] A.C. 87.
In that case, the Minister - Lewis Silkin - made some really rather strong statements in favour of the then draft Stevenage New Town Designation Order at a public meeting in advance of his considering objections to this Order via an inquiry process.
The transcript included:
"I want to carry out a daring exercise in town planning — ( Jeers ). It is no good your jeering it is going to be done — ( Applause and boos ). ( Cries of 'Dictator')." After all this new town is to be built in order to provide for the happiness and welfare of some sixty thousand men, women and children ....,. The project will go forward. It will do so more smoothly and more successfully with your help and co-operation. Stevenage will in a short time become world famous — ( Laughter ). People from all over the world will come to Stevenage to see how we here in this country are building for the new way of life."
The House of Lords rejected the bias challenge. The case has been approved and applied in a number of recent cases, including the recent Heathrow litigation and also Lewis v Redcar.
If only the minister’s aspirations for Stevenage had been realised! 😊
