Most people will have heard of the phrase "Tesco Town".  It is a phrase which to some represents the choking of the traditional high street and to others the best of the free market economy.  But to what extent can an elected decision maker, such as a member of a planning committee, make public statements praising or criticising a developer such as Tesco without these statements calling into question a subsequent decision? 

Earlier this year, Tesco secured a judicial review of the decision taken by The Highland Council to grant planning permission to Asda on the outskirts of Tain in the north of Scotland.  Prior to the decision three of the 11 councillors on the planning committee had publicly criticised Tesco.  Tesco submitted that this antipathy "infected" the councillors' decision to vote for the Asda application.  It argued that the councillors were not persuaded by the planning merits of the Asda application, but were determined to do all they could to thwart the proposed Tesco store.  However, the court did not accept Tesco's case.

One might have some sympathy for a prospective developer where such comments against it are made by a member of the decision making body.  Yet Tesco Stored v Highland Council does not necessarily suggest that councillors can make egregious remarks without recourse.  But it does offer a clear view that the overall focus should be on the decision and the decision-making process as a whole, rather than any individual incident where councillors have made remarks.

Citing the principles set out in the English case of R. (Lewis) v Redcar & Cleveland Borough Council [2009] 1 WLR 83 (CA), Lord Malcolm held that councillors are entitled to have pre-determined views of developments which come before their planning committee, provided that those views are for "appropriate and legitimate reasons" without having a completely closed mind to the relevant arguments.  What is vitally important is that the correct procedures are followed and proper consideration given to the planning merits of an application.

The discussion in this case was confined to decisions of planning committees.  One question which remains to be answered is whether or not the same approach to bias would also be taken should the decision of a local review body be scrutinised by judicial review.  Such bodies surely have a quasi-judicial role.  In that light there may be scope for a higher standard to be set in respect of bias where, similar to judges, councillors must not only be objective but must also be seen to be objective.

This case provides some useful guidance as to the tests to be applied to the decision of a planning committee where the risk of bias might exist.  One might ultimately conclude that it simply serves to reinforce judicial reluctance in Scotland to strike down the decisions of elected decision makers unless a very high threshold of impropriety or illegality has been passed.

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