Most will have heard of the phrase “Tesco Town”. It is a phrase which, to some, represents the choking of the traditional high street and the perceived domination of one particular retail brand. To others, it is a shining example of our 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? Tesco recently sought judicial review of a decision taken by The Highland Council to grant planning permission to Asda on the outskirts of Tain, in the north of Scotland. The case is most interesting because of the judicial discussion regarding public statements made about Tesco by certain planning committee councillors. 

Prior to the decision on the Asda planning application being taken, three of the 11 councillors to sit on the planning committee had publicly criticised Tesco. One councillor even stated that he felt that there were too many Tescos and not enough Asdas in the Highlands. Tesco argued that this antipathy “infected” the councillors’ decision to vote in favour of the Asda application, undermining the decision taken. Decisions made by planning committees must be based on the planning merits of a proposal and not on any personal interest. Tesco argued that the councillors were not persuaded by the planning merits of the Asda application, instead being determined to do all that they could to thwart the expansion of Tesco in Tain. 

Lord Malcolm, the judge in this case, concluded, however, that where there is a sensible or sound basis to reach the decision taken: “It would be wholly unreal and disproportionate to strike down the decision because of a stray irrelevant or prejudicial remark made by one councillor”. 

One might have some sympathy with any developer seeking to develop where such comments against it are made by a member of the decision-making body.  Importantly, this case does not necessarily suggest that councillors can make unacceptable or unjustified remarks with impunity.  The ruling is a statement that the key issue is the decision of the committee and the decision-making process as a whole, rather than any individual remarks councillors may have made previously. 

More generally, Lord Malcolm also provided some guidance as to the test to be applied where bias may be alleged. Approving the principles set out in the 2009 English case of R. (Lewis) v Redcar & Cleveland Borough Council, Lord Malcolm held that councillors are entitled to have a pre-disposition in respect 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 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.  Where the application involves a smaller development, applicants may “appeal” to the local review body if their application for planning permission is refused. A local review body consists of a group of councillors and, as an appellate body, surely performs a quasi-judicial function. Given this function, there may be scope for a higher standard to be set in respect of bias where, like judges, councillors must not only be objective but must also be seen to be objective. 

Although this case provides 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 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 has been passed.

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