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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Council for National Parks Ltd v The Pembrokeshire Coast National Park Authority [2004] EWHC 2907 (Admin) (17 December 2004) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2004/2907.html Cite as: [2004] EWHC 2907 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
Sitting at Swansea

		The Law Courts St. Helens Road Swansea SA1 4PF
		17 December 2004

Mr Justice Jack :

1. On 28 January 2004 the Development Control Committee of the Pembrokeshire Coast National Park Authority resolved to grant outline planning permission for a development known as Bluestone Holiday Village, or, more simply, Bluestone. Outline permission was formally granted on 29 June 2004. In these proceedings for judicial review the Council for National Parks Limited seek to have the decision of the Park Authority and the consequent grant of permission quashed. This is resisted by the Park Authority and by the interested parties. The interested parties are, first, Mr J. William McNamara, Bluestone Holdings Limited and Alfred McAlpine Construction Limited, who have been referred to as the developers, and, second, the Pembrokeshire County Council. Permission for the application was granted by Richards J. on 28 May 2004.
2. The attack on the Park Authority's decision is on two grounds. One is the alleged failure of the Authority to comply with section 54A of the Town & Country Planning Act 1990. The second is the alleged apparent bias of two members of the Authority, who voted in favour of the grant of permission and were also members of the County Council.
3. The court is not concerned with the merits of the application for the grant of planning permission for Bluestone. But it is helpful to say at the start that the divide is to a substantial extent between those who consider that the need to preserve the integrity of the National Park is here outweighed by the economic benefit it would bring to an area in need of economic benefit, and those who do not think that it is. Those who are in favour of the application consider that the harm to the Park would be less than those who are of the other view. Bluestone would be on an eastern boundary of the Park and very close to an established theme park named Oakwood. That is a considerable simplification of the issues, but it provides a measure of understanding of the background.

Bluestone and the parties

4. The plan for Bluestone provides for the construction of a holiday village on a 200 hectare (500 acre) site lying just to the west of the A4075 road approximately 7 miles to the east of Haverfordwest and about 3 miles west of Narbeth. The heart of the development will be a 'traditional style' village which will be centred around the renovated medieval Newton North church. The village will have leisure, retailing, catering, and health and beauty facilities, and also 60 cottage or studio self-catering units. The village will be pedestrianised and accessible to staying guests only. In addition to the 60 units, there will be 340 two and three bedroomed timber lodges. There will also be a sewage treatment plant and a lake. A key aspect of the project is that it is sited immediately to the north of the Oakwood Leisure Park, which may be described as a theme park. Oakwood has been established for some time, and has 400,000 visitors a year. It was developed by Mr McNamara, but he is no longer involved with it. There are also two further aspects to the project. One is a construction called Snowdome which will be built to the south west of Oakwood. The other is called Waterworld and will be built to the south of Bluestone and to the north east of Oakwood. Snowdome and Waterworld are separate from Bluestone but it is at present intended by the developers that the three proceed together as integral parts of one project.
5. The boundary of the National Park runs on a roughly south west to north east line to the south of Bluestone, which would border the boundary. Oakwood is, and Snowdome and Waterworld would be, all outside the National Park, as would be the main ancillary road works. The planning authority for Bluestone is thus the National Park Authority, and the planning authority for Snowdome, Waterworld and the ancillary road works is the Pembrokeshire County Council.
6. The Pembrokeshire Coast National Park consists of four parts. Three parts are essentially coastal, though the most northern part runs some way inland. The coastal parts are divided by Milford Haven and the urban area of Fishguard. The fourth part is essentially inland. It encompasses the Cleddau estuary and lies to the east and south of Haverfordwest and to the east and north of Milfordhaven. There is an arm of this part which follows the Eastern Cleddau river to the north east. Bluestone is on the south eastern edge of that arm.
7. The Pembrokeshire Coast National Park was designated in 1952 under the provisions of the National Parks and Access to the Countryside Act 1949. The Park Authority was established by the Local Government (Wales) Act 1994 and by the National Park Authorities (Wales) Order 1995. Its members are appointed. Two thirds are appointed by the local authority, that is, the Pembrokeshire County Council, and one third is now appointed by the National Assembly for Wales. There are fifteen members. So ten are appointed by the Council, and five by the National Assembly. The quorum for meetings is five. Paragraph 2(4) of Schedule 7 to the Environment Act 1995 requires local authorities to have regard to the desirability of appointing members to National Park Authorities who have electoral divisions wholly or partly within National Park boundaries.
8. Section 5(1) of the 1949 Act as substituted by section 61 of the Environment Act 1995 provides:

5 (1) The provisions of this Part of this Act shall have effect for the purpose –

(a) of conserving and enhancing the natural beauty, wildlife and cultural heritage of [areas designated as National Parks]; and

(b) of promoting opportunities for the understanding and enjoyment of the special qualities of those areas by the public.

Section 11A as inserted by section 62 of the Environment Act 1995 provides:

11A (1) A National Park authority, in pursuing in relation to the National Park the purposes specified in subsection(1) of section five of this Act, shall seek to foster the economic and social well-being of local communities within the National Park, but without incurring significant expenditure in doing so, and shall for that purpose co-operate with the local authorities and public bodies whose functions include the promotion of economic or social development within the area of the National Park.

(2) In exercising or performing any functions in relation to, or so as to affect, land in any National park, a relevant authority shall have regard to the purposes specified in subsection (1) of section five of this Act and if it appears that there is a conflict between those purposes, shall attach greater weight to the purpose of conserving and enhancing the natural beauty, wildlife and cultural heritage of the area comprised in the National Park.

Section 4A of the Town and Country Planning Act 1990 as inserted by the Planning and Compensation Act 1991 provides that a National Park authority shall be the sole local planning authority for the area of the Park. So within its area the Park Authority is the local planning authority and not the Pembrokeshire County Council.

9. The ten members of the Park Authority appointed by the County Council included Mr John Allen-Mirehouse and Mr William Roberts. Their electoral divisions as county councillors are each within the Park. They are each members of the Council's 'cabinet', its executive body of ten councillors. Mr Allen-Mirehouse is deputy leader of the council. Mr Roberts has now ceased to be a member of the Park Authority. It is they who are at the centre of the allegations of apparent bias.
10. The claimant, the Council for National Parks Limited, is a charity and is a company limited by guarantee. It began life in 1936 as the Standing Committee on National Parks and its object was to campaign for national parks in Britain. It achieved that with the passing of the 1949 Act. It remained in existence to monitor the process of designation and to ensure the upholding of the purpose for which the Parks are established. The Committee was transformed into the Council for National Parks Limited in 1977. Its main task is now to work to protect and enhance the National Parks of England and Wales. It is made up of 47 conservation and amenity bodies, 28 co-opted individuals and 23 honorary members. It considers that the Bluestone proposal is contrary to the National Parks' statutory purpose, contrary to planning guidance as to major development in National Parks, and is unjustified and may encourage further inappropriate major developments with National Parks. So it has brought this challenge to the legality of the Park Authority's decision.

The events in outline

11. When I come to consider the case made by the claimant it will be necessary to consider some aspects of what occurred in detail. As this stage I intend only to set out the order of events so that the framework is clear.
12. The first discussions between the developers and the Park Authority's officers took place in March 2001. The officers emphasised the very different planning regime operating in a National Park to that in the areas of other planning authorities.
13. On 14 October 2002 the County Council cabinet considered in a private session an application by the developers of Bluestone for a loan of £1 million. It approved the loan. Mr Allen-Mirehouse and Mr Roberts were among those who resolved to approve it.
14. The application to the Park Authority for outline planning permission for Bluestone is dated 14 November 2002. On 15 November 2002 the County Council received an application for outline permission for those parts of the project which are outside the boundary of the National Park, that is Waterworld, the Snowdome, and the associated road works. It was no doubt also dated 14 November.
15. The application to the Park Authority was supported by a substantial environmental statement running to several volumes, of which the first had some 200 pages. This dealt with environmental issues such as ecology, water quality, drainage and waste, and with archaeology and landscape. There was a lengthy transport assessment. There was a review of planning policy and of the alternative sites which had been examined. It also contained material dealing with the economic impact of the project, in particular the amount of employment which it was said that would provide, namely 600 jobs in its first phase. This was supported by a separate report by consultants. This section of the report was of particular importance. For, as I have said, the divide which appeared between those who opposed the grant of permission and those who supported it was largely a divide between those who considered that the economic benefit outweighed the need to preserve the integrity of the Park and those who thought that it did not.
16. There were some who considered that the National Assembly for Wales should call in the decision for decision by the National Assembly prior to any determination by the Park Authority. It did not do so. The reason appears to have been, in short, that this was a local matter best determined locally by a planning authority which knew its area, although it was apparently not quite as simple as that. I refer to a letter written by the Assembly's Planning Division dated 23 July 2003 addressed to the Campaign for the Protection of Rural Wales, and to a letter similarly addressed from the Minister for Environment, Planning and Countryside dated 22 September 2003.
17. On 8 July 2003 the County Council's Planning and Rights of Way Committee resolved by 22 votes to 2 to grant outline planning permission for Waterworld, Snowdome and the ancillary road works, subject to a section 106 agreement and conditions. Mr Allen-Mirehouse and Mr Roberts were not members of the Committee. Because the development would be contrary to the Council's Development Plan, the grant was not within the power of the Committee and was referred to the full Council. On 17 July 2003 the Council resolved to approve the decision of the Committee. The reasons for approval were those set out in the Director of Development's report. His report had accepted that the proposal would have an impact on the area within the National Park. It accepted that there was conflict with the Council's Development Plan policies as to agricultural land and landscape impact. It recommended approval because 'the economic benefits that would accrue from developing such a major all year round tourist and leisure facility, outweigh those conflicts.' Mr Allen-Mirehouse and Mr Roberts voted in favour. There was no requisition for a recorded vote. It appears from elsewhere that the vote was unanimous. Because the grant of permission was contrary to planning guidance, it was necessary to refer it to the National Assembly for Wales. The National Assembly declined to call in the decision. It was not until 25 June 2004 that two section 106 agreements were signed. The outline planning permission was granted on that day.
18. In preparation for the consideration of the Bluestone application by the Park Authority the Authority's Development Control Officer prepared a comprehensive report of 67 pages. It recommended that the application should be refused on a number of grounds, the first being that it was contrary to the statutory purposes set out in section 5 of the 1949 Act and contrary to the relevant planning policies.
19. The application was due to be considered by the Park Authority's Development Control Committee on 29 September 2003. All fifteen members of the Authority are members of the Development Control Committee. Thirty-six members of the public spoke at the meeting on 29 September. The outcome was that consideration was deferred until the environmental impact assessment was complete. The minutes of the meeting are not in evidence and I do not know whether Mr Allen-Mirehouse or Mr Roberts or indeed any members of the Authority expressed views on the merits of the application.
20. By a letter dated 9 October 2003 addressed to the Authority's Monitoring Officer by a local company, it was alleged that Mr Allen-Mirehouse and Mr Roberts should have stood down because they had approved the loan by the County Council to the Bluestone developers. Further matters were relied on in respect of Mr Allen-Mirehouse, but they do not merit mention. In consequence the Officer obtained the advice of Mr Robert McCracken Q.C. In an opinion which was dated 26 November 2003 in its original form, Mr McCracken advised that Mr Allen-Mirehouse and Mr Roberts should not participate in the Park Authority's consideration of the Bluestone application. He considered that because of the loan position there was a real danger of bias on the part of all the County Councillor members. He devised a scheme involving selection of Councillors who would receive dispensations to enable the quorum of six to be obtained. The developers then obtained an opinion from Mr John Steel Q.C. He took the opposite view to Mr McCracken. Both opinions were published.
21. At a meeting of the Park Authority on 26 November 2003 it was resolved by six votes to four that the Authority's Standards Committee should meet to consider applications for dispensation to take part in the consideration of the Bluestone application and that the meeting of the Development Control Committee on 1 December should be postponed. Mr Allen-Mirehouse and Mr Roberts were among those who opposed the resolution.
22. The Standards Committee of the Authority met on 1 December 2003. Two County Councillors, Mr Cawood and Mrs Major, sought dispensations to take part in the decision on Bluestone, the need for dispensations arising from their being County Councillors. The Monitoring Officer advised that the fact that other members had not sought a dispensation would not prevent them from participating if they considered that they had no personal interest to disclose, but that there might be consequences to them doing so. The dispensations were granted.
23. On 8 December 2003 the Development Control Committee of the National Park considered the Bluestone application. Prior to the meeting the Head of Conservation had provided members with a further report of four pages dealing with information provided since her earlier report. The report concluded with eight reasons in support of her recommendation that the application be refused. Disclosures of interest was the first matter to be considered at the meeting. The Monitoring Officer repeated the advice I have mentioned. Mr Roberts said that he considered that he had a right to participate. Mr Owen was a member of the Park Authority appointed by the National Assembly. He had been appointed to the claimant Council by the Park Authority. He too considered that he had a right to participate in accordance with the advice that he had received from the Monitoring Officer on his position. I will return to the detail of that position. The meeting moved to the merits of the application. The Development Control Officer summarised her views. Mr Allen-Mirehouse commenced the debate and spoke in favour of granting planning permission. Mr Roberts also spoke in favour. Other members spoke including Mr Owen. Mr Allen-Mirehouse summed up in favour of the application. He gave seven reasons for granting the application. It was resolved by eight votes to four to grant permission subject to a section 106 agreement and appropriate conditions. The eight were all county councillors. The four had all been appointed by the National Assembly. Because the decision was a significant departure from planning policy, two things were then necessary. The decision had to be deferred to the next meeting of the Committee under the Terms of Reference of the Committee – which provided in effect for a cooling-off period. The decision had also to be referred to the National Assembly for Wales. The next meeting was on 17 December. The Chief Executive suggested that it go over to 28 January 2004 because of the timings involved. This was initially opposed by Mr Allen-Mirehouse and Mr Roberts. It was resolved that there be a progress report on 17 December, and the consideration of the application be adjourned to 28 January.
24. On 10 December 2003 the Park Authority's Development Control Officer wrote to the National Assembly informing it of the decision. The reasons for the decision were stated to be those given by Mr Allen-Mirehouse at the close of the debate on 8 December. On 14 January 2004 a letter was written informing the Development Control Officer of the decision of the Minister for Environment, Planning and Countryside not to call in the decision. The letter stated:

The Minister has concluded that the proposed development does not involve planning issues which would warrant taking responsibility for determining the application from your Authority. Accordingly, the Authority may determine the application. This letter neither implies nor infers any view on the merits of the proposed development.

The reasons for this decision were enlarged on in a letter to the claimant Council dated 23 January 2004. The letter stated that, although the development could be considered a major development, it was arguable whether it was of a national character, and, taking account of Assembly policy on calling-in, the Minister had concluded that it did not raise issues of more than local importance: although the arguments were finely balanced, there was no reason why the Park Authority should not be able to make the necessary judgments and determine the application.

25. On 26 January 2004 a letter was written to the Park Authority by solicitors for the claimant Council asserting that a decision to grant permission would be unlawful on two grounds. The first was that the decision would take into account irrelevant considerations, would be inconsistent with the Authority's approach elsewhere, would fail to consider the alternatives to meet any claimed need, and would be perverse. The second ground was the involvement in the decision of County Councillors who had not obtained a dispensation. The letter concluded by saying that a decision to grant permission would be the subject of a challenge by judicial review. The letter was circulated to members.
26. The agenda for the meeting on 28 January 2004 outlined the history and earlier advice. It set out the seven points taken from Mr Allen-Mirehouse's summing up on 8 December 2003. It provided a summary of conditions which might be attached to any grant. It set out the Head of Conservation's answers to the seven points. It recommended that the application be refused and gave eight reasons for doing so. At the meeting the officer addressed the members and recommended refusal. The Acting Monitoring Officer referred to the situation as to conflict of interest, and the advice given. Mr Allen-Mirehouse said that he had considered his position and felt able to take part. He referred to a future decision by the Ombudsman. This arose because a number of persons had referred the position to the Ombudsman. Mr. Allen-Mirehouse then referred to the merits of the application. He emphasised in particular the employment benefit which it would bring. Mr Allen-Mirehouse moved that the planning permission be granted. That was seconded by Mr Roberts. There was a discussion as to the conditions, and limited expressions of view as to the merits. The resolution was passed by seven votes to three.
27. On 11 March solicitors for the claimant Council wrote to the Park Authority saying that, unless they were assured within 7 days that planning permission would not be granted, proceedings for judicial review would follow. The letter asked that the Park Authority provide its reasons for the decision as required under the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999. Regulation 21(1)(c) requires that, where an Environmental Impact Assessment application is determined by a local planning authority, the authority shall make available for public inspection a statement containing, among other matters, 'the main reasons and considerations on which the decision is based.' This regulation and the need for such a statement had been referred to by Mr McCracken Q.C. in his opinion of 26 November 2003. It is accepted that the Bluestone application was an Environmental Impact Assessment application.
28. In preparation for a meeting of the Park Authority on 24 March 2004 further advice was sought from Mr McCracken. He advised that a statement complying with the Regulations must be prepared. He suggested that, as he had taken the leading role, Mr Allen-Mirehouse might draft reasons to be approved at the meeting, or it might be delegated to an officer. The latter course was followed and a document covering all matters in regulation 21(1)(c) was prepared.
29. At the meeting on 24 March 2004 a summary of the Ombudsman's findings was read. The Ombudsman found that the Authority's Code of Conduct had not been broken. The meeting next considered the claimant Council's threat of judicial review. The opinion of Mr McCracken of 24 March was quoted. The Solicitor to the Authority advised members that they should not be swayed by the threat of judicial review unless there had been a material change of circumstances or members were minded to revisit their previous resolution. Mr Allen-Mirehouse proposed that the Authority did not alter its decision. This was seconded by Mr Roberts and the resolution was passed. The statement of reasons previously drafted was then read by the Head of Conservation. Mr Allen-Mirehouse said that he found them acceptable and moved that the statement be adopted as representing the Committee's decision. The members present who had been at the meeting on 28 January accepted that the reasons accurately reflected the debate at that meeting. It was then resolved that the statement of reasons be confirmed. Six of the ten members present on 28 January were also among the twelve present on 24 March.
30. The Ombudsman's report on the complaints which had been made to him was also dated 24 March 2004. The Ombudsman considered whether the County Councillor members of the Authority had had personal interests in the Bluestone decision in the sense of 'personal interest' as defined in paragraphs 11 and 12 of the Authority's Code of Conduct. Those paragraphs were in the form scheduled to the Conduct of Members (Model Code of Conduct)(Wales) Order 2001. He considered that the prior grant of planning permission by the County Council did not amount to such an interest, likewise the decision to grant a loan to the developers. He also considered whether the Councillors had considered the Bluestone application on its merits as required by paragraph 8 of the Code. He concluded that they had. It is worth setting out how he put it:

'Members were therefore bound to have regard to advice of the planning officers with regard to planning applications. The whole point, however, of having local authority members as ex officio members of the Authority is to ensure that the Authority's primary focus on conservation is tempered by an appreciation of the needs and wishes of local people as expressed by their democratically elected representatives. There is nothing intrinsically wrong therefore if the Planning Committee does not invariably follow the advice of its officers. The purpose of the Code of Conduct is to ensure that members act solely in the public interest: it is not to frustrate them from carrying out the role for which they were elected or appointed. When reaching its decision to grant planning permission, members of the Committee recorded their reasons for the decision in the minutes of the meeting of 28^th January 2004 (in accordance with paragraph 8(c) of the Code of Conduct). The reasons for granting consent include consideration of the impact of the development on the National Park, what they considered to be the economic benefits of the development and that none of the statutory consultees objected to the development. Having regard to those reasons, I see no evidence that the members' opinion and the way they voted on the application were based on anything other than what they regard as the merits of the case and what they see as the public interest (as opposed to their own private personal interests) or that they have failed to have regard to officers' advice. I do not therefore consider there has been a breach of paragraph 8 of the Code of Conduct.'

31. Outline planning permission was granted for Bluestone by the Park Authority on 29 June 2004. The grant was subject to 37 conditions.

The Section 54A challenge

32. Section 70(1) of the Town and Country Planning Act 1990 empowers a local planning authority to grant planning permission with and without conditions or to refuse it. Section 70(2) provides:

70(2) In dealing with such an application the authority shall have regard to the provisions of the development plan, so far as material to the application, and to any other material considerations.

Section 54A was inserted by section 26 of the Planning and Compensation Act 1991. It provides:

54A Where, in making any determination under the planning Acts, regard is to be had to the development plan, the determination shall be made in accordance with the plan unless material considerations indicate otherwise.

Section 54A puts a stronger emphasis on determining an application in accordance with the development plan than section 70(2) did when it stood alone.

33. Having heard Mr David Wolfe's submissions on behalf of the claimant Council I think that they really contained two different ways of putting the case under section 54A. The first was that in reaching its decision the Park Authority had not followed a lawful process in accordance with decided cases. The second was that by taking account of the benefit to the economy of the National Park and Pembrokeshire as a whole as a reason for not making the decision in accordance with the development plan, the Authority had acted contrary to law.

(i) The decision-making process

34. City of Edinburgh Council v Secretary of State for Scotland [1997] 1 W.L.R.1447 is a decision by the House of Lords as to Scots law. However, the relevant provision, section 18A of the Town and Country Planning (Scotland) Act 1972, is in the same terms as section 54A, both being inserted by the Planning and Compensation Act 1991, and the speeches are equally authoritative as to English law. In his opinion, at page 1451 Lord Hope stated that the purpose of the amendment was to enhance the status of the development plan, but it was still a matter of judgment to be exercised by the decision taker. He said:

'[The planning authority] is at liberty to depart from the development plan if material considerations indicate otherwise. No doubt the enhanced status of the development plan will ensure that in most cases decisions about the control of development will be taken in accordance with what it has laid down. But some of its provisions may become outdated as national policies change, or circumstances may have occurred which show that they become outdated as national policies change, or circumstances may have occurred which show that they are no longer relevant. In such a case the decision where the balance lies between its provisions on the one hand and other material considerations on the other which favour the development, or which may provide more up-to-date guidance as to the tests which must be satisfied, will continue, as before, to be a matter of the planning authority.'

The reference to the possibility that provisions of the development have become outdated related to the facts of the case: the reporter had taken into account a later structure plan which had not yet been approved. Lord Clyde, with whom Lords Browne-Wilkinson, Mackay and Steyn agreed, spoke in like terms at page 1458. Lord Clyde went on to say, at page 1459:

'In the practical application of section 18A it will obviously be necessary for the decision maker to consider the development plan, identify any provisions in it which are relevant to the question before him and make a proper interpretation of them. His decision will be open to challenge if he fails to have regard to a policy in the development plan which is relevant to the application or fails properly to interpret it. He will also have to consider whether the development proposed in the application before him does or does not accord with the development plan. There may be some points in the plan which support the proposal but there may be some considerations pointing in the opposite direction. He will require to assess all of these and then decide whether in light of the whole plan the proposal does or does not accord with it. He will also have to identify all the other material considerations which are relevant to the application and to which he should have regard. He will then have to note which of them support the application and which of them do not, and he will have to assess the weight to be given to all of these considerations. He will have to decide whether there are considerations of such weight as to indicate that the development plan should not be accorded the priority which the statute has given to it. And having weighted these considerations and determined these matters he will require to form his opinion on the disposal of the application. If he fails to take account of some material consideration or takes account of some consideration which is irrelevant to the application his decision will be open to challenge. But the assessment of the considerations can only be challenged on the ground that it is irrational or perverse.

Counsel for the Secretary of State suggested in the course of his submissions that in the practical application of the section two distinct stages should be identified. In the first the decision-maker should decide whether the development plan should or should not be accorded its statutory priority; and in the second, if he decides that it should not be given that priority it should be put aside and attention concentrated upon the material factors which remain for consideration. But in my view it is undesirable to devise any universal prescription for the method to be adopted by the decision-maker, provided always of course that he does not act outwith his powers. Different cases will invite different methods in the detail of the approach to be taken and it should be left to the good sense of the decision-maker, acting within his powers, to decide how to go about the task before him in the particular circumstances of each case. In the particular circumstances of the present case the ground on which the reporter decided to make an exception to the development plan was the existence of more recent policy statements which he considered had overtaken the policy in the plan. In such a case as that it may well be appropriate to adopt the two-stage approach suggested by counsel. But even there that should not be taken to be the only proper course. In many cases it would be perfectly proper for the decision-maker to assemble all the relevant material including the provisions of the development plan and proceed at once to the process of assessment, paying of course all due regard to the priority of the latter, but reaching his decision after a general study of all the material before him. The precise procedure followed by any decision-maker is so much a matter of personal preference or inclination in light of the nature and detail of the particular case that neither universal prescription nor even general guidance are useful or appropriate.'

35. Mr Wolfe also relied on R v Leominster District Council ex parte Pothecary [1998] J.P.L. 335 at 347, where Walker L.J. stated as follows after having referred to the City of Edinburgh case:

'In his speech Lord Clyde rejected the Secretary of State's submission that the new section always requires a two-stage approach, the first stage being for the decision-maker to decide whether or not the development plan should be given it statutory priority. This appeal shows that there are cases, of which this is a striking example, when the first stage must be for the decision-maker to decide whether the proposed development is or is not in accordance with the development plan.

Sometimes, of course, the answer to that question will be obvious (for instance, the development plan may have a bald and unqualified prohibition on open-cast mining or quarrying in a conservation area). But more often the development plan will (as in the City of Edinburgh Council case, and as in this case) contain exceptions, qualifications, overlapping or even contradictory policies and issues on which value judgments have to be made. In such cases it is desirable that planning officers should state their perception as to whether or not any proposed development is in accordance with the development plan, and that the planning authority should state whether or not it accepts and agrees with the officers' advice. I do not intend to give any encouragement to the lengthy recital of policies as a matter of rote. What is important is for it to be apparent how the decision-maker has approached the important new statutory duty imposed by section 54A.'

He continued that it had not been easy to see what the authority's approach had there been. It appears that there were no written reasons. The Court of Appeal considered an affidavit by the chairman of the authority's planning committee. Nonetheless the court held that section 54A had been met.

36. Mr Wolfe submitted that to make a decision that was valid in law a planning authority must:

(1) Properly interpret the development plan;

(2) Decide whether the proposed development accords with the plan;

(3) Identify and take into account all the other material considerations

to which he should have regard;

(4) Assess the other material considerations and decide whether the development plan should be accorded the priority given to it by the statute.

I accept that these elements are all found in the passage I have quoted from the speech of Lord Clyde in the City of Edinburgh case. They are perhaps no more than a statement of the application of well-established principles of administrative law to planning decisions and section 54A. By reason of the second way in which Mr. Wolfe put his case under section 54A, care may be needed as to what is meant by other in "other" material considerations. The principles have, however, to be applied in a practical way to the circumstances in which local planning authorities reach their decisions. The members have the application. They have a report on it from an authority officer. They may make a site visit. Then they have a meeting at which debate may take place. Then they reach a decision. In my judgment a decision is not to be impugned unless it is shown positively that the authority has failed to follow the due process in a way relevant to the decision reached.

37. Although Mr. Wolfe made clear that he was not suggesting that this was a "reasons case" in the sense of a case where the decision was attacked on the ground that an inadequate statement of reasons had been provided, it is worth looking briefly at the law applicable in such cases. It has been most recently reviewed by the House of Lords in South Bucks District Council v Porter [2004] 4 All ER 775, [is this the best reference] the fourth in a line of decisions by the House. Lord Brown provided a summary of the law in paragraph 36, and it has its relevance here:

'36. The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the 'principal important controversial issues', disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on the relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision.'

I also refer to the speech of Lord Bridge in Bolton Metropolitan D.C. v Secretary of State for the Environment (1995) 71 P. & C.R. 398 at 314-315.

38. The development plan was here the Park Authority's Local Plan as adopted in 1999 and also the Dyfed Structure Plan of 1990. There were further relevant plans which were referred to at the start of the Conservation Officer's report presented to members in September 2003. The report referred to, and stated the effect of, section 54A and it quoted section 5 of the Act of 1949. Among the provisions from the 1999 Local Plan referred to in the body of the report and set out at is end was GE4 which is headed 'Major Development Proposals'. There was agreement before me that Bluestone was a major development. GE4 provides:

'The NPA will only permit major development schemes in the NP in exceptional circumstances. Proposals will not be permitted unless the following criteria are met in full:

(1) the proposal is in the public interest, and would contribute to an overriding national need;

(2) the cost and scope for the development outside the NP has been examined and no suitable alternative site is available; and

(3) the cost and scope for meeting the need in some other way has been examined and no suitable alternative is available;

(4) the proposal's contribution to national need can clearly be demonstrated to outweigh any harm or risk to the local or wider environment;

(5) direct and indirect adverse impacts during construction, operation and decommissioning can be minimised to an acceptable level.

Proposals should also have full regard to the reasons for and purposes of NP designation.'

GE4 was particularly relied on by Mr Wolfe. Paragraph (1) is particularly significant, because it would be difficult to say that Bluestone would contribute to an overriding national need.

39. Under the heading of 'The Question of Need' the report quoted paragraph 5.5.6 of Planning Policy Wales 2002, which it was agreed before me that the Parks Authority was bound to take into account in reaching its decision. This states:

'In National Parks or AONBs, special considerations apply to major development proposals which are more national ('National' in this context means UK) than local in character. Major developments should not take place in National Parks or AONBs except in exceptional circumstances. This may arise where, after rigorous examination, there is demonstrated to be an overriding public need and refusal would be severely detrimental to the local economy and there is no potential for locating the development elsewhere or meeting the need in some other way. Any construction and restoration must be carried out to high environmental standards. Consideration of applications for major developments should therefore include an assessment of:

the need for the development, in terms of national considerations, and the impact of permitting it or refusing it upon the local economy;

the cost of, and scope for, providing the development outside the designated area or meeting the need for it in some other way;

Any detrimental effect on the environment and the landscape, and the extent to which that could be moderated.'

40. It was not suggested by Mr Wolfe that there were matters of planning guidance, inside or outside what was the 'development plan' for the purpose of section 54A, which the members were not asked in the report to consider. It was a very comprehensive report. Further it and the report for the meeting on 8 December 2003 and that contained in the agenda for the meeting on 28 January 2004 had made it very clear to members that to approve the application would be contrary to the local plan. As an example, the minutes of the meeting on 28 January 2004 record the Head of Conservation as stating that 'at the December meeting, the members decided that there were material considerations which had sufficient "weight" to override the policy framework.'
41. Mr Patrick Clarkson Q.C. who appeared for the Park Authority accepted that the development was contrary to the local plan, in particular to GE4. For he accepted that there was no overriding national need: the need to provide more employment in Pembrokeshire did not amount to that. Mr John Steel Q.C. who appeared for the developers at first took the position that the development was not contrary to the local plan. He later took the stance that it did not matter whether it was or was not: for either it was not, or there were local economic considerations which the Members were entitled to consider outweighed it. I accept that the development was contrary to a provision of the plan which was of particular relevance, namely GE4, because it could not be said that the proposal "would contribute to an over-riding national need."
42. It is clear that the members knew what the policy considerations were. It is clear that they considered them. There were differences of opinion as to the weight to be given to them. Thus there were differences as to the weight to be attached to the fact that the development was to be situated at the edge of the Park and where it was. It is also clear from the debate on 8 December 2003 that the Members had the question of alternative sites in mind : I refer to what Mr. Owen said. But the main point, which was addressed by both sides, was the economic impact of the development, that is what it would offer by way of employment in the context of Pembrokeshire's need for decently paid employment.
43. I am satisfied that reading the reports, minutes and reasons to which I have referred as whole it cannot be shown that the Authority failed to have regard to any material consideration having independent weight. I think also that it is clear that the Members accepted that the grant of permission was contrary to the development plan comprised as I have said. It is clear that those in favour of the application considered that the economic benefits, that is, in the main, employment, outweighed the contrary considerations contained in the development plan.
44. I will next set out various passages in support of this. First, the points made by Mr. Allen-Mirehouse in his summing up on 8 December 2003 :

'In summing up, Councillor JS Allen-Mirehouse reiterated his reasons for supporting the application, namely:

The site was on the very edge of the National Park, was not particularly visible and was currently just farmland;

The impact on the National Park would be minimal;

The unemployment figures referred to in the Bone-Wells economic report were low as they were taken in June, when there was an upsurge in employment due to the tourist season. The position would be quite different had they been taken during the winter period;

The National Park was indeed a beautiful place and used by many as a recreational playground, but the residents had to work and live here. There was much rural poverty, unemployment and deprivation, which had led to the area being recognised as an Objective 1 area. GDP was 66% of the UK average, and full time jobs were needed at full industrial rates;

The development would not only for the economic benefit of Pembrokeshire, but of Wales and the UK;

There was no danger of precedent, as no other developer would come along with such a large-scale project, and

None of the statutory consultees had objected to the proposal.

These were largely repeated in the Development Control Officer's letter of 10 December 2003 to the National Assembly, as the reasons why members had resolved to grant permission.

45. Next, Mr. Allen-Mirehouse as recorded in the minutes of the meeting on 28 January 2004:

'He referred to the Development Control Officer's comments about the "edge" of the National Park, which he felt were irrelevant. The Park was important to many people, most of all to those who lived within it. The applicant said that the jobs to be created would be genuine full-time jobs and this was what the people of Pembrokeshire needed. The area desperately needed full time employment at full industrial rates, and it was needed within the National Park. Whilst it was delightful to have visitors to the National Park, the people who lived permanently within the Park needed to have a decent standard of living and the proposed development would help towards that goal. He considered that the matter of creating a precedent was for the other National Parks to deal with. He felt that it was for the Committee to determine this application, on its own merits.'

46. Lastly, the reasons adopted on 24 March 2004 :

'1 The application had demonstrated an over-riding public need and exceptional circumstances in terms of:

the benefit it would bring to the economy of the National Park and Pembrokeshire as a whole, an area with a per capita GDP far below the national average, and suffering much rural poverty, unemployment and deprivation.

this benefit being in terms both of the direct employment at Bluestone and the wider opportunities to the local economy from the outward-looking intentions of the developers in respect of working with recreational activity providers, local food industries, public transport operators etc.

the benefit more widely for Wales and the United Kingdom, by providing a form and quality of visitor experience within a growth sector of the tourism industry, which is presently not well provided for in Wales or the United Kingdom as a whole.

2 the Committee considered that the applicants had demonstrated that there was a clear case for siting the development in close association with the existing Oakwood attraction, and that this particular location was the only one that met the applicant's detailed siting criteria.

3 the Committee concluded from an exhaustive assessment of the landscape, biodiversity, archaeological and historic built environment, agricultural land, drainage, noise and other environmental impacts that the development was sensitively sited and would not have a significant net adverse effect on the environment of the National Park, taking into account the measures set out within the proposed conditions of consent and Section 106 Agreement which would both substantially mitigate against adverse impact and offer substantial opportunities for enhancement.

4 the opportunities that the development would present to serve as a model of best environmental practice and exemplar of sustainable development principles.'

It was not submitted that the Authority could not produce a statement of reasons in this way or that these reasons should not be taken into account. The question of reasons being given after the decision to approve a grant of planning permission was considered in Richardson and Orme v North Yorkshire County Council [2003] EWCA Civ 1860.

47. I have set out these passages for a second reason, namely that Mr. Wolfe submitted that the reasons of the Members who were in favour of the application changed. In my view the reasons given were consistent. If economic benefit is equated with jobs, as here it should be, Mr. Wolfe could not point to any material change.
48. I conclude that, leaving aside for the moment the point I will consider next, The Park Authority reached its decision by a process that was fully in accordance with law.

(ii) The economic benefit not a permissible reason.

49. The submission made in paragraphs 33 to 38 of the claimant's skeleton argument was to this effect. Where a development plan provides that a type of development only shall be permitted if certain conditions are satisfied and they are not satisfied, then the subject matter of such a condition cannot amount to a "material consideration" under section 54A to justify the grant of permission contrary to the plan. This proposition did not appear in the paragraphs relating to the claimant's case under section 54A as it was set out in the grounds attached to the claim form; namely paragraphs 16 to 19 and 57 to 60.
50. The submission was developed in reliance on policy GE4 of the local plan, which is set out in paragraph 38 above. Under GE4 a proposal should only be permitted where the five criteria listed are met in full. The first is that the proposal is in the public interest and should contribute to an overriding national need. The second is that the cost and scope of the development outside the National Park has been examined and no suitable alternative is available. Mr. Wolfe relied particularly on the first. He submitted that, if there was no national need, a local, that is here a Pembrokeshire need, could not be relied on as a material consideration which justified not giving effect to the plan. The reasons adopted at the meeting on 24 March 2004 included that the site was the only location which met the applicant's detailed siting criteria (which included close proximity to Oakwood).
51. In support of the submission Mr. Wolfe relied on Buckland v Boswell v Secretary of State for the Environment [2001] EWHC Admin 524, [2002] J.P.L. 570, and among the four cases there heard together, on the Smith case. That was a challenge to the decision of an inspector upholding an enforcement notice requiring the removal of a caravan occupied by a gypsy family. The family, particularly the wife, had serious health problems. The site was within the Green Belt. Under relevant policies there was a presumption against inappropriate development in a Green Belt. It was accepted by the policies that it might be necessary in "exceptional circumstances" to accept the establishment of gypsy sites in designated areas of restraint. The inspector held that the personal circumstances of the family did not constitute very special, or exceptional, circumstances sufficient to overcome the strong policy presumption against inappropriate development in the Green Belt. One ground of application to the court was that the inspector should have gone on to consider whether the family's personal considerations were material considerations which indicated that permission should be granted in accordance with the latter part of section 54A. Sullivan J. rejected the submission. He said:

'74. Section 54A is of general application. Green belt policy, with its specific reference to very special circumstances, is unusual. Many policies simply allocate particular sites for, by way of example, residential or employment purposes. Other policies may say that planning permission will usually be granted for certain types of development if certain criteria are met. Since development plans, however comprehensive and farsighted, are not able to identify every need or foresee every eventuality, there will be a number of cases where material considerations, such as the need for a proposed development, will indicate that planning permission should be granted contrary to the policies in the development plan.

75. But it is difficult to see how such a situation could arise in practice in a green belt case since the policy itself, in effect, invites an appellant to put forward all those "material considerations" which might amount to "very special circumstances". If it is not accepted that those material considerations do amount to very special circumstances, it is difficult to see how they could "indicate" that planning permission should be granted contrary to green belt policy. How section 54A is to be applied must depend, at least in part, on the precise terms of the policy in question. Inappropriate development may indeed be permitted in the green belt, but only if there are very special circumstances. That test is not, in the context of a green belt case, watered down by section 54A. Rather, it is reinforced.

52. The argument here is that, if Bluestone does not meet the GE4 criterion of an over-riding national need, then the economic benefit to Pembrokeshire cannot be relied on as a material consideration which the Park Authority was entitled to take into account in deciding not to follow the policy. As was put in paragraph 36 of the skeleton argument "a consideration which has been properly taken into account within the terms of a policy (and the policy nonetheless lead to a presumption against development) cannot then come back into play again as a material consideration justifying not giving effect to the policy…".
53. I am not concerned with the Green Belt situation, and I think that there is a danger in extracting a general principle from the paragraphs I have quoted from the judgment in the Buckland case. I was not referred to any other case where such a principle has been applied. In my view an approach on the following lines is permissible in a case such as the present. The authority must consider the terms of the relevant policies and apply them to the circumstances of the case. That might lead to the view that the application of the policies requires permission to be refused. Here, that might be on the ground among others that no national need has been shown as required by GE4. On the facts here that would mean that the economic case was considered insufficient under the terms of the policy because it was not a national need. But the local economic case would remain "a material consideration". So here the authority was then entitled to, and bound to, consider whether the economic advantages of the development, in particular by way of employment for those within the Park and outside, nonetheless justified the grant of permission in the circumstances. To hold otherwise results in an authority being bound to follow the policy unless there is a material consideration which is irrelevant to the application of the policy itself, or, putting it another way, which stands outside the policy, and which suggests the policy should not be followed in the circumstances. That is not what section 54A says and I do not consider that it is to be construed as having that effect. The economic benefit that Bluestone might bring by way of employment in Pembrokeshire was "a material consideration" which the Park Authority were entitled to take into account in deciding whether, in all the circumstances, the development plan should be followed, or whether it should not. In my judgment that is the effect of section 54A and it is consistent with the judgments in the City of Edinburgh case.

Apparent bias.

54. I will begin with a review of the relevant law as to bias, and will then consider the case advanced on behalf of the claimant. I should start with the decision of the House of Lords in Porter v Magill [2002] 2 AC 357. This established that "the question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased" - per Lord Hope at page 494. In Lawler v Northern Spirit [2003] 1 C.R. 856, in giving the single opinion of the Judicial Committee of the House of Lords, Lord Steyn stated at page 862:

'Publication perception of the possibility of unconscious bias is the key. It is unnecessary to delve into the characteristics to be attributed to the fair-minded and informed observer. What can confidently be said is that one is entitled to conclude that such an observer will adopt a balanced approach. This idea was succinctly expressed in Johnson v Johnson (2000) 201 CLR 488, 509, para 53, by Kirby J when he stated that "a reasonable member of the public is neither complacent nor unduly sensitive or suspicious".'

55. In Bovis Homes Ltd v New Forest District Council [2002] EWHC 483 (Admin) Ouseley J had to consider three attacks on the local plan adopted by the Council. The first was an allegation of legally inadequate reasons. The second was that the Council had approached the matter with a closed mind. The third was that there was apparent bias on the part of the chairman of the relevant Council Committee, Councillor Drake, who was a member of the New Forest Committee, an entirely separate body. Given the facts of the Bovis case, I think that both the second and third of these are relevant here. The issue for the District Council was whether land known as 'the Land North of Totton' should be included within the Heritage Area of the New Forest. The New Forest Committee had made representations to the Council in support of the inclusion, and Councillor Drake had been present when that had been agreed on. Under the heading of 'Bias' Ouseley J did not consider that her membership of the New Forest Council automatically disqualified Councillor Drake from participation in the Council's decision making process (paragraph 87). But he concluded in paragraph 88 of his judgment :

'I do, however, consider that by the time of the September 1999 meeting [of the District Council], a fair-minded observer, knowing the background, would have considered that there was a real danger of bias from her external interest as a member of the New Forest Committee.'

He considered that for the purpose of considering bias her membership of another body was a personal interest (paragraph 89). He considered that it did not remove the risk of bias that she had been appointed to the New Forest Committee by the Council: it all depended on the circumstances (paragraph 90). For the reasons set out in paragraph 96 of the judgment the views of the Committee were influential with the Council. Further it appeared that the Committee was influencing the Council not only through its representations but through Councillor Drake as the Chairman of the Council's Planning and Transportation committee (paragraph 98). The outcome was that the decision of the district council was unlawful by reason of Councillor Drake's participation – paragraph 103 of the judgment. Ouseley J. then went on to consider the separate case that the district council had approached the decision with a closed mind. The case was that the council had shown a mind closed to the merits of the exclusion or inclusion of the land over a period of years. That case was held to be established on the facts. In the course of his judgment on this aspect of the case Ouseley J. stated:

111. 'In my judgment a Council acts unlawfully where its decision-making body has predetermined the outcome of the consideration which it is obliged to give to a matter, whether by the delegation of its decision to another body, or by the adoption of an inflexible policy, or as in effect is alleged here, by the closing of its mind to the consideration and weighing of the relevant factors because of a decision already reached or because of a determination to reach a particular decision. It is to be distinguished from a legitimate predisposition towards a particular point of view. I derive those principles from the Kirkstall Valley Campaign Ltd case to which I have already referred, particularly at page 321G.

112. There is obviously an overlap between this requirement and the commonplace requirement to have rational regard to relevant considerations. But, in my judgment, the requirement to avoid predetermination goes further. The further vice of predetermination is that the very process of democratic decision making, weighing and balancing relevant factors and taking account of any other viewpoints, which may justify a different balance, is evaded. Even if all the considerations have passed through the predetermined mind, the weighing and balancing of them will not have been undertaken in the manner required. Additionally, where a view has been predetermined, the reasons given may support that view without actually being the true reasons. The decision-making process will not then have proceeded from reasoning to decision but in the reverse order. In those circumstances, the reasons given would not be true reasons but a sham.

113. In my judgment the sequence of steps and the accumulation of events here shows predetermination and a closed mind, rather than just a strong disposition to include the land within the NFHA.'

56. Georgiou v London Borough of Enfield [2004] EWHC 779 (Admin) concerned the decision by the Borough's planning committee to grant listed building consent for a change of use of a property, Truro House, and for the erection of a mental nursing home in its grounds, and appropriate planning consent. There were four grounds of attack on the decision, one of which was apparent bias. The allegation of bias arose from the dual membership of the Borough's planning committee and the Borough's conservation advisory group which had considered the applications first. At two meetings of the conservation advisory group it had been decided to support the development. In paragraph 30 of his judgment Richards J. held that predetermination was a form of bias and so it was necessary to look beyond pecuniary or personal interest, and so it was necessary:

'to consider in addition whether, from the point of view of the fair-minded and informed observer, there was a real possibility that the planning committee or some of its members were biased in the sense of approaching the decision with a closed mind and without impartial consideration of all relevant planning issues. That is a question to be approached with appropriate caution, since it is important not to apply the test in a way that will render local authority decision-making impossible or unduly difficult. I do not consider, however, that the circumstances of local authority decision-making are such as to exclude the broader application of the test altogether.' – paragraph 31.

He continued:

'32. On that basis I do have concerns about what happened in this case and the objective impression that is conveyed. Although the CAG's remit was to consider only the conservation implications of the applications, its conclusion was expressed in simple terms of support for the applications, without any qualification. Both the note of the CAG meeting on 27 May and the report of the planning committee on 17 June state that CAG "continued to support" the applications. Moreover, although there is nothing to show that a vote was taken within the CAG, there is equally nothing to show that any of the members present dissented from that conclusion: the support appeared to come from all those present, including the three members who were also members of the planning committee. When it came to the meeting of the planning committee, nothing was said about the limited function of the CAG or about the need for those with dual membership to put on one side the support expressed in the CAG and to examine all the relevant planning issues before reaching the planning decisions.

33. In those circumstances I take the view, though not without a degree of hesitation, that a fair-minded and informed observer would conclude that there was a real possibility of bias, in the sense of the decisions being approached with closed minds and without impartial consideration of all the planning issues, as a result of the support expressed by the CAG being carried over into support for the applications in the context of the planning committee's decisions.'

57. Lastly I should mention the further decision of Richards J. in Ghadami v Harlow District Council [2004] EWHC 1883 (Admin). He applied the statement of the law that he had provided in paragraph 31 of his judgment in Georgiou. He held that there was a real possibility that a councillor had approached the matter with a closed mind: 'I consider that the claimant's case of apparent bias or predetermination has been made out.' The facts are a long way from those in the present case.
58. The case here is that a fair minded and informed observer would have concluded that there was a real possibility that at least two members of the Park Authority's Development Control Committee, Mr. Allen-Mirehouse and Mr. Roberts, were biased. It is not alleged that they were in fact biased. The matters relied on as giving rise to a perception of bias are :

(1) support as members of the County Council Cabinet for the loan of £1 million to Bluestone;

(2) support as members of the County Council for the grant of planning permission for Waterworld, Snowdome and the ancillary works;

(3) their "well-publicised support for the whole project";

(4) their conduct at the meeting on 26 November 2003 in opposing consideration of matters by the Standards Committee;

(5) their conduct at the meeting of 8 December 2003 in taking a leading role, and in the case of Mr. Allen-Mirehouse allegedly seeking to short-circuit the process of notifying the National Assembly;

(6) their conduct at the meeting on 28 January 2004 taking a leading role promoting the grant despite the critique by officers of their reasons for proposing to grant permission;

(7) the split in votes between the 8 County Councillors who voted to grant permission and the fourth Assembly-appointed members who voted to refuse it;

(8) that nothing was said at the meetings of 8 December 2003 and 28 January 2004 of the need to put on one side the County Council support for the project and to examine the planning issues;

(9) that nothing was said by Mr. Allen-Mirehouse or Mr. Roberts at those meetings to suggest that they were aware of the need to approach the question with an open mind;

(10) the shifting over time of the basis on which members were asked to resolve to grant permission, particularly by Mr. Allen-Mirehouse.

59. The nature of the bias that is alleged is that the two councillors 'were biased in the sense of approaching the decision [by the Park Authority] whether to grant planning permission … with a closed mind and without an impartial consideration of all relevant planning issues.' – claimant's written submissions, paragraph 28. The law as stated by Richards J. in paragraph 31 of his judgment in Georgiou is relied on. The claimant's case is that the combination of the matters which I have set out would have led a fair-minded and impartial observer to conclude that there was a real possibility of bias in the sense stated. It is not alleged that any one matter by itself would have led to that conclusion. So, in particular, it is not alleged that their conduct relating to the loan would have led to that conclusion; nor their conduct as County Councillors in voting for the grant of planning permission by the County Council. Nor is it alleged that, because they were County Councillors who had voted for the Council to grant permission for Waterworld, Snowdome and the ancillary works, they were thereby barred from taking part in the Park Authority's decision. Likewise with the loan.
60. The approach which I will adopt in considering the submission of apparent bias here with its reliance on a combination of matters is to consider the facts relating to each matter separately and to see what weight it may carry towards the claimant's case. I will then consider them as a whole.
61. The proposed loan to the developers and Bluestone was considered by the cabinet of the County Council at its meeting on 14 October 2002. Mr. Hughes, the leader of the Council was present with Mr. Allen-Mirehouse, the deputy leader, Mr. Roberts and six others. The relevant part of the minutes read:

'PROJECT BLUESTONE – WATERWORLD

Cabinet convened in private session under terms of Paragraphs 5, 7 and 9 of Part 1 of Schedule 12A to the Local Government Act 1972 to consider this item.

DECISION

That the loan arrangements, and conditions related thereto, set out in the report of the Director of Finance and Leisure be approved.

Reason for Decision: To support economic and leisure development in the County.'

In a letter dated 3 February 2004 from the Council to the claimant's solicitors it was further stated:

'The replies to your six questions are as follows:-

1. The Council's Cabinet, at a meeting on 14^th October 2002, considered in private session, a report relating to a possible loan to help fund the construction of Waterworld but not other parts of the Bluestone development. The matter was taken in private session by virtue of paragraphs 4, 7 and 9 of Part 1 of Schedule 12A of the Local Government Act 1972.

The Cabinet decided to make available a loan of £1million over a 5 year period, with interest, secured by a charge on the Waterworld complex. The loan was only to be made available in the event of construction being undertaken and was to be structured in order to ensure that use of Waterworld by the general public would be available throughout the year.

2. The loan was dependant on the granting of planning permission for Waterworld. That planning permission was granted by the County Council in July 2003.

3,4 & 5 The detailed provisions of the loan have not yet been negotiated and I do not anticipate those provisions being determined for some time.

6. the confidential report which was submitted to the Council's Cabinet in October 2002 would have been sent to all members of the County Council.'

62. It is the evidence of the developers that there was nothing unusual in the decision as to the loan being taken before planning permission was granted. Both Mr. Clarkson and Mr. Steel, leading counsel experienced in planning work, also said that it was common for local authorities to consider loans prior to considering planning permission. There was no evidence nor was I addressed to any commercial reasons for such a practice. It may well be that it assists developers because then they know that, if they get planning permission, that part of the finance for their project is likely to fall into place. It may also help them in negotiating further finance. If so, that in itself suggests a pre-disposition in favour of the development because the loan is being considered at an early stage in order to help the developers. The practice does also have the danger that those who are involved in the decision are likely to have formed a favourable view prior to their consideration of the planning issues and that favourable view may well carry forward, at the least subconsciously. For although the financial considerations involved in a loan for a project and the planning considerations will not be the same, there may be something of an apparent about-turn in approving a loan for a project and then refusing it planning permission. Here the loan related to Waterworld and so the direct link is with planning permission for Waterworld. The application for planning permission for Bluestone was at a further remove. That brings in the link, through members between the County Council and the Park Authority. The problem would generally be avoided if authorities considered loans for developments only after they had decided to grant planning permission. To avoid the problem here, that would have had to have been after both the County Council and the Park Authority had determined the planning applications. As I have said, I do not know what difficulties a practice of delaying consideration of loan applications would cause, and the court must be sensitive to the practicalities of local government. I should also record that at an early stage the National Assembly for Wales made an offer of of £16.5 million grant aid for Bluestone, subject to planning permisssion. As I have said, the National Assembly had power to call in the application for planning permission for decision by the Assembly.
63. It is important that the approval of the proposed loan for Waterworld was made subject to planning permission for Waterworld. The approval of the loan could be said to affect the grant of planning permission for Waterworld as well as the subsequent grant of planning permission by the Park Authority for Bluestone. The essential factor was that Councillors should have in mind that the criteria for approving the loan and for granting planning permission were quite different, and should have in mind the need to approach the two questions independently. If it was shown that that was not so, the position would be similar to that in Georgiou, where the decision as to conservation was held to vitiate the decision on planning. The County Council's decision would be vulnerable, as would that of the Park Authority. It is important to remember that it is not submitted that the involvement of the two councillors with the loan by itself disentitled them from taking part in the Park Authority planning permission decision.
64. The next point is Mr. Allen-Mirehouse's and Mr. Roberts' support for the grant of planning permission by the County Council. They were not on the Council's Planning and Rights of Way Committee but approved the grant when it came before the full Council as described in paragraph 17 above. The relevant part of the minutes of the Council meeting simply records that it was resolved to endorse the decision of the Planning and Rights of Way Committee.
65. The starting point must be the fact that the Park Authority is constituted so that two thirds of its members are County Councillors. The position of those Councillors as County Councillors should not generally inhibit them in carrying out their full functions as members of the Park Authority, and vice versa. The situation with Bluestone is unusual in that what is effectively one development straddles the Park boundary. As Councillors who are members of the Park Authority would be very aware, the policies relating to developments inside and outside the Park are markedly different. It follows that in such a situation it might be appropriate to grant permission in respect of part of a development outside the Park and appropriate to refuse it in respect of part inside the Park. If Council members had to consider the County Council application first, they would have in mind that, when they came to consider the parallel application for the part inside the Park, different considerations would apply and the hurdle would be much higher. Provided that approach is taken, there can be no objection to the same persons taking part in both decisions. So I think that the claimant is right not to have submitted that involvement in the Council's grant of permission meant that the Councillor members of the Park Authority could not take part in the Authority's decision. I have referred in paragraph 30 above to the Ombudsman's decision. As I have stated, he considered the matter in terms of the Code of Conduct. I agree that the Councillors did not have a 'personal interest' as defined in the Code. He also considered whether they had reached their decision on the basis of the merits as required by paragraph 8 of the Code. He concluded that they had and I have quoted his reasons. I think that this is the key. Provided that the Councillor members did have the distinctions between granting permission inside the Park and granting permission outside the Park in mind, provided they did consider the application to the Park Authority on its merits taking account of the development plan for land within the Park, and provided they did not simply apply the decision already reached by the Council, they would have performed their duty and bias by way of a closed mind would not be shown. The issue is whether it is established that Mr Allen-Mirehouse and Mr Roberts did not take that approach. A similar exercise was carried out in Porter v Magill to determine whether an observer would have concluded that the auditor was biased: I refer to paragraph 105 of the opinion of Lord Hope.
66. There were three meetings at which the merits were considered: those of 29 September 2003, 8 December 2003 and 28 January 2004. I include that of 29 September but it appears likely that it was only members of the public who spoke at this meeting as the Authority members were advised that their decision should be deferred until the environmental impact assessment was complete. The key meeting is that of 8 December. To avoid lengthening this judgment unduly I will quote only the first and last two paragraphs of the record in the minutes of Mr Allen-Mirehouse's remarks:

' Councillor JS Allen-Mirehouse then commenced the debate. He stated that he had sat through several hours of information and debate about the "Bluestone" application. The decision to be made was whether or not to allow such a development in the National Park. If the applicant had wanted to carry out this development for example in Whitesands Bay or Freshwater West, he believed that the Committee would not be debating the issue; but the applicant wanted to develop on the edge of the National Park on arable farmland. He considered the site to be unobtrusive, and referred to the fact that the Development Control Officer had requested that flags be flown from the Application site to that it could be seen from afar during the Committee's site inspection in September 2003.

……………

He acknowledged that it was not an easy decision for any of the Members present that day to make. The Development Control Officer had put the case extremely well, and he had read reams of paper and had researched every detail. However, he considered that the impact of this proposal on the National Park would be minimal, but would result in many job opportunities. He also believed that this was a major "one-off" development, which would not be repeated elsewhere in the National Park. Nevertheless, he also believed that there would be many planning conditions to be sorted out.

In summary, he referred to the fact that none of the statutory consultees had objected to the proposal, and that the majority of objections came from private individuals (although he emphasised the fact that this did not make the objections any less valid). He considered it to be a difficult problem, but he considered that, in view of the importance to the economy of Pembrokeshire, Wales and the UK, he would support the application. He therefore proposed that the application be approved.'

In my view this shows a proper, reasoned approach to the question. It shows that Mr Allen-Mirehouse had well in mind the contents of the Head of Conservation's report. It shows that he had well in mind the problem posed by the development being within the Park boundary. There is nothing to suggest that he was influenced by the Council's decision to grant permission for Waterworld, Snowdome and the ancillary works, or the Council's approval of a loan for Waterworld. I consider that to be the conclusion that a fair-minded and informed observer would reach.

67. Mr Roberts expressed himself more briefly. The minutes record:

Councillor WJ Roberts agreed that it was a difficult decision to make. Pembrokeshire was a beautiful place in which to live, but oil refineries had been built in the County over the years. Without these, the economy of Pembrokeshire would have been very low indeed. The employment opportunities offered by such development had enabled funding to be applied to education, libraries, etc.

He hoped that, in fifty years' time, Pembrokeshire would be a living, breathing, National Park, catering for all. He had a duty to the children who were born today to provide them with an opportunity to work in Pembrokeshire. He wished to reiterate all the comments expressed by Councillor Allen-Mirehouse, and seconded his proposition'.

I conclude that in its context this too shows a proper approach.

68. It is illustrative here to refer to the position of Mr Elwyn Owen. He was a member of the Park Authority appointed by the National Assembly. He was nominated by the Park Authority as a member of the claimant Council and co-opted to its Executive Committee. He appreciated that his dual membership might give rise to a problem in relation to Bluestone. Quite properly he wanted to be able to play his part in the Park Authority's decision. He therefore withdrew from meetings of the claimant Council when Bluestone was discussed, and took no part in the Council's decision to oppose the development. At the meeting on 8 December 2003 the Park Authority's monitoring officer informed the meeting that he had considered Mr Owen's position and had advised him that he could participate fully in the meeting. Mr Owen addressed the meeting at some length when the merits of Bluestone were under consideration, taking up a page of the minutes. He addressed himself to the planning considerations and its is clear that he was doing so properly. He began by welcoming the fact that the application was being discussed in a mature, thought-provoking and good-natured way. If it had appeared that he was simply taking the line he was simply because he was a member of the claimant Council and regardless of the merits, that would have shown bias. The measures he had taken would not have prevented that. So in that way his position was not fundamentally different from that of Mr Allen-Mirehouse.
69. The next heading is "their well-publicised support for the whole project". This phrase comes from the Opinion of Mr. McCracken of 26 November 2003, which was provided on the instructions of the Park Authority's Monitoring Officer. Under the heading at its start 'Summary and recommendation' it was stated: 'The participation of the Councillors would create a real risk of bias both because of their well publicised support for the whole project, and ….. .' There is however, no other evidence that the two councillors gave any public support for the project other than at the County Council and Park Authority meetings to which I have referred. There is no evidence that they spoke at other public meetings or gave interviews to the media or wrote letters to the press. A statement made by Mr. Allen-Mirehouse was put in evidence. Paragraph 14 reads:

'With regard to the reference made in paragraph 32 of the claim, I accept that my views were known, as I expressed them overtly in the public arena, however I did not go out of my way to publicise them. I did not state my views, nor had I finalised them, until I had heard all the evidence.'

Paragraph 32 of the claimant's detailed grounds had quoted the passage I have set out. Paragraph 14 is oddly worded because the first sentence can be read as suggesting that Mr. Allen-Mirehouse had in some way made his views known more widely, whereas the second sentence limits his statement of views to after he had heard all the evidence and may suggest that he had only expressed them in Park Authority meetings. No steps were taken to elucidate the paragraph. Mr. Roberts' statement is clear on the point. Paragraph 7 reads:

'7. It is said at paragraph 32 of the Claim the Councillor Allen-Mirehouse and myself were "known supporters of the project". That is a mere assumption. In fact I expressed myself neither for nor against until I heard all arguments at the National Park Authority meetings. I also challenge the allegation of our "well publicised support for the whole project" at paragraph 55(3) of the Claim. None was forthcoming over and above our conduct in the public forum of the Committee meetings.'

The last sentence speaks for Mr. Allen-Mirehouse as well as himself. I have concluded that I should proceed on the basis that neither man expressed views on the Bluestone development outside Council or Park Authority meetings. The loan was approved at a private meeting. There are no expressions of views recorded in the minutes of the County Council relating to the grant of planning permission by the Council. Mr Wolfe submitted that the 'fair-minded and informed observer' would be swayed by what he read in Mr McCracken's opinion, which was a public document. I do not think that he would be 'informed' if he did not seek what lay behind the statement in the opinion. In my view this third point adds nothing.

70. "The conduct of Mr. Allen-Mirehouse and Mr. Roberts at the meeting of 26 November 2003 in opposing consideration of procedural matters by the Standards Committee". The relevant minute of the Park authority meeting on that day reads:

'20. "BLUESTONE": planning application 02/570

The Monitoring Officer reported on the developing position with regard to the "Bluestone" planning application which had been considered by the Development Control Committee on the 29^th September 2003, and which had been adjourned to a further meeting on the 1^St December 2003. He circulated to Members copies of Advice that had been received from Counsel in this regard, and the meeting stood adjourned for ten minutes in order that Members could read the document tabled.

When the meeting re-convened it was proposed by Mr E Holdaway and seconded by Councillor Jane Major:

(I) that the Authority's Standards Committee meet to consider any applications from Members for dispensation to speak and vote at the meeting of the Development Control Committee which considered the "Bluestone" application, and

(II) that the meeting of the Development Control Committee scheduled to be held on the 1^st December 2003 be postponed until after the Standards Committee had met.

Following on from this, Mr R Howells proposed and Mrs J Heard seconded the proposal that a recorded vote be taken, and this was supported by the majority of Members present at the meeting.

It was RESOLVED:

(a) that the authority's Standards Committee meet to consider any applications from Members for dispensation to speak and vote at the meeting of the Development Control Committee which considered the "Bluestone" application, and

(b) that the meeting of the Development Control Committee scheduled to be held on the 1^st December be postponed until after the Standards Committee had met.

The resolution was passed by 6 votes to 4, Mr. Allen-Mirehouse and Mr. Roberts being among the four. There is no further evidence about the resolution. The 'fair-minded and informed observer' might at first wonder why the two were not prepared to submit the question whether they should participate in the Bluestone decision to the Standards Committee. He would next, though, consider whether they had good grounds for thinking that they were entitled to participate and therefore that they were not obliged to run the risk that the Committee might have considered otherwise. The Committee would have considered the matter in accordance with the Code of Conduct. The matter had been considered by Mr. McCracken in wider terms: thus he had cited Bovis Homes. An important part of the foundation for Mr McCracken's view was the 'well-publicised support'. I have considered that and concluded that I should proceed on the basis that neither man expressed views outside Council or Park Authority meetings. I think that in these circumstances Mr Allen-Mirehouse and Mr. Roberts were entitled to take issue with Mr McCracken and also to decline to submit the issue to the Committee. For the Committee might well have taken Mr McCracken's line and then declined to grant Mr Allen-Mirehouse and Mr. Roberts dispensations under the Standards Committees (Grant of Dispensations) (Wales) Regulations 2001. Mr Allen-Mirehouse and Mr. Roberts would then have been in some difficulty in taking a further part. As it turned out they later found the Ombudsman on their side. So I do not think that the 'fair-minded and impartial observer' would in the end take much account of this.

71. Next is their conduct in taking a leading role at the meeting on 8 December. This must particularly relate to Mr. Allen-Mirehouse. I do not see that anything arises by itself from the fact that Mr Allen-Mirehouse took a leading role. If he was entitled to take part and took part with the proper considerations in mind, he was entitled to take a leading role. It is necessary to look to see how he conducted himself at the meeting, to see whether he appeared as someone who was attempting to push through the decision regardless of the merits or someone who was properly considering the merits, both for and against the application. I have already considered what appears from the minutes. I consider that the minutes show that he took a proper and balanced approach.
72. The further point is made under this heading that Mr Allen-Mirehouse sought to short-circuit the process of notifying the National Assembly. The Assembly had to be given notice of the decision so it could decide whether to call it in. The Assembly had 21 days in which to decide whether to do so. Mr Allen-Mirehouse, seconded by Mr Roberts, moved that the matter should come back on 17 December. That would not have given enough time for the Assembly to respond. His recorded reason was that the Assembly had been aware of the application for over a year, and it might be added, had decided not to call it in at the earlier stage. His explanation given in his statement is that having heard the officer's explanation of the procedure he agreed that the matter go over to a meeting the end of January provided that there was an up-date at the next meeting on 17 December. That was wholly proper.
73. The sixth matter is the leading role taken by Mr Allen-Mirehouse and Mr Roberts on 28 January 2004 in promoting the grant despite the officer's critique of their reasons. The Councillors were entitled to continue to disagree with the officer. The debate shows that the officer's points were considered. The point adds nothing to those which have preceded it.
74. The seventh point is the split 8 to 4 between the Council-appointed members and the Assembly-appointed members. This is consistent with the Council members being influenced by the Council's decisions, but it does not establish it. It is necessary to look to see how the Council-appointed members reached their view, an exercise which I have done. In the circumstances the divide simply shows a division of opinion between two viewpoints: the economic benefit as opposed to the integrity of the Park.
75. The eighth point is that nothing was said at the 8 December and 28 January meetings of the need to put on one side the Council's decision and to examine the planning issues. This is probably derived from paragraph 32 of the judgment of Richards J. in Georgiou quoted in paragraph 56 above. It is plain that members did concentrate on planning issues. I do not consider that it was necessary here for anything to be said about the Council's planning decision.
76. The ninth point is that nothing was said by either Mr Allen-Mirehouse or Mr Roberts to suggest that they were aware of the need to approach the planning question with an open mind. The issue is whether it is established that they approached it with closed minds. I have addressed that.
77. The last point is the alleged shifting of the basis on which members were asked to grant permission, particularly by Mr Allen-Mirehouse. I have considered this in connection with the case made under section 54A. I concluded in paragraph 47 that the reasons were consistent.
78. For the reasons I have set out I do not consider that individually the ten matters relied on would suggest to the 'fair-minded and informed' observer that there was a real possibility of bias by reason of an approach with closed minds. The cumulative effect is more difficult to gauge. Grains that may be insignificant by themselves may be bound together to make a significant ball. In the end I think it comes down to whether the Council-appointed members, in particular Mr Allen-Mirehouse and Mr Roberts, took a proper approach at the relevant meetings. The Council's approval of the loan and the Council's grant of planning permission would provide reasons, explanations, for the members having closed their minds if they had done so. They do not show that the members did close their minds. I have examined the evidence as to how the decision was approached. I concluded that a 'fair-minded and informed observer' would find that their approach to the Bluestone planning issue was a proper one, concerned with the merits, and not with closed minds. The case as to bias fails.
79. In paragraph 111 of his judgment in Bovis, which I have quoted, Ouseley J. referred to the distinction between a closed mind in the sense of a 'determination to adhere to a particular view' and 'a legitimate predisposition towards a particular point of view'. I accept that distinction as a valid one, particularly in the field of local authority planning decisions. Thus a councillor might be elected on an 'affordable housing' ticket. That would not disentitle him from taking part in planning decisions involving low-cost housing, but he would need to be careful to consider the planning merits of the particular application. The distinction can be shortly stated, but it may not be easy to apply in practice. It is made more difficult by the process by which local authorities reach their decisions by a vote following debate, which may be brief. There is a marked contrast with the process of an inspector's inquiry and the ensuing report where reasoning can be set out at length. I think that the court can do no more than look to see whether it appears that the member or members did give proper consideration to the planning merits. That is the approach I have intended to follow.

Conclusion

80. In my judgment, first, the Park Authority's decision to grant planning permission for the Bluestone development was reached in compliance with section 54A of the Town & Country Planning Act 1990 and, second, the case of apparent bias on the part of two members of the Authority is not made out.