In a recent post, I highlighted former Wokingham Borough Council leader John Halsall’s enthusiastic public support for the Shinfield Studios project, well before it had been passed by the Council’s planning committee.
The question was whether he broke the rules by ‘predetermining’ the Council’s decision to approve the Shinfield Studios planning application. We in the SOLVE Hall Farm campaign thought he might have done: when we submitted a petition with 1,500+ signatures to WBC recently, we were told the Council couldn’t debate it, on grounds of ‘predetermination’. The rules, we were informed, prevent councillors from making public statements in advance on a matter relating to an upcoming planning decision.
The problem I drew attention to was, why were we turned down, when Cllr Halsall was free to get himself quoted up and down the local media, singing the praises of the proposed Shinfield Studios?
I now have to retract. In that blog post I mistakenly implied that Councillor Halsall was breaking a predetermination rule that councillors have to follow. I would now like to disclaim any suggestion of impropriety that could have been conveyed by that post. There is not a jot or tittle of truth in the notion that the Councillor was in any way committing wrongdoing!
How so?
Because predetermination has been abolished.
That’s quoting neighbouring Hart District Council’s forthright take on the legal position. They and other local authorities drew up guidance to councillors following a change in the law twelve years ago. Hart District Council says (my emphasis):- ‘‘The Localism Act 2011 therefore abolished the concept of predetermination. Under the terms of the Act the fact that a Councillor may have campaigned for or against a proposal is not in itself to be taken as proof that they are not open-minded.’ https://www.hart.gov.uk/sites/default/files/4_The_Council/Councillors/Help_and_advice/Adviceonpredetermination.pdf
What the law says
The provisions of the 2011 Act (§25, 2) are as follows:
“A decision-maker is not to be taken to have had, or to have appeared to have had, a closed mind when making a decision just because: (a) the decision-maker had previously done anything that directly or indirectly indicated what view the decision-maker took, or would or might take, in relation to a matter, and (b) the matter was relevant to the decision.”
The government provided an explanation in plain English of what the change in the law means: ‘Under S25 a Member will be able to express strong opinions and even tell people that he or she intends to vote in a particular way, without fear of a challenge based on bias or predetermination.’
John Halsall was therefore legally entitled to express his opinions on Shinfield Studios: he was not predetermining a subsequent planning decision.
What about other councils?
You’ll find similar wording in guidance given to councillors by other local authorities, e.g.: Birmingham City Council, Cherwell District Council, Surrey County Council, Wiltshire County Council, Slough Borough Council, South Buckinghamshire Council, South Cambridgeshire District Council, Dartford Borough Council, Leicester City Council and Leeds City Council. To name but ten, resulting from a fairly short search on the internet. (However, all councils continue to say that Members involved in planning decisions must not show evidence of having a closed mind, i.e. they must duly consider the pros and cons of a planning application at a decision-making meeting.)
Here’s a surprise!
What about case law since 2011? Has the Act been used in Court? Indeed it has. Here is a passage on a November 2012 case in a recent law textbook (before you read it, try to guess which local council was involved):
‘The court has suggested that section 25 of the 2011 act will be relevant where a challenge is brought based on the appearance of bias (rather than an allegation of actual bias). In EU plants Ltd versus Wokingham Borough Council, a statutory appeal was brought against the confirmation of a tree preservation order in circumstances where one councillor had expressed "sympathetic support" for local residents campaigning against the development of a farm. The judge said that, while section 25 will not preclude a court from looking at conduct in the round, it is relevant to whether there is an appearance of bias because of a previous expression of view. The allegation of appearance of bias in this case failed, on the basis that a reasonable observer in full knowledge of these facts would not have considered that there was a real possibility of bias.
This case shows that section 25 does not require previous statements and actions to be disregarded; rather, such statements do not, by themselves, amount to predetermination. If other ‘positive evidence’ of predetermination exists (e.g., arising from the councillor’s behaviour during a meeting or from the content of emails sent by the councillor), then section 25 will not prevent a finding of unlawful pre-determination.’ Philip Colvin (ed.) Cornerstone on councillors’ conduct, 2015, p. 62.
Well, well. So WBC’s lawyers were told in court that §25 of the 2011 Act is relevant when a charge of apparent bias is entertained, and that a councillor’s ‘statements do not by themselves amount to predetermination’. Yet that legal ruling does not seem to have got through to Shute End. I’ve asked two of my local Borough councillors if in recent years they had received advice from WBC on avoiding predetermination, recognising current legislation. They had not. Other councils inform their members that the law has changed since 2011, but evidently WBC’s legal eagles do not. Are they a law unto themselves? It might look that way.
Be that as it may, let’s be clear: the law says that Cllr John Halsall did no wrong in speaking in favour of Shinfield Studios.
And Cllr Clive Jones would do no wrong either, if he publicly opposed the Hall Farm proposal.
Pat Phillipps
