‘In law,’ Lord Steyn once reminded us, ‘context is everything’. And context was particularly relevant on 24 June this year, when the Court of Appeal agreed with Mr Justice Collins that a planning inspector’s decision was tainted by apparent bias (R (Ortona Ltd) v Secretary of State for Communities and Local Government [2009] EWCA Civ 863).

The case concerned an application for planning permission to develop a site near Cromer town centre in Norfolk which had, until April 2006, been used as a bus station. However, although the relevant bus companies had ceased to use the former facility, the planning authority had refused the application, since, in the absence of acceptable alternative provision, the proposed development would result in the loss of the bus station for the town, contrary to development plan policy. The inspector’s decision was to uphold the council’s refusal of planning permission (among other things) because there would be significant detriment to public transport in conflict with the aims of the relevant ‘structure plan’ policies, and there was no evidence as to whether there would be any conditions on which the operator’s usage of the bus station could resume.

On the claimant’s planning appeal, it emerged that the inspector appointed by the secretary of state had, until 2003, been employed in the county council’s planning department, and had in the past had professional contact with the claimant’s consultant, Mr Scales. The consultant had drawn the matter to the attention of the Planning Inspectorate, but an alternative inspector was not appointed.

In the circumstances, Collins J found apparent bias. In the present appeal, the secretary of state contended that the practical effect of the judgment of Collins J would be to place additional administrative burdens on the Planning Inspectorate, and would also considerably limit the cases in which inspectors could properly deal.

Lord Justice Sullivan emphasised that, in this case, there was no suggestion of actual bias. And, applying the classic test, the question was whether the fair-minded observer, having been informed of all the circumstances, would conclude that there was a real possibility that this inspector was biased in this particular case. Also (per Lawal v Northern Spirit [2003] UKHL 35) the real possibility of bias can be either conscious or unconscious.

Although at the time of the planning appeal it had been four years since the inspector had been employed by the county council, Sullivan LJ considered that, on the information now available, the fair-minded observer would conclude that there was a real possibility of bias. Of critical importance in the present case was the inspector’s responsibility within the county council for transport planning, including the local transport plan ‘in which capacity he would have been responsible for the formulation of the transport policies in issue in the appeal’.

Sullivan LJ also noted that this responsibility for transport policy formulation was coupled with the inspector’s responsibility for the practical application of those policies at local level, as the officer responsible for highways development control. Consequently, this ‘was not a planning officer who had been peripherally involved with the policies in issue in this appeal’. On the contrary, he ‘had been directly responsible for the formulation and implementation of those policies’.

The present appeal therefore concerned ‘the very policy area of transport planning for which the inspector had been responsible at the county council’. Accordingly, in these circumstances ‘the fair-minded observer would have concluded that there was a real possibility that this particular inspector, by reason of his particular professional experience within the county council, would, albeit unconsciously, attach undue weight to those policies’.

But Sullivan LJ emphasised that his decision in the case turned very much upon these particular facts. The question is not a mechanistic one, to be answered simply by asking how many years ago did the inspector leave the authority – there were a number of potentially relevant factors including:Lord Justice Patten agreed, indicating that bias cases ‘are necessarily highly fact-specific’. Lord Justice Mummery also agreed, taking the view that ‘the context in this case is the most important part of the material that has to be considered in approaching the real possibility of bias’.

  • The seniority of the inspector within the authority and whether he was the county planning officer or a lowly planning assistant;
  • How long, and to what extent, was he involved with policy formulation;
  • Was this merely part of a much broader authority role, or was he directly responsible for that area of policy?

So, in the particular circumstances, a contest on context ended with a defeat for the secretary of state and a finding of apparent bias in relation to the inspector. Avoidance of bias is just one part of the duty on all public authorities at all times to act (and be seen to act) fairly. But when reasonable perception takes on the appearance of reality, the fair-minded and informed observer is likely to be receiving their call-up papers.

When does a body become a public authority?Zebras are easy to describe, being essentially black-and-white-striped horse-like animals. But public authorities, like elephants, are a bit more challenging. And, in the case of the former, the courts have for some years been trying to patent a suitable public authority ‘DNA test’ to reduce the scope for confusion.

The latest test was rolled out by the Court of Appeal on 18 June in London and Quadrant Housing Trust v Weaver [2009] EWCA Civ 587. There, Lord Justice Elias and Lord Collins (with Lord Justice Rix dissenting) found that when the London and Quadrant Housing Trust (‘the trust’ – the registered social landlord (RSL) in question) terminated the tenancy of one of its tenants, this was not ‘an act of a private nature’ and was therefore, in principle, subject to human rights considerations.

Section 6(1) of the Human Rights Act 1998 provides that it is unlawful for a public authority to act incompatibly with a convention right. By section 6(3)(b), a ‘public authority’ includes ‘any person certain of whose functions are functions of a public nature’. However, per section 6(5), ‘in relation to a particular act, a person is not a public authority by virtue only of subsection (3)(b) if the nature of the act is private’.

Elias LJ said that the essential question was whether the act of terminating the tenancy was a private one. In considering this, it was important to focus on the context in which the act occurred, since the nature of the act cannot be considered in isolation. On this basis, he considered that there were a number of features that brought the act of terminating a social tenancy within the Human Rights Act and referred to the four criteria identified by Lord Nicholls in Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank [2003] UKHL 37. First, there was a significant reliance on public finance by way of a substantial public subsidy to enable the trust to achieve its publicly desirable objectives. Second, the trust operates in very close harmony with local government, assisting it to achieve statutory duties and objectives. Third, the provision of subsidised housing, being the antithesis of a private commercial activity, can properly be described as ‘governmental’. Fourth, since the trust, as one of the larger RSLs, makes a valuable contribution to achieving the government’s objectives of providing subsidised housing, it can properly be described as providing a public service.

Elias LJ also noted that the regulation of the RSL over such matters as rent and eviction is ‘designed, at least in part, to ensure that the objectives of government policy with respect to this vulnerable group in society are achieved and that low-cost housing is effectively provided to those in need of it’. And the regulation on various aspects of allocation and management is intrusive, even restricting the power to dispose of land and property.

But he did point out that none of the factors mentioned, taken in isolation, would be sufficient to render the functions in question public ones. Nevertheless, he was satisfied that ‘when considered cumulatively, they establish sufficient public flavour to bring the provision of social housing by this particular RSL within that concept’.

As to the central question of whether the termination of the tenancy can be considered a private act, Elias LJ considered that ‘the act of termination is so bound up with the provision of social housing that once the latter is seen, in the context of this particular body, as the exercise of a public function, then acts which are necessarily involved in the regulation of the function must also be public acts’. The ‘grant of a tenancy and its subsequent termination are part and parcel of determining who should be allowed to take advantage of this public benefit’. In coming to this view, Elias LJ considered that the act of termination was not ‘purely incidental or supplementary to the principal function, such as contracting out the cleaning of the windows of the trust’s properties’. For that ‘could readily be seen as a private function of a kind carried on by both public and private bodies’. And, unless the body happened to be a core public authority, no doubt ‘the termination of such a contract would be a private act’.

This decision of the Court of Appeal illustrates the complex and fact-sensitive nature of the judgement to be made when considering whether the acts of a ‘hybrid authority’ (that is, one conducting both public and private functions) are public or private. And, as Elias LJ pointed out, given the fact-sensitivity of determining public body status, not every RSL will be in the same position as the trust. But, while no factors will ever be determinative, the degree of governmental nature of the activity and the level of public subsidy to meet public objectives will remain important considerations.

Nicholas Dobson is a practising solicitor specialising in local government