Judicial review threat claims “bias” in decision to approve 540-home development

Residents have alleged bias and improper procedure after county councillors on a district council's planning committee voted in favour of a major planning application that immediately benefits the county council.

A letter before claim sent on behalf of the Qua Fen Common Action Group by Staploe Solicitors said that the fact that the two East Cambridgeshire District Council councillors were also members of Cambridgeshire County Council, which owns the development company behind the application should render the decision unsound.

East Cambridgeshire gave planning permission for the 540-dwelling development on a parcel of land between East Fen Common and Qua Fen Common in the town of Soham during a planning committee meeting in August 2024.

This Land Development Ltd, which owns the site, is also a wholly owned subsidiary of This Land Limited, which is wholly owned by the Cambridgeshire County Council.

"This means that Cambridgeshire County Council is the ultimate beneficial owner of the Site and immediate benefits from this Decision," the legal letter claimed.

Cllr Bill Hunt and Cllr Alan Sharp – who are members of both the district and county council – voted in favour of the application "despite having declared their interest in proceedings and also representing the owners of the Site", the letter added.

Both councillors are also members of the county council's Assets and Procurement Committee, the body responsible for the oversight of the development.

During the meeting, Cllr Sharp and Cllr Hunt declared that they were members of the county council but distanced themselves from the company.

Cllr Sharp told the meeting that he was not part of This Land, while Cllr Hunt confirmed that he was not part of This Land Ltd and had not taken part in decision-making at the county council in relation to the company and, therefore, would be participating.

However, the residents' group contends that the two members should not have been involved in the decision and has argued that the motion would not have been carried without their votes.

The letter advanced three main arguments.

The first suggested that the process and decision went against East Cambridgeshire's constitution as it breached a provision that says all planning applications must be handled without prejudice or undue bias and that councillors with a prejudicial interest must not participate or vote at a meeting.

The second assertion claimed that the decision was subject to improper procedure and bias because the two councillors voted in favour of the application despite having declared their interest in the proceedings.

It also argued that Cllr Hunt improperly opened the floor to an organisation that is proposed to operate the development's new medical centre and that Cllr Hunt proposed the application prior to any debate by the committee, "contrary to normal procedure".

Finally, the letter argued that the decision meets Lord Hope's 'real possibility of bias test' set out in Porter v Magill [2001] UKHL 67 [2002] 2 AC 357.

The test provides that a "real possibility" of bias is found to exist in circumstances in which: "the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the [the decision] was biased."

According to the letter, the above test is "clearly satisfied on the facts of the case given that the decision was made in a way that is clearly contrary to both correct planning procedure and the constitutional principles of the [East Cambridgeshire]".

The letter added: "Considering the above, our Client maintains that the decision is fundamentally unsound, likely to erode public confidence in the council and leaves itself open to legal challenge.

"As you will be aware a judicial review may be sought where there is a question about the: 'lawfulness of an enactment; or a decision, action or failure to act in relation to the exercise of a public function'."

The residents group has called on East Cambridgeshire to provide a satisfactory explanation of why the decision was not procedurally irregular, despite the overwhelming appearance of bias, or to quash the decision and retake the decision.

The letter was sent late last month (30 September).

A spokesperson for East Cambridgeshire District Council said it had received the letter and is currently reviewing its response.

Adam Carey