If a policeman's lot is not a happy one, it seems a monitoring officer's is not much better. As keeper of the corporate conscience the monitoring officer must advise fearlessly on the law the way s/he sees it. And doing so robustly (also known as 'biting the hand that feeds you') won't always win friends and influence people. True, a skilful monitoring officer will have a fine-tuned touch on the tiller and know when to sort things quietly 'backstage' and when to call for 'Action Stations'. But we're all human (or at least most of us are). And as well as being the building blocks of learning, mistakes are also a core part of the human condition.
However, one person's mistake can also sometimes be another's good sense. It all depends on the circumstances and who has the power to say what's right and what's not. And in the decision of the Administrative Court on 30 March 2007 in R (Ware) v Neath Port Talbot County Borough Council it was Collins J who had this responsibility and who found advice from the Council's monitoring officer (MO) wanting.
This concerned the participation of four councillors in a decision concerning planning and hazardous substances consent in relation to the construction of a high pressure gas pipe and local gas supply system. The councillors in question had attended a meeting where opponents of the application had discussed their objections. However, the councillors did not express any opinion as to the planning application and subsequently made a declaration to that effect. Two of the four councillors failed to attend a site visit. Although they had been advised by the monitoring officer that their failure to attend the site visit did not preclude them from taking part in the decision-making process, equally if they did participate this might result in a challenge to the decision.
When the matter subsequently came before the Council's Planning Committee, the MO asked the councillors if they would consider making another declaration about their attendance at the earlier meeting at which the application had been discussed. In response to a query from the councillors as to whether it would be better for them to leave, the officer indicated that whilst this was a matter for them they may be vulnerable to an Ombudsman complaint if they were to participate. The four councillors consequently then left the meeting and (amongst other things) the planning application was approved.
The Claimant, who was an objector, sought judicial review of the planning decision. She argued that the four councillors had recused themselves from considering the planning application on the basis of wrong advice from the council officer. In addition, there was no question of apparent bias since the councillors had declared that they had expressed no opinion on the application before the decision. Furthermore, it was argued, it was not wrong for councillors who had not attended the site visit to participate in the decision-making process.
Collins J allowed the application. He indicated that it was important for local authority decisions on planning issues to be made fairly and without predetermination. Councillors should approach the decision with an open mind and although they might be predisposed to a particular view they should be prepared to change their minds in response to the argument. Councillors had to be sure that they acted with propriety and did not do anything that would make a fair-minded and informed observer conclude that there was a reasonable prospect of bias.
Collins J did however consider it to be equally important that councillors should not be prevented from carrying out the duties imposed on them by the democratic system by over-cautious advice from monitoring officers. Councillors should refrain from participating in a decision only if there was a real risk that a fair-minded and informed observer would perceive bias. In the instant case, there was no doubt that the four councillors had felt under pressure not to take part in the decision-making process. The advice given to them by the monitoring officer had been wrong in the impression that it gave and was intended to give. The proper advice would have been that since the councillors had not reached any predetermination there was no reason at all why they should not stay and vote. Moreover, in all the circumstances a site visit was not so essential as to make it wrong for the councillors who had not taken part in a site visit to participate in the decision-making process.
If wrong advice from a monitoring officer had been the cause of a councillor's decision not to vote on a decision of the local authority, this could affect the lawfulness of the decision ultimately reached, since this would amount to the consideration of immaterial factors. It would, however, depend on the individual circumstances of a particular case. In the exceptional circumstances of the instant case, the advice given to the councillors had been tantamount to a suggestion that the councillors had better not remain and take part in the decision-making process. On the evidence it was plain that the councillors had wanted to remain and take part in the process but for the advice that they received.
Collins J observed that they had not had the opportunity of independent advice and their absence might have affected the planning committee's vote and the decision reached. In all the circumstances Collins J quashed the grant of planning permission and the hazardous waste consent (which was parasitic to the planning application) also consequently failed.
Whilst Collins J may well have come to the correct view on the facts before him, the remark about independent advice does seem somewhat curious since it is the duty of the monitoring officer to advise his or her authority impartially and to the best of his or her ability in relation to the particular facts and circumstances. It is therefore surprising that Collins J should feel that a member of an authority might require 'independent' advice in relation to their council duties.
Conclusion
There is a certain irony in this case. Monitoring officers who give over-cautious advice in these circumstances are no doubt anxious to protect their authorities from the danger of vitiating a decision through bias. However, in the instant case it was this very caution that resulted in the decision being quashed. For, as Collins J indicated, the participation of the members in question in the decision might have affected the outcome.
Monitoring officers therefore do have to take some finely poised decisions for which a course in tightrope walking might come in handy. However, it is important that the advice given focuses realistically upon the actual factual matrix and whether in those circumstances bias would be perceived by that modern bias equivalent of the Clapham omnibus passenger: the 'fair-minded and informed observer'. If not and there is no predetermination (i.e. prejudgment with a closed mind) then there is no need to flash the red card. On the other hand the judgment of Collins J should not prevent monitoring officers giving clear and firm advice where there is a real danger of predetermination or bias, real or apparent.
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