R. v. CHAIRMAN OF THE TOWN PLANNING APPEAL BOARD PANEL

HCMP No.87 of 1995

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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J U D G M E N T

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1. This is an application for judicial review, leave to make it having been given by Barnett J. on the 12th January 1995. The proceedings have been initiated by Mutual Luck Investment Ltd. (the Applicant) and the Respondent is the Chairman of the Town Planning Appeal Board Panel, the Honourable Mr. Justice Litton OBE QC JP, who is a Justice of the Court of Appeal of Hong Kong.

2. The notice of Application for leave to apply for Judicial Review order RSC Order 53 r. 3 states that the decision in respect of which relief is sought is:

"Decision of the Chairman of the Town Planning Appeal Board refusing to withdraw as Chairman in Town Planning Appeal No. 8 of 1994 which was communicated to the Applicant by a letter dated 31st October 1994."

3. The substantive relief sought is stated to be:

"1. A declaration that the Chairman of the Town Planning Appeal Board panel is disqualified from (sic) hearing and making any determination in respect of the appeal of the Applicant before the Town Planning Appeal Board in Town Planning Appeal No. 8 of 1994."

I take it that the objection is not against the Chairman as such but against Litton J.A., and Sir John Swaine has explained that here the term "disqualification" is not used in the sense of a legal disqualification but simply in the sense that Litton J.A. ought not for reasons of apparent bias to be permitted to take part in the hearing and determination of the appeal in question.

"2. Further or alternatively, an order prohibiting the Chairman of the Town Planning Appeal Board Panel" (again I take that to mean Litton J.A.) "from (sic) hearing and making any determination in respect of the appeal of the Applicant before the Town Planning Appeal Board in Town Planning Appeal No. 8 of 1994."

4. The background facts are helpfully set out in the Notice of Application and I shall quote part of it:

"1. The Applicant is the registered owner of Lot 1457 RP in DD123, Yuen Long, New Territories (the Site). The Site falls within an area designated as "Unspecified Use" on the draft Lau Fau Shan and Tsim Bei Tsui Development Permission Area Plan No. DPA/YL-Lfs/1.

2. On 22nd October 1993, the Applicant made a Third application to the Town Planning Board ("the TPB") pursuant to section 16 of the Town Planning Ordinance for approval of a proposed residential development with nature reserve at the Site after two previous unsuccessful applications. The proposed development is in the vicinity of the Mai Po Nature Reserve.

3. The application was rejected by the TPB on 24th March 1994. On 28th March 1994, the Applicant, pursuant to section 17 of the Town Planning Ordinance, sought a review of the decision but the application was also refused on 24th June 1994. By a letter dated 3rd August 1994 the Secretary to the TPB notified the representative of the Applicant, City Planning Consultants Ltd., of the refusal and the grounds for the refusal. On 9th September 1994, the Applicant lodged an appeal to the Town Planning Board against the said decision of the TPB by way of a Notice of Appeal pursuant to section 17B of the Town Planning Ordinance."

5. In a decision dated the 26th August 1994 the Town Planning Appeal Board allowed an appeal against a refusal of planning permission for a development at Nam Sang Wai and Lut Chau, in an area lying just to the South of the main Eastern part of the Mai Po Nature Reserve. That area is to the East and South East of the area to which the Applicant's appeal relates, which latter area is contiguous with and immediately to the South of that part of the Nature Reserve which lies on the Southern Shore of Deep Bay. Both areas may be described as part of the wetlands which exist in that part of the New Territories. Both areas are relatively close together and are close to the Reserve.

6. On the 13th September 1994 Friends of the Earth gave a press conference with the Conservancy Association and the World Wildlife Fund, commenting upon the decision of the Appeal Board in the Nam Sang Wai Planning Appeal. Their press release stated in relation to that decision:

"The judgment has clear implications for the other 7 proposed residential development projects in the areas of fishponds around the Mai Po Marshes Nature (sic). If these, and other proposed development projects in the Northwest New Territories (NWNT) were to be approved, then Hong Kong would lose 42% of its wetlands habitats in this internationally important area."

7. The release went on to express the view that without a wetland conservation policy for Hong Kong and, in particular, for the wetlands around Deep Bay and the Mai Po Marshes, there would continue to be piecemeal development in the NWNT, which would be "detrimental to the future of this important wetland".

8. The final paragraph of the release reads:

"If Government permits the loss of wetlands, including fishponds to development and or infrastructural projects then adequate compensation must be provided, e.g. by providing alternative wetland sites which can be actively managed for conservation. In addition, Government should promote and find resources for the active management of wetlands in Deep Bay Buffer Zone I around Deep Bay, so that their carrying capacity can increased (sic) to take up wildlife that have been displaced from other areas due to wetland loss which has already occurred."

9. About a month after that conference, the Applicant's solicitors received a letter dated the 11th October 1994 from the Secretary of the Appeal Board informing them that Litton J.A. would chair the Appeal Board in respect of the Fung Lok Wai planning appeal. By way of reply, in a letter dated the 21st October 1994, the Applicant's solicitors said this:

"Our clients have now just completed certain research work on the basis of which we have been instructed to respectfully request Mr. Justice Litton not to sit in this appeal, nor to nominate members of the Appeal Board by virtue of his position as a member of the Board of Governors of Friend of the Earth."

10. I note that it is not now suggested that Litton J.A. should not nominate members of the Appeal Board.

11. The solicitors then gave detailed reasons for their request. They began by setting out, by reference to the grounds which had been given for the refusal and to the Notice of Appeal, the issues to be canvassed in the forthcoming appeal as follows:

"Essentially they deal with

(a) the impact which the proposed development will have on the Inner Deep Bay SSSI and the Mai Po Nature Reserve." (SSSI means Site of Special Scientific Interest)

"(b) the impact on fishponds which are said to be of "ecological and educational value"

(c) the planning intention which is stated to be primarily to protect the area from incompatible developments so that developments will not normally be allowed unless they support and enhance the area's landscape, ecological value and scenic qualities.

(d) the allegation (by the Town Planning Board) that the proposed development will involve filling 37 hectares of fishponds, which it is also alleged "cannot be considered as having insignificant impact on ecology, environment and traffic in the area and giving added protection for the conservation of Mai Po Nature Reserve and Inner Deep Bay" and

(e) the allegation by the Town Planning Board that the application "will set an undesirable precedent".

12. The letter goes on to say that the Appeal Board's decision in the Nam Sang Wai appeal dealt with a development of a similar nature in nearby Nam Sang Wai and issues similar to those in the current appeal were canvassed.

13. Enclosed with the letter was a bundle of documents which, according to the solicitors, indicated "beyond a peradventure that the Friends of the Earth have campaigned vigorously on environmental issues similar to those involved in the current appeal. In particular they have taken a position regarding the Nam Sang Wai decision of the Town Planning Appeal Board in relation to the Nam Sang Wai Appeal."

14. Reference was made to the press release to which I have referred and to press reports of what was said at and after the conference.

15. Particular reference was made to an interview reported on the 20th October 1994, given by Miss Lisa Hopkinson, Campaign Co-ordinator of Friends of the Earth. She was reported to have said that Friends of the Earth was drafting a proposal urging the Executive Council to carefully consider the land grant in the event that the Fung Lok Wai appeal were allowed. She was also reported as having expressed the view that the Appeal Board in the Nam Sang Wai case had merely considered the reasons put forward by the developer and had neglected the effect of the development on wetlands in the area.

16. There were copies of other press reports and publications showing that Friends of the Earth had taken positions on various environmental issues and had actively campaigned for those positions. Copies were enclosed of Friends of the Earth publications showing its aims and objectives as an environmental pressure group.

17. Finally, the solicitors enclosed the reports of two legal decisions which they regarded as the two most relevant authorities, namely R v. Gough (1993) AC646 (HL) and Cheng Kai-man William v. The Panel on Takeovers and Mergers and the SFC Civil Appeal No. 16 & 61 of 1994. They suggested that in both cases the well-known principle that it is "of fundamental importance that justice should not only be done but should manifestly and undoubtedly be seen to be done" applied.

18. The Secretary to the Town Planning Appeal Board replied in a letter dated the 31st October 1994, putting forward counter arguments and inviting the Applicant to withdraw its objection.

19. The Solicitors replied on the 15th November 1995 saying that the Applicant maintained its objection which, they said, was based upon the fact that the Chairman was a member of the Board of Governors, the executive organ, as they put it, of the Friends of the Earth. Further they noted that his wife was an original subscriber to its Memorandum and Articles of Association and was named in the Articles of Association as its first Secretary.

20. They maintained that the activities of the Friends of the Earth and the connections of the Chairman with it must give to Litton J.A. an indirect interest in the appeal and give rise to an appearance of bias. The letter went on to say "in this field it is of course the perceptions and appearance of bias that shake public confidence in the integrity of the appellate process and which, we suggest, should persuade the Chairman that even if there were room for two views, it is in the public interest that he should step down."

21. On the same day, the 15th November 1994, Litton J.A. resigned from the Board of Governors of Friends of the Earth. There is no evidence as to whether by then he had become aware of the contents of the letter written on that date to which I have just referred.

22. The Secretary to the Town Planning Appeal Board wrote to the Applicant's solicitors on the 18th November asking for certain clarifications of statements made on behalf of the Applicant and replying to some points. It also said that Litton J.A. was no longer on the Board of Friends of the Earth.

23. In due course, a copy of Litton J.A.'s letter of resignation was supplied to the Applicant's solicitors. It reads as follows:

"I have been giving careful thought to my position as a Board member of FOE.

As you know, I am the chairman of the Town Planning Appeal Board panel, having first taken up the appointment in November 1991.

Up to the present, my Board membership of FOE has not impinged in any way on my work as Chairman of the TPAB. However, as you may have read in the press, there are a number of applications to the Town Planning Board for planning permission to develop land in the North West New Territories near Nam Sang Wai and the Mai Po Nature Reserve, following the successful appeal in relation to Nam Sang Wai. It is possible that these may eventually come before the TPAB on appeal. If the applications for planning permission are unsuccessful, I will obviously have to chair some of the hearings. There is in fact one such case now on appeal and provisional hearing dates have been fixed in February next year.

Of course, I realise that FOE has not studied any of these applications or made any comments on them. However, given the stance that FOE has taken concerning the preservation of wetlands generally, and adherence by Government to the RAMSAR Convention, it is possible that one day the FOE Board might wish to take up these cases especially as the decisions of the TPAB are publicly available and they generally contain quite detailed material on which FOE might wish to comment.

These points are not of course confined to development in the N.W. New Territories. They are applicable in varying degree to other cases: for instance development in "unspecified" areas marked in Development Permission Area plans, particularly those in or near Green Belts.

If matters should reach the point where a case I have heard should be the subject of scrutiny by the FOE Board or comment by, say, the campaign co-ordinator without direct Board involvement, then I would feel most uncomfortable. It would not be right in any way for me to suggest that there should be 'no go' areas for the Board, simply because of my own position as Chairman of the TPAB. Equally, it would risk compromising my statutory functions if the FOE Board should get involved.

Given these circumstances, I regret that I must resign as a Board member.

It has been a great pleasure working with you and the other Board members."

24. Clearly Litton J.A. must have had in mind the representations being made to him on behalf of the Applicant and it may reasonably be assumed that his action in resigning was to some extent at least prompted by those representations.

25. There followed the application for leave to apply for judicial review.

26. So the position is that Litton J.A. was asked to stand down. The Applicant was then asked to withdraw the request but declined to do so. It is implicit in the correspondence that Litton J.A. has decided not to stand down and it is that decision which is the subject of this application.

27. The first relief sought as I have said is a declaration that the Chairman of the Town Planning Appeal Board Panel, that is to say Litton J.A. is disqualified for hearing and making any determination in respect of the appeal. The ground for seeking that declaration is not, as at one stage I thought it might be, that Litton J.A. has such an indirect interest in the appeal as would disqualify him for taking certain steps by virtue of the provisions of s17A(6) of the Town Planning Ordinance. It appears that the reference to disqualification relates to the contention that, by virtue of apparent bias, he ought not to be allowed to take part in the hearing and determination of the appeal with which the applicant is concerned.

28. The parties have not sought to discuss the question of the meaning of the term "direct or indirect interest", but it seems to me that such an interest must be a real personal interest in the sense that the person concerned has something to gain or something to lose, directly or indirectly depending upon the outcome of the appeal and I know of no such interest which exists so far as Litton J.A. is concerned in this case. I do not think that the words are intended to mean that the person in question holds a private opinion about some matter of general interest, such as the relative importance of preserving the natural environment on the one hand and the need for development on the other.

29. On the question of interest, it would seem that if it is suggested that Litton J.A. has an interest in the outcome which affords a real danger of unconscious bias, the Applicant's position is inconsistent because although it seeks a declaration that Litton J.A. is disqualified on that basis, it does not now suggest that he should not nominate the members of the Board which is to hear the appeal and it seems to me to be curious that the Applicant does not think that any such bias would extend to the exercise of selecting those who are to sit and hear the appeal.

30. It is contended, however, for the Applicant that the public statements made in the name of Friends of the Earth at a time when Litton J.A. was a member of the Board of Governors of that body indicate that he must share the views expressed, since the statements were not disavowed by the Board or by himself.

31. In his affidavit Litton J.A. says that the Board of Governors left to the director and her staff total autonomy in the matter of the affairs of Friends of the Earth. He says that it could not have been otherwise given the composition of the Board. He points out that for a number of years Penlington J.A. was the Chairman and the Board had among its members lawyers, teachers, an accountant, a medical doctor, an architect, businessmen, etc., persons heavily involved in other affairs. According to the affidavit, it was beyond the resources of the Board to formulate policies on environmental issues and Litton J.A. says that he does not recall a single instance during his years of service as a Board member when the Board as a body initiated policies. Whenever policies were discussed, they would have originated from the director and his or her staff. Sir John Swaine for the Applicant comments that it is not possible for the Board of Governors who have held out a person as the spokesman of Friends of the Earth to say that policy originated by that person and at least tacitly approved by them has nothing to do with them. The impression created by Litton J.A.'s affidavit is, that the Board was more concerned with raising money to provide an environment in which the active members of Friends of the Earth could operate and that they did not take the initiative in matters of policy. But, of course, the Board members were there to further the objects of the Friends of the Earth which, it is common ground, are to act as an environmentalist pressure group in Hong Kong.

32. With regard to the Mai Po Nature Reserve, Litton J.A. says in his affidavit that this has always been viewed not only by Friends of the Earth but as far as he knows also by other non Government organisations such as the Conservancy Association and Green Power as the Worldwide Fund for Nature's area of interest. The Government has handed over the management of Mai Po to Worldwide Fund for Nature and that organisation has succeeded in the past in raising funds to purchase some of the gei wais adjoining Mai Po. It employs people to maintain the area for wildlife conservation and educational purposes. According to Litton J.A., the non-Government organisations try not to step on each other's toes and as far as he is aware the director and staff of Friends of the Earth spent no time at all on the "wetlands" issue until the matter became stirred up as result of the Nam Sang Wai decision by the Town Planning Appeal Board in August last year and if the director or staff have spent time on that issue before August 1994, Litton J. is not aware of it.

33. He describes the funding of Friends of the Earth and says that much of the time of the Board was spent on fund raising and related issues. With regard to the press release of the 13th September 1994 entitled "Wetlands going down the drain?" issued by the Conservancy Association, Friends of the Earth and Worldwide Fund, he does not know how it came about. That it is nothing unusual according to him and is simply an aspect of the autonomy to which he referred earlier in his affidavit. He says that Board approval has never been sought regarding any of the statements and letters made by the staff and exhibited to one of the affidavits filed on behalf of the Applicant.

34. Sir John Swaine suggests that since nothing to the contrary has been said by those who are charged with the responsibility of running Friends of the Earth, namely the Board of Governors, it may be taken that the Board of Governors has tacitly approved the statements made by the person whom they had authorised to form policy and speak on behalf of Friends of the Earth.

35. The present situation is that the Applicant is afraid that the decision in the appeal may go against him and that, if it does, it may be because with Litton J.A. in the chair the Applicant will not have a fair trial as a result of some unconscious bias in the mind of Litton J.A. resulting from his former association with the Friends of the Earth. This is speculation. The decision may not go against the Applicant. If it does go against the Applicant, it will be open to it to seek to challenge the decision by way of judicial review. At that stage, it will be possible to ascertain the full facts as to the manner in which the hearing was conducted, as to what reasons were given for the decision and generally. It will then be possible to look at the question of alleged apparent bias in the light of all the known facts in order to see whether it appears that there is a real danger that the hearing and the decision (if indeed it turns out to be adverse) were affected by bias.

36. It does seem to me that this application is premature. I remarked during the course of the hearing that there was no example in the cases cited by counsel of what might be termed a pre-emptive strike. In other words there was no report of a judicial review where a party was attempting to prevent somebody who was prima facie entitled to adjudicate from doing so.

37. As a result, I have been supplied with a copy of the report of a decision of the Court of Appeal in England in the case of R. v. Kent Police Authority and others Ex Parte Godden [1971] 2 QB 662. It is suggested on behalf of the Applicant that that is an example, apparently the only one that can be found, of a judicial review in advance of a decision. However, the facts of that case were most unusual. What happened there was that a police officer was seen by the Chief Medical Officer of the force to which he belonged and after seeing him and reading certain documents, the doctor formed the opinion that the officer was "suffering from a mental disorder of paranoid type". He certified that he was unfit for police duty on that ground and the officer was put on sick leave. The officer then saw his own doctor who found that he was psychiatrically completely normal and in good mental and physical health. The Police Authority then took steps compulsorily to retire the officer and notified him that they had selected the same Chief Medical Officer as their "duly qualified practitioner" to determine whether he was "permanently disabled" under the Police Pension Regulations. The officer then applied for and succeeded in obtaining an order preventing the doctor from conducting the examination.

38. It was said by Lord Denning in that case that decisions leading to compulsory retirement must conform to the rules of natural justice and that since the Chief Medical Officer had already expressed a view adverse to the Applicant, an order of prohibition should go to prohibit him from determining whether the Applicant was permanently disabled under the Regulations.

39. The circumstances were, therefore, that the doctor had already made a "diagnosis" adverse to the officer and it was thought under those circumstances that he should not be allowed to make another one since it was doubtful whether he would feel able after a relatively short interval to do anything other than stand by his original finding.

40. To my mind that is very much different from the present case for there is no suggestion that Litton J.A. has ever adjudicated upon any issue which is to be canvassed in the forthcoming appeal.

41. I have no doubt that the Applicant is acting in good faith when it indicates its unease at the prospect of Litton J.A. acting as Chairman. There is no question of an attempt to delay the proceedings for it is the Applicant's own appeal which is to be heard. However, the fact is that this application is in effect if not in intent, an attempt at forum shopping.

42. As I have said I take the view that the application is premature. The hearing of the appeal has not taken place. It seems to me that what the Applicant should do whilst making it clear that it does not agree with the decision of Litton J.A. is to allow the appeal to proceed and be heard on its merits, and if it does lose the day and there is no reason to assume that it will, to look at the situation as it then stands and consider whether it ought to apply for a judicial review. It is true that if the decision goes against the Applicant (which is a matter of speculation) and if it wins the day at a subsequent judicial review (which is again a matter of speculation), then there may have to be a second hearing of the appeal. But on the other hand, if before the event, merely in order to satisfy misgivings on the part of one party leave were granted, there would be a multitude of applications for judicial review. It is certain that many of them would according to the laws of probability be completely otiose because in many of them it must be that the fears expressed would turn out to be unjustified.

43. The disadvantages of subjecting to scrutiny in advance of a hearing the personal inclinations of potential members of a tribunal have been referred to by Litton J.A. in the letters which the Board's Secretary has written apparently under his direction. The considerations expressed there are considerations which, it seems to me Litton, J.A. was entitled to take into account.

44. In order to see the way in which Litton J.A. approached the matter I will quote part of the letter of 31st October 1994 sent by the Secretary to the Town Planning Appeal Board to Bernard Wong & Co., Solicitors acting for the Applicant. Part of the letter reads as follows:

"Whilst your clients, understandably, see this matter in the context of their particular appeal, what must be borne in mind are the wider implications of your clients' request that (i) the chairman of the panel should not hear this appeal and (ii) he should not nominate the members of the appeal board.

The chairman, vice-chairman and the other members of the appeal board panel are appointed by the Governor to carry out the functions and duties set out in section 17B of the Town Planning Ordinance. The members of the panel are all persons heavily involved in one way or another in the affairs of the community and would, by the nature of things, have a variety of "interests". These "interests" could, in a remote sense, arguably be said to incline them either in favour of "development" or in favour of "conservation". It would be most unfortunate if, in relation to each appeal board constituted under s17A(5), and in respect of each of the five members of such board, there should be the kind of objections, following the kind of "research work", which you have made in this case.

The very essence of serving in a statutory appeal board is that the individual members must set to one side such private inclinations as they may have and reach a determination so that the objectives of the scheme set out in the Ordinance can be properly attained. The chairman sees his own position no differently in this regard.

You have referred in your letter to the grounds of appeal in TPA Case No. 8/94. I note the statement in para (i) Annex 1 of those grounds that there are similar applications to the Town Planning Board for large scale residential developments around the Mai Po Nature Reserve, some of which are yet to be determined. Possibly some, or even all, of these applications may end up on appeal under s17B of the Ordinance. The implication of your request must be that the chairman is in principle disqualified from sitting on any of these appeals because of his "interest", as a board member of Friends of the Earth, and indeed on any appeal where that organisation has made statements which could be construed as tangentially touching upon the subject-matter of the appeal. The further implication is that he should not discharge his function under s17A(5) as chairman to nominate the appeal boards for any of those cases. The consequences of your clients' objections, if they be valid, are far-reaching. They go far beyond your clients' present proposals for development and indeed beyond proposals covered by the Lau Fu Shan Development Permission Area Plan DPA/YL-LFS/2.

If your objections be valid in relation to the chairman of the panel, they are equally valid in respect of each member of the panel. It cannot, I suggest, be your contention that, prior to each appeal board being constituted, there should be some inquiry conducted regarding the background of each member to see if there might be something, such as membership of an environmental group, which might be thought to incline their judgment in favour of the respondent to the appeal. Such an inquiry would in any case be fruitless because, inevitably, there would be factors the other way - such as property-ownership - which might be said to bias their judgment in favour of the appellant.

I am asked by the chairman specifically to say this. It is of the utmost importance that the task of nominating an appeal board in each instance be done in accordance with objective criteria, with no pressure and no influence of any kind being exerted by either the appellant or the respondent to the appeal."

45. There follows a request that the objection the withdrawn.

46. The fact of Litton J.'s connection with the Friends of the Earth and the status of that group as an environmental pressure group and the statements made about the Nam Sang Wai case and this case in particular are not in dispute.

47. There is no doubt that the appeal will entail value judgments about the impact of development on the environment of the general area in which the Nature Reserve is situated.

48. For my part, I would dismiss this application on the ground as I have said that in my view it is premature and an application of this kind which affects the composition of a judicial or quasi-judicial body which is to adjudicate in a dispute is, generally, undesirable. However, in case I am taking the wrong approach, I will consider the question put.

49. I note that Litton J.A. is a judge of the Court of Appeal of Hong Kong. That is one of the facts which I must take into account. He knows his duty which is to chair the hearing impartially and to decide the appeal on its merits in the light of the evidence and of planning guidelines. He will not be alone: he will be sitting with the other members of the Board, all of whom have a duty to form their own independent views.

50. This hearing was conducted on the basis that Litton J.A. was lawfully appointed and is entitled to exercise the functions of Chairman. I note that Sir John Swaine has reserved his clients' position with regard to any challenge which may subsequently be made to the lawfulness of the appointment.

51. The nature and scope of judicial review is discussed in the Supreme Court Practice 1995 Volume 1 in paragraph 53/1-14/6 at page 851 etseq. There it says:

"The remedy of judicial review is concerned with reviewing, not the merits of the decision in respect of which the application for judicial review is made, but the decision making process itself. "It is important to remember in every case that the purpose of [the remedy of judicial review] is to ensure that the individual is given fair treatment by the authority to which he has been subjected and that it is no part of that purpose to substitute the opinion of the judiciary or of individual judges for that of the authority constituted by law to decide the matters in question" (Chief Constable of North Wales Police v. Evans [1982] [1982] 1WLR 1155 [1982] 1 All ER 141 per Lord Hailshan, L.C. Thus a decision of an inferior court or a public authority may be quashed (by an order of certiorari made on an application for judicial review) where that court or authority acted without jurisdiction, or exceeded its jurisdiction, or failed to comply with the rules of natural justice in a case where these rules are applicable, or when there is an error of law on the face of the record or the decision is unreasonable in the Wednesbury sense. The court will not, however, on a judicial review application act as a "Court of Appeal" from the body concerned; nor will the court interfere in any way with the exercise of any power or discretion which has been conferred on that body, unless it has been exercised in a way which is not within that body's jurisdiction, or the decision is Wednesbury unreasonable. If the court were to attempt itself the task entrusted to that authority by the law, the court would, under the guise of preventing the abuse of power, be guilty itself of usurping power." (Chief Constable of North Wales Police Force v. Evans [1982] (supra) per Lord Brightman.

52. It has been specifically stated on behalf of the Applicant that no actual bias is alleged against Litton J.A. There is no suggestion that Litton J.A. had no jurisdiction to decide not to stand down or that in making his decision he failed to comply with any applicable rules of natural justice, or that there has been an error of law. I asked Sir John Swaine what was the basis of the complaint against the decision not to stand down and he said that the decision was Wednesbury unreasonable.

53. The Wednesbury principle is that decisions of persons or bodies who perform public duties or functions will be liable to be quashed or otherwise dealt with by an appropriate order in judicial review proceedings where the court concludes that the decision is such that no such person or body properly directing itself on the relevant law and acting reasonably could have reached that decision. Associated Picture Houses Ltd. v. Wednesbury Corporation [1948] 1KB 223.

54. In R. v. Hillingdon London BC ex per. Puhlhof [1986] AC484; Lord Brightman said:

"The ground on which the courts will review the exercise of an administrative discretion is abuse of power, e.g. bad faith, a mistake in construing the limits of the power, a procedural irregularity or unreasonableness in the Wednesbury sense ... i.e. unreasonableness verging on an absurdity: see the speech of Lord Scarman in Nottinghamshire C.C. v. Secretary of State for the Environment [1986] A.C.240. Where the existence or non-existence of a fact is left to the judgment and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debateable to the just conceivable, it is the duty of the court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision-making power save in a case where it is obvious that the public body, consciously or unconsciously, are acting perversely."

55. The question for me to decide is whether the decision of Litton J. not to stand down is such that no person properly directing himself on the relevant law and acting reasonably could have reached that decision, or in the words of Lord Brightman in the Hillingdon case, there was in the decision unreasonableness verging on an absurdity.

56. There is no evidence to suggest that Litton J.A. did not take into account all the Applicant's representations on the matter. The letters sent to the Applicant by the Secretary of the Board set out Litton J.A.'s reasons for deciding not to stand down. Those letters make it clear that he took into account not only the circumstances of the particular case but also as he was entitled to do the wider implications of the question.

57. This court is being asked to assume that if the appeal goes forward with Litton J.A. as Chairman and if the decision goes against the Applicant, there is a real danger that the result will be due to an unconscious bias present in the mind of Litton J.A. when the tribunal, which will consist of a number of persons including himself, hears and determines the appeal.

58. There is no suggestion that Litton J.A. did not properly direct himself on the relevant law, which was brought his attention by the Applicant's solicitors.

59. There is no suggestion that he took into account some matter which he should not have taken into account: nor is it suggested that he failed to take into account some matter that he ought to have taken into account. The argument is that it was Wednesbury unreasonable to decide to chair the Board at the appeal when the Applicant had made known to him its concerns.

60. The leading case on apparent bias is R. v. Gough [1993] AC 646, where Lord Goff of Chieveley said at p.668:

"In my opinion, if in the circumstances of the case (as ascertained by the court) it appears that there was a real likelihood, in the sense of a real possibility, of bias on the part of a justice or other member of an inferior tribunal, justice requires that the decision should not be allowed to stand."

61. That decision in Gough has been followed by the Court of Appeal in Hong Kong in the case of Cheng Kai-man William v. The Panel on Takeovers and Mergers CA No. 16 and 61 of 1994, (unreported) 24th August 1994.

62. The key propositions in the Gough case are helpfully summarised by the English Court of Appeal in Ex parte Dallaglio 1994, 4 All ER at p.139:

"(1) Any court seised of a challenge on the ground of apparent bias must ascertain the relevant circumstances and consider all the evidence for itself so as to reach its own conclusion on the facts.

(2) It necessarily follows that the factual position may appear quite differently as between the time when the challenge is launched and the time when it comes to be decided by the court. What may appear at the leave stage to be a strong case of justice not manifestly and undoubtedly being seen to be done may following the court's investigation, nevertheless, fail. Or, of course, although perhaps less probably, the case may have become stronger."

63. I note here that there was a change of circumstances between the time of the making of the decision and the launching of the application and the change in circumstances was that Litton J.A. resigned from the Board of Friends of the Earth.

"(3) In reaching its conclusion the court personifies the reasonable man.

(4) The question upon which the court must reach its own factual conclusion is this. Is there a real danger of injustice having occurred as a result of bias. By real is meant not without substance. A real danger clearly involves more than a minimal risk; less than a probability. One could, I think, as well speak of a real risk or real possibility.

(5) Injustice will have occurred as result of bias if the decision maker unfairly regarded with disfavour, the case of a party to the issue under consideration by him. I take "unfairly regarded with disfavour" to mean "was pre-disposed or prejudiced against one party's case for reasons unconnected with the merits of the issue."

(6) A decision maker may have unfairly regarded with disfavour one party's case either consciously or unconsciously." Where as here the Applicants expressly disavow any suggestion of actual bias, it seems to me that the court must necessarily be asking itself whether there is a real danger that the decision maker was unconsciously biased.

(7) It will be seen, therefore, that by the time the legal challenge comes to be resolved, the court is no longer concerned strictly with the appearance of bias but rather with establishing the possibility that there was actual though unconscious bias."

64. As I have said, in this case there is virtually no dispute as to the facts and having considered the material before me, I consider that the real question this court is asked to decide is this:

65. Is there a real danger in the sense of a real possibility that injustice will occur as a result of unconscious bias in the mind of Litton J.A. if he is permitted to take part as Chairman of the Board or at all in the hearing of the appeal?

66. Injustice will occur as result of bias if he unfairly regards with disfavour the case of the Applicant. The suggestion is that if so, Litton J.A.'s decision to stand down was Wednesbury unreasonable.

67. On the evidence, I am not satisfied that any such real danger exists. The Applicant thinks it does but the Applicant has failed to satisfy me at this stage on the material before me that any such real danger exists. I say that having had the advantage of reading the views expressed by Litton J.A. save that, of course, he has not directly expressed views as to whether he himself may have unconscious bias.

68. Even if it were my opinion that there was a real danger, I could not say that in taking the opposite view Litton J.A. was Wednesbury unreasonable.

69. Therefore, I will dismiss this application.

70. I would add that it seems to me that at the time when he was reappointed it was well-known that Litton J.A. was a member of the Board of Governors of Friends of the Earth and I think it reasonable to assume that this fact was not overlooked when he was reappointed. It is not for me to express a view as to the rightness or wrongness of the Governor's decision to reappoint him in those circumstances.

71. It may well be that even now Litton J.A. may have a change of heart and decide not to take part in the hearing of the appeal. That is a matter for him as Chairman to decide in his discretion.

72. If the appeal does proceed all is not lost for the Applicant for the reason I have explained. If it loses the day and takes the view that the result stems from bias on the part of Litton J.A. it will be open to the Applicant to seek to overturn the decision by way of judicial review, or that ground or any other ground which suggests itself.

73. The Application is accordingly dismissed. The Respondent's costs of this application are to be taxed if not agreed and paid by the Applicant. I am very grateful to counsel for their assistance.

(D. J. Leonard)

Judge of the High Court