Predetermination in Public Consultations: Lessons since 2020

Introduction – Why revisiting predetermination matters

An article from January 2020 on tCI’s News & Insight page discussed two judicial review claims filed by the Fews Lane Consortium against South Cambridgeshire District Council (SCDC). The first claim alleged that SCDC announced a public consultation on a planning application and then approved it before the consultation period concluded. The second claim challenged SCDC’s practice of making delegation decisions in meetings that were neither announced nor open to the public, which the Consortium argued violated the Local Government Act 1972. Residents believed the council’s approach demonstrated predetermination, as it made a decision prior to considering community input. The article noted that a High Court judgment was expected later that year.

Since then, the legal landscape surrounding predetermination and bias in public consultations and planning has evolved. Fews Lane’s own cases did not lead to clarifying judgments because their challenges were withdrawn. However, other court decisions and guidance offer lessons on how public bodies should avoid predetermination while still being able to express legitimate views. This updated summary outlines developments since 2020, explains the legal concept of predetermination and predisposition, reviews key cases, and highlights best practices for consultation professionals.

Understanding predisposition, predetermination and bias

Public officials often form initial opinions on issues. In law and good consultation practice, it is essential to distinguish between ‘predisposition’ (having a tentative view) and ‘predetermination’ (having a closed mind). A guidance note on predetermination and bias explains that ‘predisposition’ occurs when a councillor or decision-maker holds a provisional view but remains open to considering and weighing relevant factors before reaching a final decision. Strong predisposition can even be publicly expressed if the decision-maker is willing to be persuaded by new arguments. In contrast, ‘predetermination’ happens when the decision-maker’s mind is closed to the merits of alternative arguments and they have effectively decided the issue prior to examining all relevant factors. Predetermination can be inferred from behaviour such as publicly announcing how one will vote, issuing decisions before consultation concludes, or ignoring relevant information.

Bias occurs when a decision-maker favours or disfavours a specific person, organisation, or outcome, and a fair-minded observer would see a real chance of bias. In planning and consultation settings, allegations usually concern apparent bias or predetermination; actual bias is rare and hard to prove.

A “fair-minded and informed observer” test is employed to evaluate whether there is predetermination or apparent bias. Decision-makers should consider whether such an observer would believe there is a genuine chance they had predestined the issue or were biased. This test protects democratic expression (prejudice) while preventing closed-minded decision-making.

Legislative framework – the Localism Act 2011 and Gunning principles

In the early 2010s, concerns arose that councillors were discouraged from participating in local debates due to fears of predetermination challenges. In response, section 25 of the Localism Act 2011 clarified that it is proper for councillors to engage actively in local discussions and express views without automatically being considered to have predetermined the issue. A government guide explains that the Act was designed to clarify predetermination rules because previous interpretations had stifled debate; councillors were warned against campaigning or expressing their opinions. The Act makes clear that councillors may still be liable if they have a closed mind, but simply being predisposed or having publicly expressed a view does not in itself invalidate their participation.

In all public consultations, the Gunning principles remain the essential foundation of lawful engagement. The first principle states that consultation should occur while proposals are still being developed, meaning there must be no predetermined outcome before consultees have a genuine opportunity to influence the decision. Subsequent principles require providing sufficient information for consultees to respond thoughtfully, allowing adequate time, and carefully considering their responses. Violating the first Gunning principle by making a decision in advance may lead to findings of illegality.

What happened to the Fews Lane challenges?

Although the 2020 tCI article anticipated a High Court ruling, the Fews Lane cases concluded without a substantive judgment. In November 2022, the Consortium abandoned its judicial review claim against SCDC regarding the Northstowe development the day before the hearing, and a judge ordered the group to pay £10,000 towards the council’s costs. The council stated that the consortium’s claim concerned whether it had adequately assessed the environmental effects of the development and whether advice to councillors was sound; Fews Lane discontinued the case. With the judicial review withdrawn, the High Court did not decide whether predetermination occurred.

The outcome nonetheless emphasises the reputational and financial consequences of alleging predetermination without solid evidence. Councils spent significant sums defending claims, and the consortium was ordered to pay costs. The absence of a judgment means practitioners must rely on other cases for guidance.

Recent case law on predetermination and bias

Westferry Printworks and the Westferry saga (2020–21)

In 2020, the Westferry Printworks planning saga drew significant attention. A former Secretary of State approved planning permission for a large development in East London just before a new Community Infrastructure Levy (CIL) charge would have increased the developer’s obligations by around £40 million. Training materials on bias and predetermination explain that the High Court found the decision showed apparent bias and predetermination because it was accelerated during an election period and aligned with the developer’s interests. The court emphasised that while elected members may legitimately be predisposed, “something more is required” to establish predetermination. In this case, the timing and context created a real possibility of bias, prompting the Secretary of State to concede and revoke the decision. This case highlights that even senior ministers can be susceptible to apparent predetermination and that transparency about decision-making processes and timing is crucial.

Isle of Wight Council case: distinguishing predisposition from predetermination (2024)

In Greenfields v Isle of Wight Council (High Court, August 2024), a local campaign group called Greenfields challenged the grant of permission for a 473-home development, alleging procedural impropriety, bias, and predetermination. The judge noted that the committee meeting was controversial and that some councillors were predisposed against the application. However, he held that the committee chair was entitled to be concerned about predetermination and to remind members of the need for planning grounds. The judge distinguished between predisposition and predetermination: members could hold strong views, but unless a fair-minded observer would conclude they had a closed mind, the decision would not be invalid. He concluded that procedural irregularities had been overtaken by subsequent events and that there was no apparent bias. The case reinforces that allegations of predetermination require clear evidence of a closed mind.

Wokingham Borough Council and social media (2024)

In early 2024, a councillor on Wokingham Borough Council’s planning committee voted against a housing application while being a member of a local Facebook campaign group opposed to the development. A later investigation concluded that the councillor should not have participated because his membership of the campaign group indicated that he had pre-determined the matter. wardhadaway.com. The council’s standards committee recommended training on registering memberships of local campaigns and social media groups. wardhadaway.com. Observers emphasised two points: declaring an interest is not sufficient if participation gives the appearance of predetermination, and membership of social media groups can create perceptions of bias. wardhadaway.com. This case shows how online activity can inadvertently signal predetermination, highlighting the importance of transparency and caution when councillors engage with campaign groups.

Other developments

• Gunning principles clarified: Recent Court of Appeal judgments, such as R (Eveleigh) [2023] and other subsequent cases, have clarified that the Gunning principles apply only when a public authority proposes a specific decision that is likely to have a direct impact and when the proposal is sufficiently developed to enable an informed response. If engagement constitutes high-level information gathering, it may not be considered a consultation subject to the Gunning rules.
• Training and guidance: Local authorities and professional bodies continue to publish guidance on predetermination and bias. The Local Government Association emphasises that councillors must consider planning matters on their merits and avoid giving the impression of having made up their minds before hearing all evidence.

Lessons for consultation and engagement practitioners

Maintain consultations early in the process. Avoid making decisions or giving the impression that decisions have been made before consultations conclude. As seen in the Fews Lane case, announcing a consultation and then issuing a decision beforehand risks breaching the first Gunning principle and could lead to legal challenges.

Differentiate between predisposition and predetermination. It is acceptable for decision-makers to hold initial views or campaign on issues, provided they remain open-minded and willing to change their opinions. Public statements should not suggest that the decision is final.

Be transparent and keep records. Meetings, reasons for decisions, and evidence considered should be publicly accessible. Allegations against SCDC included making decisions at undisclosed meetings; even if such decisions are lawful, lack of transparency can create perceptions of bias.

Consider online activity. Membership of local campaign or social media groups may give the impression of predisposition. Councillors should disclose such memberships and consider recusal if a perceived bias could arise.

Provide training. Authorities should educate councillors and officers on predetermination, bias, and the Gunning principles. Misunderstandings of these concepts can cause procedural errors.

Utilise the Localism Act’s flexibility wisely. Although councillors may express views without automatically being considered to have predetermined issues, they should approach decision-making with an open mind and carefully consider consultation responses.

Conclusion – Vigilance over predetermination

Predetermination challenges the essence of meaningful consultation. The withdrawal of Fews Lane’s challenges means there is still no definitive ruling on predetermination in that context, but later cases show the courts’ balanced approach: elected members can be predisposed but must remain open-minded. The Localism Act grants councillors more freedom to engage with constituents, yet the fair-minded observer test still applies. For those involved in consultations, the key advice is to start early, provide clear information, maintain an open mind, and record how public views influence decisions. Avoiding even the appearance of predetermination not only reduces legal risks but also fosters trust in public decision-making.

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