Strong constitution

A recent Court of Appeal decision highlights the need for local authority lawyers to give long-established council procedures a robust healthcheck, writes Nicholas Dobson.

Things are always fine until they’re not fine. So they can roll along very nicely for months, maybe years before suddenly - bump! A resounding crash, leaving everyone (as the old rock song had it) “all shook up”.

It is often the aggrieved who have the drive to commit the substantial time and resources to upturning acres of moss-covered legal stones to unearth the creepy-crawlies beneath. So it was for South Norfolk District Council when the Friends of Hethel Limited (the Appellant) took exception to a decision by the council’s planning committee to grant planning consent for the erection of three wind turbines (each having an overall maximum height of 120m) in the Hethel district of Norfolk. And on 30 July 2010 the Appellant succeeded when the Court of Appeal upheld its contentions that the council’s decision was unlawful, overturning the decision of Cranston J below (see R (Friends of Hethel Ltd) v. South Norfolk District Council & another [2010] EWCA Civ 894).

There were two key points at issue. The first (the subject of this article) contended that the council’s constitution contravened the majority voting provisions in paragraph 39(1) of Schedule 12 to the Local Government Act 1972. The second was that the council had failed to consult English Heritage as required by the relevant planning circular (01/01) on arrangements for handling heritage applications. The council’s decision was held to be unlawful on both counts.

Delegation and Voting Majority

Life with its relentless momentum doesn’t often make a journey into the lesser trodden byways of the Local Government Act 1972 seem particularly compelling. Schedule 12 of the 1972 Act (dealing as it does with local authority meetings and proceedings) will often seem to be purring along nicely but unnoticed like a ship’s engine far below, keeping the authority steadily on course. But sometimes a gap can build up between what the authority is doing and what the 1972 Act actually requires. And that was the conclusion in the instant case.

The Law

Section 101 of the 1972 Act deals with delegation of local authority functions (other than those which are the responsibility of an authority’s executive under section 13 of the Local Government Act 2000). Section 101(1) provides that (subject to any express statutory provision) a local authority may arrange for the discharge of any of its functions by a committee, sub-committee or one of its officers.

Paragraph 39(1) of Schedule 12 to the 1972 Act provides that (subject to the provisions of any enactment) ‘all questions coming or arising before a local authority shall be decided by a majority of the members of the authority present and voting thereon at a meeting of the authority’. And paragraph 44(1) of Schedule 12 applies paragraph 39 (amongst other provisions) to council committees and sub-committees as to the authority itself.

Council’s Arrangements

As to planning functions, the council made arrangements for these to be discharged by its planning committee and three area planning committees.

Under the council’s constitution, the planning committee discharged planning and building control functions within council policies, with voting to be by simple majority. The area planning committees determined certain applications within their area subject to decisions stated by the Head of Planning Services to be “contrary to policy”. In such instance (except for “applications of minor importance which do not raise issues of significant precedent”, which were to be determinable by simple majority vote) unless the number of votes in favour of the proposed course of action amounted to at least two-thirds of the number of the constituted membership of the area planning committee then the matter was to “stand referred to the planning committee”.

Decision of the Court of Appeal

The leading judgment was given by Sullivan LJ who accepted submissions by the Appellant including that section 101 of the 1972 Act does not deal with how decisions are taken by local authorities but with who takes them within the authority, i.e. full council or a committee, sub-committee or council officer. If a decision is taken at officer level, the voting issue does not arise.

And whilst paragraph 39(1) is “subject to any enactment”, section 101 makes no reference to voting, much less authorising delegation subject to special majority. But the power in section 101 to arrange for discharge of authority functions is subject to “any express provision” in the 1972 Act. And paragraph 44(1) makes such express provision by applying paragraph 39(1) for majority voting where the authority has arranged to discharge its functions by a committee or sub-committee.

The section 101 delegation arrangements could lawfully have delegated authority to the area planning committee to determine planning applications if its majority decision were in accordance with the Head of Planning’s recommendation with the matter otherwise being referred to the planning committee. However, in the view of Sullivan LJ what the arrangements “could not lawfully do was to override paragraph 39(1) and provide, in effect that a decision to grant or refuse planning permission contrary to the recommendations of the Head of Planning Services would be taken by a two-thirds majority”.

Consequently, on the basis that the two-thirds requirement was unlawful “there was no valid reference to the planning committee and it did not have power to determine the application” which was consequently ultra vires.

Lloyd LJ agreed with Sullivan LJ as did Sedley LJ who nevertheless added some observations on this “finely balanced” decision and indicated his sympathy with the council’s approach. For, leaving aside the statutory requirements, the arrangement that the council had put in place made “very good sense”. This is because it enables an area planning committee to decide local applications but to guard against “parochial bias or local idiosyncrasy” by providing that any vote with less than a 2:1 majority to refuse permission contrary to officer advice will go back to the planning committee. And if (as he went on to conclude) legislation prevents this, it seemed to him to be “a great pity”.

But whilst Sedley LJ would like to have found a way of enabling the arrangement without transgressing Schedule 12: “What in the end has to be conclusive is that an area committee, as a body to which the local authority’s powers have been delegated, is required by law to exercise those powers by a simple majority of those present and voting and in no other way”.

And whilst His Lordship ventilated the theoretical possibility that there might within Schedule 12 be “more than one kind of majority, so that a council is free to choose what size of majority is to operate in each of its forums”, nevertheless he considered this impractical. For “a council could paralyse its successor by requiring all decisions (including a decision to change the rule itself) to be taken by, say, a four-fifths majority’” And it was ultimately the possibility that the council’s “well-meant and sensible provision could recur in less sensible form elsewhere in local government law” that finally persuaded him that Sullivan LJ was right on this issue.

Comment

Whilst this was a unanimous decision of the Court of Appeal, there were clearly encouraging words for the council from Sedley LJ on what he considered to be a “finely balanced” decision on a “well-meant and sensible provision”.

But whilst in this case a searching sojourn into Schedule 12 might not at the time have persuaded the council to have acted any differently, the decision does illustrate the need for local authority lawyers periodically to give long-established council procedures a robust healthcheck. For familiar, bread and butter processes can fade over time into invisibility. That is of course until an aggrieved challenger comes along, yanks off the invisibility cloak and declares war. And it is then that what previously might have been dismissed as routine – even boring, starts to be seen in a much more sombre light.

© Nicholas Dobson

Dr Nicholas Dobson is a senior consultant with Pannone LLP, specialising in local and public law. He is also communications officer for the Association of Council Secretaries and Solicitors.