The art of delegation

A recent case involving Leeds City Council highlights the importance of having a valid scheme of delegation in place. Jack Anderson takes an in-depth look at the ruling.

Given the number and variety of functions conferred on local authorities it is inevitable that local authorities make frequent use of the power under section 101 of the Local Government Act 1972 to arrange for the discharge of their functions by officers of the authority.

The importance of ensuring that the arrangements for delegation are clear and lawful is underscored by the recent decision in Technoprint v Leeds City Council [2009] EWHC 3220 (Admin) CO/4212/2008 in which case, Leeds City Council submitted that thousands of decisions may have been vulnerable had its scheme of delegation not been upheld. The case may also provide a useful precedent as to the meaning of “agree” in the context of a council’s constitution.

In December 2001, Leeds City Council adopted a constitution (“the Constitution”) pursuant to the Local Government Act 2000. Part 3, section 2C of the Constitution made provision for an officer delegation scheme in respect of various functions including planning functions. Some such functions were delegated to a director of planning and environment. Part 4 of the Constitution comprised the Council Procedure Rules. Rule 1.1(i) provided that the annual meeting of the Council would “agree the scheme of delegation or such part of it as the Constitution determines it is for the Council to agree (as set out in Part 3, Section 2C of this Constitution)”.

In fact, annual meetings of the Council did not expressly agree by resolution the whole scheme of delegation contained in Part 3, Section 2C. The annual meeting of the Council would however approve any variations or amendments to the Constitution. In 2003, the Council was reorganised and, amongst other things, the post of director of planning and environment ceased to exist and planning functions were transferred to the new post of chief planning and development services officer. In Spring 2003, a report “review of Pt 3 of the constitution” was produced. The proposed amendments to the constitution were considered at a meeting of the full Council in March 2003. The minutes of the 2003 meeting stated that it was resolved that the amendments be approved.

In February 2008, a decision to grant planning permission for development was made by a planning officer of the Council and notified by the chief planning and development services officer. The Claimants applied for the decision to be quashed. Amongst other things, the Claimants contended that there was no valid scheme for delegating power either to the planning officer or the chief planning and development officer.

First, the Claimants argued that under rule 1.1(i) of the Council procedure rules, the full council had expressly to agree the scheme of delegation annually by resolution.

Second, the Claimants argued that the Council had before the 2003 meeting failed to comply with the requirements of s 100B(1) and (3) of the Local Government Act 1972 requiring that copies of reports for meetings be made available for inspection by members of the public for at least five days before the meeting. For that reason, the resolution relating to the scheme of delegation was invalid.

So far as that second point was concerned, the judge was not persuaded on the evidence available that he should conclude on the balance of probability that relevant reports were not made available to members before the 2003 meeting. The provision that reports had to be made available for public scrutiny at least five clear days before a relevant meeting was subject to the qualification that reports need not be made available for inspection by members of the public until available to members of the council; there was no requirement that reports be available to members of the council five days in advance of the hearing. Even if that was not the case, the judge was not convinced that failure to provide reports for public scrutiny in due time would necessarily render the decision invalid.

As to the question whether the Council had agreed a valid scheme of delegation, the judge held that “agree” in the procedure rules was to be given “its ordinary and natural meaning given the context in which it was used. The ordinary and natural meaning of “agree” encompassed agreement by express words, by conduct or by a combination of both”. While it was indeed the case that the full council had to “agree” the scheme of delegation, there was no reason to interpret “agree” as requiring agreement by express resolution.

The judge considered that, on the facts, the Council had agreed a valid scheme of delegation. The Constitution as adopted in 2001 contained a valid scheme of delegation and the Council thereafter proceeded on the basis that all parts of that Constitution remained in force unless it was resolved otherwise. At the 2003 meeting, the judge accepted as a matter of fact that what was agreed by the full council was the scheme of delegation contained within a report of the Council’s monitoring officer (the Claimant had questioned as a matter of fact whether the relevant report and information was put before members). Thereafter, the Council had not expressly resolved to adopt the whole scheme of delegation contained in Part 3, concerning itself only with proposed amendments, but by proceeding in this way the Council was as a matter of fact agreeing to the remaining in force of a valid scheme of delegation.

The judge considered this to be a sensible approach to amending the Constitution as and when necessary, noting that anybody reading the Constitution from time to time would be aware of the scheme of delegation then in being and that anybody with a sufficient interest in the matter could take issue with the proposed amendments to Part 3 Section 2C.

Even if there had not been a valid scheme of delegation in place, these considerations led the judge to consider that there would be no proper basis for granting relief which would cause decisions made in accordance with the scheme of delegation as it evolved between 2001 and 2008 to be declared unlawful. Likewise, if there had been a failure to produce proper documentation before the meeting in 2003, that would not warrant quashing a decision based on the scheme of delegation several years later, during which time thousands of decisions had been taken based on that scheme of delegation.

On the facts of the present case, then, the judge concluded that there was a valid scheme of delegation; and even had there not been, would not have granted relief. However, the case does highlight the importance of ensuring that a valid scheme of delegation is in place.

In considering the question of relief, the judge appeared particularly concerned by two factors relating to the length of time for which the scheme of delegation operated in practice. First, that having been so long operated in practice to quash a decision made under the scheme would disturb settled expectations as to how the Council operated (on the part of both the Council itself and the public). Second, having been so long operated in practice there were a vast number of decisions potentially affected. However, had the scheme been held to be invalid on the basis of a challenge brought soon after its inception that may have rendered decisions vulnerable to a challenge that could straightforwardly have been avoided.

Jack Anderson is a barrister at 4-5 Gray’s Inn Square.