Council defeats Court of Appeal challenge over rule in constitution on councillor voting and deferred planning applications

The London Borough of Tower Hamlets was entitled to make a rule that only councillors who had been present when a planning application had previously been considered could vote on deferred applications, the Court of Appeal has found.

[Read Philip McCourt of Bevan Brittan’s analysis of this case: The power to regulate proceedings and place restrictions on councillor voting]

Sir Keith Lindblom, Senior President of Tribunals, said the Spitalfields Historic Building Trust (SHBT) had appealed against Morris J’s dismissal last year of its claim for judicial review of Tower Hamlets’ grant of planning permission for a development of mixed uses on the Old Truman Brewery site.

The application first came before the council’s development committee in April 2021, and was deferred to September, when planning permission was given.

SHBT said in the High Court that committee members were told unlawfully that they may not vote on the application at the second meeting if they had not been present at the first, and that the committee's procedure was unfair because public speaking was not permitted at the second meeting.

It also argued that the council failed to have regard to relevant policies of the draft Spitalfields Neighbourhood Plan.

In The Spitalfields Historic Building Trust, R (On the Application Of) v London Borough Of Tower Hamlets [2023] EWCA Civ 917 Sir Keith said that the sole ground of appeal now was that the High Court had been wrong to find Tower Hamlets was empowered to make standing orders under the Local Government Act 1972, Schedule 12, [paragraphs] 42 and 44 removing the right of committee members to vote.

He said: “It is common ground between the parties, and I agree, that it was not irrational for the council to restrict voting on deferred applications to the members present at the first meeting at which such an application has been considered.

“The central dispute in the case is whether, despite this being a rational provision to put in place as a standing order, to do so was nevertheless ultra vires because it lay outside the council's power under paragraph 42 of Schedule 12 to the 1972 Act to use standing orders to regulate its own ‘proceedings and business’."

SHBT argued that three councillors present at the September meeting were unlawfully prevented from voting as they had not been at April’s meeting.

It argued that the right of an elected councillor to vote on matters before a committee of which he is a member is "sacrosanct" and can only be overridden by clear statutory words.

The council argued that the 1972 Act does not constrain the regulation by local authorities of their ‘proceedings and business’ under standing orders, and does not preclude restrictions on voting.

Sir Keith said: “I accept the argument…that paragraph 42 of Schedule 12 to the 1972 Act empowered the council lawfully to make a standing order in the form of [the restriction on voting].

“This was, in my view, a measure within the legitimate reach of standing orders ‘for the regulation of [the council's] proceedings and business’.

“To restrict the entitlement to vote to those members who had been present on the first occasion when the matter in question was considered was not merely rational but properly within the council's powers under the local government legislation. “

Agreeing with Sir Keith, Lord Justice Coulson said SHBT had been “driven to emphasise a more extreme argument…that, since the right to vote was implicit in the 1972 Act, it could only be restricted or removed by express statutory provision and not otherwise. In effect, his argument was that a restriction on voting of this kind could only be made by statute, and not by standing order.

“That is a very wide-ranging submission, with potentially significant consequences. Given that the statutory exceptions are so modest, it would mean that, potentially, a large swathe of local authority voting restrictions of this kind, in force all over the country, would be unlawful. I do not accept this submission. I can see no basis for it in the 1972 Act.” 

Lord Justice Bean agreed with both judges.

Mark Smulian