Councils entitled to create standing orders regulating circumstances in which a member will be entitled to vote: Supreme Court

The Supreme Court has unanimously dismissed an appeal concerning whether Tower Hamlets Council was entitled to make a rule that only councillors who had been present when a planning application had previously been considered could vote on the deferred application.

In The Spitalfields Historic Building Trust, R. (on the application of) v London Borough of Tower Hamlets & Anor [2025] UKSC 11, Lord Sales, with whom Lord Reed, Lord Hamblen, Lady Rose and Lord Richards agreed, found that the Local Government Act 1972 confers powers on the council to make standing orders regulating the proceedings of its committees and this includes the power to regulate the circumstances in which a member will be entitled to vote.

He added that there is no basis for interpreting these powers in a "narrow way" so as to make the provisions in the council's standing orders unlawful.

The case centred on a planning application, which first came before the council's development committee in April 2021, to redevelop part of the old Truman Brewery Site on Brick Lane in East London.

Five members of the committee were present at the committee meeting. The committee voted unanimously to defer consideration of the proposal.

The committee would next consider the planning application in September 2021. However, by that point, the composition of the committee had changed since the April 2021 meeting.

The council's standing orders provided that where a planning application is deferred and its consideration recommences at a subsequent meeting, only members present at the previous meeting will be able to vote on the application.

In accordance with that rule, it was announced at the beginning of the 14 September 2021 meeting that only councillors who were present at the meeting on 27 April 2021 could vote on the planning application.

The committee resolved to grant planning permission by a vote of two to one.

The appellant, the Spitalfields Historic Building Trust, then applied for judicial review of the decision, which eventually led to the case being considered by the Supreme Court.

The standing orders in question state that in order to be able to vote upon an item "a Councillor must be present throughout the whole of the Committee's consideration including the officer introduction to the matter".

Another part of the standing orders provides that "[w]here an application is deferred and its consideration recommences at a subsequent meeting only Members who were present at the previous meeting will be able to vote".

The Trust contended that these restrictive voting rules were unlawful.

Summarising the appellant's position in his judgment, Lord Sales wrote: "The objectors contend that the restrictive voting rule in the standing orders was adopted by the Council unlawfully, with the consequence that the decision on the planning application has been taken unlawfully and the outcome of that application remains to be determined."

The appellant's legal submissions claimed that councillors who are members of a local authority committee are entitled to vote on matters before the committee if present at the meeting unless prohibited by statute from doing so.

They argued that the power in para 42 of Schedule 12 of the 1972 Act for a local authority to make standing orders "for the regulation of their proceedings and business" and the power in section 106 of the 1972 Act to make standing orders, supplement rights and restrictions in the legislation governing the operation of local authorities and do not include the power to prohibit councillors who are committee members from voting, since their right to do so is itself a feature of that legislation.

The appellant said that this was supported by provisions in the Housing Act 1989, which affirm the importance of the right of a councillor who is a member of a local authority committee to be able to vote on matters to be decided by that committee in order to maintain a proportional representation of political groups with respect to "seats" on that committee.

They also contended that councillors have a right to vote, which is implicit in the 1972 Act.

On this point, the appellant argued that an important feature of the context for the 1972 Act is that the members of a local authority are elected by their constituents to represent them in carrying on the affairs of the authority, which they do by voting on matters which come before the authority or any committee of the authority on which they serve.

According to the judgment, the appellant claimed: "It would be a strong thing for an elected councillor to be disenfranchised by being prevented from voting and thereby disabled from fulfilling the representative role to which they have been elected and appointed, since that would constitute a form of indirect disenfranchisement of the constituents whom they are in place to represent."

The appellant further argued that the general language used in para 42 of Schedule 12 and section 106 of the LGA 1972 to confer power on a local authority to make standing orders "cannot be taken to include the power to achieve such a result".

"Clearer and more specific language would be required to give a local authority power to make a standing order which had that effect", they argued.

Lord Sales did not accept the appellant's submissions, noting: "In my view, the provisions in paras 39 and 42 of Schedule 12 and in section 106 of the LGA 1972 should be read according to the natural and ordinary meaning of the language used in them, as the judge and the Court of Appeal interpreted them."

He continued: "It is true that a councillor's ability to vote is a central feature of their role in representing their constituents and the public who reside in the local authority's area and as participants in the conduct of the business of the local authority of which they are a member.

"However, it falls to be located in the wider context of the LGA 1972, the provisions of which enable the authority or its committees to take effective and lawful action."

As such, he found that the relevant standing orders were lawfully made under these provisions.

Lord Sales meanwhile found that the appellant's reliance on the 1989 Act was "misplaced" and noted that the act "does not change the interpretation of paras 39 and 42 of Schedule 12 and section 106 of the LGA 1972 nor change their operation according to the ordinary meaning of each of those provisions."

"On the contrary, the relevant provisions in the 1989 Act are grafted onto the decision-making regime set out in the 1972 Act and presuppose that it applies in the usual way."

The judge then turned to the argument that councillors have a right to vote.

The appellant submitted that a councillor always has a right to vote on a matter which is before the full council or a committee of which he or she is a member, even if they are disqualified from doing so (for example, by the rules derived from common law or the statutory provisions referred to at para 39 above) and their participation would make its decision unlawful.

"It is a matter for his or her conscience whether to withdraw or to insist on exercising that right," they claimed.

Lord Sales said: "This is not correct. It elevates the legal force of the asserted right of a councillor to vote to an unsustainable degree and disregards the context of the LGA 1972. If the law says that a councillor is not entitled to vote, that means he or she is not entitled to vote."

Lord Sales finally added that a local authority "has power under para 42 of Schedule 12 and section 106 of the LGA 1972 to make standing orders which are properly directed to reducing the risk of any impression of bias, pre-determination or other unlawfulness in the decision-making processes of the authority, thereby minimising the scope for possible legal challenges and promoting the legitimacy of planning decisions in the eyes of the public".

He added: "The relevant standing orders in this case can be seen in this light and impose lawful constraints."

Adam Carey