Transcript THE PLANNING AND COMPULSORY PURCHASE BILL

LOCAL GOVERNMENT LAW
UPDATE
Decision Making in Committee
Anthony Porten QC
Ware v Neath Port Talbot CBC
Judicial Review challenge to planning
permission and hazardous substances consent
granted to National Grid for an Above Ground
Installation on the Milford Haven to Hereford
natural gas pipeline.
Facts 1
The resolution to grant planning permission was
passed by 13 votes to 12. The challenge was
directed at the decisions of four councillors not
to vote and the advice that had been given to
them.
Facts 2
a)
b)
There had been two relevant antecedent
events:
The 4 councillors had attended a party meeting
at which a presentation had been made by
objectors; no officer had been present
Despite a Committee resolution that all
members of the Committee should attend on a
site visit, 2 of the 4 had not attended when the
visit was held.
The Advice: Pre-Meeting
The Monitoring Officers advised:
•
•
•
they should not participate in the decisions if
anything they had said or done at the February
meeting made it likely that they would appear to
have pre-determined the issues.
In terms of a legally secure decision it was
important that they should attend (and should have
attended) the site visit.
In all cases, the members were told that the
decisions were for them to make.
Advice 2


Cllrs T and H left the room before the AGI applications were
considered.
Cllrs W and D sought further advice from the officers after the
item was reached:
– they asked the MO if they should leave the meeting ‘to be
safe’: he told them that if they had expressed no views at
the Party meeting it was ok for them to stay.
– they asked ‘what is the worst that could happen’: he replied
that they would have to say what was said at the meeting if
there was perhaps a complaint to the Ombudsman.
both then left without speaking or voting.
The Challenge - 1
Mrs Ware was disappointed with the result and
the failure of the four Ratepayer members to
vote. Her JR grounds alleged that they had
been subject to undue pressure and had been
‘unlawfully excluded’ from the Chamber.
The Challenge - 2
All four councillors then made witness
statements: all four stated that the decisions
they had made were their own and that they
had not been prevented from voting. This
perhaps should have been the end of the case,
but a new allegation was made that the
councillors had ‘proceeded on the basis of a
misapprehension of law which was potentially
material.’
Judgment – Collins J
Collins J upheld that ground and quashed the permission
and the consent. He said:
 ‘Where it seems to me that the advice given was
clearly wrong, was in raising the spectre of a
complaint to the ombudsman.’
 ‘There should not have been reference to the
possibility of a complaint to the ombudsman ..’
 ‘The immaterial consideration here would be the
advice that was given that the possibility of a claim to
the ombudsman should disqualify.’
The Appeal
Collins J refused permission to appeal.
Permission to appeal was given by the CA:
“the question whether circumstances of this kind should lead to the
quashing of the planning decision may be of some importance
for local authorities”
The CA allowed the appeal, but without dealing with the questions
of importance.
Court of Appeal
There were 11 grounds of appeal, on questions of fact
and law. The Court of Appeal allowed the appeal;
they disposed of it easily by simply correcting the
facts:
“The advice which (the officers) in fact gave to councillors at
several points was not wrong advice … In particular, there
was nothing wrong in advice that there was a possibility of a
claim to the Ombudsman, given, as it was, in response to
questions whether they should leave the meeting “to be safe”
and “what is the worst that could happen?”
Missed Opportunity
This was a missed opportunity for the CA to
pronounce on unresolved questions of law.
The following propositions as to what the law
is, or should be are put forward without any
help from the CA.
Wrong Instructions
If members do not vote as result of being
wrongly instructed not to vote, and their
absence may have affected the decision, that
decision will be quashed:
R (T&GWU) v Walsall [2000] ERLR 329.
Wrong Advice
The result will not necessarily be the same if
wrong advice is given, since members will not
be bound to, and may not, follow it. Certainly,
wrong advice will not vitiate the decision if
members have the opportunity also to take
independent advice
(United Co-Operatives v Manchester City
Council).
The Test for ‘Wrong’ Advice
This question was not tackled by the CA. My
view – the JR test should apply i.e. the Court
should only intervene if the advice was irrational
(‘Wednesbury unreasonable’) and not merely
that the Court would have given different
advice.
Misunderstood Correct Advice
‘The Court would not interfere merely because after the event a
councillor or a number of councillors indicated that they had
misunderstood the position, whether factual or (legal) advice
given. If that advice was a perfectly proper advice, or if the facts
had been properly and satisfactorily set out in the officer's
report, there would be no room, in my view, for judicial review
merely because councillors decided, after the event, or indicated
after the event that they had misunderstood the situation. That
would be to open the door to claims which really would put the
whole process in some confusion.’
[Collins J]
Advice re Potential Complaints
Monitoring officers can properly advise a
member of the possibility of a complaint
against him/her (even if unfounded) and that
he/she might have to explain his/her decision
not to vote, but not with the intention of
causing the member not to vote (i.e. not an
instruction).
Attendance at Meetings
Sensibly - many authorities have adopted
protocols on planning matters which include
advice that members should not attend meetings
where they are likely to be lobbied unless an
officer is present.
Site Visits
Failure to attend on a site visit will not of itself
preclude a member from voting, but a member
should not participate in the decision if not in
possession of all material information. So – a
member who fails to attend on a site visit
should not participate unless he/she has all the
information that might have been gained from
the site visit.
Bias and Predetermination
Court of Appeal decision – July 2008
Persimmon Homes Teesside Ltd v R (Lewis)
[2008] EWCA Civ 746
 [2008] JPL - Jackson J;
 [2008] 2 P&CR 21 - Court of Appeal
Facts 1
In 1999 Redcar and Cleveland Council adopted a
Local Plan that allocated an area at Coatham
Common for major leisure use with linked housing
development. In 2002, at a time when the Council
was Labour-controlled, a scheme was prepared for
the site. In 2006 a planning application was
submitted, which attracted substantial objection
(‘Friends of Coatham Common’ et al). By this time
the Council was controlled by a LibDem,
Conservative and Independent coalition.
Facts 2
Local elections were due to be held on 3 May 2007. A
special meeting of the Planning Committee was
arranged on 3 April to consider the application. There
were objections that the meeting should not be held to
determine such a controversial matter during the run-up
period to the election. But the meeting went ahead. The
Committee voted by a majority of 9 to 2 to grant
permission, unless called in by GONE. All of the
coalition members on the Committee voted to grant
permission.
Jackson J
Mr Lewis sought JR on the grounds that there had
been an appearance of bias or predetermination on the
part of the Coalition members of the Committee.
Jackson J allowed the application and quashed the
permission. He held that there had been a real
possibility of bias or predetermination by reason of a
combination of facts, including that Coalition
Members had expressed their support for the scheme
and that the proposal had been a party political issue
in the elections.
Court of Appeal
The Court of Appeal allowed the appeal. They
took a fundamentally different view of the role
of elected Councillors in the planning process.
They agreed that the pre-election issue was
arguable (though not fatal) but considered, that
apart, there was ‘no possible basis for quashing’.
Pill LJ – judgment
‘Central to such a consideration, however, must
be a recognition that Councillors are not in a
judicial or quasi-judicial position but are
elected to provide and pursue policies.
Members of a Planning Committee would be
entitled, and indeed expected, to have and to
have expressed views on planning issues.’
[para.69]
Pill LJ - ctd
‘The danger of the “notional observer” test is
that the role of elected Councillors may not fully
be taken into account. That could lead to any
Councillor, elected on a pro-scheme manifesto,
creating a serious risk of a Council’s grant of
permission being quashed if he participated in
the decision to grant. That would not be in the
public interest or accord with the law.’
[70]
Rix LJ
‘So the test would be whether there is an appearance of
predetermination, in the sense of a mind closed to the
planning merits of the decision in question. Evidence of
political affiliation or of the adoption of policies
towards a planning proposal will not for these
purposes by itself amount to an appearance of the real
possibility of predetermination, or what counts as bias
for these purposes. Something more is required,
something which goes to the appearance of a
predetermined, closed mind in the decision-making
itself.’ [96]
Conclusion
The Persimmon case shows that Councillors are
entitled to vote on planning applications
notwithstanding that they have previously expressed
views on their merits, so long as they have not
positively closed their minds. The democratic process
cannot work if views expressed by elected members
on emerging proposals disqualify them from
participating in decisions on those proposals at the
planning application stage.
The Code of Conduct
The present version of the Model Code for
England was introduced as recently as May
2007 [SI 2007 No. 1159] but is likely soon to
be replaced.
DCLG consultation document was issued on 1
October 2008 proposing revisions.
Personal & Prejudicial Interests
The Code of Practice does not deal with the
issues of bias and predetermination, save e.g. to
prohibit members from conducting themselves
in a manner which could bring their authority
into disrepute.
The Code deals with personal and prejudicial
interests: the following cases have dealt with
relevant, specific issues.
Beaumont
R v Kirklees MBC ex p Beaumont
[2001] LGR 187
Councillors who were Governors of school A
had a prejudicial interest in a decision to close
school B, where that closure would be likely to
include benefits for school A
Murphy
Murphy v Ethical Standards Officer
[2005] LGR 161
Court confirmed the broad scope of the term “wellbeing” – ‘a condition of contentedness, healthiness and
happiness. Anything that could be said to affect a
person’s quality of life, either positively or negatively,
is likely to affect their wellbeing. It is not restricted to
matters affecting a person’s financial position.’
Scrivens
Scrivens v Ethical Standards Officer
[2005] LGR 641
The test of whether a Councillor has a personal
or a prejudicial interest is objective: it is
irrelevant that the Cllr honestly believed that he
had no relevant interest.
Hostile Wife
H and W in final stages of an acrimonious
divorce.
H was proposed for co-option to the Council.
W had a prejudicial interest and should have
withdrawn from the meeting that dealt with the
matter.