LOCAL GOVERNMENT LAW UPDATE Decision Making in Committee

1
LOCAL GOVERNMENT LAW UPDATEDecision Making in
Committee

• Anthony Porten QC

2
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.

3
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.

4
Facts 2

• 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.

5
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.

6
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.

7
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.

8
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.

9
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.

10
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.

11
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?

12
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.

13
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 (TGWU) v Walsall 2000 ERLR 329.

14
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).

15
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.

16
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

17
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).

18
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.

19
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.

20
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 PCR 21 - Court of Appeal

21
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.

22
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.

23
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.

24
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.

25
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

26
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 Councils
  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

27
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

28
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.

29
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.

30
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.

31
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

32
Murphy

• Murphy v Ethical Standards Officer
• 2005 LGR 161
• Court confirmed the broad scope of the term
  well-being a condition of contentedness,
  healthiness and happiness. Anything that could be
  said to affect a persons quality of life, either
  positively or negatively, is likely to affect
  their wellbeing. It is not restricted to
  matters affecting a persons financial position.

33
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.

34
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.