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 (T&GWU) 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 P&CR 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 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]

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 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.’

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.