Planning essentials case update: Councillors and the right to make decisions

Last month we wrote here about the Government’s proposals in the Planning & Infrastructure Bill to require members of planning committees to undertake mandatory training before engaging in planning decision-making. Since then, the Supreme Court has considered whether local planning authorities can restrict the rights of their members to make decisions through another avenue - their constitution. 

The case of R (The Spitalfields Historic Building Trust) v London Borough of Tower Hamlets concerned a planning application to develop a disused brewery into an area of office, retail and restaurant use. Planning officers recommended approval and the application was considered by the local authority’s planning committee in April 2021. However, councillors deferred the application to allow more time to negotiate the terms of a legal agreement. 

The application was brought back to committee in September 2021, again with an officer recommendation. At the start of the committee meeting, the Chair explained that - in accordance with the Council’s constitution as set out in its standing orders - only councillors who had been present at the April committee meeting could vote. The committee resolved to grant permission and the decision was subsequently issued. Spitalfields Historic Building Trust challenged the decision by judicial review and the case reached the Supreme Court. 

One of the grounds for the challenge related to whether councillors were unlawfully excluded from voting due to the Council’s standing orders. In its decision, the Supreme Court noted that the right of a councillor to vote cannot be regarded as absolute or fundamental. The Court drew parallels with a councillor who cannot vote where they are biased, have a predetermined view or have a pecuniary or other personal interest in the outcome. If a councillor did vote in such a scenario, the decision would be unlawful and liable to be set aside.

The Court went on to consider the legislative restrictions on a local authority – noting that authorities have the power under the Local Government Act 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. 

The Court concluded that Parliament clearly intended that the entitlement of members to vote should be subject to standing orders that promote a proper and relevant public interest. As such, the Council’s standing orders were valid, the committee had taken a lawful course of action and the grant of planning permission stood. 

The case is a useful reminder of a local authority’s ability to restrict planning decision-making through its constitution. Whilst the Planning & Infrastructure Bill mandates training of councillors, it specifically provides that a councillor’s lack of training will not affect the validity of a decision taken by that councillor. It will therefore be interesting to see how authorities ensure that councillors are undertaking the mandatory training.