England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QBD (ADMIN COURT)
FORBES J

		Royal Courts of Justice Strand, London, WC2A 2LL
		28/07/2004

Lord Justice Latham :

1. This appeal raises an issue which curiously, has not, been the subject matter of judicial review before, even though the problem it reflects must have arisen many times. What happens when there is a dispute as to the number of votes cast in a meeting in circumstances where there are no statutory or procedural rules governing the meeting which deal with the issue? This appeal is concerned with a meeting of the Planning Control Committee of the respondent at which it was recorded that planning permission be granted for a development to which the appellants objected. The respondent asserts that the voting was 7 – 6 in favour of the grant of permission; the appellants counted the votes as being 6 in favour and 7 against. Although the appellants raised the matter at the meeting in circumstances to which I will return, the meeting proceeded without any verification or other investigation of the votes in fact cast.
2. The planning application related to the proposed development of land on the plot next door to the appellants' property. The appellants had objected to the development on amenity grounds. The application had a chequered history in the sense that in its original form, planning permission was refused on the 14^th March 2002. Thereafter amended plans were submitted and there was a considerable amount of discussion between the respondent, the applicants for planning permission, and the appellants. When the matter came before the Planning Control Committee on the 2^nd April 2003, the Committee had before it a report from the Planning Officer recommending approval. The appellants and their Parish Councillor, Mrs Hill, were permitted to address the meeting, as were the applicants for planning permission. The dispute as to what happened when the matter was put to a vote is set out in the following witness statements.
3. In Mr Tromans' witness statement of the 23^rd April 2003, he said:

"Regarding the vote, it was recorded as 7 to 6 in favour of approval. My wife counted 6 in favour and 7 against, as did Councillor Jean Hill and a second Parish Councillor, Councillor D Clarke who was there for an unrelated application. Councillor Hill indicated this to Paul Garbett, Head of Cannock Planning Department and asked for a re-count."

4. Mrs Tromans, in her witness statement of the 6^th June 2003, said:

"At the aforementioned meeting the count was recorded as 7 to 6 in favour of approval. I myself recollect counting the vote as 6 in favour of approval excluding the chairpersons vote, and 7 against approval. This number included the vote of Councillor Carol Boyle who entered the room during the vote and raised her hand to be counted. She had been present throughout the relevant speeches of my husband, the applicant and Jean Hill and only left the room for a few moments returning in time to cast her vote. Thus my personal recollection is a vote of 7 to 6 in favour of refusal without the Chair's casting vote.

When the vote was recorded as 7 to 6 in favour of approval I immediately turned to Jean Hill sitting beside me to voice my belief that this was incorrect. She was simultaneously turning to me and agreed that she also considered the vote to be incorrect. We had both counted 7 to 6 in favour of refusal. We raised our concern immediately with Councillor Todd. Councillor David Clarke seated behind us was nodding in agreement. He also thought the vote was incorrect."

5. Mrs Hill, in her statement of the 6^th June 2003, said:

"6. I counted the votes at the time of the vote and counted 7 to 6 in favour of refusing the application (with the Chairperson not voting) but it was announced that the permission was granted. I included Councillor Mrs C Boyle as she had walked in during the count with her hand up.

7. I immediately pointed out to Councillor Todd who was a Cannock Chase Councillor that I thought there had been a miscount. He said that the Chairperson had the casting vote.

8. There was a recess at this point and during the recess I spoke to Paul Garbett, the Planning Officer, and made the same point about the count, but he also said that the vote was correct. He also said it was too late now as he had to go on with the meeting.

9. Both Councillor Clarke and Councillor Green who are Parish Councillors and were present said to me that Mrs Boyle's vote should have been counted and this would have meant that the vote would have been 7 to 6 against the application"

6. The Chairperson at the meeting was Councillor Mrs Stretton. In her witness statement of the 5^th September 2003, she said:

"18. The claimants allege that there was a miscount of the votes at the planning control meeting of the 2^nd April 2003. This is untrue. I counted the votes and noted that there were 7 votes for the application and 6 against the application. As is my normal practice, I asked the solicitor from the Legal Services Department to verify my counting of the votes. She confirmed that the vote was 7 to 6, in favour of the application. As I recall, I did not vote."

7. Paul Garbett, the head of Planning Services in his statement of the 29^th September 2003, said:

"16. …. a motion to approve the application as recommended in the Officer's report was moved and seconded, and a vote was taken on this motion. I counted the votes. Seven votes were in favour of the motion and six votes were against. Two other council officers present at the meeting, Mrs Joyce McGoldrick (Solicitor) and Mr James Dean (Committee Clerk) also counted the vote and recorded the result as 7 to 6 in favour of the motion.

17. One member of the committee, Councillor Mrs Carol Boyle, had left the meeting at an earlier stage and re-entered the room just at the time that the counting of votes had been completed. She did not participate in the vote.

18. At a later stage in the meeting the Chairperson called a short adjournment for a "comfort break". During the adjournment Mrs Jean Hill approached me and stated that she believed the vote had been miscounted. She appeared to be under the impression that Councillor Mrs Boyle had participated in the vote. I replied that I was satisfied that the vote had been counted correctly."

8. Mr Garbett exhibited to his statement the notes that he had taken at the meeting. These recorded that the vote was 7 to 6 in favour of the motion. It also recorded that "C. Boyle returned to Chamber as vote was being taken – didn't vote".
9. This issue was only one of seven original grounds, five of which were relied upon by the appellants in their application for Judicial Review before Forbes J all of which he dismissed in his judgment of the 10^th December 2003. As to this ground, he said:

"58. ….It is important to bear in mind that there is no suggestion that there had been any form of procedural unfairness in regard to the conduct of the meeting or of the voting or of the actual counting of the votes. In my view, that procedurally fair decision making process cannot be rendered unfair (retrospectively in effect) merely because no steps were taken to carry out a further review of the count, in the light of a challenge from a member of the public, particularly when the Committee's Chair had already taken care to have the accuracy of her count confirmed by a solicitor from the Council's Legal Department.

59. Furthermore, such rights as the claimants may have had to challenge the lawfulness of the Committee's decision, on the basis that there had been a miscount of the votes, were not removed or adversely affected in any way by the decision of the Chair to proceed with the remaining business of the committee, the decision that she was, in my opinion, fully entitled to make."

10. Permission to appeal against that decision was granted, but restricted to the matter which I have set out above.
11. Mr Tromans, on behalf of the appellants, submits that what happened amounted to procedural unfairness which entitles the court to quash the decision. The basis of his submission is the statement of principle by Lord Diplock in R –v- Commissioner of Racial Equality Ex parte Hillingdon LBC [1982] AC 779, where he said:

"Where an Act of Parliament confers upon an administrative body functions which involve its making decisions which affect to their detriment the rights of other persons or curtail their liberty to do as they please, there is a presumption that Parliament intended that the administrative body should act fairly towards those persons who will be affected by their decisions."

12. He submits that the possibility of an error in the counting of the votes was raised bona fide by persons with a genuine interest in the outcome of the application. It was raised as soon as possible, almost immediately after the vote and while the committee was sitting. There has never been any suggestion that the matter being raised was frivolous or vexatious. The vote had been extremely close and any error could therefore have been decisive. It was on a controversial matter relating to an application which had been the subject of previous advice to refuse permission. It would have been entirely practicable to check the voting as all members of the committee were still present and could be expected to have remembered how they had voted a short time previously. Checking the matter in that way would have avoided any potential unfairness to the objectors and would not have involved any prejudice to good administration, and that, further, no formal planning permission had by then been issued so that it could not be said the committee was functus officio.
13. In support of those submissions, he has referred us in particular, to R –v- The Vestrymen and Churchwardens or St Pancras Middlesex (1839) 11 Ad and E 15, an authority which was not before Forbes J. That was an application for mandamus requiring the Vestrymen and Churchwardens to hold a meeting of the parishioners for the election of Vestrymen and auditors for the Parish on the grounds that a meeting previously held for that purpose had been conducted unfairly. At that meeting, on a vote to nominate four inspectors for the election of Vestrymen, two lists of four were prepared by the two parties, that is the Churchwardens on the one hand and the Meeting on the other. On a show of hands, the Churchwardens expressed their decision in favour of their list. This was disputed; and those in favour of the list demanded a division of the voters present in order that the numbers on each side might be counted. The Churchwardens refused to take this course and declared the election carried by the show of hands. Lord Denman CJ, giving the judgment of the court said at page 27:

"…. The show of hands ought to be fairly taken. Was it so taken? A strong doubt was expressed at the time whether the Churchwardens had not made an erroneous report of the numbers on each side: it is even now sworn, by several who were present, that the majority was the other way; nothing could be more reasonable than the demand that the numbers should be divide and be counted. If this had been done with closed doors, certainty would have been obtained in a few minutes. But the Churchwardens took upon themselves to declare the respective numbers in favour of that party to which they avowedly belong at the very moment when they refused to ascertain the truth. The affidavits now produced by them and many others of their belief in respect of this doubtful matter, do not meet the just complaint that they might have spoken with perfect knowledge; and that belief is, indeed, founded on the remarks and reasonings which are detailed and are very far from being conclusive.

These considerations have brought us to the opinion that the mandamus ought to be issued"

14. Mr Tromans has also drawn to our attention a number of other authorities, both statutory and otherwise, relating to the conduct of meetings, but he accepts that these are of no real relevance, as they depend essentially on the terms of the relevant Statute, or in relation to companies, the articles of association. He accepts, as is the case, that there are no statutory or other provisions in relation to the voting of a committee such as this which assist.
15. Mr Barrett, on behalf of the respondent, submits that the true test in the present case is whether or not the decision to continue with the meeting, and not verify the voting was a decision which could be said to have been Wednesbury unreasonable. He submits that the evidence from Councillor Mrs Stretton and Mr Garbett makes it plain that the votes had been properly counted and that Councillor Mrs Stretton's conclusion as to the voting was confirmed by the three council officials present so that there could, in truth, be no doubt about the accuracy of the vote which was recorded. In those circumstances, he submits, there is no basis upon which this court could interfere. Mrs Stretton was entitled to conclude that the motion had been duly passed.
16. There is, it seems to me, no real difference between the two tests suggested by counsel . It was clearly a situation in which the Council was under a duty to act fairly. If it did not do so, it could not properly be said to have acted reasonably in the Wednesbury sense. In the end, the answer to the question depends, as so often is the case, on the facts. Mr Barrett does not seek to argue that the Committee was in any way precluded from checking the voting. He relies on the evidence to which I have referred to establish that there could have been no real doubt about the vote so that it was unnecessary to do so. But the difficulty with that argument, it seems to me, is that it does not reflect what in fact happened. In paragraph 59 of his judgment Forbes J appears to have been under the impression that Councillor Mrs Stretton made a decision to proceed with the remaining business of the Committee by implication suggesting that she had made a considered decision, in the light of the objections raised by the appellants. But Councillor Mrs Stretton does not suggest that she was made aware of the objection at the meeting. On the evidence Mr Garbett does not suggest that he passed on the concerns of Mrs Hill and the appellants to Councillor Mrs Stretton, or indeed to any other member of the Committee. In other words, although the query had been raised with Mr Garbett, no steps were taken to put that query to Councillor Mrs Stretton or the Committee for her or the Committee to come to a decision as how to deal with it.
17. It seems to me that fairness required that to be done. Councillor Mrs Stretton would then have been in a position to make a decision in the light of the query. She might have decided that the votes were so clearly cast in favour of the motion that there was no need verify the votes. But she might have decided that it would be wise to verify the voting. Her witness statement does not tell us what she would have done if Mr Garbett had told her of the query at the time. Since we cannot therefore be sure that she would have adhered to the vote as recorded, it seems to me that the appellants have established an unfairness which entitles them to the relief that they claim.
18. I would accordingly allow this appeal and quash the decision of the respondent.

Lord Justice Maurice Kay: I agree.

The President of the Family Division: I also agree.

Order: The appeal is allowed and the decision of the respondent is quashed. (Order does not form part of the approved judgment)