England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		9th December 2009

Mr Justice Wyn Williams :

1. This is an application to quash a planning permission granted by the Defendant to the Interested Party on 7 February 2008. Essentially, the permission granted was for the demolition of an existing building at Wide Lane Morley and the erection in its place of 12 flats. It is common ground that the decision to grant planning permission was made by Mr David Jones, a Principal Planning Officer employed by the Defendant and that the notice of permission was signed by Mr. Philip Crabtree, the Defendant's Chief Planning and Development Officer.
2. The Claimants rely upon four grounds of challenge in this case. For reasons which I need not rehearse, this judgment is concerned with one of the pleaded grounds only - ground two. In summary, the Claimants allege in that ground that at the time the planning permission was granted the Defendant had no valid scheme for delegating the power to grant planning permission to any of its officers or employees. Consequently, they further allege that Mr. Jones was not authorised to make the decision to grant planning permission and Mr. Crabtree was not authorised to send out the notice of the grant.
3. The Defendant resists this ground of challenge strenuously. Without doubt, however, it has taken a considerable and unacceptable length of time for the Defendant to particularise the basis of its opposition.

Relevant background and factual material

4. Leeds is the second largest city in England outside London. It has a population of approximately 750,000 and in the current financial year it has a revenue budget of £556.8m and a capital expenditure programme of £267m. The Defendant comprises 99 elected members and it has approximately 33,000 staff.
5. As a matter of fact officers and/or employees of the Defendant made many decisions in 2008 which were apparently binding upon the Defendant and intended to be so and, indeed, officers and employees had made such decisions for many years previously.
6. The Defendant's power to delegate decisions (insofar as is relevant to this case) is conferred upon it by two different statutes depending upon the nature of the functions proposed to be delegated. They are the Local Government Act 1972 (section 101) and the Local Government Act 2000 (Part II). Section 101 of the 1972 Act provides:-

"(1) Subject to any express provision contained in this Act or any Act passed after this Act, a local authority may arrange for the discharge of any of their functions-

(a) by a committee, a sub-committee or an officer of the authority; or

(b) by any local authority

(1A)…

(1B)…

(1C)…

(2) Where by virtue of this section any functions of a local authority may be discharged by a committee of theirs then, unless the local authority otherwise direct, the committee may arrange for the discharge of any of those functions by a sub-committee or an officer of the authority and where by virtue of this section any functions of a local authority maybe discharged by a sub-committee of the authority, then, unless the local authority or the committee otherwise direct, the sub-committee may arrange for the discharge of any of those functions by an officer of the authority."

It is unnecessary to recite the detail of Part II of the Local Government Act 2000. It is important to record, however, that by reason of the coming into force of the Act of 2000 the Defendant decided to formulate and then adopt a Constitution.

7. At an extraordinary meeting on 12 December 2001 the Defendant resolved to operate executive arrangements by adopting the Constitution which had been tabled for discussion. The Constitution then adopted was a comprehensive document. It ran to more than 400 pages. From that time or shortly thereafter it appeared on the Defendant's website. As is to be expected from time to time since December 2001 it has been amended – as to which see paragraphs 11 and 12 below.
8. Part 2 of the Constitution contains a number of articles. Article 4.2 specifies the functions of the Full Council. One such function is expressed to be changing the Constitution. Article 15 also contains provisions relating to the review and the revision of the Constitution. Article 15.2 is in the following terms:-

"15.2 CHANGES TO THE CONSTITUTION

Approval

Changes to Part 1 and 2 of the Constitution maybe approved by the full Council after consideration of the proposal by a specified body of members including representatives of the main opposition groups and following advice from the monitoring officer save that authority is delegated to the monitoring officer to make any changes which are required as a result of legislative change or decisions of the Council or executive to enable him/her to maintain it up to date. Changes to the constitution maybe made by a simple majority.

Changes to Part 3 to 7 of the Constitution will be approved by the body or person to whom such authority has been delegated as indicated in the relevant Part of the Constitution.

All changes made by officers under delegating authority will be recorded as delegated decisions"

9. Part 3 of the Constitution contains many detailed provisions relating to responsibility for functions. One of the functions within Part 3 is decision making in relation to planning. In simple terms decisions about planning (depending upon their nature) are delegated under Part 3 to committees of the Defendant or to the senior officer.
10. Part 4 of the Constitution is entitled Council Procedure Rules. Rule one is headed "ANNUAL MEETING OF COUNCIL". There then follow these provisions which are relevant to the issue before me:-

"1.1 Timing and Business

In a year when there is an ordinary election of Councillors, the annual meeting will take place within 21 days of the retirement of the outgoing Councillors. In any other year, the annual meeting will take place in March,
April or May.

The annual meeting will;

(a) to (h)…..

(i) agree the scheme of delegation or such part of it as the Constitution determines it is for the Council to agree (as set out in Part 3, Section 2C of this Constitution);"

11. As I understand it Part 3 Section 2C of the Constitution which was approved on 12 December 2001 contained an officer delegation scheme in respect of Council functions which were non-executive (into which decisions about planning matters fell). Between 12 December 2001 and the Annual Meeting of the Council which took place in May 2008 the Defendant did not expressly and discretely agree by resolution at its Annual Meting the whole of the scheme of delegation which was contained within Part 3 Section 2C of the Constitution in each year. Essentially the Defendant simply adopted the practice of approving any variations or amendments to its Constitution. That was so even if the variations or amendments related to Part 3 Section 2C of the Constitution.
12. This point is illustrated by reference to what occurred at the Annual Meeting of the Defendant which occurred on 20 May 2002. In advance of the Meeting an agenda was published. Item 6 sought approval for a number of amendments to the arrangements "currently set out in the Constitution for the discharge of Council functions." At the Meeting amendments were approved.
13. In 2003 important amendments were promoted to Part 3 Section 2C. It is necessary to set out in some detail what occurred. The trigger for the amendments was a reorganisation of the officer structure within the Defendant. Of particular relevance was the fact that the post of Director of Planning and Environment ceased to exist and planning functions relating to that post were transferred to the newly created Chief Planning and Development Services Officer. Inevitably, this reorganisation had an impact upon the scheme of delegation which had existed, essentially unaltered, from the time of the adoption of the Constitution on 12 December 2001.
14. In the spring of 2003 the Director of Legal and Democratic Services, then Ms Theresa Jackson, produced a report entitled "Review of Part 3 of the Constitution". It was a report designed, specifically, to be considered by the Constitutional Proposals Committee of the Defendant. Its purpose was to seek approval for amendments to Section 1 and 2 of Part 3 of the Constitution.
15. The Constitutional Proposals Committee met to consider the report on 7 May 2003. The minutes of the committee appear in Bundle C1 at pages 26 to 28. Paragraph 13 of the minutes are in the following terms:-

"13 Review of Part 3 of the Constitution

The Director of Legal and Democratic Service submitted a report on a review of Part 3 of the Constitution relating to responsibility for Council functions.

RESOLVED – To recommend to the Annual Council Meeting

(1) that the revised sections 1 and 2 to Part 3 of the Constitution as set out in the report be approved save that in respect of any delegation to the Chief Planning and Development Services Officer by the joint Development Control Panel at its May meeting, the delegation contained within the appendix to the report be deleted and substituted by that agreed by the joint meeting of the Development Control Panels"

16. Ms Jackson's report had appended to it Part 3 of the Constitution. Section 2C was entitled "Officer Delegation Scheme (Council (Non Executive) Functions." There then followed a number of schemes of delegation relating to all aspect of Council non-executive functions. The Chief Planning Development Services Officer was authorised to discharge a great many functions relating to town and country planning and development control subject to listed exceptions.
17. The joint meeting of the Development and Control Panel (East) and (West) took place on 15 May 2003. The Panel was presented with a further report from Ms Jackson. This report related to proposals for amendments to development and control panel procedures, public speaking and delegation. The report appears at Bundle C1 pages 85 to 87. It is noteworthy that the report refers to an Appendix 1 which was intended to contain the Delegation Scheme which had been placed before the Constitutional Proposals Committee (see paragraph 4.2).
18. In her first witness statement dated 2 June 2009 Ms Jackson points out that Appendix 1 to her report to the Joint Committee did not contain the same information as was considered by the Constitutional Proposals Committee. She acknowledges that this was an error on her part.
19. At its meeting on 15 May 2003 the Joint Meeting of the Development Control Panel resolved

"(a) to (c)…..

(d) That the scheme of delegation to the Chief Planning and Development Services Officer to come into effect from May 19^th 2003 following the Council AGM be approved."

20. The Annual Meeting of the Defendant took place on 19 May 2003. The agenda for the Meeting included item 7(e) a proposed resolution to "authorise the Director of Legal and Democratic Service to amend the Constitution to give effect to the resolution at 7(a) (i-v), and to make such other amendments to the Constitution as may be required to give effect to the recommendations of the constitutional proposals committee set out in the attached minutes (to follow)".
21. There are factual issues between the Claimants and the Defendant as to the extent of the documentation which was placed before each councillor before or at the Meeting. I deal with this issue, discretely, below.
22. Item 10 of the minutes of the Meeting is in the following terms:-

"Constitutional Amendments

It was moved by Councillor Gruen seconded by Councillor Procter and

RESOLVED – That amendments to the Constitution be approved in the terms of the Notice as detailed in the minutes of the Constitutional Proposals Committee meeting held on 7 May 2003 and in the supporting papers circulated."

23. On its face, the minute suggests that the amendments to Part 3 of the Constitution which had been approved by the Constitutional Proposals Committee were approved and adopted by the Full Council of the Defendant.
24. In her first witness statement Ms Jackson says that following the Annual Meeting of the Defendant an amended version of the Constitution came into existence. She has produced as her exhibit TNJ6 (Bundle C1 page 181 et seq) Part 3 of the Constitution entitled "Responsibility for Functions". The document bears the date 19 May 2003 and it is in identical form (insofar as is relevant to the issues in this case) to the document which was approved by the Constitutional Proposals Committee on 7 May 2003.
25. I have before me Part 3 of the Constitution as it existed in February 2008. There is no material difference between that version of Part 3 and the one considered by the Constitutional Proposals Committee in May 2003.
26. The Annual Meeting of the Full Council of the Defendant in the year prior to the grant of planning permission which is the subject of challenge took place on 24 May 2007. The minutes of that Meeting are before me also. The minutes show that amendments to the Constitution as proposed were approved.

The Documents available to Councillors at the Annual Meeting of the Full Council of

the Defendant on 19 May 2003

27. Mr Thomas Leadley is a member of the Defendant. He is the councillor for Morley North. He has been a councillor for many years. In a witness statement dated 9 October 2009 Councillor Leadley says that in early September 2009 he provided to the second Claimant all the documents which had been provided to him prior to and at the meeting of 19 May 2003. Apparently, Councillor Leadley retained all these documents. He has exhibited each document to his witness statement. The documents produced are as follows:-

a) the agenda for the Annual Meeting;

b) the minutes of the meeting of the Defendant held on 26 March 2003;

c) notice of an extraordinary meeting to take place on 19 May 2003;

d) a letter dated 12 May 2003 relating to the extraordinary general meeting;

e) a letter dated 15 May 2003 notifying Councillor Leadley of his seat number in the council chamber;

f) A letter dated 15 May 2003 addressed to all councillors signed by Mr Richard Mills, apparently enclosing 5 schedules, the minutes of the Constitutional Proposals Committee and amendments to the executive arrangements made by the Leader;

g) schedules 1-5 inclusive;

h) the report of the Director of Legal Services to the Full Council;

i) a letter dated 16 May 2003 from Mr Mills to all councillors with 2 enclosures;

j) the order paper for the Annual Meeting;

k) a document headed "Section 3B: Executive Member Portfolios;

l) a document detailing "Membership of the Committees/Boards/Panels";

m) a document providing details of the chairs of community involvement teams;

28. I am asked to accept although the letter dated 15 May 2003 informed councillors that the minutes of the Constitutional Proposals Committee were enclosed with the letter that was not the case.
29. In a statement made 25 October 2009 Councillor Leadley describes the documentation which was made available on the day of the meeting. He says:-

"….Late papers for the Annual Meeting, which amounted to a few sheets such as the green Order Paper were on the bench-desks in front of the Members' seats at the beginning of the Extraordinary Meeting; in total they were of no great thickness. It would have been impractical to have left them in the Members' seats as they have tip-up bases."

30. The Claimants assert that there is no evidence which begins to suggest that the report of Ms Jackson Services which had been considered by the Constitutional Proposals Committee and approved by that Committee and which detailed the proposed scheme of delegation under Part 3 Section 2C was provided to members before or at the time of the annual meeting.
31. The evidence adduced on behalf of the Defendant in relation to this issue is not precise. Mr. Richard Mills is the main source of such evidence. He accepts that the report to the Constitutional Proposals Committee was not sent to the members at the same time as the Summons to the meeting of the Full Council. He also accepts that it was not sent under cover of his letter of 15 May 2003. Nonetheless in his witness statement dated 20 October 2009 Mr Mills asserts that at some stage prior to 19 May 2003 the report prepared for the Constitutional Proposals Committee was circulated to members.
32. Mr Mills has made a second statement dated 27 October 2009. In that statement Mr Mills reaffirms his view that the report was circulated in advance of the meeting.
33. Other witness statements have been served by both parties which have a bearing on this issue. However, I do not consider that they advance the debate one way or the other.
34. I make it clear that I cast no doubt upon the integrity of Councillor Leadley. I am sure as I can be without hearing oral evidence from him that he believes that he has retained all papers circulated to him and I have no doubt that he has faithfully produced what he has retained. It does not seem to me, however, that his evidence can be used as a proper basis for concluding that the only documentation sent to the 99 councillors who were members of the Defendant at the material time was that which he has produced. There is simply too much scope for human error for such a conclusion to be reached. This case illustrates (if any illustration was necessary) how difficult it is to resolve issues of contested fact in judicial review proceedings especially when the dispute relates to events more than six years ago.
35. What does seem to be clear is this: no councillor raised the issue of unavailability of relevant documentation at the Annual Meeting of the Defendant on 19 May 2003. Further the minutes of the Annual Meeting were approved in June 2003. No doubt was apparently raised at the June meeting about the resolution relating to constitutional changes minuted as item 10 (see paragraph 21 above).
36. I have dealt with this issue in some of the detail in this judgment, since the parties spent a good deal of time and effort on this topic. I am not persuaded on the basis of the evidence available that I should concluded on balance of probability that relevant reports (and in particular Ms Jackson's report to the Constitutional Proposals Committee) was not made available to members before the Meeting took place. As it happens, however, I do not think that the resolution of this factual issue is crucial to whether or not ground 2 is made out. The reasons why I have reached that conclusion are considered in the next section of this judgment.

Discussion

37. Mr Greatorex, counsel for the Claimants, who has argued their case with conspicuous skill and determination, essentially takes two points. His first point is that that the Annual Meeting of the Defendant on 19 May 2003 did not agree the scheme of delegation contained in Part 3 Section 2C of the Constitution. Accordingly, submits Mr. Greatorex, the Defendant did not comply with its own Council Procedure Rules. Further, the scheme promoted in 2003 was not agreed by the Annual Meeting in any subsequent year prior to the grant of planning permission in this case. Accordingly, Mr. Greatorex submits that the scheme of delegation promoted in 2003 was not in force at the time when the decision to grant planning permission in the instant case was made.
38. During the course of his oral submissions Mr. Greatorex seemed disposed to accept that a valid scheme of delegation did come into existence upon the adoption of the Constitution. He accepts that the Constitution was approved in 2001 and he seemed disposed to accept that the scheme of delegation included within Part 3 of the Constitution when it was approved was a valid scheme. To repeat, however, he submits that Part 3 Section 2C of the Constitution was not agreed at the Annual Meeting of the Defendant in May 2003 or subsequently before February 2008 and, accordingly, the scheme of delegation set out in the report to the Constitutional Proposals Committee was not approved. The first time that a scheme of delegation was agreed at an Annual Meeting after the adoption of the Constitution was in May 2008 (see B2 427).
39. In the first Skeleton Argument presented on behalf of the Defendant by Mr Arden QC and Mr Colville, they appeared to accept that the Defendant's Procedure Rules demanded that a scheme of delegation should be approved in the Annual Meeting of the Defendant each year and no such approval occurred in the Annual Meetings 2004 to 2007. They described the Defendant as adopting a practice whereby the Constitution was reviewed annually by committee and amendments approved at the Annual Meeting.
40. In its second Skeleton Argument the Defendant's position altered. Essentially the stance taken was that although there was no express approval of the scheme of delegation in the years 2004-2007 nonetheless the scheme of delegation promoted in 2003 was agreed or approved in the Annual Meeting of May 2003 and thereafter approved, at least by implication, in each subsequent year.
41. Not surprisingly, in his oral submissions Mr Greatorex sought to make forensic capital from this change in stance.
42. In my judgment, the starting point in seeking to resolve the first issue raised on behalf of the Claimants is the proper meaning of Rule 1.1(i) of the Council Procedure Rules. This rule is not easy to interpret. It appears to require that the Full Council must agree such scheme of delegation as the Constitution, itself, demands should be agreed by the Full Council. I have struggled to make sense of the wording in brackets, namely "as set out in Part 3 Section 2C of this Constitution." Are the words intended to qualify the words "scheme of delegation" or do they have some other meaning? Probably, the former is the most likely interpretation.
43. There is also significant scope for debate about the meaning of the word agree. I will return to this in a moment.
44. Part 3 Section 2C of the Constitution is entitled "Officer Delegation Scheme (Council (Non-Executive) Functions)". It contains many detailed provisions about delegation to committees and officers related to town and country planning and various other topics. It does not, so far as I can see, contain any provision (one way or the other) about who is to approve the schemes of delegation contained within Part 3 Section 2C.
45. There is a general introduction to Part 3. Under the heading "Council (non- executive) Functions" the following appears;-

"These are functions which, under the law, cannot be the responsibility of the executive. In some cases, such as adopting the Council's budget or the policy framework, only Full Council may discharge the function. In other cases, the council may delegate the responsibility for discharging a function to a committee or an officer.

Article 4.2 of the Constitution sets out functions which will only be exercised by Full Council.

Section 2 summarises which Council (non-executive) functions are delegated to specify committees or officers, or exercised by Full Council."

46. Article 4.2 is headed "Functions of the Full Council" and expressly provides that the Full Council has the function of adopting and changing the Constitution. That statement is unequivocal. However Article 15.2 also appears to permit a situation whereby the function of changing Part 3 of the Constitution can be delegated (see paragraph 8 above).
47. There is nothing in the extensive evidence served on behalf of the Defendant which suggests that the power to approve amendments to Part 3 Section 2C of the Constitution was delegated at any time between the adoption of the Constitution in December 2001 and 19 May 2003. Accordingly, it seems to me that the Full Council was the body charged with agreeing the scheme of delegation contained within Part 3 Section 2C of the Constitution.
48. I return to the issue of the meaning to be given to the word "agree" in the Council Procedure Rules. In my judgment, the word is to be given its ordinary and natural meaning given the context in which it is used. The ordinary and natural meaning of the word "agree" encompasses agreement by express words, by conduct or by a combination of both. I do not consider that the context in which the word is used, any interpretative rule or statutory provision relating to a body such as the Defendant requires this court to conclude that the word "agree" in the Council Procedure Rules should be interpreted so as to mean that the Defendant must agree expressly by resolution.
49. Did the Full Council of the Defendant agree the scheme of delegation contained within Part 3 Section 2C of the Constitution at the annual meeting which took place on 19 May 2003? In my judgment it did. The starting point must be that the Full Council adopted the Constitution on 12 December 2001 and that the Constitution so adopted contained a valid scheme of delegation (within Part 3 Section 2C). Thereafter, the Defendant obviously proceeded on the basis that all the constituent parts of the Constitution remained in force unless a resolution to contrary effect was passed at an Annual Meeting. No other sensible interpretation of its conduct at the Annual Meeting in 2002 is sustainable. There is certainly no evidence before me which begins to suggest that there should be any other interpretation of the Defendant's conduct. That inevitably means that between the Annual Meeting which took place in 2002 and 19 May 2003 a valid scheme of delegation was in force. As I have explained in some detail above, steps were taken by Ms Jackson in the run up to the Annual Meeting for 2003 to seek the approval of the Full Council to make detailed amendments to that scheme.
50. The minutes of the Meeting of 19 May 2003 record that amendments to the Constitution were approved as detailed in the minutes of the Constitutional Proposals Committee meeting held on 7 May 2003 and in the supporting papers circulated. The minutes of the Constitutional Proposals Committee record that the Committee resolved to recommend to the Annual Meeting that the revised sections 1 and 2 to Part 3 of the Constitution be approved (subject to any change promoted by the Joint Development Control Panels). The minutes also make it clear that the revisions approved appeared in the report submitted by Ms Jackson to the Committee. Ms Jackson's report contained a complete version of Part 3 Section 2C i.e. the complete scheme of delegation. It is clear, in my judgment, that what was agreed by Full Council was the scheme of delegation contained within Ms. Jackson's report. Following the meeting the Constitution as a whole and including the amendments promoted by Ms Jackson in her report appeared on the Defendant's website. No member protested and, to repeat, no point was taken in June 2003 when the minutes of the Annual Meeting were approved.
51. It is common ground that in the following years the Defendant by its Full Council approved amendments to the Constitution but did not expressly resolve to approve the whole scheme of delegation contained within Part 3 on an annual basis. By the Annual Meeting in May 2007 the Defendant's practice was clear. No one objected and, in reality, no sensible objection could have been taken to this method of proceeding. That is because by proceeding in this way the Defendant was, as a matter of fact, agreeing a valid scheme of delegation.
52. It follows that I do not accept that the scheme of delegation contained within Part 3 Section 2C of the Constitution as published prior to February 2008 had not been agreed.
53. I should address two further issues relating to the first point taken by Mr. Greatorex. I can do so quite shortly If, contrary to my view, the Full Council did not agree a valid scheme of delegation either in 2002 or subsequently because it failed to resolve, expressly, to approve the scheme of delegation contained within Part 3 Section 2C as a whole what follows from that failure? Mr Arden QC submits, in effect, that this court should not grant any relief which would have the effect of invalidating the scheme of delegation which has, in practice, been relied upon over many years. He relies upon the following passage in the speech of Lord Hailsham LC in London & Clydeside Estates v Aberdeen D.C. [1980] 1 WLR 182 at pages 189-190.

"When Parliament lays down a statutory requirement for the exercise of legal authority it expects its authority to be obeyed down to the minutest detail. But what the courts have to decide in a particular case is the legal consequences of non- compliance on the rights of the subject viewed in the light of a concrete state of facts and continuing chain of events. It may be that what the courts are faced with is not so much a stark choice of alternatives but a spectrum of possibilities in which one compartment or description fades gradually into another. At one end of this spectrum there maybe cases in which a fundamental obligation has been so outrageously and flagrantly ignored or defied that the subject may safely ignore what has been done and treat it as having no legal consequences upon himself…At the other end of the spectrum the defect in procedure may be so trivial and nugatory that the authority can safely proceed without remedial action, confident that if the subject is so misguided as to rely on the fault, the court will decline to listen to his complaint. But in a very great number of cases… it may be necessary for a subject, in order to safeguard himself, to go to court for a declaration of his rights, the grant of which may well be discretionary, and…it maybe wise for the authority…to do everything in its power to remedy the fault in its procedure so as not to deprive the subject of his due or themselves of their power to act."

54. Mr Arden QC points out that delegation under section 101 of the 1972 Act requires no particular formality so far as the Statute itself is concerned. He submits that internal procedures adopted by a local authority are not to be construed strictly; further that non-compliance with those internal procedures should not readily result in quashing orders, particularly in modern-day conditions when the range of local government decision-making under delegated powers and the volume of activity is large, involving a substantial numbers of members and officers.
55. In my judgment, the Defendant has adopted and applied a perfectly sensible means of amending its Constitution as and when necessary since its adoption in 2001. In the period since 2001 no one could have been mislead into thinking that the Defendant was doing other than delegating a huge range of decisions to its officers. Any person reading the Constitution from time to time would properly be informed as to the scheme of delegation in being as it evolved. In 2003, in particular, there was ample opportunity for any person with a sufficient interest to take issue with the proposed amendments to Part 3 Section 2C. No one did so. Part 3 Section 2C was published yet it provoked no controversy. The scheme of delegation first promoted in May 2003 survived in substantially similar form in the ensuing years. No one made any attempt to assert that the scheme was not valid by reason of procedural defects.
56. In these circumstances I can think of no proper basis upon which it would be appropriate for this court to grant any kind of relief which had the effect of causing decisions made in accordance with the scheme of delegation as it evolved between 2001 and 2008 to be declared unlawful.
57. I have reached the same conclusion about the appropriateness of granting relief if it is assumed that there was a failure to distribute all relevant documentation to members in advance of the Annual meeting on 19 May 2003. I simply do not see how it would be appropriate to grant relief. The alleged failure occurred 6 years ago. Literally thousands of decisions have been taken on the basis of a scheme of delegation apparently agreed at that meeting. It is unthinkable that the failure to provide documentation to councillors in 2003-first raised as an issue, squarely, in October 2009 should lead to the grant of any relief which would have the effect of invalidating decisions taken over a period of 5 years or thereabouts.
58. I turn to deal with the second point taken by Mr Greatorex. I can do so more succinctly. He complains that the Defendant failed to comply with the terms of Section 100B (1) and (3) of the Local Government Act 1972 in advance of the Annual Meeting of the Full Council on 19 May 2003. He submits that the consequence of that failure is that the resolution relating to the scheme of delegation apparently approved at the meeting should be treated as invalid.
59. Section 100B of the 1972 Act is in the following terms so far as is relevant to this case:-

"(1) Copies of the agenda for a meeting of a principal council and, subject to subsection (2) below, copies of any report for the meeting shall be open to inspection by members of the public at the offices of the council in accordance with sub section (3) below.

(2)…

(3) Any document which is required by subsection (1) above to be open to inspection shall be so open at least 5 clear days before the meeting, except that-

(a) where the meeting is convened at shorter notice, the copies of the agenda and reports shall be open to inspection at the time the meeting is convened, and

(b) where an item is added to the agenda copies of which are open to inspection by the public, copies of the item (or of the revised agenda), and the copies of any report for the meeting relating to the item, shall be open to inspection from the time that the item is added to the agenda;

but nothing in this subsection requires copies of any agenda, item or report to be open to inspection by the public until copies are available to members of the council.

(4) An item of business may not be considered at a meeting of a principal council unless either-

a. a copy of the agenda including the item, (or a copy of the item) are open to inspection by members of the public in pursuance of subsection (1) above for at least 5 clear days before the meeting or, where the meeting is convened at short notice, from the time the meeting is convened;

b. by reason of special circumstances, which shall be specified in the minutes, the chairman of the meeting is of the opinion that the item should be considered at the meeting as a matter of urgency."

60. The agenda for the meeting of the Full Council is before me. It does not bear a date but no suggestion has been made that the agenda was published less than 5 clear days before 19 May 2003. As I have said there is a good deal of debate about when various reports first became available for public scrutiny or scrutiny by members. It seems clear, however, that the report of Ms Jackson to the Constitutional Proposals Committee did not become available either to members of the Defendant or for scrutiny by the public prior to the 5 day time scale specified in subsections (1) and (3).
61. The fact that a report may not have been available until within the 5 day period does not necessarily constitute a breach of subsections (1) and (3). The requirement that reports shall be made available for public scrutiny at least 5 clear days before the relevant meeting is subject to the provision in subsection (3) that reports need not be made available for inspection by the public until copies are available to members of the council. As I read subsection (3) there is no requirement that the reports be made available to the members of the council at least 5 clear days before the relevant meeting.
62. Since I am not satisfied, on balance of probability, that all reports were not placed before members either prior to or at the meeting there is no basis upon which I can find that there was a breach of Sections 100B (1) and (3). That, of itself, is sufficient to dispose of the second point taken by Mr Greatorex.
63. What is the position if, contrary to my view, the evidence does establish breaches of Section 100B (1) and (3) of the 1972 Act. Mr Greatorex relies upon the decision of the Court of Appeal in R v Swansea City Council ex parte Elitestone Ltd [1993] 2PLR 65 to support his submission that this court should declare that the resolution passed at the Annual Meeting of May 19 2003, as it related to the scheme of delegation, was invalid.
64. In Elitestone the company owned an area of land on which was situated 27 wooden chalets. The company wished to demolish the chalets and develop the site with conventional housing. On learning of the company's intention, the local planning authority's Director of Development prepared a report recommending designation of the area of land as a Conservation Area. The matter was regarded as one of urgency and it came before a sub-committee of the Council on Tuesday May 1 1990. The agenda for the meeting together with the officer's report was published on Thursday April 26 1990. Following a complaint by the Company of a procedural irregularity the matter came before the full planning committee on July 20 1990. That committee, after considering a further report from the Director of Development and after hearing from the company's solicitor, resolved to endorse the sub-committee's decision. The company applied for judicial review and one of the points taken was that the decision made by the sub-committee on May 1 1990 was vitiated by failure to comply with Section 100B (4) of the Local Government Act 1972. The application for judicial review was dismissed and the decision of the Judge at first instance was upheld in the Court of Appeal. The reasons for the decision are unimportant to this case. What is of importance is the following short passage from the judgment of Mann LJ:-

"Mr Thom submits that subsection (4) on the facts was not satisfied. He does not suggest that his clients thereby suffered any specific prejudice but says that is immaterial. The requirement of subsection (4) is a requirement in the public interest which must be observed regardless of the lack of prejudice to any specific individual. I agree with that submission. Parliament has enacted an inhibition and that inhibition must be observed. The question is, whether on the facts subsection (4), when properly construed, was contravened."

65. It is to be observed that subsection (4) relates only to agendas. It is clearly and obviously designed to ensure that adequate notice is given of those items which are to be debated at a relevant meeting; if adequate notice is not given the special reasons which justify the discussion of the item in question are recorded publicly and are available for public scrutiny. I am not persuaded that subsections (1) and (3) should be treated in the same way. Since, however, the effect of a failure to comply with section 100B (1) and (3) is not critical to my decision I do not consider it appropriate to offer a definitive view upon this issue.
66. In any event, it does not seem to me that what occurred in 2003 is what is critical in terms of compliance with section 100B. Even assuming non-compliance with section 100B(1) and (3) in relation to the Annual Meeting of the Full Council in 2003 no suggestion has been made that there was non-compliance in relation to the meeting which took place in 2007. In the absence of evidence showing non-compliance in 2007 it does not seem to me that that there is any mileage in this point.
67. I have reached the conclusion that ground 2 is not made out. I am not persuaded that I should find that no valid scheme of delegation existed in February 2008 when the planning permission was granted. Even if I am wrong in that conclusion, however, I do not consider that it would be appropriate to grant any relief to the Claimants.
68. I presume that the Claimants are still intent upon pursing the remaining three grounds. At the handing down of this judgment I will make appropriate directions for the hearing relating to the remaining grounds.