QUEEN'S BENCH DIVISION
PLANNING COURT
Strand, London, WC2A 2LL |
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B e f o r e :
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THE QUEEN (on the application of THE SPITALFIELDS HISTORIC BUILDING TRUST) |
Claimant |
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- and – |
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LONDON BOROUGH OF TOWER HAMLETS |
Defendant |
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- and – |
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OLD TRUMAN BREWERY LTD |
Interested Party |
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Isabella Tafur (instructed by Legal Services, London Borough of Tower Hamlets) for the Defendant
Timothy Corner QC and Yaaser Vanderman (instructed by CMS Cameron McKenna Nabarro Olswang LLP ) for the Interested Party
Hearing dates: 29 and 30 June 2022
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Crown Copyright ©
Mr Justice Morris:
Introduction
The Factual Background
The Development: the application for planning permission
"Redevelopment at 140, 146 Brick Lane and 25 Woodseer Street, London, E1 6RU to include erection of a part five storey office building (Class B1) plus rooftop plant with ground floor and first floor commercial units (Class A1/A3) and two storey basement for provision of plant, servicing, storage and a gym (Class D2) (140 Brick Lane – Plot S1), linked to the reconfigured ground floor of the adjacent building and provision for commercial units (Class A1) (146 Brick Lane - Plot H), refurbishment and two storey extension of the adjacent building (25 Woodseer Street - Plot S2) for office use (Class B1) with ground floor commercial unit (Class A3), plus rooftop plant and external landscaping"
The Development Committee meeting on 27 April 2021
The April Report
"The Spitalfields Neighbourhood Plan is currently being prepared for the Spitalfields area; and includes the application site. Regulation 14 consultation was carried out from July to September 2020 which is the first stage of consultation. Regulation 16 consultation, the second stage of consultation, was held from January to February 2021. The neighbourhood plan was submitted for independent examination in early March 2021. The Neighbourhood Plan at this stage is considered to have low to moderate material weight in planning decisions."
"To conclude, the proposal would respond appropriately to the positive aspects of the local context; re-introducing and setting back the building line on Woodseer Street to repair the urban fabric; and significantly improving the attractiveness of the public realm in this location. The proposal development is well considered design of a high architectural quality, well proportioned and designs out opportunities for crime. As such, the proposal is compliant with the Development Plan in this regard."
"7.59 Development Plan policies require proposals affecting heritage assets and their settings to conserve their significance by being sympathetic to their form, scale, materials and architectural detail. Policy S.DH3 requires development to protect and enhance the borough's conservation areas including their setting.
Heritage context
7.60 The site is situated within the Brick Lane and Fournier Street Conservation Area; and there are statutory listed brewery buildings in close proximity to the site….
…
7.65 In terms of scale, the appraisal states: 'Brick Lane is made up of narrow frontage, 19th century shopfronts in buildings of 2, 3 and 4 storeys. The rest of the area is predominantly low-rise, of 3 to 4 storeys. This low-rise character emphasizes the landmark value of Christ Church Spitalfields… and of the chimney of Truman's Brewery. Both of these features act as focal points for views and important points of reference, making it easier for visitors to find their way around'.
Impact of the proposed development
7.69 As noted in the design section, the scale of the proposed Building S1 is of a scale in keeping with other brewery buildings to the north and west, namely Building H and Building F. The CA appraisal makes reference to the 'larger scale' of the brewery buildings in relation to the wider context; and as show in Figure 13 above, Building S1 is only visible from the setting of the listed brewery buildings to a minor extent.
…
7.71 In this regard, the stepping down of the proposal towards Woodseer Street, and in particular the lower scale of the properties on the southern side of Woodseer Street, is considered to provide an appropriate transition which successfully mitigates between the scale of Woodseer Street and the taller brewery buildings to the north.
7.72 While it is noted that the proposed built form on the corner of Brick Lane and Woodseer Street, is greater than that historically existing, namely the Black Eagle Tap PH, it is considered that the expression of the building form towards the corner is an appropriate response in townscape terms, matching the height of Building H and Building F to the north and west, and is therefore not unduly dominant for such a location.
7.73 The two storey extension to Building S2, to create a 5 storey building, is considered appropriate in the context of the set back 'Block J' industrial building, also part of the Truman's Estate, on the opposite side of Woodseer Street, as well as the adjacent 5 storey residential block on the corner of Woodseer Street and Spital Street.
7.74 Overall, the scheme would regenerate a vacant car-park site and high blank wall; and would introduce a strong corner feature building at the junction of Woodseer Street and Brick Lane. New active frontage, paving and street trees across the site would significantly improve the quality of the public realm in and around the site, which is currently degraded from the presence of the aforementioned wall."
(emphasis added)
"In relation to the Truman's chimney, an important local landmark identified in the CA Appraisal, it was noted in objections received that the proposals could impact views of this landmark. However, an analysis submitted by the applicant demonstrates that the proposed development would not obscure views of the chimney from Brick Lane. Given the presence of Building H, the chimney is not visible from locations on Woodseer Street or Spital Street." (emphasis added)
In the Officers' Update Report of 27 April 2021, under "Clarification", paragraph 2.2. stated:
"Clarification to paragraph 7.66 [sic] to note that the proposals would be partially visible across the base of the Truman's chimney from a view along Brick Lane to the south."
"The proposed development would deliver a well-considered design that is appropriate in terms of mass, scale, form and architectural detailing. It would enhance the character and appearance of the Brick Lane and Fournier Street Conservation Area; and would preserve the setting of other heritage assets. As such, the NPPF 'public benefits test' (paragraph 196) is not engaged.
The proposals therefore comply with policy HC1 of the London Plan; policy S.DH3 of the Local Plan; the relevant paragraphs of the NPPF (2019); and the statutory duties set out in the Planning (Listed Buildings and Conservation Areas) Act 1990." (emphasis added)
"… the issue above is capable in some circumstances of being a material consideration in the context of a changing local character. However, in this instance, the issue is assigned very limited weight given the small scale of the changes proposed in relation to the wider Truman Brewery changes over recent decades – those which include activities and land uses that are recognised as being positive aspects of the local character within the Brick Lane and Fournier Street CA Appraisal and the draft Spitalfields Neighbourhood Plan. Furthermore, it is of note that any new development could have either a positive or negative impact on surrounding property values".
(emphasis added)
(1) A requirement that 20% of retail units (i.e. 3 units) would be reserved for independent businesses (i.e. those that operate no more than 10 similar retail units in London or employ no more than 250 full-time employees). This was to be secured through a Retail Management Strategy setting out how the owner intended to market and manage letting and occupation of the retail floor space, including a range of methods to promote the availability of the independent retail floor space. This was to be secured for a period of 20 years (paragraph 7.22). This requirement would accord with "the draft Spitalfields Neighbourhood Plan which recognises the contribution of small and micro-businesses to the local economy" (paragraph 7.23).
(2) A requirement that 10% of the employment workspace would be affordable workspace, providing 30% discounts on market rent (paragraph 7.15).
The April Meeting itself
"On a vote of 5 in favour and 0 against the committee RESOLVED:
That the consideration and determination of planning permission is DEFERRED at 140, 146 Brick Lane and 25 Woodseer Street, London, E1 6RU due to the following reason:
- To enable Officers to explore further the Head of Terms for the s106 agreement in relation to the terms & provision of affordable workspace and the provision of independent retail space with a focus on supporting existing local businesses and the community cohesion aspects of these matters."
In accordance with Development Procedural Rules, the application was DEFERRED to enable Officers to prepare a supplementary report to a future meeting of the Committee." (emphasis added)
The Defendant's constitution
Annual Council Meetings 19 May 2021 and on 24 June 2021
The Constitution
"Except where prevented in law, or this Constitution, any Committee may establish one or more sub-committees to undertake specific areas of decision making that would normally be the responsibility of the parent Committee."
Part B: The Defendant's Committees, including the Development Committee
"The Council has established a number of Committees, Sub-Committees, Boards and Panels with delegation powers and/or responsibility for various functions of Council. Summary terms of reference are included below setting out the powers of each body. Where useful, more detailed procedures and processes are set out in Part D of the Constitution" (emphasis added)
"In the absence of any express statutory prohibition to the contrary, all Council bodies listed from 4 onwards [which includes the Development Committee] may establish Sub-Committees pursuant to section 101 of the Local Government Act 1972 and/or may make specific delegations to officers.
Where a Council Committee appoints a Sub- Committee under the above provision, the Committee shall appoint a Member to serve as Chair of the Sub- Committee. If the Committee does not do so, the Sub-Committee may appoint its own chair from amongst the Members appointed by the Committee to the Sub-Committee. Each Committee, Sub-Committee may appoint a Vice-Chair from amongst its membership."
The summary terms of reference for the Development Committee are set out in section 19, sub-section 7 of Part B which provides that membership shall comprise 7 Councillors; that each political group may appoint up to 3 substitutes and that the Committee will be quorate with 3 members. It explains that additional information relating to the Development Committee is included in Parts C and D. The functions of the Development Committee are set out at page 58 of Part B and include determination of applications such as the Application, the subject of the present proceedings. (The list of committees in section 19 does not include a committee or sub-committee formed specifically to deal with the Application nor with deferred applications more generally). The May 2021 Council meeting appointed councillors to those committees. There was no mention of, or appointment to, a "Truman's Brewery" planning application sub-committee.
Part C: The Planning Code of Conduct
"1.1 The Planning Code of Conduct has been adopted by Tower Hamlets Council to regulate the performance of its planning functions. Its major objectives are to guide Councillors and officers of the Council in dealing with planning-related matters and to inform potential developers and the public generally of the standards adopted by the Council in the exercise of its planning powers.
1.2 The Planning Code of Conduct is in addition to the Code of Conduct for Members adopted under the provisions of the Localism Act 2011. Councillors should follow the requirements of the Code of Conduct for Members and apply this Code in the light of that Code. The purpose of this Code is to provide more detailed guidance on the standards to be applied specifically in relation to planning matters.
…
1.4 This Code applies to Councillors at all times that they are involved in the planning process. This would include, where applicable, when part of decision-making meetings of the Council in exercising the functions of the Planning Authority…
…"
"12.1 Councillors must not only act fairly but must also be seen to act fairly. Councillors must follow agreed procedures (at all times and should only ask questions at the appropriate points in the procedure. At no time should a Councillor express a view which could be seen as pre-judging the outcome. During the course of the meeting Councillors should not discuss (or appear to discuss) aspects of the case with the applicant, a developer, an objector, their respective advisers or any member of the public nor should they accept letters or documents from anyone other than an officer from Democratic Services or the Legal Adviser to the Committee.
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12.5 If a Councillor arrives late for a meeting, they will not be able to participate in any item or application already under discussion. Similarly, if a Councillor has to leave the meeting for any length of time, they will not be able to participate in the deliberation or vote on the item or application under discussion at the time of their absence. If a Councillor needs to leave the room, they should ask the Chair for a short adjournment."
"13.4 Councillors must not take part in the meeting's discussion on a proposal unless they have been present to hear the entire debate, including the officers' introduction to the matter. If an application has previously been deferred then the same Councillors will be asked to reconsider the application when it is returned to Committee"
(emphasis added)
"17.2 Appendix B to this Code of Conduct sets out the Development Procedure Rules that apply to all meetings of the Development Committee, Strategic Development Committee and Council in relation to the determination of planning applications. This is set out in Part D Section 53 of the Constitution."
Part D: The Development Procedure Rules
"1. SCOPE
1.1 These rules apply to all meetings of the Development Committee, Strategic Development Committee and Council in relation to the determination of planning applications.
1.2 As the determination of planning applications is a quasi-judicial function these rules provide processes and procedures which fulfil legal requirements of impartiality and natural justice." (emphasis added)
"The Chair shall have discretion to vary the procedure for hearing an application, following consultation with officers, should that be necessary in specific circumstances.
In order to be able to vote upon an item, a councillor must be present throughout the whole of the Committee's consideration including the officer introduction to the matter" (emphasis added)
Paragraph 6 of the Rules refers to "public speaking". It states:
"6.2 When a planning application is reported to Committee for determination the provision for the applicant/supporters of the application and objectors to address the Committee on any planning issues raised by the application, will be in accordance with the public speaking procedure adopted by the relevant Committee from time to time."
Paragraph 10.2 under the heading "Decisions contrary to Development Plan" states:
"10.2 If a Committee is minded to make a decision contrary to the officer recommendation (whether for approval or refusal) and that decision would be contrary to the provisions of the Development Plan, such motion may only contain the Committee's initial view and must be subject to a further report detailing the planning issues raised by such a decision. Further consideration of the matter must be adjourned to a future meeting of the Committee when officers will present a supplemental report setting out the proposed new position and explaining the implications of the decision."
(emphasis added)
"11.1 Where it is necessary to defer the determination of an application, the matter will be placed on the list of "Deferred, Adjourned an Outstanding Items" in the agenda to enable further consideration as soon as possible. Generally where the reason for deferral does not involve any substantive new information being brought before the Committee (for example, following deferral for a site meeting or clarification of an issue) the Committee will be updated by means of the addendum update report and can usually proceed to determine the application at the next meeting. In such circumstances at the re-convened consideration there will be no further public speaking pursuant to Rule 6.
11.2 Where deferral is for a more substantive reason (such as renegotiating part of the proposal) then it would generally be appropriate for a fresh report to be presented to the Committee in the "Planning Applications for Decision" part of the agenda in order to ensure that the Committee is apprised of all material considerations. Where a new full report is presented to Committee, public speaking pursuant to Rule 6 is permitted.
11.3 Such applications will be placed on the list of Deferred items at the beginning of the agenda so that the Committee has a record of all applications that stand deferred.
11.4 Where an application is deferred and its consideration recommences at a subsequent meeting only Members who were present at the previous meeting will be able to vote. If this renders the Committee inquorate then the item will have to be reconsidered afresh. This would include public speaking rights being triggered again." (emphasis added)
The Development Committee Meeting on 14 September 2021 (i.e. the September Meeting)
Advance notice of the Meeting
Formal Notice of the meeting
"The deadline for registering to speak is 4 PM Friday 10 September 2021.
The deadline for submitting information for the update report is Noon Monday, 13 September 2021"
In fact (and certainly by the next day), the position of Councillor Brady stated in the Notice was not accurate. At the hearing before me, the Defendant revealed for the first time that on 6 September itself, Councillor Brady had been appointed a full Member of the Development Committee. It thus followed that by the time of the September Meeting, the membership of the Development Committee had been reduced from 6 to 5 (rather than 4). Councillors Islam and Pierce were no longer members of the Committee.
The Agenda
"As public speaking has already occurred when the Committee first considered these deferred items, the Council's Constitution does not allow a further opportunity for public speaking. The only exception to this is where a fresh report has been prepared and presented in the "Planning Applications for Decision" part of the agenda. This is generally where substantial new material is being reported to Committee and the recommendation is significantly altered." (emphasis added)
(Apart from the concluding words, this accurately reflects the terms of paragraph 11.2 of the Rules).
The September Report
"1.2 As set out in the minutes of the meeting, the Committee expressed concern that further exploration was needed on the planning obligations in relation to the terms and provision of affordable workspace; the provision of independent retail with a focus on supporting existing local businesses; and the community cohesion aspects of these matters.
1.3 … Several changes had been made to the proposed affordable workspace and independent retail commitments in order to address the reasons for deferral. These are set out in this report and also appended (Appendix 2). The officer recommendation remains to grant planning permission and has been updated to reflect the outcome of the negotiations"
"CONSIDERATION OF THE COMMITTEE'S REASONS FOR DEFERRAL
Affordable Workspace
Proposed amount and duration
3.1. The Council's Local Plan Policy D.EMP2 requires a minimum of 10% of employment floorspace on major schemes to be provided at a minimum 10% below market rates for at least 10 years. The London Plan requires affordable workspace to be provided for 15 years.
3.2. At Development Committee, the proposals included the allocation of not less than 10% of the workspace within the development to be not less than 30% below the indicative market rate for a period of 10 years.
3.3. Following deferral, the applicant has increased their offer to provide affordable workspace that is not less than 45% below the indicative market rent for a period of 15 years.
3.4. The proposed 45% 'discount' on workspace would exceed the Council's Local Plan policy requirement but would be in line with Policy SPITAL7 of the draft Spitalfields neighbourhood plan. Although still in draft, the Neighbourhood Plan policies now carry significant weight, having been subject to examination and recommended for referendum. The proposed 15-year duration of the affordable workspace would exceed the minimum durations required in the Local Plan (10 years) and draft Neighbourhood Plan (12 years); and would meet the requirements of London Plan policy.
Size of business
3.5. At Development Committee, the application did not include restrictions on the size of business that the affordable workspace would be secured for. This has now been negotiated to comprise the definition of "small" businesses under the Companies Act 2006. Using the current definition, this would mean satisfying two or more of the following criteria in a financial year:
• Turnover not more than £10.2m
• Balance sheet total not more than £5.1m
• Employees not more than 50
Proposed 'Affordable Workspace Strategy'
3.6. An Affordable Workspace Strategy, to be submitted and secured as part of the section 106 agreement, was originally proposed. Since the deferral of the application, the details of the Strategy have been negotiated and developed, with the aim of ensuring that the affordable workspace is focused on and prioritised for local businesses in keeping with the nature and character of the wider Brick Lane and Spitalfields area. The strategy would comprise the following:
• Fit out and specification of the affordable workspace which shall be a 'Category A' specification, referring to the basic finishing of an interior space.
• A marketing strategy which consists of:
o an initial marketing period of three months to be focussed on local marketing only as per the range of methodologies below;
…
o giving priority with first applications and nominations for lettings to be offered to prospective occupiers who are based 'locally', that is, existing Tower Hamlets business rates payees; existing Tower Hamlets council tax payees; or businesses based within a three miles radius of the Development; and
o a strategy for seeking occupiers that are in keeping with the nature and character of existing workspace occupiers within the Truman Brewery estate and the wider Brick Lane and Spitalfields area, with a strong focus on attracting independents.
Independent Retail
…
Size of business
3.9. At Development Committee, the agreed definition of 'independent retail' referred to small to medium-sized businesses that operate no more than ten similar retail outlets in London; or employ no more than 250 persons (full time equivalent).
3.10. To address the reason for deferral, similar to the affordable workspace obligation above, this definition has been negotiated to comprise the definition of "small" businesses under the Companies Act 2006. Using the current definition, this would mean satisfying two or more of the following criteria in a financial year:
• Turnover not more than £10.2m
• Balance sheet total not more than £5.1m
• Employees not more than 50
Proposed 'Independent Retail Strategy'
3.11. Similar to the Affordable Workspace Strategy above, the obligation to provide an Independent Retail Strategy has been developed further. Principally, the Strategy includes an initial three-month period for local marketing only; giving priority for lettings to potential occupiers who are based locally; and a strategy for seeking retail occupiers that are in keeping with the nature and character of the local area. The details are set out in full in paragraph 3.6 above, which also apply to this obligation.
3.12. The strategy would also include details of the fit out and specification of the independent retail units.
3.13. It is of note that the Section 106 clause would 're-start' if and when an independent retail unit vacates during the 20-year period.
…
Summary
3.16. In summary, the proposed amendments to the proposed planning obligations - the increased provision and duration of affordable workspace; the addition details provided in relation to local marketing; prioritisation of local businesses; selection of occupiers that reinforce the unique character of the area; and the quality of commercial spaces - would respond to the Committee's reasons for deferral.
…
3.18. Overall, these obligations would provide additional benefits to local businesses and the local community; and address the reasons for deferral. The obligations are provided in the context of a scheme that otherwise complies with the adopted development plan." (emphasis added)
Further Representations
"The Spitalfields Trust, along with very many local businesses and residents, has strong objections to the proposed development. It believes that the proposed corporation offices will threaten and destabilise the existing make-up of small independent businesses and the low rents they pay, which are crucial to the unique character of Brick Lane. In addition the scheme harms the amenity of long-established residents in Woodseer Street, and harms the character and appearance of the Brick Lane/Fournier Street Conservation Area."
This objection was then expanded under six headings, many of which were not directed specifically to the issues which gave rise to the deferral but re-iterated matters previously raised. The headings were: Harm to Brick Lane Town Centre; Lack of Provision of Affordable Rental Space; Harm to the Character and Appearance of the Brick Lane Conservation Area (including views of Truman's chimney); Harm to Residential Amenity because of Noise; Overlooking and loss of daylight; Sustainability and Prematurity in advance of adopted planning brief for the Old Truman Brewery. There is reference to the Local Plan, but no reference to the Draft Plan.
The September Meeting itself
"Only the councillors present on the 27 April committee meeting and are here in the Council Chamber may vote on this item. They are myself, Cllrs Kevin Brady and Kahar Chowdhury. Cllr Leema Qureshi is also present but as she is attending online she cannot vote today on this item."
This statement was in line with paragraph 13.4 of the Planning Code of Conduct.
The Minutes of the September Meeting
"In response to the presentation, the Committee asked a number of questions around the following issues:
…
• The status of the draft Spitalfields Neighbourhood Plan and the extent the proposals complied with this. Officers confirmed that at this stage in the process, the Council can give and had given this full weight in relation to assessing this application. It has been properly applied and the proposals accorded with the plan and has helped secure some of the additional concessions. …"
The minutes then go on to record that the Committee resolved to grant planning permission by 2 votes in favour to 1 against. Councillor Mukit, the chair, voted against. (Had the votes been equal, Councillor Mukit would have had a second or casting vote.)
The Transcript of the September Meeting
": ….I just wanted to ask you one question about local neighbourhood plan. I want you to make a comment on that because we are working very closely with the Spitalfields Trust on local neighbourhood plans and they are going to approve this on 11th November. How does it affect of our …this application. Thank you."
Mr Buckenham responded:
"In terms of the neighbourhood plan …very important to mention it has been alluded to in the report the Spitalfields's neighbourhood plan has now been on its journey through its draft and through its consultation, through examination and the examiner's report was published on 16th July. Neighbourhood plans form part of the development plan so they sit alongside the council's local plan and the London plan when you're making your decisions and Section 70 of the Duncan (?) Planning Act says that actually you do not have to wait for the referendum to take place. If there is a draft plan and it's been through examination then any policies within that plan that are material to your decision making should be applied and our view is that the proposals are consistent with the Spitalfields neighbourhood plan and indeed there was a slide a bit earlier that just talked about how the affordable workspace is really adhering to the level of discount that's being asked for in that plan rather than in the council local plan so it's a bigger level of discount than the Spitalfields neighbourhood plan and that's what's been negotiated with the applicant. I think Mrs Hartman (?) has just moved it on to the screen so it's Policy Spittle 7 (?) of the draft neighbourhood plan is the one that's being applied in this case." (emphasis added)
A little later in the Meeting, Councillor Mukit asked Mr Buckenham whether the decision on the Application should be deferred until the Draft Plan itself was approved on 11 November. Mr Buckenham responded that the Draft Plan was now at the stage where they could give it practically full weight in terms of decision making and it would not change between now and November. Mr Buckenham continued:
"The natural follow-on question is if members of the committee in some way feel that there are policies in that plan that haven't been properly applied to this application. We're not aware of any and indeed we've used the plan to our advantage in terms of the negotiations to get a greater reduction in terms of the level of affordable workspace which we wouldn't have been able to do just under the council's own local plan for example." (emphasis added)
Grant of planning permission and subsequent events
The Legislative Background
The Local Government Act 1972
"Arrangements for discharge of functions by local authorities.
(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 other local authority.
…
…
(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 …"
"Appointment of committees.
(1) For the purpose of discharging any functions in pursuance of arrangements made under section 101 above … -
(a) a local authority may appoint a committee of the authority; or
(b) two or more local authorities may appoint a joint committee of those authorities; or
(c) any such committee may appoint one or more sub-committees.
…
(2) Subject to the provisions of this section, the number of members of a committee appointed under subsection (1) or (1A) above, their term of office, and the area (if restricted) within which the committee are to exercise their authority shall be fixed by the appointing authority or authorities or, in the case of a sub-committee, by the appointing committee."
"Standing orders.
Standing orders may be made as respects any committee of a local authority by that authority or as respects a joint committee of two or more local authorities, whether appointed or established under this Part of this Act or any other enactment, by those authorities with respect to the quorum, proceedings and place of meeting of the committee or joint committee (including any sub-committee) but, subject to any such standing orders, the quorum, proceedings and place of meeting shall be such as the committee, joint committee or sub-committee may determine."
(emphasis added)
"39(1) Subject to the provisions of any enactment (including any enactment in this Act) all questions coming or arising before a local authority shall be decided by a majority of the members of the authority present and voting thereon at a meeting of the authority.
(2) Subject to those provisions in the case of an equality of votes, the person presiding at the meeting shall have a second or casting vote.
…
42 Subject to the provisions of this Act, a local authority may make standing orders for the regulation of their proceedings and business and may vary or revoke any such orders.
44 (1) Paragraphs 39 to 43 above (except paragraph 41(3)) shall apply in relation to a committee of a local authority (including a joint committee) or a sub-committee of any such committee as they apply in relation to a local authority."
(emphasis added)
The Local Government Act 2000
"Local authority constitution
(1) A local authority must prepare and keep up to date a document (referred to in this section as its constitution) which contains—
(a) a copy of the authority's standing orders for the time being,
(b) a copy of the authority's code of conduct (if any) for the time being under section 28 of the Localism Act 2011,
(c) such information as the Secretary of State may direct, and
(d) such other information (if any) as the authority considers appropriate.…"
"Guidance
(1) A local authority must have regard to any guidance for the time being issued by the Secretary of State for the purposes of this Part.
(2) Guidance under this section may make different provision for different cases or descriptions of local authority."
"Provisions with respect to executive arrangements
Overview and scrutiny committees.
…
(10) An overview and scrutiny committee of a local authority, or any sub-committee of such a committee, may include persons who are not members of the authority, but (subject to any provision made by or under paragraph 8 or 9 of Schedule 1) any such persons are not entitled to vote at any meeting of such a committee or sub-committee on any question which falls to be decided at that meeting ...."
(emphasis added)
Further provision in this regard is made at paragraphs 7, 11 and 12 of Schedule A1, allowing voting rights in specific cases and circumstances.
The Local Government Act 2000 (Constitutions) (England) Direction 2000
Local Government and Housing Act 1989
"Voting rights of members of certain committees: England and Wales.
(1) Subject to the following provisions of this section, a person who—
(a) is a member of a committee appointed under a power to which this section applies by a relevant authority and is not a member of that authority;
(b) is a member of a joint committee appointed under such a power by two or more relevant authorities and is not a member of any of those authorities; or
(c) is a member of a sub-committee appointed under such a power by such a committee as is mentioned in paragraph (a) or (b) above and is not a member of the relevant authority, or one of the relevant authorities, which appointed that committee,
shall for all purposes be treated as a non-voting member of that committee, joint committee or, as the case may be, sub-committee.
(2) The powers to which this section applies are—
(a) the powers conferred on any relevant authority by subsection (1) of section 102 of the Local Government Act 1972 (ordinary committees, joint committees and sub-committees)
…" (emphasis added)
"Duty to allocate seats to political groups.
(1) It shall be the duty of a relevant authority having power from time to time to make appointments to a body to which this section applies to review the representation of different political groups on that body—
(a) where the members of the authority are divided into different political groups at the time when this section comes into force, as soon as practicable after that time;
(b) where the authority hold annual meetings in pursuance of paragraph 1 of Part I of Schedule 12 to the Local Government Act 1972 (annual meeting of principal councils) and the members of the authority are divided into different political groups at the time of any such meeting, at or as soon as practicable after the meeting;
(c) where, at the time of the meeting required by paragraph 1 of Schedule 7 to the Local Government (Scotland) Act 1973 to be held in an election year within twenty-one days of the election, the members of the authority are divided into different political groups, at or as soon as practicable after the meeting;
(d) as soon as practicable after any such division as is mentioned in paragraphs (a) to (c) above occurs; and
(e) at such other times as may be prescribed by regulations made by the Secretary of State.
….
(4) Subject to subsection (6) below, it shall be the duty of a relevant authority or committee of a relevant authority—
(a) in performing their duty under subsection (3) above; and
(b) in exercising their power, at times not mentioned in subsection (3) above, to determine the allocation to different political groups of seats on a body to which this section applies,
to make only such determinations as give effect, so far as reasonably practicable, to the principles specified in subsection (5) below.
(5) The principles mentioned in subsection (4) above, in relation to the seats on any body which fall to be filled by appointments made by any relevant authority or committee of a relevant authority, are—
(a) that not all the seats on the body are allocated to the same political group;
(b) that the majority of the seats on the body is allocated to a particular political group if the number of persons belonging to that group is a majority of the authority's membership;
(c) subject to paragraphs (a) and (b) above, that the number of seats on the ordinary committees of a relevant authority which are allocated to each political group bears the same proportion to the total of all the seats on the ordinary committees of that authority as is borne by the number of members of that group to the membership of the authority; and
(d) subject to paragraphs (a) to (c) above, that the number of the seats on the body which are allocated to each political group bears the same proportion to the number of all the seats on that body as is borne by the number of members of that group to the membership of the authority." (emphasis added)
"Bodies to which section 15 applies
1. Subject to such exceptions as may be prescribed by regulations made by the Secretary of State, section 15 of this Act applies, in relation to any relevant authority or committee of a relevant authority—
(a) to any ordinary committee or ordinary sub-committee of the authority;
…
Construction of sections 15 to 17
…
4 (1) In sections 15 to 17 of this Act and this Schedule—
…
"seat", in relation to a body to which section 15 of this Act applies, means such a position as a member of that body as—
(a) entitles the person holding the position to vote at meetings of the body on any question which falls to be decided at such a meeting; and
…
…
(3) References in this paragraph to voting include references to making use of a casting vote."
(emphasis added)
Localism Act 2011
"Pecuniary interests in matters considered at meetings or by a single member
(1) Subsections (2) to (4) apply if a member or co-opted member of a relevant authority—
(a) is present at a meeting of the authority or of any committee, sub-committee, joint committee or joint sub-committee of the authority,
(b) has a disclosable pecuniary interest in any matter to be considered, or being considered, at the meeting, and
(c) is aware that the condition in paragraph (b) is met.
…
(4) The member or co-opted member may not—
(a) participate, or participate further, in any discussion of the matter at the meeting, or
(b) participate in any vote, or further vote, taken on the matter at the meeting,
but this is subject to section 33.
…" (emphasis added)
Local Government Finance Act 1992
"Council tax and community charges: restrictions on voting.
(1) This section applies at any time to a member of a local authority, or a member of a committee of a local authority or of a joint committee of two or more local authorities (including in either case a sub-committee), or a council manager within the meaning of section 11(4)(b) of the Local Government Act 2000, if at that time—
(a) a sum falling within paragraph 1(1)(a) of Schedule 4 to this Act; or
(b) a sum falling within paragraph 1(1)(a), (b), (d) or (ee) of Schedule 4 to the 1988 Act (corresponding provisions with respect to community charges),
has become payable by him and has remained unpaid for at least two months.
(2) Subject to subsection (5) below, if a member or a council manager to whom this section applies is present at a meeting of the authority or committee or in the case of an authority which are operating executive arrangements the executive of that authority or any committee of that executive at which any of the following matters is the subject of consideration, namely—
(a) any calculation required by Chapter III, IV or of Part I of this Act;
(b) any recommendation, resolution or other decision which might affect the making of any such calculation; or
(c) the exercise of any functions under Schedules 2 to 4 to this Act or Schedules 2 to 4 to the 1988 Act (corresponding provisions with respect to community charges),
he shall at the meeting and as soon as practicable after its commencement disclose the fact that this section applies to him and shall not vote on any question with respect to the matter.
…" (emphasis added)
Town and Country Planning Act 1990
"Determination of applications: general considerations.
(1) Where an application is made to a local planning authority for planning permission—
(a) subject to section 62D(5) and sections 91 and 92, they may grant planning permission, either unconditionally or subject to such conditions as they think fit; or
(b) they may refuse planning permission.
(1A) Where an application is made to a local planning authority for permission in principle—
(a) they may grant permission in principle; or
(b) they may refuse permission in principle.
(2) In dealing with an application for planning permission or permission in principle the authority shall have regard to—
(a) the provisions of the development plan, so far as material to the application,
(aza) a post-examination draft neighbourhood development plan, so far as material to the application,
…
(c) any other material considerations.
…
(3B) For the purposes of subsection (2)(aza) (but subject to subsections (3D) and (3E)) a draft neighbourhood development plan is a "post-examination draft neighbourhood development plan" if—
(a) a local planning authority have made a decision under paragraph 12(4) of Schedule 4B with the effect that a referendum or referendums are to be held on the draft plan under that Schedule,
…" (emphasis added)
Senior Courts Act 1981
"…
(2A) The High Court—
(a) must refuse to grant relief on an application for judicial review, and
(b) may not make an award under subsection (4) on such an application,
if it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred.
…
(6) Where the High Court considers that there has been undue delay in making an application for judicial review, the court may refuse to grant—
(a) leave for the making of the application; or
(b) any relief sought on the application,
if it considers that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration."
Relevant Planning Policy
The London Plan
"The design-led approach
A All development must make the best use of land by following a design-led approach that optimises the capacity of sites, including site allocations. Optimising site capacity means ensuring that development is of the most appropriate form and land use for the site. …
…
D Development proposals should:
Form and layout
1) enhance local context by delivering buildings and spaces that positively respond to local distinctiveness through their layout, orientation, scale, appearance and shape, with due regard to existing and emerging street hierarchy, building types, forms and proportions
…
Quality and character
11) respond to the existing character of a place by identifying the special and valued features and characteristics that are unique to the locality and respect, enhance and utilise the heritage assets and architectural features that contribute towards the local character
12) be of high quality, with architecture that pays attention to detail, and gives thorough consideration to the practicality of use, flexibility, safety and building lifespan through appropriate construction methods and the use of attractive, robust materials which weather and mature well" (emphasis added)
"…
Design scrutiny
…
D The design of development proposals should be thoroughly scrutinised by borough planning, urban design, and conservation officers, utilising the analytical tools set out in Part B, local evidence, and expert advice where appropriate …"
"Development Plans and development proposals should:
..
B ensure the public realm is well-designed, safe, accessible, inclusive, attractive, well-connected, related to the local and historic context, and easy to understand, service and maintain….
…
D be based on an understanding of how the public realm in an area functions and creates a sense of place during different times of the day and night, days of the week and times of the year….
…
F ensure there is a mutually supportive relationship between the space, surrounding buildings and their uses, so that the public realm enhances the amenity and function of buildings and the design of buildings contributes to a vibrant public realm
G ensure buildings are of a design that activates and defines the public realm, and provides natural surveillance. Consideration should also be given to the local microclimate created by buildings, and the impact of service entrances and facades on the public realm."
The Tower Hamlets Local Plan
"Policy S.DH1
Delivering high quality design
1. Development is required to meet the highest standards of design, layout and construction which respects and positively responds to its context, townscape, landscape and public realm at different spatial scales, including the character and distinctiveness of the borough's 24 places (as shown on Figure 4) and their features. To achieve this, development must:
a. be of an appropriate scale, height, mass, bulk and form in its site and context
…
c. ensure the architectural language: scale, composition and articulation of building form, design of detailing, elements and materials applied on elevations, complements and enhances their immediate and wider surroundings
d. protect important views of and from landmark buildings and vistas
…
f. create well-connected, inclusive and integrated spaces and buildings which can be easily adaptable to different uses and the changing needs of users
…
Explanation
…
8.7 Parts 1(d) refers to views which are mostly distinctive and which residents, workers and visitors of the borough recognise and value. In particular, development proposals will need to take account of the views identified in Policy D.DH 4 and shown in Figure 6"
…
Policy D.DH2
Attractive streets, spaces and public realm
…
1. Development is required to contribute to improving and enhancing connectivity, permeability and legibility across the borough, ensuring a well-connected, joined-up and easily accessible street network and wider network of public spaces through:…
2. Development is also required to positively contribute to the public realm through:
…
b. providing clear definitions and enclosure through building frontage and massing, and connection and continuity of pedestrian desire lines and street activities, at a human scale
…
Policy S.DH3
Heritage and the historic environment
"1. Proposals must preserve or, where appropriate, enhance the borough's designated and non-designated heritage assets in a manner appropriate to their significance as key and distinctive elements of the borough's 24 places.
…
3. Applications affecting the significance of a heritage asset will be required to provide sufficient information to demonstrate how the proposal would contribute to the asset's conservation. Any harm to the significance of a heritage asset must be justified having regard to the public benefits of the proposal: whether it has been demonstrated that all reasonable efforts have been made to sustain the existing use, find new uses, or mitigate the extent of the harm to the significance of the asset; and whether the works proposed are the minimum required to secure the long term use of the asset.
Factors that will be considered can include:
…
Policy D.DH4
Shaping and managing views
1. Development is required to positively contribute to views and skylines that are components of the character of the 24 places in Tower Hamlets. Intrusive elements in the foreground, middle ground and backdrop of such views will be resisted. Development will be required to demonstrate how it:
a. complies with the requirements of the London View Management Framework and World Heritage Site Management Plans (Tower of London and Maritime Greenwich)
b. positively contributes to the skyline of strategic importance, forming from the silhouettes of tall building clusters around Canary Wharf (as defined on the Policies Map)
c. preserves or enhances the prominence of borough-designated landmarks and the skyline of strategic importance in the borough-designated views (as defined in Figure 6)" (emphasis added)
Figure 6 as referred to in paragraph 1c) identified 9 key views – the only relevant one, for present purposes, being a view towards Christ Church Spitalfields.
The draft Spitalfields Neighbourhood Plan
"Vision for Spitalfields
The Neighbourhood Plan's vision is to conserve and improve all the ingredients that come together to make Spitalfields such a distinctive and attractive neighbourhood. Throughout the period to 2035 we want to maintain the delicate balance between businesses-large or small, corporate or creative-local residents, and local, national and international visitors. They all compete for the 21st century's scarce urban resource-the space to live, work, rest and play. We want to ease the many pressures of inner city living which impact both publicly and privately held indoor and outdoor space. We want to enable the different parts of the peoples of the area to work together harmoniously by conserving the cherished sense of place; protecting the distinctive urban grain,; maintaining the vibrant cultural character; and helping local commercial and retail enterprises thrive as they welcome visitors into a safe, clean and entertaining environment with the broadest of offerings."
"A. All development, including new buildings and extensions or alterations to existing buildings, shall be of a high quality of design, which complements and enhances the local character and identity of Spitalfields.
B. All applications for development within conservation areas, identified in Figure 2.1, should demonstrate that they would not have a harmful impact on the character or appearance of the area. Development proposals should not have a negative impact on listed buildings or other designated heritage assets, or their settings.
…
D. All applications for development should take account of their impact on the Local Character Areas identified in Figure 4.1 and Appendix A, within which the application site sits or adjacent to it. New development should interact and interface positively with the street and streetscape described in the Local Character Area in which it is located, including respecting existing or, where possible, historic street facing building lines and frontages.
E. Development should contribute positively to the character of existing and nearby buildings and structures, and should have regard to the form, function and heritage of its Local Character Area.
F. Development should be sensitive to its setting and should respect the scale, height, mass, orientation, plot widths, and grain of surrounding buildings, streets and spaces. This applies within the Local Character Area within which the site is located, and, where relevant, where it directly impacts an adjacent Local Character Area.
G. Development should have regard to any impact on the local views identified in the relevant Conservation Area Appraisal or Character Area Appraisal, and shown on Figure 4.2."
(emphasis added)
Figure 4.2 is a map of the area entitled "significant views within the Spitalfields Area" and identifies a substantial number of views. It states that "the significant views include…views already identified as important in the existing adopted Conservation Area Management Guidelines; and… additional views considered important because they give views of a specific identified landmark e.g. the spire of Christ Church or the Old Truman Brewery chimney, or because they offer good general street and townscape views."
"A. New development should maintain and create a positive relationship between buildings and street level activity, including the provision of appropriate activities at ground floor level facing and fronting the street as set out in the Local Character Area appraisals.
…
C. New or altered shopfronts and signage should demonstrate a high quality of design that preserves and enhances the character and appearance of the Local Character Area within which the application sits.
… "
"As required by Tower Hamlets Local Plan Policy D.EMP 2 (New employment space), major development of commercial and mixed-new schemes must provide at least 10% of new employment floorspace as affordable workspace for a minimum of 10 years. In Spitalfields, this provision should be let at an affordable rate at least 45% below the Neighbourhood Area's indicative market rate for a minimum of 12 years, subject to viability (which must clearly be demonstrated by an open book viability appraisal)."
"B5. The area also includes a number of empty sites, such as former car parks or service yards, and utilitarian, 20th century buildings where there are opportunities for redevelopment or imaginative adaptation which will enhance the area and introduce more permeability into and through the brewery complex. Such opportunities for larger buildings need to consider their interface with adjoining Local Character Areas, such as North Brick Lane and St Stephen. The most sensitive perimeter interface is facing Woodseer Street, including the new residential block at 15 Spital Street because of the 19th century terrace of housing on the south side of the street."
…
B7. The Brick Lane/Fournier Street Conservation Area Appraisal and Management Guidelines recognise the Truman Brewery chimney as a landmark, and states that views of its from publicly accessible spaces should be protected. This includes certain key views from within Local Character Area B, where it is sometimes seen in close proximity to other Brewery buildings, but also because of the chimney's height there are views from further afield, including Local Character Areas C, E and F.
B8. The following views and vistas within the Local Character Area are considered important and effort should be made to protect them:
- …
- view from Brick Lane under the bridge looking north (View BVE02)
- From west side of Brick Lane north of Hanbury Street looking north toward the brewery (View BVE03)" (emphasis added)
"F1 South of the brewery complex, Brick Lane is the busy and narrow artery of Banglatown.
…
F6 The following views are considered important and effort should be made to protect them:
- …
- from Brick Lane looking eastwards along Woodseer Street (View FVE06)"
The Grounds of Challenge
(1) Councillors were unlawfully told that they could not vote on the Application at the September 2021 Development Committee meeting if they had not been present at the earlier April 2021 meeting which had deferred the application. All members of the Committee (and substitutes) who were present (or who would have been present without the instruction) were entitled to vote. (Ground 1: entitlement to vote)
(2) Since the Application had been deferred for the renegotiation of part of the proposal and had been returned to the Committee with substantive changes to the planning obligations, substantive new information and a significant change in the weight to be attached to the Draft Plan, public speaking should have been allowed at the September meeting under the Council's Constitution. (Ground 2: public speaking)
(3) The Council failed to have regard to relevant policies of the Draft Plan despite recognising that it was a material consideration which carried significant weight. (Ground 3: failure to have regard to the Draft Spitalfields Neighbourhood Plan)
Ground 1: Entitlement to Vote
The Parties' submissions
The Claimant's case
(1) All members of the Development Committee are entitled to vote on applications coming before it.
(2) In the present case, no individual councillor was prohibited by reason of pecuniary interest or any other disqualifying condition in the primary legislation.
(3) The Deferred Meeting voting rule contained within the Constitution (i.e. paragraph 13.4 of the Code of Conduct and paragraph 11.4 of the Rules) was therefore unlawful. It is lawful for committee members or substitutes to vote on a deferred application when they had not attended the first meeting. In the present case, such members could and would have been as well informed as those who had been at the first meeting.
(4) Contrary to the Defendant's assertion, the Council did not establish a sub-committee, or change the membership of the Development Committee, to consider the Application. The provisions in the Constitution do not purport to change the membership of the Committee, but instead seek to impose constraints as to which members of that Committee are able to consider deferred applications. The language of the document is that of consideration and voting, not membership. At no point did the Council or the Development Committee establish, by decision, a sub-committee or change the membership of the Development Committee. The Defendant changed its stance after the Decision, when it argued for the first time that the membership of the Committee had itself changed or that the Committee had created a sub-committee. At no point did the Defendant apply or seek to apply the proportionality rules in section 15 LGHA 1989. Notice of the September Meeting was given as a meeting of the Development Committee, identifying all members and substitutes of that Committee.
(5) Paragraph 42 of Schedule 12 LGA 1972 does not give the Council or the Development Committee power to deprive a committee member of his or her entitlement to vote. The powers to make standing orders - in section 106 and Schedule 12 - are concerned with the conduct of proceedings and not with the inherent rights of members under primary legislation.
(6) The effect of the Deferred Meeting voting rule meant that only three of the full complement of five members could vote at the September Meeting. But for the rule, five members (or substitutes) could have attended and voted. If two more Councillors had attended and voted the outcome might have been different (i.e if both voted against, or one voted against and one abstained (with Councillor Mukit's casting vote being against)).
The Defendant's and the Interested Party's cases
(1) The vote which took place on the determination of the Interested Party's planning application was wholly lawful. The Chair's announcement at the start of the item, that only Councillors present at the April Meeting and present in the Council Chamber at the time of the determination could vote on the item, was lawful and in accordance with the Constitution. In particular it was lawful for the Defendant to make such provision in the Constitution for three reasons:
(a) By paragraph 13.4 of the Code of Conduct and paragraph 11.4 of the Rules in the Constitution, the Defendant has made provision for the composition of membership of the Development Committee when a deferred application is being considered. It has provided, in substance, that, in such a case, the Committee is to comprise only those members who were present at the earlier meeting.
(b) Alternatively, the "effect" of those provisions of the Constitution is that, when consideration of a deferred application recommences, the Development Committee, in exercise of its power to establish a sub-committee under Part B, section 19 and s.101 LGA 1972, delegates the power to determine to a sub-committee, comprising only those members who were present when the application was first considered.
(c) In any event, the purpose of these provisions is to make rules "for the regulation of their proceedings and business" within the meaning of paragraph 42 of Schedule 12 to LGA 1972; they were thus expressly authorised and/or permitted by LGA 1972.
Discussion and analysis
(1) The Deferred Meeting Voting Rule
The case authorities
"52. The Local Government Act 1972 is, as Schiemann LJ has said, the modern successor of a series of major statutes giving life and legitimacy to local government in England and Wales. The 1972 Act, with its satellite primary and delegated legislation, continues and develops a historical system of local representative democracy. Each of those three words needs to be given its proper value.
53. First, a representative democracy exchanges the Athenian ideal of direct participation for elected individuals through whom alone the electors have a voice in the institutions of government. Secondly, the system is local, not only in the sense that a county council is not a national body - but more relevantly - because a councillor is elected as the representative of a territorial unit within the county. Thirdly, every councillor's voice and vote is equal. It follows that the proceedings and business of the Council cannot lawfully be arranged so that (however innocent the intent) particular councillors are unjustifiably silenced or otherwise disadvantaged in doing what they have been elected to do. Effect has to be given to this third principle in the light of the statutory requirement (Local Government Act 1972 Schedule 12 para 4(5)) that no non-urgent business may be discussed at all unless it is contained in the notice summoning the meeting."
54. None of this, it seems to me, is aptly described in terms of councillors' rights. It has to do with the exercise and possible abuse of power by a local authority acting collectively. If there are rights involved, they are those of the people of the county." (emphasis added)
"40. The councillors were clearly advised that it was for them to make their own decisions about whether to vote. They were not advised or told by the Council officers that they were disqualified from voting, or to leave the meeting on 19 September. They were not prevented from voting at it, if they so wished. In deciding individually not to vote the councillors were exercising their own judgment in the light of the advice that was given. None of the advice given to them was wrong or amounted to an immaterial consideration giving rise to a procedural irregularity or to unlawfulness in the granting of the consents.
41. It follows that there was no procedural irregularity vitiating the grant of the consents. Having received correct advice the councillors decided not to vote on the resolution. This was their decision and it has not been demonstrated that it was affected by immaterial considerations, such as wrong advice either about their attendance at February meeting or about the failure to make a site visit. (emphasis added)
The case therefore concerned the ability of members of a planning committee to vote on a particular application. It did not concern a provision in the council's constitution, nor one for the membership of the relevant committee or the establishment of a sub-committee.
"The procedures in accordance with which any such hearing is arranged and conducted (including, without prejudice to the generality of this subsection, procedures for ensuring relevance and avoiding repetition) and any other procedures consequent upon the hearing are to be such as the council considers appropriate." (emphasis added)
"Section 30(2) is a key provision in the context of this case, which is relied upon heavily by the respondent. It allows a council to determine the procedures which it considers appropriate both in respect of the pre-determination hearing itself and also "any other procedures consequent upon the hearing."
At §§88 to 91 the judge referred to the Planning Committee Protocol. In particular the Protocol provided that "non-attendance by Members at PDH [pre-determination hearing] means that Members cannot vote on the planning decision"; although they could participate and ask questions. The Protocol further provided that at committee meetings proper, Members had to be present in the council chamber for the entire item, including the officer's introduction and update; otherwise they could not take part in the debate or vote on that item. (In the present case, similar provision is made in paragraphs 12.5 and 13.4 of the Planning Code of Conduct and paragraph 5.4 of the Rules, as set out above).
"[95] The applicant contends that the Planning Committee's decision is vitiated in law because several members who were present and legally entitled to vote were wrongly disenfranchised as a result of the operation of the Council's Planning Committee Protocol. This is essentially a challenge to the vires of the Protocol on this point.
[96] It appears that the issue raised in relation to the Protocol was particularly acute in the circumstances of this case. That is because, between the pre-determination hearing on 12 March 2020, and the Planning Committee meeting on 29 July 2020, there had been a significant change in the constitution of the Planning Committee in terms of elected members. That meant that several of those who had attended the pre-determination hearing in March as members of the Planning Committee were no longer members of that committee by July; and that, conversely, a number of the members of the Planning Committee in July had not been members of that committee in March and therefore would have had no reason to attend the pre-determination hearing.
[97] The application of the Protocol in those circumstances meant that, of the twelve elected councillors who attended the Planning Committee meeting on 29 July 2020, there were only seven of them who were permitted to vote….. The transcript of the meeting also supports the contention that clear advice was given that members who were present and would otherwise be eligible to vote were precluded from so voting where they had not been present at the pre-determination hearing. The transcript also shows that a number of councillors accepted this advice and expressed themselves to have "no vote", or words to that effect.
[98] The applicant's objection to this is straightforward. Those committee members 'deprived' of a vote because of their non-attendance at the PDH were elected members entitled to vote in the Council's decision making processes. That is a matter of basic fairness and local democracy and, more particularly, a basic entitlement of an elected councillor which can only be removed from him or her for good reason and with a clear legal basis."
"[110] The outcome of the applicant's challenge on the voting issue turns on questions of pure statutory construction: in particular, whether the ability of the Council to adopt such procedures as it considers appropriate "consequent upon" a pre-determination hearing under section 30(2) of the 2011 Act allows it to restrict the right of elected members to vote in a later Planning Committee meeting.
[111] Elected councillors' right to participate and vote in council meetings is not addressed directly in the 2014 Act. Rather, it is assumed. This is an entirely natural assumption, since councillors are elected to make decisions in council (and in any of the committees to which they are appointed through which a council exercises its functions). The 2014 Act refers on a number of occasions to councillors being "present and voting." It seems to me that it is a basic premise of that Act that councillors are entitled to vote in council, or in committees to which they have been appointed, and that the question of whether or not they should vote is, at least in general, a matter for their own individual judgment (subject always to sanction for breach of the Code of Conduct and, ultimately, to electoral accountability for their actions).
[112] Although this question is not entirely clear cut, ultimately I accept the applicant's contention that section 30(2) of the 2011 Act does not provide adequate statutory authority for a council to deprive an elected member of his or her vote in circumstances where they wish to exercise it. Any such authority would, in my view, require to be clearly stated, given that it is such a significant departure from the basic democratic principles to which the 2014 Act gives effect. Reading section 30 of the 2011 Act as a whole, it appears to me that the word "procedures" is referring to the practical arrangements for a pre-determination hearing and the conduct of the hearing – to include matters such as attendance, venue, timing, speaking rights, etc. – rather than the substantive decision-making process which the council (or committee) will ultimately have to undertake. Put another way, as the applicant submitted: "… the right to vote is not a matter of procedure. Procedures precede the vote. The vote is the decision, not the procedure before it." (emphasis added)
"[123] These authorities reinforce my view that, in order to empower a council to deprive an elected member appointed to the Planning Committee of his or her vote on an issue at a meeting at which they were present and desirous of voting, section 30(2) of the 2011 Act would have had to have been in much clearer terms. The Council was and is entitled, either through its officers or collectively adopted procedures, to give strong advice to a member about the wisdom of voting in particular circumstances where doing so may increase the risk of successful legal challenge; but it was not entitled to purport to legally disqualify members from voting in the circumstances of this case. I do not need to decide, nor do I, whether standing orders or the common law might permit such a disqualification in certain other circumstances which have not arisen for consideration in these proceedings. Generally, however, where a councillor is to be disabled from voting on a particular issue, one would expect this to be clearly spelt out in statute, as, for example, in section 28(1)(a) of the Local Government Act (Northern Ireland) 1972 (where the member has a pecuniary interest in the matter being considered).
…
[125] In addition, it seems to me that the term "procedures" in section 30(2) of the 2011 Act has generally been understood to relate to practical or administrative arrangements for the meeting and debate, rather than the substance of the voting process, in previous departmental publications. For instance, in the DoE 'Best Practice Protocol for the Operation of Planning Committees' (January 2015), when discussing pre-determination hearings at paragraph 27, it is noted that the PDH "procedures can be the same as for the normal planning committee meetings." The following examples are then given: "number of individuals to speak on either side, time available to speakers etc." Similarly, the DfI publication, 'Development Management Practice Note: Pre-Determination Hearings' (November 2016) contains the same text (at paragraph 3.4). At paragraph 4.2 of the DfI Practice Note, referring in particular to the power to set procedures under section 30(2) of the 2011 Act, it is noted that: "This may include: the order of proceedings; the maximum number of speakers on either side; time limits for contributions; opportunities for contributors to respond to others' comments; question/cross examination by elected members and other contributors; members seeking technical advice." This is of course not determinate; but supports Mr Hutton's argument that the reference to "procedures" in section 30(2) would not ordinarily be construed as included regulation of the voting process." (emphasis added)
"[128] In summary on this issue, however, on the basis outlined above I consider that the decision of the Planning Committee on 29 July 2020 was reached on the basis of a material error of law, namely that certain councillors who were members of the committee were not lawfully permitted to vote on the outcome of the application. I do not consider that it was lawful for the Council to disqualify certain members from voting on the basis that they had not attended the pre-determination hearing. The Council would certainly have been entitled to provide advice to councillors that it would be better if they did not vote in these circumstances (although I also accept the applicant's submission that any legal risk in that course was significantly mitigated by the provision of a transcript of the pre-determination hearing to all members of the committee along with the officers' report). However, the evidence satisfied me that a number of councillors considered that it would not be open to them to exercise their vote. I propose to quash the Council's decision on this basis. I have not been persuaded – nor did the respondent seek to persuade me – that councillors who considered themselves to be disqualified from voting would not have voted if they had been presented with the opportunity and had merely been advised against voting in the circumstances; nor that the outcome of the vote would inevitably have been the same in that instance.
…
[130] Finally on this aspect of the case, I can see some considerable force in a number of the submissions made on behalf of the Council to the effect that councillors should not be permitted to vote if they have been absent from a substantial pre-determination hearing in which significant evidence has been presented and oral representations made, particularly in those councils were such meetings are not recorded and/or transcribed. If, however, it is to be within the power of a council to remove an individual elected member's right to vote, it seems to me that this should be clearly spelt out in statute. If this was the intention of the department with responsibility for the 2011 Act, or of the department with current responsibility for local government legislation, that is something which it may wish to reconsider." (emphasis added)
Analysis
Prima facie entitlement to vote
(1) Committee membership for deferred application
(2) Schedule 12 paragraph 42 LGA 1972
(2) Delay
Ground 2: Prohibition on public speaking
The Parties' submissions
The Claimant's case
The Defendant's case
(1) The procedure adopted by the Council, including the decision not to allow public speaking at the September Meeting, was entirely fair, lawful and in accordance with the Constitution. The Claimant made written and oral representations to the Development Committee. Following the deferral, there was no obligation to afford the Claimant the opportunity to make further oral representations. Paragraphs 11.1 and, in particular, 11.2 of the Rules did not require the Defendant to allow public speaking. Those Rules are broadly drawn, and in particular the repeated use of the word "generally", allow for an exercise of judgment in each particular case. The September Report was not a "full new report".
(2) In any event, the Claimant did not request to speak at the September Meeting; has not identified any additional representations that it would have made; and adduces no evidence to suggest that further representations would have affected the Council's decision. It has suffered no prejudice. Absent prejudice, the procedure was lawful.
(3) Further or alternatively, relief should be refused pursuant to section 31(2A) SCA 1981. Even if the Defendant erred in failing to allow public speaking, it is highly likely that the outcome would not have been substantially different; planning permission would have been granted.
The Interested Party's case
Discussion and analysis
Relevant case law
(1) There is no requirement (either in statute or as a matter of procedural fairness) to afford members of the public the right to make oral representations on a planning application: Adlard.
(2) What fairness requires is acutely fact sensitive and depends on all the circumstances of the case: Blacker.
(3) It is a question of fact whether inability to attend a planning committee meeting results in any prejudice to the person excluded: Matthews.
(4) Relevant factors might include whether the person excluded has already made representations, whether orally at a previous meeting or in writing; whether he has expressed a wish to speak; whether he has been provided with an update following an earlier meeting; and whether the person excluded could have added to points already made or made by others: Embleton and Blacker.
(5) However in a particular case, the person excluded might have lost the opportunity to respond to the oral presentation by officers and to persuade members to a view which differed from that of the officers: Kelly.
Analysis
Ground 3: Draft Spitalfields Neighbourhood Plan
The Parties' submissions
The Claimant's case
The Defendant's and the Interested Party's cases
Discussion and analysis
Relevant case law
"It is axiomatic that the decision maker does not have to deal with each and every policy that has been raised by the parties during an appeal.
…
That does not mean a mechanistic approach of judging the proposals against each and every policy that may be prayed in aid of a development or against it, but an evaluation of main policy areas within the development plan that are relevant to the proposal to be determined and an assessment of how the proposal [fares] against them."
At paragraph 8, Sales LJ stated:
"An officer's report containing a planning authority's reasons for granting planning permission is to be read fairly as a whole, focusing on the substance of the matter rather than the form. It is not incumbent on an officer compiling a report for the planning committee of a local planning authority to set out and discuss each policy in turn, like a sort of examination paper. If it appears as a matter of substance on a fair reading of the report that matters relevant to the proper application of policies in the development plan have been appropriately identified and assessed, that will be sufficient. Such reports are to be read against the background that they are written for an informed audience (the planning committee) who may be taken to have a reasonable understanding of, or the means of checking on, the local context and the legislative and policy framework in which the decision is to be taken…" (emphasis added)
Then, after identifying the three grounds of appeal at §27, Sales LJ stated
"Mr Lockhart-Mummery made a very broad submission, that the April report did not refer in a meaningful way to the policies set out above because it did not set them out or refer to them in the body of the discussion of the application in the report. I do not accept this argument. The relevant principles governing the approach to interpretation of an officer's report on a planning application have been referred to above. If, as a matter of substance on a fair reading of the report, a particular policy has been brought into account, that will be sufficient and lawful, even if it is not referred to in terms. But clearly, if relevant policies have been listed in the report for the benefit of members of the planning committee, that will make it easier for the local planning authority to show that such policies have been properly taken into account." (emphasis added)
"Similarly, I do not consider that Mr Lockhart-Mummery's portmanteau make-weight ground (iii) is made out. The discussion at paras. 42-48 of the April report, read in the context of identification earlier in the report of a range of representations regarding the visual and heritage impacts of the development, shows that, as a matter of substance, the Council considered in the exercise of its planning judgment that the proposed development complied with the policies listed by Mr Lockhart-Mummery. That is so even in relation to policy CP11 (River Thames Corridor), which was not expressly referred to in the April report, because the substance of the discussion dealt with the impact of the development on the natural and built environment of the River Thames corridor at this point and there was express reference at para. 47 to the Thames Landscape Strategy, to which policy CP11 refers as defining the special character of different reaches of the River Thames. There was full consideration of the development from the point of view of its effect on the character of the local area (policy 7.4), of protecting and enhancing the open environment (policy CP10), of protecting and enhancing the special character of the Thames Policy Area including by ensuring that development establishes a relationship with the river and takes full advantage of its location (policy DM OS 11), and of ensuring good design quality (policy DM DC1). The Council acted lawfully and rationally in making its assessment in relation to these policies." (emphasis added)
Analysis
Failure to have regard
Section 31(2A) SCA 1981
Conclusions
Note 1 In the course of the hearing, I was informed that the Defendant no longer has any “standing orders” as such and that the provisions of the Constitution are to be regarded as “standing orders”. It may be (and Mr Harwood did not dispute) that for present purposes, the Planning Code of Conduct (and in particular paragraph 13.4) also amounts to a “standing order”. [Back]