Wednesday, 22 September 2010

Voting in planning committees

The judgment of the Court of Appeal in R (Friends of Hethel) v. S Norfolk DC [2010] EWCA Civ 984 has caused a certain amount of huffing and puffing in local government circles. The Court ruled that voting in Council committees must be by simple majority. The Council in the case in question had a rule which required that a decision by an area planning sub-committee to grant planning permission had to be by a two-thirds majority, failing which the planning application had to be referred to the main committee. The main committee did take decisions by a simple majority, and so the Council thought that the rule in relation to voting in area sub-committees was perfectly lawful. It could be argued that this was simply a facet of the scheme of delegation, whereby the decision was reserved to the main committee, but if an area sub-committee voted by a two-thirds majority to grant planning permission, then in those circumstances they had delegated authority to take that decision on behalf of the Council.

However, Sullivan L.J. held that the requirement for the area sub-committee to pass the resolution to grant planning permission by a two-thirds majority was in breach of Schedule 12 of the Local Government Act 1972. He acknowledged that the procedure was intended to reflect the Council’s scheme of delegation, but the method adopted fell foul of the rules in Sch. 12. A method could have been devised to allow the sub-committee’s views to be reflected in a decision delegated to the Chief Planning Officer, but the unlawful requirement for a two-thirds majority prevented a valid reference of their decision to the main committee. As a result of this, the main committee had no authority themselves to determine the application.

There was an additional reason for quashing the planning permission in this case. The Council had failed to consult English Heritage on the effect of the proposal (involving a highly visible wind farm) on the setting of more than 200 listed buildings, of which as many as 24 were in Grades I or II*. The extent to which the proposal for the wind farm might affect the setting of the listed buildings was one on which English Heritage should have been given the opportunity to comment.


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