A further issue before the Court of Appeal in R (on the application of Friends of Hethel Ltd v South Norfolk District Council [2010] EWCA Civ 894; [2010] PLSCS 210 (see also PP 2010/112) concerned a scheme of delegation adopted by the local planning authority (LPA). Local authorities have the power under section 101(1) of the Local Government Act 1972, subject to any provisions contained in that or any later Act, to arrange for the discharge of their functions “by a committee, a sub-committee or an officer of the authority…”.
In Hethel, the LPA had arranged for a planning committee and three area planning committees to discharge its planning functions. (This was no doubt intended to localise decision making and place it in the hands of councillors who would be familiar with their local areas, while still ensuring that planning decisions would not be unduly influenced by local considerations.) The scheme provided that an area planning committee could not make a decision that was contrary to the officers’ recommendations, unless at least two-thirds of its membership agreed; failing which the application had to be referred to the planning committee.
The officers recommended approval of the application, but the relevant area planning committee voted 5:3 in favour of a refusal. The application was referred to the planning committee, which voted in favour of granting planning permission. The appellant contended that the scheme of delegation was unlawful because it was contrary to the provisions of para 39(1) of Schedule 12 to the 1972 Act. This provides, subject to the provisions of any enactment, including the 1972 Act, that decisions of local authorities are to be made by a simple majority of those present and voting. The LPA argued that the scheme was a valid exercise of the power of delegation granted by section 101(1) of the 1972 Act and that the requirements of para 39(1) were expressly subject to that section.
The Court of Appeal held unanimously that the scheme was unlawful. Section 101(1) does not deal with how decisions are to be taken by local authorities, but with who takes them within the authority. For instance, if the decision is delegated to an officer, the present question would not arise. Paragraph 39(1) is indeed subject to section 101(1), but that section makes no reference to voting; much less, it does not authorise delegation subject to a special majority.
This decision should prompt all LPAs to look at their schemes of delegation.
John Martin is a freelance writer
