Local authority – Scheme of delegation – Planning permission granted under delegated powers – Whether permission invalidated by failure to agree scheme of delegation in accordance with council procedure rules in defendants’ constitution – Whether annual agreement of entire scheme by express resolution required – Whether implicitly agreed where only amendments subjected to resolution – Whether compliance with section 100B of Local Government Act 1972 – Claim dismissed
In 2008, the defendant council granted planning permission to the interested party to replace an existing building with 12 flats. The decision to grant permission was taken by the defendants’ principal planning officer, and the notice of permission was signed by their chief planning and development officer, acting in exercise of delegated powers pursuant to the defendants’ scheme of delegation. Under the council procedure rules contained in the defendants’ constitution, which had been adopted in 2001, an annual meeting was to be held during which the scheme of delegation was to be agreed. In practice, the defendants had not approved the entire scheme by express resolution each year, but had adopted the practice of approving amendments to its constitution, including those parts relating to the scheme of delegation. The scheme under which permission had been granted to the interested party had operated since 2003.
The claimants sought judicial review of the grant of planning permission on the ground that the relevant scheme of delegation had not been validly adopted in accordance with the requirements of the defendants’ own constitution and the Local Government Act 1972. They contended that: (i) the scheme of delegation promoted in 2003 had not been agreed by the full council at the annual meeting in that or any subsequent year, contrary to the council procedure rules, and consequently was not in force on the date the permission was granted; and (ii) the defendants had failed to make copies of the agenda for the 2003 annual meeting and the relevant reports available for inspection by the public at least five days before the meeting, contrary to section 100B of the 1972 Act. The defendants maintained that although the full scheme of delegation had not been expressly approved at the 2003 annual meeting, it had been agreed by implication in that and each subsequent year.
Held: The claim was dismissed.
(1) At the relevant time, the defendants’ full council was the body charged with agreeing the scheme of delegation. The word “agree” was to be given its ordinary and natural meaning, which encompassed agreement by express words, by conduct or a combination of both. Neither the context nor any interpretative rule or statutory provision required the word “agree” in the council procedure rules to be interpreted as requiring the defendants to agree expressly by resolution. It was clear that what had been agreed at the 2003 annual meeting was the full scheme of delegation. The defendants’ practice of simply approving amendments, rather than expressly resolving to approve the entire scheme annually, was clear and no sensible objection could be taken to that method. By proceeding in that way, the defendants were, as a matter of fact, agreeing a valid scheme of delegation. Moreover, even if that practice had been inadequate to agree a valid scheme of delegation, it would be inappropriate for the court, in the exercise of its discretion, to grant any relief that would have the effect of causing decisions made under the scheme of delegation between 2001 and 2008 to be ineffective. In that regard, it was relevant that: (i) the defendants had adopted and applied a sensible means of amending their constitution when necessary; (ii) no one could have been misled into thinking that the defendants were doing anything other than delegating a large range of decisions to their officers; (iii) any person reading the constitution would have been properly informed as to the scheme of delegation in being as it evolved; and (iv) anyone with a sufficient interest had had ample opportunity to take issue with the proposed amendments and no one had done so.
(2) The fact that a report had not been made available to the public until within the five-day period did not necessarily constitute a breach of section 100B of the 1972 Act. The requirement to make reports available for public scrutiny at least five clear days before the relevant meeting was subject to the provisions that copies need not be made available to the public until they were available to members of the council, and it was not necessary to make them available to the council members before the relevant meeting. Since, in the instant case, all reports had not been placed before members either prior to or at the meeting, there was no basis for finding any breach of section 100B(1) and (3). Further, even assuming non-compliance with those provisions in 2003, there was no suggestion that they had not been complied with in respect of the 2007 annual meeting. Accordingly, the ground was not made out.
Paul Greatorex (instructed under direct access) appeared for the claimant; Andrew Arden QC and Iain Colville (instructed by the legal department of Leeds City Council) appeared for the defendants.
Sally Dobson, barrister
