Case update: rules on members’ right to vote at council meetings considered by the Court of Appeal in July 2023 R (the Spitalfields Historic Building Trust) v London Borough of Tower Hamlets and Old Truman Brewery [2023] EWCA Civ 917, [2023] 7 WLUK 446

The basic but important legal question in this case is whether a provision in a local authority’s constitution, whose effect was to restrict voting by members (in this case a Planning Committee), was lawful.  The issue is of wide public importance.  It goes to the ability of those who are elected to exercise the powers which they were elected to use.  The power in question is the most basic one of an elected politician: the right to vote in decisions of the body to which they were elected. The case was brought by the Spitalfields Historic Building Trust (“the Trust”) who sought to challenge the controversial grant of planning permission by the London Borough of Tower Hamlets to Old Truman Brewery to develop part of the Old Truman Brewery site on Brick Lane.  The Trust were unsuccessful in the High Court but obtained permission to appeal from the Court of Appeal.

There were over 7,000 written objections.  The headline objections included concerns about the introduction of large companies to the development, creation of a shopping mall, effect on local businesses, gentrification, community cohesion, proposed land uses on the site, impact to local character and businesses, concerns of design and scale causing harm to heritage assets, obscuring of views of the Truman chimney, amenity impact to neighbouring residents including daylight and sunlight impact to Woodseer Street and the lack of a development brief for the wider estate.

In essence, objectors were concerned that the character of Brick Lane would be destroyed by corporate development unsympathetic to the area and the heritage of the site, and the diverse community, which includes a large Bangladeshi diaspora, would be at risk of being pushed out of the area.

The planning application was first discussed at the Council’s Planning Committee in April 2021. At that meeting, the Council resolved to defer the consideration of the proposal until a later meeting, to enable the officers to further explore issues such as section 106 agreements. When the application returned to committee in September 2021, the membership of the Planning Committee had changed. Members were told that only those members who were present at the first meeting were able to vote.

The justification for this was that the council’s standing orders – in particular, the Council’s Planning Committee Procedure Rules – contained a rule which prevented members from voting on deferred applications unless they were present at the previous meeting.

The result was that only 3 Planning Committee members were able to vote on an extremely controversial planning application that had attracted over 7,000 objections.  At the hearing, Lord Justice Coulson remarked that he found this surprising.

Planning permission was granted by 2 votes to 1.

The Trust argued that the Council was not empowered to make standing orders under the Local Government Act 1972, Schedule 12, para 42 and 44 removing the right of committee members to vote; the power to make standing orders for the “regulation of their proceedings and business” does not include power to prohibit councillors who are committee members from voting.  Standing orders are to regulate matters which have not been determined by legislation: for example, how many members are required to put an item on the agenda, how a vote is taken (for example, a roll call where each councillor gives their vote orally when their name is called), but not who may vote. Nor can they change decision taking by majority voting.  The right to vote can only be restricted by legislation (such as the prohibition on a member with pecuniary interests voting).  Restricting the right to vote by standing orders also offends the proportionality provisions of the Local Government and Housing Act 1989, which require seats to be allocated between party groups.  A ‘seat’ carries an entitlement to vote ‘on any question which falls to be decided at such a meeting’: Sched 1, para 4(3).

The Court of Appeal dismissed the Trust’s appeal, Lindblom LJ giving the lead judgment.  To restrict the entitlement to vote to those members who had been present on the first occasion when the matter in question was considered was not merely rational but properly within the council’s powers under the local government legislation. The standing order in paragraph 11.4 was lawful. And the council’s decision on the brewery company’s planning application was a lawfully made decision in accordance with the arrangements it provides.

The Court of Appeal refused the Trust’s application for permission to appeal.

The Trust is applying to the Supreme Court for permission to appeal.

Harrison Grant Ring is acting for the Trust, instructing Richard Harwood OBE KC and Daniel Kozelko of 39 Essex Chambers.

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Dismiss