Agenda item

The Business Manager – Planning Development sought Member approval regarding an amendment to the protocol for Members on dealing with planning matters following recent case law.

Members were informed of recent case law published which highlighted that it would be beneficial to provide greater clarity, in order to minimise the risk of any legal challenge, in relation to decisions made by Members of the Planning Committee.

Section 15: Voting at Committee of the Protocol set out when a member was able to vote on an agenda item:

“15.1    Any member who is not present throughout the whole of the presentation and debate on any item shall not be entitled to vote on the matter.”

Recent case law R (on the application of The Spitalfields Historic Building Trust) v London Borough of Tower Hamlets (LBTH), Date: 6 September 2022, [2022] EWHC 2262 (Admin) was a challenge against the London Borough of Tower of Hamlets (LBTH) by an interested party that the Council had erred in its decision making at their planning committee.  A summary of the case in a report was presented to the committee in April 2021 at which time it was deferred.  The application was re-presented in September 2021 by which time a new Constitution had been adopted as well as a change in the membership of the committee.  LBTH’s Constitution was such that only those members who were present at the April 2021 meeting were able to vote at the September meeting.  The case was dismissed, and the Court found the power prohibiting members from the vote on the deferred application had been lawfully constructed in Council’s Constitution and fell within the Local Authority’s power under Paragraph 42 of Schedule 12 to the Local Government Act 1972.  However, the case highlighted the need for clarity when exercising the discretion to regulate proceedings and business.

It was reported that each council adopted their own constitution, protocols and delegation arrangements.  Newark and Sherwood District Council was different in that it only related to members needing to be present at the meeting on the day a decision was made.  However, to provide clarity for all, the proposed change was recommended:

15.1      Any member who is not present throughout the whole of the presentation and debate on any item shall not be entitled to vote on the matter.  For clarity, the ‘whole of the presentation and debate’ comprises only the presentation and debate on the day the application is determined.  It does not include any previous presentation and/or debate of the item for either referrals or resolutions to approve subject to ‘…’ which might include completion of a s106 planning obligation, consultations or notifications to expire or other matter.

In addition, it had been noted that the paragraph numbering of the document adopted in June was, towards the end of the document, mistyped.  There was also an error in paragraph 15.1 of the report and the last word should read ‘matters’ and not matter.  Those amendments were also suggested to be corrected. 

AGREED:           (unanimously) that Planning Committee adopt the amended Protocol                     for Members on dealing with planning matters, including the additional                      amendments.