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A political substitution

A court has approved the substitution of a planning committee member by another member with a different view on a controversial planning application.

R (on the application of Doug Carnegie (on behalf of The Oaks Action Group)) v London Borough of Ealing & Acton Regeneration Group Ltd

A court has approved the substitution of a planning committee member by another member with a different view on a controversial planning application, finding it unarguable that the substitution was improper or that the substitute had a closed mind or was biased.

Background

A developer, the Acton Regeneration Group Limited, sought planning permission for the redevelopment of the Oaks Shopping Centre in Acton, in the London Borough of Ealing.  The application was controversial.  The planning officer’s report recognised that the redevelopment would reduce residents’ amenities, but recommended approval because of the planning status of the site, the regeneration benefits and the new homes that would be included.  The site is bordered on three sides by a conservation area and within the setting of a number of Grade II and locally listed buildings, but English Heritage did not object to the scheme and the report dealt, albeit not at great length, with the heritage issues.

One of the members of the Planning Committee had decided, for reasons which we will explore later, to absent himself from the meeting.  His Group substituted him, first with one member and then with another.  The original member opposed the development, but the substitute voted for it.

Permission was granted, and a member of the Oaks Action Group sought permission to judicially review the decision.  He argued that the report was inaccurate and misleading on the heritage issues and that the substitution was unlawful.  The Council and the developer disagreed, saying also that the claim was out of time because the claimant had not included statements of facts and grounds in the claim form, but had just attached a copy of the letter before claim and added “statement of facts and ground – within 14 days”.  These were provided some eight days after the deadline for bringing the proceedings, but they closely resembled the letter before claim.

The decision

Patterson J gave judgement in the rolled up permission and merits hearing on the 14 November (R (on the application of Doug Carnegie (on behalf of The Oaks Action Group)) v London Borough of Ealing & Acton Regeneration Group Ltd [2014] EWHC 3807 (Admin).  He found that the claim form was defective, but gave an extension of time because the other parties were not prejudiced.  He rejected the heritage argument on the facts, reciting the relevant case law.  His judgement on the substitution is more interesting.  In essence, he found that the substitute member was not biased and had not predetermined the decision and that the Council and the Group had followed the Council’s standing orders.

Substitution

The judgement on bias and predetermination was a likely outcome in the current climate, in the absence of any blatant shenanigans and because the substitute had made a measured contribution to the debate.  But the judgement on the substitution process deserves unpicking.

Under the Council’s constitution committees are appointed by the Council at its annual meeting, having received nominations from the political groups on the basis of the political balance calculations.  Council and Committee Procedure Rule 24 says:

“24.Substitute members

Where any member of a committee, sub-committee, or panel is unable to attend a scheduled meeting of that body, for a reasonable reason, then a representative of that political group (if any), to which that member belongs, may, by written notice to the proper officer at any time before the day of the meeting in question, authorise the proper officer to make a change to the standing appointments of the committee, sub-committee, panel in question, to substitute an alternative member for the duration of that meeting.”

The Planning Committee meeting was in October 2013.  Full Council made the appointments to committees at the annual Council meeting in May 2013.  There were 13 seats on the Planning Committee, allocated in the ratio seven Labour, five Conservative and one Liberal Democrat.  The approved schedule of members for the committee contained 26 names, twice as many as needed, which it described as a “Pool of Members permuted” in that ratio.  The member who was substituted, Councillor Gulaid, and the first and eventual substitutes, Councillors Varma and Kang, are amongst the list of 14 Labour councillors in the schedule.   

The Claimant’s evidence was that Councillor Gulaid had told him that he had been advised by the Labour Group Whip that he should not attend the meeting because he had made statements opposing the development and there would be a risk of a predetermination challenge.  The Claimant said that this was wrong, because Councillor Gulaid had not made any such statement.  The Council’s evidence was simply that the proper officer had been notified of the change by the Group, under Procedure Rule 24.  Councillor Gulaid did, as it happened, attend the meeting, to speak against the development as ward councillor.  The Claimant said that the only factual explanation for the change was that the Whip did not want Councillor Gulaid to vote.  Patterson J expressed no interest in that inference.  The Council, though, argued that the composition of the committee “was a political decision and is not therefore justiciable”, relying on R v Secretary of State for Education and Employment ex p Begbie [2000] 1 WLR 1115.  Patterson J appeared to accept this.  He said “It was a political decision as to who attended the meeting to vote on the planning application on 16 October 2013. Whether there was a reasonable reason for any member being unable to attend a committee meeting was a matter to be determined by the political party… that decision making process is part of the democratically elected political process and is outwith the reach of the courts.”  He found that the Rule 24 procedure had operated properly, and that it was unarguable that the substitution was unlawful.  He also found that the standing order was not limited to cases where the member in question is physically unable to attend the meeting.

Comment

Whilst this was a sensible decision on the facts, and will be welcomed by local authorities, most of whom allow substitutions in planning and licensing committees, the reasoning is curious.

First, there are a couple of rather pedantic points.  One is that that Rule 24 allows the proper officer to make a change to “standing appointments”, whereas here there was a pool of appointees, which is different.  The other is that the legislation says “a local authority [meaning full Council] may appoint a committee” (Local Government Act 1972 section 102 (1)) and “it shall be the duty of [a local] authority to exercise their power to make appointments to [a committee] as to give effect … to such wishes about who is to be appointed to the seats on that body which are allocated to a particular political group as are expressed by that group” (Local Government and Housing Act 1989 section 16 (1)).  Arguably, this is a two stage process.  Wishes are expressed and then the appointment is made.  Full Council cannot empower someone else to take the decision.  Whilst it is acceptable to make appointments which allow named substitutes to replace members who cannot, for whatever reason, attend the meeting, this should be a mechanical, not a political, process.  Local authorities cannot divest themselves of their statutory discretion. They may only exercise their powers for the purpose for which they were not conferred, and they must not take decisions for the primary purpose of securing electoral advantage.  On the basis of this judgement, though, this point appears to have fallen away, presumably because the effect of the legislation is that the council no longer has any discretion.  The decision was treated as a group decision, taken in the political arena, and not susceptible to judicial review.

Secondly, let us suppose - entirely hypothetically because the evidence was scant - that the Claimant was right, and that Councillor Gulaid was told to stand down because of a wholly mistaken belief that he should not take part, or for some extrinsic purpose in order to ensure that he did not vote against the development. 

As to the first point, in R. (on the application of Ware) v Neath Port Talbot CBC [2007] EWHC 913 (Admin) a planning committee decision was quashed at first instance because an officer had apparently overcautiously advised four councillors to leave the meeting, affecting the vote.  The decision was overturned on appeal, but on the facts, not on the point of principle.  So wrong advice to a member not to take part in a planning decision can make the decision unlawful. 

But the nub of the judgement is that this was a political decision, which cannot be judicially reviewed.

In Brunyate v ILEA [1989] 2 All ER 417 the Governing Body of Haberdashers Aske’s schools had to decide what kind of schools they should become under new legislation.  The Inner London Education Authority appointed the majority of the governors, traditionally on a politically balanced basis.  The schools’ foundation body favoured becoming a City Technology College, but ILEA favoured voluntary controlled status and more consultation.  The two conservative governors declined to commit to this approach.  ILEA replaced them, and they challenged the decision.  They argued that the power of removal could not be used so as to usurp their independent role as governors.  The House of Lords agreed, and quashed the decision.  And in R v Greenwich London Borough Council ex p Lovelace [1991] 1 W.L.R. 506 the Court of Appeal held that it was lawful for a group to remove a councillor from a committee because he disagreed with group policy, but (obiter) not in order to punish him for voting in a particular way.  In both cases, the Court evidently felt able in principle to investigate the propriety of the appointments even though they were essentially political decisions, but both predated the 1989 Act which obliges local authorities to give effect to group wishes.

Ealing and the developer cited Begbie.  In that case, a pupil challenged the Secretary of State’s decision, following the abolition of the assisted places scheme, not to exercise his new statutory discretion to allow her to keep her state-funded assisted place at a private school for the remainder of her education.  She said that, when in opposition, members of the new Labour government had promised that this would happen.  There was a complication around the difference, between schools which provided only primary or secondary education and – as in this case – schools which provided “all through” education, and a dispute about the various statements that had been made.  The challenge alleged that the decision was in breach of a substantive legitimate expectation, was irrational, and interfered with the claimant’s ECHR right to education.  The Court of Appeal held that pre-election promises did not give rise to a legitimate expectation, that there was no abuse of power, that the decision was not irrational, and that withdrawing assisted places funding did not interfere with the ECHR right. It is a major leap from the Begbie judgement to the proposition that a local authority “political” decision, or a decision taken by a political group acting in that capacity, is beyond the scope of judicial review.

But the leap has been made.  Unless the decision is reversed (perhaps on the point that this was a Council decision, not a group decision, because of the interplay between the 1972 and 1989 Acts) it seems from this case that decisions about the composition of committees are indeed beyond challenge, however outrageous they may be, provided that the members who ultimately take part in the decision are not biased and have not predetermined the issues before the committee.