Local authority constitutions and the right of councillors to vote

April 9, 2025

The Supreme Court has handed down a landmark ruling on the lawfulness of a provision in a local authority's constitution which restricted voting by members on deferred applications for planning permission to those who had been present at the meeting or meetings at which the application had previously been considered. Philip McCourt set out the key points from the judgment.

It is not every day that we have our published work assessed by the UK Supreme Court. I now have the privilege of this having happened to me twice on the same works, and receiving complementary comments on both occasions. In The Spitalfields Historic Building Trust, R. (on the application of) v London Borough of Tower Hamlets & Anor [2025] UKSC 11, handed down last month, the Supreme Court examined the wording of the LLG Model Members Planning Code, which a number of councils, including Tower Hamlets LBC (“the Council”), have very sensibly lifted and placed directly into standing orders for their planning committees.

For the Council, this meant there were detailed procedures and a standing order that:

Where an application is deferred and its consideration recommences at a subsequent meeting only Members who were present at the previous meeting will be able to vote. If this renders the Committee inquorate then the item will have to be reconsidered afresh. This would include public speaking rights being triggered again.

The points examined by the Court set out in Council’s Planning Code of Conduct were as follows:

"Councillors should only come to their decision after due consideration of all of the relevant information reasonably required upon which to base a decision ..."; and

“Councillors must not take part in the meeting's discussion on a proposal unless they have been present to hear the entire debate, including the officers' introduction to the matter. If an application has previously been deferred then the same Councillors will be asked to reconsider the application when it is returned to Committee."

These derive from the model LLG Members Planning Code of Good Practice, last updated Feb 2024, section 10 of which provides the following advice to Members when taking decisions:

Do come to your decision only after due consideration of all of the information reasonably required upon which to base a decision. If you feel there is insufficient time to digest new information or that there is simply insufficient information before you, request that further information. If necessary, defer or refuse.
Don’t vote or take part in the meeting’s discussion on a proposal unless you have been present to hear the entire debate, including the officers’ introduction to the matter. (Where a matter is deferred and its consideration recommences at a subsequent meeting, only Members who were present at the previous meeting will be able to vote. If this renders the Committee inquorate then the item will have to be considered afresh and this would include public speaking rights being triggered again).”

As the Court of Appeal succinctly put it, the question under contention was:

“whether a provision in a local authority's constitution, whose effect was to restrict voting by members on deferred applications for planning permission to those who had been present at the meeting or meetings at which the application had previously been considered, was lawful”.

The argument made in support of the challenge was that a Member could not be prevented from voting on matters before a meeting of the authority or a committee of which they are a member (and at which they are present), unless prohibited by statute from doing so, and that the express provisions in para 42 of Schedule 12 and section 106 of the LGA 1972 (under which an authority has power to make standing orders for the regulation of its business and proceedings) did not extend to the making of a standing order in those terms.

The simple answer, from the High Court, the Court of Appeal, and the Supreme Court was that, yes they did.

What is somewhat strange is that, early on it was agreed as common ground between the parties, to which the courts agreed, that it was not irrational under the principles of public law decision making, for the Council to restrict voting on deferred applications to the members present at the first meeting at which such an application had been considered. As the Supreme Court put it “It is conceded that the relevant standing orders complied with those [established] public law requirements”.

This meant the whole thing turned on the legislative interpretation of the scope of and authority’s power to make standing orders for the regulation of its proceedings and business, and whether the standing order the Council had adopted to restrict voting in the specified circumstances fell within that scope, and was therefore lawful.

Had the challenge succeeded, then in practical terms this would have meant that meetings where continuity was at issue as here would all have to be started anew in these sort of circumstances; that the Planning Code of Conduct on issues beyond disclosable pecuniary interest provisions expressly set out in legislation would have to be re-examined along with a host of other rules and procedures; and that a chair, advisor and any meeting would have little sway where they considered that a particular member’s form of participation was likely to vitiate their decision. The outcome therefore mattered for those participating in meetings and for the committee managers and lawyers advising them. It mattered a lot.

In this there are a couple of things that are a little surprising, at least to those of us who operate and advise in this area. The first is that the participants had to take this as far as the Supreme Court before they had a final (and what has been definitively consistent) answer to their challenge. The second is that, in addressing this somewhat narrow question, the Supreme Court’s judgment has needed to run to some 26 pages, 14 pages of which form the analysis of the question.

The judgment is nonetheless an interesting read, and quite enjoyably refers to academic texts more ancient than modern, so here are the highlights:

There is a reiteration of the principle that councillors, when fulfilling their role as members of their local authorities, do not act as individuals but as members of the council to which they have been elected. (It is internally we often refer to them as ‘members’, rather than as ‘councillors’, which acts as a reminder of that). Their capacity for action as members is corporate and not separate and personal.
The right of councillors to vote on business of the local authority is not an explicit right set out in the statutory regime. On the contrary, the general entitlement to vote is assumed by the legislation and is implicit in it.
Para 39(1) of Schedule 12 of the Local Government Act (LGA) 1972 simply codifies the rule that decisions are taken by a majority of the members attending who may validly cast a vote, but does not otherwise limit the power of a local authority to regulate the conduct of meetings by means of standing orders.
Likewise the relevant provisions in the Local Government & Housing Act (LGHA) 1989, concerning the political balance of seats and the duty to give effect to the wishes of political groups, are grafted onto the decision-making regime set out in the LGA 1972 and presuppose that it applies in the usual way.
That it has always been recognised that common law principles provide the background setting for the operation of local government legislation and that where statutes or standing orders do not make sufficient provision for the conduct and procedure of such meetings, common law principles should be applied.
That there is a distinct set of rules which originated in principles of impartiality and fair-dealing identified by the courts and which are so fundamental that they are implicitly reflected in legislative provisions such as para 39 of Schedule 12. A councillor may not vote upon a matter if, for example, they are biased or give an appearance of bias, or have a predetermined view, or have a pecuniary or other personal interest in the outcome.
These general disqualifying rules extend significantly beyond the specific statutory disqualifications from voting contained in primary legislation. The legal consequence if a councillor does vote in the circumstances where the general rules apply, at any rate where that has a material bearing on the outcome, is that the decision taken by the local authority is unlawful and liable to be set aside.
A local authority has power under para 42 of Schedule 12 and section 106 of the LGA 1972 to make standing orders, the underlying purpose of which is to enable a local authority to take lawful decisions. That power is subject to the usual public law constraints, in particular that the exercise of the power has to be rational and for a proper purpose within the contemplation of the legislation. The relevant standing orders in this case can be seen in this light and so impose lawful constraints.
The provisions in relation to this meeting are to be distinguished from the position in R v Flintshire County Council, ex p Armstrong-Braun [2001] LGR 344. In that case, the introduction of a standing order preventing a member from putting a motion on the agenda for a council meeting without being seconded by another member was quashed by the court. The council in that case treated the introduction of that standing order as a matter of administrative convenience, whereas the court took the view that there had been far more than that at issue and that no one had taken into account "the potential damage to local democracy" by preventing a member from representing their constituents in this way or the possibility that local democracy might be impeded rather than promoted by adoption of the standing order. (It is why there is a convention that lone motions on notice are formally seconded by the chair at full authority meetings). There was an absence on the part of the local authority in Armstrong-Braun to give the matter the "most anxious consideration", so the decision did not satisfy the comparatively demanding standard of rationality applicable in this context. In the present case it was conceded that the relevant standing orders were given that consideration and did satisfy that standard.
The Court found that the restrictive voting rule set out in the relevant standing orders "obviates a risk that councillors voting at the second meeting may not have had the benefit of the discussion of the proposal that took place at the first. It gives weight to the continuity of proceedings, and to the value of ensuring that in these circumstances the entitlement to vote is kept to those councillors who have been present throughout the committee's deliberations on the application for planning permission".
If a committee member proposed to cast their vote in circumstances where the standing orders disqualified them from doing so, the chair of the meeting could properly disregard their vote so that the relevant decision of the Committee was taken according to the votes of those members who are entitled to cast them. If necessary, the issue could be resolved by the court making an order to achieve that effect.
A defined role of the chair therefore, in acting in the way described above, is to uphold the effectiveness and lawfulness of the collective decision-making process for the authority and the meeting as a whole.

Concerning the existence of such standing orders, as gathered together with supporting codes in the Council’s constitution, the summary is that (subject to statute and the normal rules of decision making) as long as the implications of standing orders are thought through, that they exist for the regulation of the authority’s business and proceedings, and that their purpose is to promote rather than impede local democracy, then their requirements should be valid.

In addition, the Supreme Court rehearsed some of the well-known rules and practices of local authority meeting, which is always useful.

As for the previous time the work got mentioned? In Dover District Council (Appellant) v CPRE Kent (Respondent) [2017] UKSC 79, the Supreme Court stated at paragraphs 60 to 62 that:

“The Model Council Planning Code and Protocol … offers sound practical advice [in reflecting] the important legal principle”.

LLG first published the Model Planning Code and Protocol in 2003. It was refreshed in 2007 and 2014, and then most recently as supported by Bevan Brittan LLP in February 2024.

Deborah Evans, LLG CEO commented that “the LLG’s Model Members Planning Code has now become a central plank of the guidance used by local authorities to give their members and others advice. It directs the business of planning decisions to ensure fairness and legality and we are delighted that our members can rely upon it with confidence.”

Philip McCourt is a legal director at Bevan Brittan LLP. He is a past-president of ACSeS/LLG and has undertaken the drafting of a number of guides, codes and constitutional protocols for local authorities and their national bodies. Key amongst these for LLG are:

The Member Planning Code and Protocol (in all iterations);
The Code of Corporate Governance of Council Interests in Companies (2018 and due to be refreshed); and
The Code of Practice on Good Governance for Local Authority Statutory Officers (with CIPFA & Solace, July 2024).

Philip is also the current author of Knowles on Local Authority Meetings: A Manual of Law and Practice (ICSA 2016).