Category: Delegation

Plug Pulled On Local Authority Meetings

I pointed out in my 23 January 2021 blog post Temporary Covid Measures – Planning, Traffic, Local Government: There May Be Trouble Ahead that after 6 May 2021 local authorities may not be able to hold virtual meetings given the expiry on that date of the temporary freedom provided by Regulation 5 of the Local Authorities and Police and Crime Panels (Coronavirus) (Flexibility of Local Authority and Police and Crime Panel Meetings) (England and Wales) Regulations 2020 , pursuant to section 78 of the Coronavirus Act 2020.

Let’s be clear – the Government has had ample time to bring forward emergency primary legislation to extend that regime if it considered that the issue was sufficiently important. But it doesn’t.

Instead, even in the face of litigation from local government bodies which is heading to a High Court hearing next month, MHCLG minister Luke Hall wrote to local authority leaders on 25 March 2021 to confirm that the power will not be extended.

The suggestions in the letter appear to be somewhat of a sticking plaster, compared to the proven solution of allowing meetings to be remotely conducted; appear to be pushing at the bounds of what is advised to be prudent in the Government’s roadmap out of lockdown, and leave us all without any Plan B.

To be clear, what we are talking about is not whether meetings should be able to be watched online – the letter encourages that in any event “to minimise the need for the public to attend meetings physically until at least 21 June, at which point it is anticipated that all restrictions on indoor gatherings will have been lifted in line with the Roadmap”.

Rather, the issue is whether participants in the meeting, whether councillors or other parties, need to be in physical attendance in order for the meeting to be lawfully conducted.

Meetings between 7 May until 17 May (or later)

If we go by the roadmap, when 7 May comes life will still be relatively restricted even assuming that by then we will have moved to step 2 of the roadmap. Whilst public buildings will be open again, people will still not be able to gather in groups, and wherever possible people will still be advised to work from home. Further opening up via step 3 will not be until 17 May or later.

The letter advises that during this period “options would include use of your existing powers to delegate decision making to key individuals such as the Head of Paid Service, as these could be used these to minimise the number of meetings you need to hold if deemed necessary. Additionally, some of you will be able to rely on single member decision making without the need for cabinet meetings if your constitution allows.”

As for annual meetings, for authorities without elections on 6 May, the letter suggests that these be brought forward to be held before 6 May (so they can still be held remotely). Otherwise, given the need to hold the meeting within 21 days of the election, the meeting can (just about) be held after 17 May (assuming that date doesn’t slip).

What does this mean for planning committee meetings? Well, even for authorities without elections, meetings between 7 and 17 May would now appear unlikely. For authorities with elections the process of selecting committee meetings at the annual meeting is going to be elongated, with committees not formed until after 17 May.

Meetings from 17 May (or later) to 21 June (or later)

The letter states:

“The Government’s roadmap proposes that organised indoor meetings (e.g. performances, conferences) are permitted from 17 May, subject to Covid secure guidelines and capacity rules.”

A few problems with this…

⁃ The roadmap actually says “no earlier than” 17 May. If we’ve learned anything from this pandemic it is that covid doesn’t respect deadlines!

⁃ What about individual councillors and other participants who may not by then have been vaccinated and therefore reluctant to attend in person (after all, the guidance as to working from home will apparently not be reviewed until some time during this step 3) or indeed may be shielding?

There is a real risk that authorities will be reluctant during this period to hold potentially controversial meetings which may attract significant numbers of members of the public. Indeed many authority buildings do not lend themselves well to such events on a socially distanced basis.

From the Local Government Association’s statement (25 March 2021):

“Councils are already actively considering the options the minister has suggested, including looking at alternative larger meeting venues at significant extra cost. The proposal to delegate significant decisions to officers is likely to be viewed as undermining democratic accountability due to the fact that such decisions are not subject to direct member involvement. Given the circumstances authorities find themselves in due to the imminent loss of virtual meeting provision, they now face unpalatable decisions, which include restricting member attendance and a reduction in members roles in decision making, whilst attempting to keep the machinery of local government moving. LLG & ADSO remain fully committed to presenting our case at the High Court Hearing timetabled to be heard before the end of April 2021.”

See also the Lawyers in Local Government’s statement The letter to Council Leaders from Luke Hall MP received yesterday (25th March 2021) does not change the need for our court hearing, in fact if anything, it makes the need for it more pressing (26 March 2021).

More generally

More generally, why let go of the flexibility that the current legal regime gives to local authorities, not just for public health reasons (although this is important, it would be foolhardy to think that from 21 June there will be no further outbreaks or no longer any need for caution) but equally for reasons of efficiency and inclusion?

The Government recognises the potential case for virtual meetings but instead kicks the can down the road by “launching a call for evidence on the use of current arrangements and to gather views on the question of whether there should be permanent arrangements and if so, for which meetings. There are many issues to consider and opinions on the detailed questions vary considerably. This will establish a clearer evidence base of opinion and enable all the areas to be considered before further decisions are made. The Government will consider all responses carefully before deciding to how to proceed on this issue.”

Don’t hold your breath then.

Simon Ricketts, 26 March 2021

Personal views, et cetera

Keeping Calm & Carrying On: Planning Committee Meetings

[Subsequent note: much of this post is now superseded by regulation 5 of the Local Authorities and Police and Crime Panels (Coronavirus) (Flexibility of Local Authority and Police and Crime Panel Meetings) (England and Wales) Regulations 2020]

Things are moving fast. My blog post last week was titled What To Do? This week focuses on the solutions that we are seeing already coming forward in the face of local planning authorities’ practical inability at present to hold “normal” planning committee meetings.

It’s not straightforward because obviously any solution isn’t just about the law at all, but about the individual authority’s organisational priorities, operational resilience and access to technology.

I referred in last week’s blog post to the letter dated 17 March 2020 to MHCLG from ADSO (Association of Democratic Services Officers) & LLG (Lawyers in Local Government):

“We have advised local authorities to hold only essential meetings and with the minimum number of people attending to satisfy a quorum. Where possible, Councils should be using urgency powers within their Constitutions to take decisions outside of public meetings. This will be possible in most instances but not in others. For example, Schedule 12 of the Local Government Act 1972 requires Councils to hold an Annual meeting during March, April or May depending on whether it is an election year or not. As you will be aware, important business is conducted at these meetings including the election of Mayor/Chairman of the Council and appointments to Committees etc to enable decision-making processes to function effectively.

Paragraph 39 of Schedule 12 to the Local Government Act 1972 states that any decision taken at a local authority meeting (including committees and sub committees) shall be decided by a majority of those present and voting. This means that it is impossible to have a meeting unless a quorum is present in the room. Whilst the law permits other members to join the meeting virtually, they cannot vote. This will become increasingly more difficult as further restrictions on peoples’ movements are imposed. For example, a high proportion of councillors are over 70 years of age and could be prevented from attending even essential meetings if currently publicised Government measures are imposed for that age group. We appreciate that this will require an amendment to the Local Government Act 1972, but we feel it essential to ensure continuity in local authority decision making and the provision of essential services. An alternative could be that local authority members could be counted as being present in a meeting if they are in a location where they can hear the conversation in the meeting room and persons present in the room can hear what they are saying.”

In order to enable “virtual” council meetings, an amendment was introduced to the Coronavirus Bill on 23 March 2020 before it was enacted as the Coronavirus Act 2020 on 25 March 2020. In consequence, section 78 of the Act includes a delegated power enabling the Secretary of State to make regulations relating to:

(a) requirements to hold local authority meetings;

(b) the times at or by which, periods within which, or frequency with which, local authority meetings are to be held;

(c) the places at which local authority meetings are to be held;

(d) the manner in which persons may attend, speak at, vote in, or otherwise participate in, local authority meetings;

(e) public admission and access to local authority meetings;

(f) the places at which, and manner in which, documents relating to local authority meetings are to be open to inspection by, or otherwise available to, members of the public.

In relation to (d) above, Section 78(2) of the Act enables provision to be made in the regulations for persons to attend, speak at, vote in, or otherwise participate in, local authority meetings without all of the persons, or without any of the persons, being together in the same place (i.e. remotely).

Section 78(3) of the Act provides that the special arrangements for Local Authority Meetings to be enacted in the regulations will only apply to meetings to be held before 7 May 2021.

Section 78(13) provides that the regulations to be made under this delegated power are to be subject to the ‘negative resolution procedure’. Under the negative procedure, the regulations become law on the day that the Secretary of State signs them and remain law unless a motion to reject it is agreed by either House of Parliament within 40 sitting days (highly unlikely in practice). Such regulations can also be laid when Parliament is not sitting (handy given that Parliament is currently prorogued until 21 April 2020).

So far so good but obviously (1) regulations are needed and (2) unless the regulations specifically provide (which I would not anticipate) they will not override each authority’s individual constitution which sets out the necessary procedures within that authority as to for instance the holding of meetings and the extent of officers’ delegated powers. Each constitution sets out the procedure to be followed for its amendment.

There are legal risks in any “short cuts” in decision making, where the procedure followed does not comply with legislative requirements, the authority’s own required processes as set out in its constitution or is in breach of wider administrative law requirements. There was an interesting discussion on this tension during today’s 50 Shades of Planning podcast episode Planning and Coronavirus (28 March 2020) featuring Anna Rose (Planning Advisory Service), Jonathan Easton (Kings Chambers) and Stefan Webb (FutureGov) – participants in the process may presently be “nice” in the face of the present Covid-19 crisis but what about in several months’ time when decisions are being crawled over, for instance by objectors?

Ahead of the implementation of the legislation, and after an initial wave of cancelled committee meetings, we are seeing authorities arrive at practical solutions. For instance:

Trio take over Manchester planning decisions (North West Place, 27 March 2020)

“The power to decide on major Manchester planning applications has now been delegated to council chief executive Joanne Roney, alongside chair of the planning committee Cllr Basil Curley and deputy chair Cllr Nasrin Ali.

The trio will decide whether to consent or refuse proposals for schemes based on recommendations from the director of planning, Julie Roscoe.

The delegation of power was confirmed at the council’s full meeting on Wednesday. 

A report to the meeting called for authority to be given to the chief executive to enable her to determine any planning application, listed building consent or tree preservation order which would otherwise have been decided by a planning committee.”

Team of just three Brighton councillors will make planning decisions (The Argus, 26 March 2020)

“Brighton and Hove City Council’s three party leaders agreed one councillor from each of the Labour, Green and Conservative groups will make urgent decisions rather than leave them to officers.

Three councillors sitting as the Planning Committee on Monday, 23 March, agreed to create the urgency sub-committee to decide on any major developments that need a decision during the Coronavirus (Covid19) pandemic emergency.”

For those concerned as to the implications of decisions being left within a small caucus of members, Luton Borough Council has an approach (recounted by David Gurtler on twitter) whereby four members are physically present, with officers presenting virtually and with other members able to log in and participate in the debate (although not vote).

These options seem pretty practical to me. Concerns have been expressed as to whether options such as these constrain the ability for the public to participate. In my view, this concern is overdone. Participation amounts to (1) having the papers in advance (2) being present in order to hear what is said and (3) (subject to what is provided for in the individual authority’s constitution) being allowed to speak. The papers will still be available in advance. If meetings are available on webcast, as many have been for some time, the second concern is addressed. The right to speak is already tightly constrained, invariably with requirements as to advance notification and strict time limits for a presentation and the relevant individual (whether applicant, supporter or objector) could easily join remotely by telephone or web link to say his or her piece in exactly the same way as if present. As for the presentation of schemes to committee and the ability for members to understand the implications of a proposal without the need for a site visit, the possibilities of technological solutions such as Vucity are almost boundless.

Of course, there is no reason why less controversial applications should not be determined by delegated powers as indeed most already are – see my 14 January 2017 blog post The Rest Of The Iceberg: Delegated Decisions.

Various authorities are looking to focus on the use of delegated powers, with additional oversight/ sign-off at chief executive and/or committee chair level. See this statement by Wychavon District Council, for instance:

“Planning Committee meetings have been cancelled for the foreseeable future. To make sure planning decisions can continue to be made at the current time, we will be using emergency decision making powers, as delegated within our constitution to the Managing Director, Deputy Managing Director, Planning Committee Chair or Vice-Chair. 

 

These individuals will work with planning officers  to make what would have been Planning Committee decisions. We are working to minimise the overall level of applications that are required to be considered by the Planning Committee in accordance with the Council’s constitution regarding delegated powers.

 

Officers will not be carrying out site visits at this time. Instead we will be requesting  applicants provide photographic and/or video evidence as may be necessary. If insufficient evidence is made available to allow officers to adequately assess the applications, we will seek to agree extensions of time with applicants, to deal with their planning applications.  Officers will not themselves  be placing site notices at this time, but will ask applicants to display these and provide evidence to confirm this.”

All of this chimes with the advice in Steve Quartermain’s final chief planners letter (24 March 2020):

“It is important that authorities continue to provide the best service possible in these stretching times and prioritise decision-making to ensure the planning system continues to function, especially where this will support the local economy.

We ask you to take an innovative approach, using all options available to you to continue your service. We recognise that face-to-face events and meetings may have to be cancelled but we encourage you to explore every opportunity to use technology to ensure that discussions and consultations can go ahead. We also encourage you to consider delegating committee decisions where appropriate. The Government has confirmed that it will introduce legislation to allow council committee meetings to be held virtually for a temporary period, which we expect will allow planning committees to continue.

We encourage you to be pragmatic and continue, as much as possible, to work proactively with applicants and others, where necessary agreeing extended periods for making decisions.”

One side effect of this period has been to jolt many of us finally into more modern and efficient ways of working and communicating. As a result of new processes having to be used, it could well be that the planning committee process, and indeed local democratic process more generally, will also operate rather differently in the longer term and for the better – perhaps a wider cross-section of the community might even be prepared to play a role as elected councillors if fewer hours needed to be spent physically in the council chamber and committee rooms?

Simon Ricketts, 28 March 2020

Personal views, et cetera

With thanks to Michael Gallimore (who will spot that I cut and pasted passages from a client note that he prepared earlier in the week), Rebecca Craig and Safiyah Islam.

The Rest Of The Iceberg: Delegated Decisions

What percentage of planning decisions would you say were made by officers, acting under delegated powers, rather than by members?
Back in 2002 the then Labour Government introduced a target that 90% of planning decisions should be delegated to officers but in recent times ministers appear to have gone quiet on the issue, despite greater use of delegated powers plainly leading to faster determination of applications. And if (big if) an LPA has an up to date local plan and/or neighbourhood plan, one of the benefits should be that decision-making on planning applications should be more straight-forward. 

The Planning Practice Guidance simply says: “The exercise of the power to delegate planning functions is generally a matter for individual local planning authorities, having regard to practical considerations including the need for efficient decision-taking and local transparency. It is in the public interest for the local planning authority to have effective delegation arrangements in place to ensure that decisions on planning applications that raise no significant planning issues are made quickly and that resources are appropriately concentrated on the applications of greatest significance to the local area.”  
So I was ready to write a blog post suggesting that perhaps there should be greater encouragement for delegation arrangements, whereby applications only need to go to committee unless there is genuine uncertainty as to the application of policy. After all there is a certain logic to a model where politicians arrive at the detailed plan for their area and then officers make depoliticised decisions in accordance with that plan.
However, the statistics are interesting. When one looks at the latest DCLG figures for England, for July to September 2016  published on 15 December 2016, 94% of decisions were taken by officers over the quarter. (There were 115,800 decisions in the quarter of which 108,500 were delegated). This is the same percentage as for the same quarter in 2015 and 2014, prior to which the proportion was significantly lower. 
94%! So the more major applications that many of us focus on are the tip of a very large iceberg. Do people think that there is scope for this proportion to go even higher?
The criteria for selection of applications that are to be determined by officers are of course set out in the LPA’s scheme of delegation, within its constitution. There can be significant differences as between the approaches of authorities. So long as the decision as whether an application is to go to committee or is to be determined by an officer is made within a valid scheme of delegation there is little scope for legal challenge – see for example R (Technoprint) v Leeds City Council (Wyn Williams J, 24 March 2010). 
However, nowadays the delegated decision-making process itself is more transparent. Regulation 7 of the Openness of Local Government Bodies Regulations 2014 (made under section 40(3) of the equally catchily titled Local Audit and Accountability Act 2014) provides as follows:
“(1) The decision-making officer must produce a written record of any decision which falls within paragraph (2). 


(2) A decision falls within this paragraph if it would otherwise have been taken by the relevant local government body, or a committee, sub-committee of that body or a joint committee in which that body participates, but it has been delegated to an officer of that body either—


(a) under a specific express authorisation; or



(b) under a general authorisation to officers to take such decisions and, the effect of the decision is to—

(i) grant a permission or licence; 


(ii) affect the rights of an individual; or


 (iii) award a contract or incur expenditure which, in either case, materially affects that relevant local government body’s financial position.




(3) The written record must be produced as soon as reasonably practicable after the decision-making officer has made the decision and must contain the following information—


(a) the date the decision was taken;


(b) a record of the decision taken along with reasons for the decision;



(c) details of alternative options, if any, considered and rejected; and



(d) where the decision falls under paragraph (2)(a), the names of any member of the relevant local government body who has declared a conflict of interest in relation to the decision.”
The High Court in R (Shasha) v Westminster City Council  (Deputy High Court Judge John Howell QC, 19 December 2016) recently held that this means that there is a duty to provide reasons where a decision is taken under delegated powers. He quashed a planning permission granted by Westminster City Council for development of a site at Portman Mansions, Chiltern Street on the basis that the officer’s report did not adequately deal with a number of material considerations. 
Of course this may be seen as strange given that, since 25 June 2013, LPAs are generally no longer required to give reasons for granting planning permission. The deputy judge dealt with that argument as follows:
“The suggestion that imposing a requirement to give reasons for the decision to grant planning permission under delegated powers with effect from August 6th 2014 under the 2014 Regulations sits ill with the earlier removal of the requirement in all cases to give summary reasons for the grant of planning permission on June 25th 2013 provides no reason to construe regulation 7 of the 2014 Regulations other than in accordance with its terms. The Explanatory Memorandum to Order which removed the requirement, the Town and Country Planning (Development Management Procedure) (England) (Amendment) Order 2013, explained the change on the basis that officer reports typically provided more detail on the logic and reasoning behind a particular decision to grant planning permission than the decision notice and that the requirement to provide summary reasons for that decision added little to the transparency and quality of the decision making process but that it did add to the burdens on local planning authorities. It is at least consistent with such reasons for that change that reasons should nonetheless be required to be provided for delegated decisions. Whereas officer reports are almost invariably produced when decisions are taken by members of planning authorities, an equivalent document or one with the content that regulation 7(3) requires need not be produced when an officer takes a decision to grant planning permission. But, whether or not that provides an explanation for regulation 7 of the 2014 Regulations and whether or not the requirement it imposes may be thought anomolous given the removal of the requirement to give summary reasons in all cases, in my judgment there is no basis for reading the words “other than a planning permission” into regulation 7(2)(b)(i), where they do not appear, or to exclude decisions to grant planning permission from those falling within section 7(2)(a) or 7(2)(b)(ii) if they would also otherwise fall within those provisions.”
Is it just me or is there an element of “I know it’s crazy, but…” about that explanation?
Whilst it must be right that we should know the reasoning for a decision to grant planning permission, is Shasha going to lead to a more cautious approach on the part of LPAs, with the length of officers’ delegated powers reports extending to the length of reports to committee, so as to guard against similar challenges, in turn leading to longer lead-in periods and greater calls on officer time (like the rest of the iceberg, surely they are going to be underwater)? And what about that reference in regulation 7(3)(c) to “details of alternative options, if any, considered and rejected“?  Now that would be an interesting case….


Simon Ricketts 13.1.17
Personal views, et cetera