Neutral Citation Number:  EWCA Civ 1359
Case No: C1/2007/0789
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
MR JUSTICE COLLINS
Royal Courts of Justice
Strand, London, WC2A 2LL
LORD JUSTICE MUMMERY
LORD JUSTICE DYSON
LORD JUSTICE WALL
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NEATH PORT TALBOT COUNTY BOROUGH COUNCIL Appellant
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LINDA WARE Respondent
(Transcript of the Handed Down Judgment of
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Mr Anthony Porten QC (instructed by the Solicitor for the Appellant Council) for the Appellant
Mr David Wolfe (instructed by Richard Buxton Solicitors ) for the Respondent
Hearing dates : 27th November 2007
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Lord Justice Mummery :
1. This appeal, brought with permission granted by Richards LJ on 22 May 2007, is from an order dated 30 March 2007. In judicial review proceedings against the Neath Port Talbot County Borough Council (the Council) Collins J quashed a planning consent (P2006/0788) and a hazardous substance consent (P2006/0845) (together called “the consents” in this judgment) for the development by National Grid of a natural gas pressure reduction station on land north of the village of Cilfrew, Neath. The judge ordered the Council to pay the costs.
2. The development by National Grid involved the construction of “an above ground installation” (AGI) for which the Council’s Planning and Development Control Committee (the Planning Committee) granted the consents on 19 September 2006 by a resolution passed by 13 to 12 votes.
3. The judge based his decision that the consents were invalid on an alleged procedural irregularity. He held that four councillors, who were members of the Planning Committee, had received “wrong advice” from the Council’s officers, and had acted under a misapprehension of law, which was potentially material, when they abstained from voting on the relevant item at the 19 September meeting.
4. Mr David Wolfe, who appeared for the respondent, Ms Linda Ware, took a preliminary objection. He submitted that the Council’s appeal had become academic and should not be heard. It had been overtaken by events. Fresh consents for the National Grid development were issued by the Council on 15 May 2007 re-determining and confirming the quashed consents with only minor amendments. National Grid then carried out the approved development. On 23 October 2007 Ms Ware withdrew her second judicial review application dated 19 July 2007 challenging the validity of the fresh consents, though on different grounds.
5. The Council, for whom Mr Anthony Porten QC appeared, urged this court to hear the appeal, to allow it and to set aside the decision of Collins J, both on the merits of the application and on the Council’s liability to pay the costs of the judicial review proceedings. Mr Porten contended that the determination of the appeal would resolve issues of wider importance for local government process and would assist local authorities in conducting their business.
6. Mr Wolfe replied that, if the court were persuaded to entertain the appeal, it should impose terms that the order for costs against the Council in the court below would not be disturbed and that, regardless of the outcome, the Council would be ordered to pay all the costs of the appeal. Ms Ware is a publicly funded litigant.
7. The court decided that it would not rule on the “academic appeal” point or set terms in advance of hearing each side’s arguments on the merits of the appeal. Mr Wolfe accepted that the questions raised on the appeal were not hypothetical. They arose from a decision on a concrete set of facts, on which Collins J had delivered a judgment and made an order for costs (cf Wynne v. Secretary of State for the Home Department  1 WLR 115).
8. I agree with Mr Wolfe that the validity of the consents is no longer a live issue directly affecting the parties’ rights and obligations inter se, but the public law grounds on which the judge quashed the consents raise questions that could, in my judgment, have repercussions for the Council or for other local authorities in future cases where public law claims are made that councillors have abstained from voting (or have voted) after receiving wrong advice from Council officers. The court has a discretion to hear the appeal if it is satisfied that it is in the public interest to do so: R v. Secretary of State for the Home Department  1 AC 450 at 456G-457E per Lord Slynn of Hadley. I shall return to this aspect of the appeal later in this judgment.
Background to proceedings
9. The factual background to the case is in witness statements by the four councillors in November 2006 and by officers of the Council in February 2007-Mr David Michael (Principal Solicitor and Deputy Monitoring Officer), Mr Peter Moran (Head of Democratic Services) and Mr Geoffrey White (Head of Planning). Mrs Carol John was Monitoring Officer and Head of Legal Services at the relevant time, but sadly she died on 11 February 2007. A draft of an unsigned statement by her was exhibited to Mr Michael’s witness statement.
10. The judge having indicated to the parties that there was no issue of fact which needed to be determined, the Council did not pursue its application for cross examination. The unchallenged evidence can be summarised as follows.
11. On 22 February 2006 Councillors Andrew Tutton, Juliet Hopkins, David Williams and Leslie Davies, who were all members of the Planning Committee, attended a public meeting of the Ratepayers Party, a registered Political Group on the Council. They were Ratepayers Party Councillors, Councillor Tutton being the Leader of the Ratepayers Party.
12. Objectors to the National Grid development included members of the Cilfrew Residents Association, of which Ms Ware is Secretary. Some of the Cilfrew objectors attended the February meeting and presented to it information about their opposition to the application for the consents.
13. Councillor Linda Williams, who was present at the February meeting, but is not a member of the Ratepayers Party, informed the Council’s Monitoring Officer of the meeting and raised her concerns.
14. By an e-mail sent on 14 March 2006 to Councillor Tutton the Council’s Monitoring Officer gave advice about attendance at the February meeting. As advised in the e-mail each councillor made a declaration at the Planning Committee meeting on 29 August 2006 that they had not expressed any opinion on the application for the consents nor had they pre-determined it. The judge found that the advice about the February meeting in the March e-mail was “entirely appropriate.” He commented that the Monitoring Officer did not have full information as to what had actually occurred at the February meeting, but was alerting the councillors to possible dangers if anything had been said indicating any pre-determination.
15. The advice in the e-mail referred to the Guidance “Probity in Planning” and to the Council’s Planning Code and stated that “the Ombudsman and the Courts recognise the danger of pre-discussions outside of Committee especially in controversial applications.” There was no evidence that the councillors had said anything which could be interpreted as a pre-determination of, or even a pre-disposition in relation to, the National Grid development proposals.
16. At the 29 August 2006 meeting the Planning Committee decided to defer consideration of the application for a site visit to be made by the full Committee.
17. In a letter of 13 September 2006 sent to all members of the Planning Committee about site visits Mrs Carol John, as Monitoring Officer, who had advised members in an earlier letter of 18 August 2006 that they should not participate in the subsequent debate and decision making if they had not attended the site visit, emphasised that she was not seeking to prevent members from voting if they had not attended the site visit, but cautioned that failing to do so might call into question the decision making. No reference was made in the letter to the Ombudsman. Although the judge did not regard the advice in the letter as “particularly helpful”, he did not say that it was wrong.
18. The site visit took place on 19 September. Two of the four members (Councillors Tutton and Hopkins) did not attend the site visit. Councillor Tutton was satisfied that he could properly assess the issues without a site meeting. Councillor Hopkins had already decided not to vote at the meeting on 19 September, feeling that her integrity had, through no fault on her part, been compromised at the February meeting.
19. Before the start of the Planning Committee meeting on 19 September Mr Michael was approached by Councillor Tutton. Mr Michael gave advice to him by reference to the declaration and to the position set out in the letter of 13 September. He strongly advised that, in terms of legally secure decision making, it was advisable for members to have attended the site visit should they intend to vote. According to Councillor Tutton’s evidence Mr Michael also advised that failure to attend could be detrimental if it went to an Ombudsman. Mr Michael made it clear to Councillor Tutton that it was his (the councillor’s) decision. Mr Michael’s evidence about this conversation made no reference to the Ombudsman. As there was no cross examination this difference of recollection was not resolved.
20. A similar difference of recollection occurred regarding the evidence of advice given by Mr Michael in response to Councillor Hopkins. Mr Michael said that he drew her attention to the advice in the letter of 13 September. According to her statement she acknowledged that Mr Michael told her that it was her decision as to whether she participated. She said that he advised that her failure to attend could be questioned by an Ombudsman if there was an inquiry. There was no mention of this advice or of the Ombudsman in Mr Michael’s statement.
21. At the 19 September Planning Committee meeting Councillors Tutton and Hopkins left before consideration of the National Grid item commenced. Before the item was considered Mr Michael alerted the members of the Planning Committee to the letter of 13 September. No further advice was given about the site visit issue.
22. The remaining two members concerned, Councillors Williams and Davies, were given further advice during the consideration of the item. They also left the meeting without voting on the National Grid application. I will deal with the evidence about the advice given to them at the meeting after first explaining a significant shift in the grounds of the judicial review application following the service of the councillors’ witness statements.
23. The ground of the judicial review sought by Ms Ware was that there was serious procedural irregularity in the Planning Committee process in approving the consents. It was originally alleged that, during the Planning Committee meeting of 19 September 2006, Council officers subjected Planning Committee members to undue pressure not to vote, resulting in those members withdrawing from the chamber and not voting in circumstances where those councillors were perfectly entitled to vote. Basing these allegations on an article in a local paper Ms Ware asserted that the councillors were unlawfully excluded from the National Grid item at the meeting.
24. According to the initial statement of facts relied on in the claim form “certain councillors were pressurised into not voting, contrary to their wishes, and contrary to their conduct at the previous meeting on 29 August 2006 where they voted in relation to matters concerning the applications.” This ground of review was replaced by different grounds after the evidence of the councillors was served. It was contended that it was clear from the evidence that “the councillors decided to take no part in the vote and to leave the council chamber on the basis of a misapprehension of the law (seemingly based on advice given to them by council officers)” and that their misapprehension was potentially material.
25. According to the replacement grounds of challenge of 14 November 2006 two issues emerged from the witness statements of the councillors-.
“15. ….the councillors in question took the view that they should not take part in the vote in the light of one or both of two things, namely:
(1) That they had attended a meeting at which local residents had presented information about their concerns about the AGI in February 2006, albeit that the councillors involved had made clear at the meeting that they could not and would not express any view or give any indication as to their reaction to the materials being presented to them because of their membership of the planning committee; and/or
(2) Because they had not attended a site visit organised by the council to the location of the AGI at Cilfrew.”
26. The Council’s principal evidence about the advice given to the councillors at the meeting of the Planning Committee on 19 September 2006 was contained in the witness statement of Mr Michael.
27. According to his unchallenged account (in particular, paragraph 12) Councillors Tutton and Hopkins had already left the meeting before the National Grid item was reached. Mr Michael noticed that Councillors Davies and Williams had remained in their seats and “looked slightly unsure.” His witness statement continued that while the Chair was allowing a number of Members to speak-
“The Members concerned [Davies and Williams] then looked at me and gestured slightly. I then left my seat and went to speak with them. The conversation was extremely brief and confined to a few sentences. As I arrived I asked them whether it was about the meeting and the predetermination issue. They asked whether they should leave the meeting, “to be safe.” I said that there was a problem with having the meeting i.e. the meeting with residents (by which I meant without officers present) but the main issue was expressing any views before the Planning Meeting. The Members said “we didn’t say anything.” I said that, well if they said that no views had been expressed, then okay, but that the only other guidance I could give was that they would have to say what was said at the meeting with residents if there was a complaint perhaps to the Ombudsman. It was a matter for them to decide. They then indicated that they would intend to leave. I then went back to my seat.
13. Shortly after this conversation the two Members left and the vote was taken. …”
28. In their witness statements all four councillors made it clear that their decisions had been their own and that they had not been prevented from voting. As for the advice given to them by Mr Michael on 19 September none of them made further witness statements contradicting his evidence.
Judgment of Collins J
29. The judge observed that the four councillors “had done nothing wrong.” The procedural irregularity was in the “clearly wrong” advice given to them by the Council’s officers. This court proceeded on the basis that the judge’s main reason for quashing the consents was that the Council officers gave wrong advice to the councillors and that the advice was an immaterial consideration affecting the decision of the councillors not to vote. The crucial passages in the judgment are those in which the judge stated what advice the Council officers gave to the councillors and in what respects he regarded the advice as clearly wrong.
30. In a key paragraph of his ex tempore judgment the judge said-
“34. I have no doubt that the four councillors did feel under pressure not to participate. Where it seems to me that the advice given was clearly wrong was in raising the spectre of a complaint to the ombudsman. Whether a complaint might be made or whether judicial review claim might follow cannot be a relevant test. It is only if there is a real risk that any complaint or claim might succeed that there should be withdrawal. In reality as it seems to me the prior advice that should have been given was that since they had clearly decided that they had done nothing wrong (and indeed they had clearly done nothing wrong) then there was no reason at all why they should not stay and vote. There should not have been a reference to the possibility of a complaint to the ombudsman which could only have put some pressure upon the councillors and raised with them in their minds as it did concerns that such a complaint might follow and they might have to deal with it. Of course any such complaint is a matter which any councillor would consider to be a serious matter.”
31. The judge added-
“45. It seems to me that if the wrong advice was a cause of the decision not to vote, that can affect the lawfulness of the decision that is eventually reached. If one wants to put it in terms of irrationality of the decision made it can be put into that category if one remembers that the definition of “irrationality “includes having regard to an immaterial consideration. The immaterial consideration here would be the advice that was given that the possibility of a claim to the ombudsman should disqualify.”
32. In the post-judgment discussion with counsel the judge said that he had “decided that the advice given was wrong on the basis that it set really too low a standard” (paragraph 67).
33. In other passages in his judgment the judge also said that the advice from the Council officers was “wrong in the impression it clearly gave and was intended to give to the members that there was a real possible problem if they participated having regard in particular to the attendance at the February meeting”(paragraph 40); that the advice was tantamount to the councillors being informed that “they had better not remain and better not play a part in the decision making” (paragraph 44) and that so far as the site visit was concerned they were advised that failure to attend on the site visit disqualified them from voting. He also said that two councillors left the meeting following advice that there was the possibility of a complaint to the Ombudsman coupled with the mantra of which they were aware that “when in doubt, get out.” The judge thought that that mantra (which, according to the evidence, was general advice given to the councillors at an earlier training seminar on the code of conduct and in the context of dealing with members’ personal interests, but not in the specific advice given to the councillors on 19 September) was inappropriate in this case (paragraph 33).
34. The judge concluded his judgment with these observations.
“47. I should only add this. The Court would not interfere merely because after the event a councillor or a number of councillors indicated that they had misunderstood the position whether factual or advice given. If that advice was perfectly proper advice or if the facts had been properly and satisfactorily set out in the officer’s report there would be no room in my view for judicial review merely because councillors decided after the event or indicated after the event that they had misunderstood the situation. That would be to open the door to claims which really would put the whole process in some confusion.”
Discussion and conclusions
35. In substance the relevant evidence of all the councillors was that they were left to make their own decisions and to exercise their own judgment about voting on the National Grid item at the meeting on 19 September. They were not directed or pressurised by Council officers to abstain from voting or to leave the meeting prior to the vote. Nor was abstention from voting recommended by the officers. According to Mr Michael’s evidence, the councillors were simply advised of the difficulties in terms of the absence from the site visit and the February meeting with residents. He only went to speak with the councillors in the meeting because they attracted his attention. They were not told or advised by him that they could not participate in the meeting or that they were disqualified from voting by reason of attendance at the February meeting or by non-attendance at the September site visit.
36. Having regard to the unchallenged evidence of Mr Michael the judge’s summary of the advice given to the councillors was inaccurate in several significant respects.
37. The advice about the possibility of a complaint to the ombudsman was only given to two of the councillors (Councillors Williams and Davies), not to all four. The advice to Councillors Williams and Davies was in response to Councillor Davies’s question “what’s the worst that could happen?” (see paragraph 7 of his witness statement). In my view, this was a significant circumstance of the context in which Mr Michael’s advice was given, though it was not mentioned by the judge. The councillors were not given advice that the possibility of a claim to the Ombudsmen would disqualify them from voting at the meeting.
38. Further, the councillors were not advised that it was better not to remain or play a part in the decision making; nor were they advised that failure to attend a site visit disqualified them from voting.
39. In short, the advice which the judge held was wrong was not the advice that was in fact given according to the evidence of Mr Michael or the other Council officers. The advice which they in fact gave to councillors at several points was not wrong advice. The judge agreed that the advice in the e-mail of March was entirely appropriate. The advice in the letter of 13 September was not wrong nor was the advice given to the councillors before or at the meeting of 19 September. In particular, there was nothing wrong in advice that there was a possibility of a claim to the Ombudsman, given, as it was, in response to questions whether they should leave the meeting “to be safe” and “what is the worst that could happen?”
40. The councillors were clearly advised that it was for them to make their own decisions about whether to vote. They were not advised or told by the Council officers that they were disqualified from voting, or to leave the meeting on 19 September. They were not prevented from voting at it, if they so wished. In deciding individually not to vote the councillors were exercising their own judgment in the light of the advice that was given. None of the advice given to them was wrong or amounted to an immaterial consideration giving rise to a procedural irregularity or to unlawfulness in the granting of the consents.
41. It follows that there was no procedural irregularity vitiating the grant of the consents. Having received correct advice the councillors decided not to vote on the resolution. This was their decision and it has not been demonstrated that it was affected by immaterial considerations, such as wrong advice either about their attendance at February meeting or about the failure to make a site visit.
Academic appeal point
42. In opposing the Council’s pursuit of the appeal, despite the granting of fresh consents, Mr Wolfe emphasised that the facts of the case were special and exceptional; that no new points were involved which expanded or extended the law; that the judgment of Collins J did not bear on how councillors and officers conduct themselves; and that the grounds of appeal included challenges to findings of fact and to comments on peripheral matters that were not part of his essential reasoning and were without merit.
43. I do not accept the submission that the court should summarily dispose of the appeal without deciding it. There are good public interest reasons for this court exercising its discretion to hear and decide the appeal on its merits. There was a real lis between the parties. It was decided against the Council, which was ordered to pay the costs. The judge’s decision to quash the consents was based on a conclusion that the councillors had received wrong advice from the Council officers. On this point the judge did not take account of the unchallenged evidence by the Council officers as to what advice was in fact given to the councillors. The advice given was not wrong advice. The judge was not justified in holding that the councillors who abstained from voting were acting under a misapprehension of law or were influenced by immaterial considerations as a result of wrong advice.
44. The persisting public interest aspect of the appeal is the Council’s proper concern about the implications of the case for the conduct of future Planning Committee business. It is a point of some general importance, which may recur in this Planning Committee and in the case of other committees and other local authorities. The basis of the ruling of the judge is of concern to local authorities and the role of Monitoring Officers generally when advice is given to councillors. There is also a public interest in knowing the approach of the court to legal challenges to Council decisions, on which individual members of council committees have decided to vote or to abstain from voting, as the case may be.
45. The particular facts of this case underline the importance of the evidence and of the court to identifying correctly and with some precision the advice that was in fact given to councillors and the respects (if any) in which the advice was wrong. It is not, however, necessary or desirable for the court to express views on numerous other grounds of appeal relied on by Mr Porten. The other grounds included the limits on the ability of the court to go behind the exercise of the discretion of the councillors to abstain from voting and to review the advice itself rather than the decision taken by the councillors or by the committee of which they are members (see, for example, R (United Co-Operatives Ltd) v. Manchester City Council  EWHC 265 Admin Elias J paragraphs 12-14 and 21-23); confining judicial review to cases where the advice given to the councillors was irrational and not extending it to cases where the court would have given advice different from that given by the Council officers; testing the correctness of the advice given by reference to the information available to the officers at the date they gave it and not by reference to information made available by the councillors after the event, as in their witness statements about what happened at the February meeting; the unavailability of judicial review in cases where the councillors have misunderstood correct advice given to them; and the ability of councillors to obtain independent advice.
46. These points are better left over for detailed argument and decision as and when they have to be resolved on the facts of another case.
47. I would allow the appeal. I would not impose any terms on the Council that it should not seek to disturb the order for costs made by Collins J or that it should pay the costs of its appeal, which has succeeded.
48. In the light of this judgment I hope that the parties will agree a form of order covering the costs of the proceedings below and of this appeal. If no agreement is reached, the disputed issues will be decided by the court on the basis of further written submissions by the parties.
Lord Justice Dyson:
49. I agree.
Lord Justice Wall:
50. I also agree.