Neath Port Talbot County Borough Council v Ware

An appellate court may hear an appeal whose immediate subject has become academic where there is a concrete decision, consequential costs, and a continuing public interest in resolving issues likely to recur. In a challenge to a local-authority committee decision, the court must identify precisely the advice actually given to councillors and whether it was wrong. Correct advice which leaves councillors to exercise their own judgment, and does not disqualify them from voting, does not create a procedural irregularity merely because they choose to abstain. A consent is not unlawful unless the decision is shown to have been affected by wrong advice or an immaterial consideration.

The Council’s Planning Committee granted planning and hazardous substance consents for a National Grid natural gas pressure reduction station. Linda Ware brought judicial review proceedings. Collins J quashed the consents by an order dated 30 March 2007, holding that four councillors had received wrong advice, acted under a misapprehension of law and abstained from voting.

Fresh consents were issued on 15 May 2007, the development proceeded, and a second judicial review challenge was withdrawn. The Council nevertheless appealed on the merits and on costs. The central issues were whether the appeal should be heard despite the changed circumstances, and whether the advice actually given to the councillors caused a procedural irregularity affecting the validity of the consents.

The Court of Appeal allowed the appeal.

1. Academic appeal. Although the validity of the original consents was no longer a live issue directly affecting the parties, the appeal was not hypothetical. There had been a concrete decision, a judgment and an order for costs. The court also identified a continuing public interest because the ruling raised issues capable of recurring in local-authority committee business. The discretion to hear an appeal in the public interest was recognised in R v Secretary of State for the Home Department [1999] 1 AC 450, and was exercised here.
2. Advice actually given. Collins J’s conclusion depended on the proposition that council officers had given clearly wrong advice. The unchallenged evidence did not support that conclusion. The March email was appropriate, the September letter was not wrong, and the councillors were told that voting was for them to decide. Only two councillors were told of the possibility of an Ombudsman complaint, and that was in response to questions about the risks of remaining or voting.
3. Effect on validity. No councillor was told that attendance at the residents’ meeting or non-attendance at the site visit disqualified them from voting. They were not directed or pressured to abstain. Their decisions not to vote were exercises of their own judgment. There was therefore no wrong advice, immaterial consideration, procedural irregularity or unlawfulness in the grant of the consents.
4. The court left broader questions about the scope of judicial review of councillors’ voting decisions and officers’ advice for a case in which they required determination. No terms were imposed on the Council concerning costs; the parties were invited to agree the form of order.

• Court of Appeal (Civil Division) — Allowed the Council’s appeal: [2007] EWCA Civ 1359.
• High Court of Justice, Administrative Court — Collins J quashed the planning and hazardous substance consents by order dated 30 March 2007 and ordered the Council to pay the costs.