Friends of Hethel Ltd, R (on the application of) v South Norfolk District Council & Anor

A local authority may impose lawful limits on the functions delegated to a committee. It cannot require the committee to decide a question by a special majority where Local Government Act 1972 mandates decision by a simple majority of members present and voting.

The duty to notify English Heritage arose once the planning authority considered that development would affect the setting of a Grade I or Grade II* listed building. The trigger was an effect on the setting, not an effect sufficiently serious to justify refusing permission. Failure to obtain the required consultation may justify quashing permission where the consultation could have influenced the decision. A finely balanced vote is relevant but is not an essential condition for that remedy.

A district council granted planning permission for three wind turbines. An area planning committee had first voted by five votes to three to refuse permission contrary to officers’ advice. The council’s constitution treated that vote as ineffective because it fell short of a two-thirds majority and referred the application to its planning committee, which granted permission.

On judicial review, Cranston J declared that the council had breached regulation 21(1)(b) and (c) of the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999. He rejected the other grounds and declined to quash the permission.

The applicant appealed. The principal issues were whether the special-majority rule contravened Schedule 12 to the Local Government Act 1972, and whether the council unlawfully failed to notify English Heritage about development affecting the setting of listed buildings.

1. Appeal allowed unanimously; planning permission quashed. Sullivan LJ held that both principal grounds succeeded. Lloyd LJ agreed. Sedley LJ agreed with the result and the essential reasoning.

2. Section 101 of the Local Government Act 1972 permits a local authority to place conditions and limits on the functions delegated to a committee. That power is subject, however, to the Act’s express requirements. Paragraphs 39(1) and 44(1) of Schedule 12 require every question arising before such a committee to be decided by a majority of the members present and voting. Section 101 concerns who is to decide a matter; it does not authorise a different voting method.

3. The area committee decided the planning application when it voted five to three for refusal. The council could lawfully have provided that a majority decision contrary to officers’ advice triggered a referral. It could not treat a decision itself as requiring a two-thirds majority. Because the special-majority requirement was unlawful, the resulting referral was invalid. The planning committee had no independent general power to call in the application and therefore lacked power to determine it.

4. The council’s documents showed that the turbines would affect the setting of at least one Grade I listed building. The statutory and circular consultation trigger concerned whether there would be an effect, not whether that effect was sufficiently serious to warrant refusal. Its extent and significance were matters on which English Heritage’s expert opinion should have been obtained. The failure to notify English Heritage therefore vitiated the permission.

5. Quashing was appropriate because the decision was finely balanced and consultation might have altered the outcome. Sedley LJ added that a finely balanced decision is not a prerequisite: other considerations of practice or principle may justify quashing for a consultation failure in other cases. The application would require redetermination, when the council could address any material change of circumstances and the remaining environmental issues.

1. Court of Appeal (Civil Division): The appeal was allowed and the planning permission was quashed on both the unlawful voting-arrangements ground and the failure to notify English Heritage: [2010] EWCA Civ 894.

2. High Court: Cranston J allowed the judicial review claim only to the extent of declaring that the council had failed to comply with regulation 21(1)(b) and (c) of the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999. He dismissed the other grounds and declined to quash the permission. No citation is stated.