R (on the application of The Spitalfields Historic Building Trust) v London Borough of Tower Hamlets and another

A local authority’s power to regulate its proceedings by standing orders includes power to prescribe when committee members are qualified to vote. A councillor’s general entitlement to vote is implicit in the statutory scheme, but it is neither absolute nor a fundamental right engaging the principle of legality.

A standing order restricting voting on a deferred planning application to members who attended its earlier consideration may therefore be valid. The power remains subject to proper-purpose and rationality review. Because local representative democracy is especially important, a restriction on voting requires anxious scrutiny and attracts a heightened standard of review.

Tower Hamlets Council’s planning committee deferred an application concerning the Old Truman Brewery after hearing officers and public representations. At the resumed meeting, its standing orders permitted only members who had attended the earlier meeting to vote. Three eligible members attended and granted permission by two votes to one.

The appellant sought judicial review, contending that the Council lacked statutory power to impose the voting restriction. Morris J dismissed the claim in [2022] EWHC 2262 (Admin). The Court of Appeal dismissed the appeal in [2023] EWCA Civ 917.

The central issue was whether paragraph 42 of Schedule 12 and section 106 of the Local Government Act 1972 authorised standing orders regulating a committee member’s qualification to vote.

1. Appeal dismissed unanimously. Lord Sales gave the judgment, with which Lord Reed, Lord Hamblen, Lady Rose and Lord Richards agreed. Paragraph 42 of Schedule 12 and section 106 of the Local Government Act 1972, read according to their ordinary meaning, empowered the Council to make the restrictive voting rule. Regulation of a council or committee’s “proceedings” includes regulation of the circumstances in which a member is qualified and entitled to vote.

2. Paragraph 39 of Schedule 12 stipulates the majority needed for a valid resolution. It assumes, but does not confer, a general entitlement to vote. That entitlement arises within the statutory and common-law framework and is subject to rules excluding members affected by bias, apparent bias, predetermination or personal interests.

3. The power to make standing orders remains subject to rationality and proper-purpose requirements. The democratic importance of councillors representing their constituents significantly narrows the lawful discretion to restrict voting. An authority must give anxious scrutiny to possible harm to local democracy, and a reviewing court applies a correspondingly heightened standard of rationality. The restriction here was conceded to satisfy those requirements. It rationally protected continuity, informed participation, procedural integrity and public confidence.

4. The principle of legality did not require the statutory powers to be read down. A councillor’s entitlement to vote is neither an independent fundamental common-law right nor an absolute right. It forms part of, and is qualified by, the statutory decision-making regime.

5. The political-balance provisions of the Local Government and Housing Act 1989 did not override the Council’s powers. The statutory definition of a committee “seat” identifies positions subject to proportional allocation; it does not confer an unrestricted right to vote on every matter.

6. A chair may exclude the vote of a member who is legally disentitled to vote. The member has no residual right to insist that the vote be counted. If necessary, the courts may grant relief preventing participation which would render the collective decision unlawful.

7. The developer’s alternative arguments were rejected. The standing orders neither reconstituted the committee nor created a sub-committee by delegation. They simply regulated which existing committee members could vote.

1. United Kingdom Supreme Court: Dismissed the appeal in [2025] UKSC 11 and upheld the lawfulness of the restrictive voting rule.
2. Court of Appeal: Dismissed the appeal in [2023] EWCA Civ 917; [2024] PTSR 40.
3. High Court, Administrative Court: Morris J dismissed the judicial review claim in [2022] EWHC 2262 (Admin); [2023] PTSR 31.