Many of our Local Authority clients participate in joint working arrangements with other Local Authorities, in an effort to, for example, create economies of scale, share costs or streamline services.

We have been scrutinising the arrangements which govern these joint working relationships for our clients, considering in particular the decision making arrangements used by Local Authorities working together. The structure of these arrangements may not be quite as straightforward as it used to be following a 2010 Court of Appeal ruling. 

Hethel Case

The case of R V South Norfolk District Council ex parte the friends of Hethel [2010] EWCA Civ 894 concerned the delegation of functions to the planning committee of South Norfolk District Council. The planning committee made a decision to grant planning permission to erect three wind turbines on land owned by Lotus Cars Ltd. A local campaign group, Friends of Hethel, succeeded in having the decision overturned on judicial review on the basis that it was unlawful. 

They argued that the requirement in the Council’s constitution for decisions to be made by a two thirds majority contravened the requirements of paragraph 39(1) of Schedule 12 of the Local Government Act 1972 (‘1972 Act’) which require that decisions be made on a simple majority basis. 

Whilst paragraph 39 of Schedule 12 of the 1972 Act relates specifically to decisions made by a Local Authority, paragraph 44 provides that paragraph 39 also applies in respect of any committee of a Local Authority (including a Joint Committee) or a sub-committee of such committee. 

The Court of Appeal agreed and ruled that decisions made by a Local Authority committee must be made on a simple majority basis, irrespective of the constitution of that authority. 

Effect on Local Authorities

The implication of the ruling is that any decision taken by a Local Authority committee or Joint Committee (not just a Local Authority planning committee) made other than on a majority basis may be ultra vires and consequently open to challenge. Local Authorities need to bear this in mind when agreeing or reviewing joint working arrangements in order to avoid potential complications. The Hethel ruling could have particular significance in the context of more controversial joint working arrangements, such as in the education or waste sectors. 

The case has not been widely reported or discussed in the context of its impact on joint working arrangements. As a result we believe that many Local Authorities are not yet fully aware of its implications. With this in mind, we have set out below two key issues that  Local Authorities should consider when establishing new joint arrangements, or reviewing existing arrangements: 

  • Is the Local Authority’s constitution reflective of the provisions of paragraph 39 of Schedule 12 to the 1972 Act? Other methods of voting (e.g. on a unanimous or two thirds majority decisions) will not override the provisions of the 1972 Act.

Action: Review all committee constitutions to ensure decision making arrangements are reflective of the statutory requirements. 

  • Are  joint working arrangements with other Local Authorities compliant with the 1972 Act? This can be particularly difficult where there are inter-authority agreements between three or more Local Authorities where the parties may not want to be forced into a particular course of action by simple majority vote. 

Action: Review all joint working arrangements to ensure decision making arrangements are reflective of statutory requirements. Consider in particular how to ensure compliance whilst maintaining required degrees of control over decision making.

As specialist advisors to the public sector, with vast experience of joint working arrangements, we have assisted our clients in dealing with their concerns by proposing a number of ways to make their decision making compliant with the legislation, whilst at the same time allowing them to have decision making power over particularly important areas without relinquishing control to a majority vote.

If you require specific input or support in relation to any of the issues outlined above, or require more general advice, please do get in touch with any members of our public sector team.