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19 September 2018

What happens when there is a tied vote at a council meeting?

Councils make decisions through making resolutions.  A resolution is made when a motion is moved by one councillor, seconded by another councillor, and then there is a vote by all councillors on whether or not that motion should pass.  Generally a motion will be passed and a resolution will be made if there are more councillors who vote for the motion than those who vote against it; it will be lost when more vote against the resolution rather than for it.  (There are some instances where different voting rules apply, but they are not relevant to the following.)

But what happens when the vote by a planning authority (that is, a council considering a planning application) is tied?

There has been a decision in the Resource Management and Planning Appeals Tribunal which says that where there is a motion to approve a development application on certain conditions, and the vote is tied, then this is deemed to be a refusal of the development application.  Reliance is placed on regulation 28(4) of the Local Government (Meeting Procedures) Regulations 2015, which states that “a tied vote at a meeting results in the motion being determined in the negative”.

We do not agree with the Tribunal’s decision.  Briefly, the reasons we hold this view are as follows:

  1. In our opinion, the meaning of regulation 28(4) is simply that the motion to approve the development application is lost, and that the council may then go on to consider other options, such as to approve the proposal on different conditions or to refuse it altogether.  A “motion being determined in the negative” does not mean that the outcome will be the opposite of what is proposed in the motion.
  2. Planning decisions must be made within the framework of the Land Use Planning and Approvals Act 1993. If the Tribunal is correct in its decision then if there is a motion to approve a development and the vote is tied, the council will have refused a development application without providing any grounds for doing so.
  3. The Tribunal refers to some comments by the Supreme Court in James Douglas v Hobart City Council [1996] TASSC 49 in support of its decision.  The comments in that decision, which are not binding, have been misinterpreted.  The decision states that where a vote on a motion to refuse an application is tied, the council has not made a decision on the application (ie, the motion is lost).  The same logic must apply to a motion to approve a proposal.

Despite our opinion on how regulation 28(4) should be interpreted, it is now clear that this is how the Tribunal interprets it.  Unless there is an appeal to the Supreme Court of a Tribunal decision on this issue, councils should conduct its meetings with the Tribunal’s approach in mind.

We recommend:

  1. Councillors are informed of the consequences of a tied vote on a development application.
  2. If you are not satisfied with the Tribunal’s approach, there could be a push for legislative change to clarify the operation of regulation 28(4).
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