A SHORT ARTICLE ON LOBBYING
This article relates to R (Holborn Studios) v London Borough of Hackney [2020] EWHC 1509.
One of the issues related to the submission of information to a member
of the planning committee by way of lobbying and the reactions of both the
member and the council when dealing with that information. An examination of
the judgement shows that the analysis boiled down to two particular points
which are worthy of further commentary. First, the question of whether or not
this process involves considerations relating to freedom of expression.
Secondly, perhaps more importantly, the way in which members and councils
should react to lobbying.
The facts of the case are relatively complicated because they include a long discussion about the rights and wrongs of an economic viability assessment which was presented to the council with the objective of demonstrating that the scheme was not capable of accommodating affordable housing. The developer had aspirations to redevelop a site for
employment and residential purposes. The claimants were the leaseholders of buildings
on the site, where they ran a large photographic studio. They objected to the application.[1] The application was submitted accompanied by
a range of documentation addressing the various considerations bearing upon the
question of whether or not planning permission should be granted. Permission
was granted for that application in 2016 and it was the subject of an
applications for judicial review by the claimant and a local resident.
Ground one was a sequence of legal contentions related to
the information provided in respect of the viability assessment for the
proposed development which informed the contributions, in particular the
provision of affordable housing. Ground three was the contention that the
defendant’s officers failed in the committee report to properly interpret
development plan policies. Ground two is the allegation of concern in this
article; namely, that the council’s guidance for the members of its planning
committee were unlawful in so far as they precluded members from reading
lobbying material submitted to them by consultees and required that instead
this material was passed to officers unread.
In 2018 the claimant’s managing director Mr McCartney wrote
to Councillor Stops (the chair of the committee) pointing out what he regarded
as flaws in the officers’ report. Shortly after receiving this email,
Councillor Stops wrote back to Mr McCartney in the following terms:
“Planning members are advised
to resist being lobbied by either applicant or objectors. As such I have passed
your note onto officers and ask them to take account of and report to members
as appropriate.”
In January 2019 the claimant’s solicitors wrote to the
defendant’s Head of Planning copying in all members of the planning committee,
ward councillors, the mayor and relevant planning officers. The letter pointed
out concerns and objections in relation to the published committee report, and
in particular expressed concern in relation to the way in which the committee
report had addressed the question of viability and financial contributions to
affordable housing. Councillor Snell (a
member of the committee) responded to the claimant’s solicitors’ letter with a
somewhat unguarded[2]
email in the following terms:
“Dear Ms Ring
Planning decisions are
“quasi-judicial” meaning that Councillors who determine their outcome have to
do so based on evidence provided through formal channels so we are advised we
cannot allow ourselves to be lobbied. I have sought legal clarification on this
and paraphrase their advice as follow:-
Members must determine
planning applications before them with an open, impartial mind and all
applications must be assessed on their planning merits alone. Any other matters
that are not material to planning issues should be disregarded and members
should not pre-determine their position on any application. The number of
objections or representations received on a planning application is not a
material planning consideration and therefore not relevant when determining an
application.
To avoid the perception that
Members have been influenced they should forward any lobbying letters to
Governance Services and refrain from reading them. Objectors or supporters of
any Planning Application should make their views known by;
- Writing to the Council’s
Planning Service
- Contacting Governance Services
and ask to speak to the relevant Sub-Committee meeting
- Contact Councillors who are
not on the Committee to see if they will make representations
In the light of this advice I
have not read your email but passed it on to the Governance Services Officer
who will ensure the evidence presented to the relevant Planning Committee is
complete.”
Dealing first with matters relating to freedom of
expression. Reference is made to Article 10 of the European Convention on Human
Rights. In summary, this provides that everyone has the right to ‘freedom of
expression’. This being the freedom to hold opinions and to receive and impart
information and ideas without interference by public authority. The claimant
contended that the way in which the council had dealt with the lobbying
materials was in breach of Article 10. During the course of his judgement Dove
J stated:
“78. There was in substance no
contention before the court but that issues in relation to freedom of
expression and the application of Article 10 of the ECHR were engaged in the
communication between members of a local authority, and in particular members of
a planning committee, and members of the public who they represent and on whose
behalf they were making decisions in the public interest. In my view that
position is indisputably correct. “
With respect, this would appear to be a mis-application of Article
10 to the facts of the case. It is submitted that it is important to
distinguish between two things. First, the right to express opinions and to
impart information. Secondly, the reaction of a person on the receiving end of
such communication. It is wrong to conflate the two.
Whilst Article 10 allows an individual to express his or her
opinion, it does not follow that the intended recipient is obliged to listen to
it. If Mr Brown wishes to send a letter to Mr Smith, then there is no reciprocal
obligation on Mr Smith to an open the letter or to read it. To suggest
otherwise would be a most bizarre interpretation of a statutory provision which
is designed to ensure that freedom of expression is not suppressed by
totalitarian administrations. Somehow bending it to an obligation to read the
opinions or propaganda emitted by another would be a complete sublimation of
the intent behind the provision. To put it another way, an interested party is
perfectly entitled to make representations to a councillor; however, the
recipient councillor is not obliged, by Article 10, to take account of those
representations or, indeed, to listen to them at all. Furthermore, the fact
that Article 10 allows an individual to express his or her opinion does not
give that individual the right to select the mode of communication. If a member
of the public wishes to make representations to a council, then there are a
multiplicity of ways of doing so. It is not for that individual to decide,
unilaterally, that the mode of communication should be by way of sending a
document to an individual member of the planning committee when, clearly, the
determination of the relevant application is a matter for the committee as a
whole. There is absolutely no reason why such a document cannot be submitted as
representation through the council’s relevant channels.
Dealing with lobbying
Turning to the more substantive point, the simple fact of the matter is that
the relevant councillor was faced with a very real dilemma. He had been provided with an ad hoc
representation as an individual councillor and without the circulation of that
representation to other members of the planning committee. Therefore, if he
read the document, he would be privy to information which was not available to
his colleagues. Furthermore, if he participated in the determination of the
application without disclosing this information, then he will be determining
the application of basis of information different to that available to his
colleagues. This is an untenable position. Also, the member would have been
well aware of the rules which relate to conflicts of interest and
predetermination. Accordingly, it was perfectly proper for the member to pass
the document onto the council’s legal advisers unread. To revert back to Article
10, there is nothing in that provision which prohibits such an action.
It is important to mention, here, a point which was not discussed
by either the advocates or the court; namely, the need to maintain a level
playing field between all parties to the determination of the planning
application. It is important that the applicant is made aware of all
representations made in respect of his proposals so that he can respond to them
and, if need be, rebut them. If a representation is received on an ad hoc basis
and is not then communicated to the applicant, then there is no equality of
arms. The applicant is thus prejudiced. The caselaw cited to the court related
to the rights of objectors to receive countervailing documentation in good time
to provide their responses. This point cuts both ways. If it is good for
objectors, than it is good for applicants also.
If one leaves aside the references to esoteric European law,
then the issue is a plain one; namely, the manner in which the council’s legal
officers should have dealt with the representation. This, to a large extent, will
depend upon the way in which they then correspond with the person making
representation. It should be made plain to this person that the representation
cannot be taken into account by one member only and that he has a choice as to
whether he withdraws the representation or allows it to be circulated to the
full committee. If he indicates that he is not prepared to accept the latter
course then, quite frankly, the council’s legal advisers should inform him that
the representation is not duly made and will be discarded.
At paragraph 79, Dove J stated that:
79. On behalf of the defendant
Mr Fraser-Urquhart submitted that it was proportionate for there to be a
requirement that members passed to officers any lobbying material which they
received in respect of applications that they were due to consider. That may
be, but in my judgment it could not be proportionate for those communications
to be passed to officers subject to an injunction that members must not read
them. Receiving communications from objectors to an application for planning
permission is an important feature of freedom of expression in connection with
democratic decision-taking and in undertaking this aspect of local authority
business.
With respect, not only is there no obligation under Article
10 that a member to read such a representation but, as discussed above, reading
the representation without an understanding of how this will relate to the
application process as a whole could put the member a considerable difficulty.
Indeed, it could put the member in the position of having to stand down from
the committee[3].
Dove J. added:
Whilst it may make perfect
sense after the communication has been read for the member to pass it on to
officers (so that for instance its existence can be logged in the file relating
to the application, and any issues which need to be addressed in advice to
members can be taken up in a committee report), the preclusion or prevention of
members reading such material could not be justified as proportionate since it
would serve no proper purpose in the decision-taking process.
It is not a function of legal advisers to simply log matters
onto files. Nor to simply, ensure that the summarised version of a
representation is included in the committee report. One of the functions of the
committee’s legal adviser is to ensure that matters relating to probity are
attended to. This includes ensuring that materials serve a ‘proper purpose in
the decision-taking process’. And this includes dealing with attempts at
lobbying. This is a somewhat narrow view of the functions of solicitors and
other lawyers. To put it another way, the arguments mounted in this case
suggest a significant degree of unfamiliarity with the day-to-day realities of
administering a planning committee.
To those familiar with committee proceedings it is naïve to
pretend that all objectors come to the process in good faith. The reality is
quite different. It is often the case that those seeking to object to a
proposed scheme will do their best to sully the position of individual members
or, indeed, to attack individual council officers by name. Nor is it right to
pretend that those who object always act reasonably. For example, there is a
recent case involving Amber Valley Borough Council where a disgruntled objector
approached the panel and then threw a number of silver coins at the assembled
officers and members. The council was thus forced to recruit security officers
for the next meeting of its planning committee.
Then there is the possibility that the received document does
not relate to the planning merits at all, but is defamatory, racist or
otherwise objectionable. Why should a member be required to read it ?
Conclusions
The mistake made by the council’s legal officers was in
failing to tackle the representation in a straightforward manner. The
representation had been received by an individual member, but there was nothing
to suggest that the person making the representation had intended to gain some
form of advantage. It is somewhat surprising that an objector who had the
benefit of professional advice did so; however, the council should have advised
him that this was an irregular way of placing the representation. Subject to
the caveats mentioned above, the council should, notwithstanding, have
published the representation on its website and drawn members attention to it
in the relevant officer’s report. Therein lies the nub of the problem. It has
nothing to do with Article 10 of a piece of legislation which, quite frankly,
is not at the forefront of everyone’s minds during the hurly-burly of preparing
applications for committee. To put it another way why should those on the front
lines be alert to obscure, and largely relevant, international legislation on
the off chance that it might, somehow, be relevant of the cases in hand ? There
is an air of pious unrealism in the proposition.
[1] Presumably, because the lease might have been prejudiced under the Landlord and Tenant Act 1954.[2] It is difficult to see why a member should have sent this email when officers were better suited to do so.
[3] Indeed, this might be what a duplicitous objector was trying to achieve.
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