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

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.”

 Freedom of expression

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.

 

 

 

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[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.