Investigator clears council and officers of maladministration in planning enforcement row, takes different view on inducement to Crown Court and Court of Appeal judges

September 4, 2019

An independent investigator has cleared officers and councillors at Wokingham Borough Council of maladministration or unprofessional conduct in a long-running planning enforcement case.

Richard Lingard, a former Head of Legal & Democratic Services at Guildford Borough Council who has conducted a number of investigations across the country, also claimed that inferences drawn by Crown Court and Court of Appeal judges – who concluded that councillors and officers at Wokingham had induced the site owner to act to his detriment – “were, in certain instances, based upon supposition rather than clear evidence”.

The background to Lingard’s investigation was that in June 2018 Her Honour Judge Morris at Reading Crown Court stayed the prosecution by the council of Robert Scott and 10 others over breaches of planning control at Hare Hatch Sheeplands, a garden centre near Twyford.

The judge found that Mr Scott had been induced to withdraw his planning appeal against an enforcement notice on the basis he would subsequently be granted a certificate of lawfulness of existing use or development (CLEUD) to regularise some of the activities on his land. However, it subsequently emerged that a CLEUD could not be granted as a matter of law.

HHJ Morris also concluded that the prosecution was in part motivated by POCA and the possibility of confiscation.

Her judgment was upheld in January 2019 by the Court of Appeal, which agreed that the attempted prosecution of Mr Scott and others was an abuse of process. [See: POCA and improper planning prosecutions – analysis of the Court's ruling by Scott Stemp, counsel to Mr Scott]

In the Court of Appeal’s ruling Lady Justice Hallett said: “The judge's finding that an inducement occurred was based on her careful and fair analysis of all the evidence before her, in particular the evidence of Mr Scott. She accepted his evidence that he was in fact induced by those representing WBC to abandon his appeal, supported, as it was, by emails, some of which had not been disclosed at the time he gave his evidence.

“She did not find that any specific representation had been made to grant planning consent or a CLEUD or not to prosecute, but she did find that the whole course of conduct of those purporting to represent WBC established that the inducement had been made for Mr Scott to act to his detriment.”

Lady Justice Hallett also said that it was clear from all the material before the Court of Appeal that the planning department of Wokingham were well aware of the involvement of the elected councillors and hopeful that the elected councillors would be able to negotiate a fair settlement.

“It ill lies in the mouth of WBC now to complain that the judge bore in mind all that was said and done by the councillors. Mr Scott was led to believe that they were acting with the support and authority of WBC and that Mr Kaiser [executive or cabinet member for planning] would be responsible for the ultimate decision,” Lady Justice Hallett said.

“In any event, the evidence did not begin and end with the councillors. Officers in the planning department played their own part in the negotiations, or, as [counsel to Wokingham] preferred to call them, the 'discussions'. It was very much in the interests of WBC and the councillors to negotiate a settlement and avoid a public inquiry. By ensuring the appeal was abandoned they then held all the cards.”

Lady Justice Hallett went on to say that the Court of Appeal understood Wokingham’s frustration at what it saw as Mr Scott's persistent attempts to flout the planning controls in place for the Green Belt and to breach the enforcement notice.

She said: “We understand that other judges may have reached a different conclusion. We accept that Mr Scott may consider himself fortunate that the judge made the findings that she did, but they were clear and reasoned, and made on the basis of the evidence called before her. We see no reason to interfere with her judgment and or exercise of discretion.

“Our powers are limited. We may only reverse a ruling on an appeal against a terminating ruling under s. 58 of the Criminal Justice Act 2003 if satisfied (a) that the ruling was wrong in law, (b) that the ruling involved an error of law or principle, or (c) that the ruling was a ruling it was not reasonable for the judge to have made. We are not so satisfied.”

In the aftermath of the Court of Appeal ruling and amid concerns from some residents Wokingham brought in Mr Lingard to carry out an investigation.

His findings included that:

The council “did not, either through its elected members or its officers induce Mr. Scott (either by intentional design or by default) to act to his detriment by withdrawing his appeal against an Enforcement Notice”. He claimed Mr Scott decided to withdraw his appeal of his own volition because he could not afford to progress it. His argument that there was a direct nexus between the withdrawal of the enforcement notice and the submission of the CLEUD “was a very tenuous case that in the event persuaded the court”;
It would be “well for all councillors and officers to be reminded of the respective roles of elected members and council officers, particularly in relation to the management of their involvement in discussions and negotiations with applicants and litigants”;
The councillors involved in the case should not have undertaken detailed negotiations and discussion with Mr Scott;
There was “more inference and supposition in the courts’ judgments” than he was comfortable with. “The inferences drawn were, in certain instances, based upon pure supposition rather than clear evidence”;
The suggestions of unprofessional conduct on the part of Wokingham officers in this case “were unfounded, albeit there are lessons to be learned for them in terms of procedure and, in particular, the proper documentation of negotiations and the management of complex cases”.
He did not think that the members purported to act with authority on behalf of the council in their dealings with Mr Scott. “I believe that they were acting with the best of intentions to try to find a solution to a long-standing and difficult planning situation…..”
It would with hindsight have been sensible to ask Mr Scott to set out the reason(s) why he was withdrawing his appeal;
He did not consider that the members’ actions constituted a breach of the councillors’ Code of Conduct;
He believed that POCA was properly considered and that it was not a motivation for prosecution.

Cllr Wayne Smith, Wokingham’s executive member for planning and enforcement, said: “There have been legal ups and downs during this long-running dispute over Hare Hatch Sheeplands’ attempt at unauthorised development. But our overall objective has always been to protect the green belt, which we have now secured.

“We commissioned an independent investigation because we know some residents feel we have been heavy-handed at times, but I’m delighted staff and councillors have been cleared of the serious allegations.”

Cllr Smith added: “There were some training needs identified and we’re already acting on them, but it’s clear from the report that the council acted in good faith to resolve these difficult issues in the best interests of the whole borough.”