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Brentwood Borough Council

FOI 5679

Local Government Association (LGA)

Request

1. Copies of all advices and enclosures the Council has received from the LGA since 2005 where they have not been disclosed to the public or have previously been refused access under the FOI/EIR on the basis that legal professional privilege arose. For ease of reference S42 FOI is reproduced in the appendix below

2. All records to show how you have considered that legal professional privilege pertains to correspondence between the Council and the LGA

3. All records to show the process whereby you have decided to respond to FOI/ EIR requests after seeking advice/ template replies from the LGA

Background

The decision of the Supreme Court this week in R (Prudential plc & Anor) v Special Commissioner of Income Tax & Anor [2013] UKSC confirmed the law. The Court held that it was not willing to extend the boundaries of privilege to include anyone other than the legal profession. For legal advice to be privileged, the advice must come from a lawyer.

http://www.supremecourt.gov.uk/decided-cases/docs/UKSC_2010_0215_Judgment.pdf

The LGA and its individual officers have sought to wear the cloak of the legal profession. They have advised Councils of the same, particularly in regard to the long-standing issue regarding their unlawful charges for accessing environmental information. One early example is the LGA Information Unit writing to you on the 27 October 2009 stating

“You confirm that the documents are being disclosed to you pursuant to the solicitor-client relationship between the LGA and your authority”

The LGA are not solicitors. The Council have never been their clients.

The LGA’s note of the 23 November 2009 was headed legally privileged. It was from John Ransford: Mr. Ransford did not pretend to be a solicitor or in a solicitor client relationship with the Council. You appear to have accepted such a bald assertion without even superficial consideration.

As a consequence of inadequate consideration you have failed to publicise these documents and have not challenged the LGA’s purported role as your solicitor.

The position worsens. John Ransford’s letter to you of 15 January 2010 is regrettable both in tone and content it. Worse is that none solicitors, the LGA, “developed” leading counsel’s advice. The LGA might have lacked the appropriate expertise to undertake this exercise. The public sector’s history in this regard is not encouraging, please see the Local Government Ombudsman’s findings below.

Ombudsman criticises South Holland District Council over enforcement

South Holland District Council has been criticised by the Local Government Ombudsman for taking enforcement action against a housing developer contrary to legal advice and national planning policy guidance.

The watchdog has upheld a complaint from the developer and called on the council to make a full and unreserved apology to the company, Nestwood Homes Ltd. The Ombudsman also wants the local authority to pay what could be a significant amount of compensation.

The case was unusual as the Ombudsman rarely investigates complaints by developers about the planning process. The watchdog said the company suffered considerable injustice in terms of stress, damage to reputation, financial difficulties and losses and consequent strain on family and business relationships.

In this case a council officer approved plans submitted by Nestwood Homes Ltd to meet a planning condition. In approving the plans the officer inadvertently gave permission for raising the land levels on the site, so the new houses were built higher.

When work started on site, neighbouring residents began to object. The council sought counsel’s opinion, which was clear and unambiguous – the council had granted planning permission for the raised levels and that permission would remain valid unless quashed by a judicial review in the High Court.

Counsel drafted a letter to be sent to Nestwood. It differed from Counsel’s opinion in a very significant way. Whereas Counsel had advised that the planning permission was “not void but voidable”, the letter said that the permission was “void and voidable”.

Nestwood continued with the development. Reports were submitted to the planning control committee who visited the site. It decided to take enforcement action requiring four properties, three garages and much of the boundary walls and fencing to be demolished.

Meanwhile, prospective purchasers of the houses were deterred by local publicity and information provided by the council in response to local searches after enforcement action was agreed.

Nestwood appealed against the enforcement notices to the Secretary of State. A planning inspector ruled that the council had granted permission for the raised levels. He ordered the council should pay all the costs of the appeal, saying “in light of their own counsel's advice that enforcement action in relation to the raising of levels ... would be unlikely to succeed, and the relatively weak case put forward... I consider that the council behaved unreasonably in defending the appeals.”

Nestwood complained that the council acted unreasonably and unfairly, delayed making decisions, and unreasonably informed prospective purchasers that the development was unlawful.

The company director responsible for the development says he suffered a great deal of stress, family relationships were nearly destroyed, employees were at risk of redundancy, the company was vilified in the media, its reputation was severely damaged, it suffered additional costs and commercial losses amounting to £1.2 million.

The Ombudsman found maladministration on a number of points. The report highlighted that the officers’ reports to the Planning Control Committee were poorly structured, not clear and comprehensible and materially misrepresented Counsel’s opinion, and as a result a significant proportion of the Committee members did not have an adequate understanding of Counsel’s advice or of the relevant issues.

In addition the officer’s report recommended action that did not reflect the officer’s professional views and did not comply with national guidance that enforcement “should always be commensurate with the breach of planning control”.

Other failings identified in the report centred on the fact that a number of the committee members had predetermined their view about enforcement action before considering the issue at a meeting and were influenced by irrelevant negative interpretations of Nestwood’s actions that were not supported by any evidence.

The Ombudsman recommended that the council should acknowledge the maladministration and arrange for the chief executive and chairman to deliver an apology in person to representatives of Nestwood and then publish the apology on its website.

The watchdog also called on the local authority to appoint a suitably qualified independent accountant to assess the losses incurred by Nestwood from interest payments on loans taken out because of the situation, professional fees incurred in relation to the enforcement action, the costs of maintaining unsold properties on the development and solicitor's costs in making the complaint.

In addition the Ombudsman has urged the council to pay the company director who made the complaint £25,000 in recognition of the stress, strain on family relations and fear of damage to the company’s reputation caused by the maladministration.

A council spokesman said: “The ombudsman has reported and that report has to be considered by the council at its next meeting. Until the report has been considered by the council we are unable to make any further comment.”



The LGA gave free copies of that advice to third parties. Even were the LGA legally qualified that would be something a solicitor would be unable to do without his client’s consent. The right to privilege is the client’s. It is not your solicitor’s



Response

I have been advised that we do not hold specific information about the LGA and we have no record where have relied on this exemption in responding to an FOI or EIR matter.