R Clive Robinson v Buckinghamshire Council
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Lang |
| Judgment Date | 20 July 2021 |
| Neutral Citation | [2021] EWHC 2014 (Admin) |
| Docket Number | Case No: CO/1734/2020 |
| Court | Queen's Bench Division (Administrative Court) |
[2021] EWHC 2014 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Lang DBE
Case No: CO/1734/2020
Joshua Hitchens and Ian Browne (instructed by Barrett & Thomson) for the Claimant
Timothy Leader (instructed by Legal and Democratic Services) for the Defendant
The Interested Party did not appear and was not represented
Hearing date: 22 June 2021
Approved Judgment
In this claim for judicial review, the Claimant challenges the decision by the Defendant's Deputy Monitoring Officer (“DMO”), dated 7 February 2020, to uphold the complaint made by Farnham Royal Parish Council (“the PC”) that the Claimant, who is a PC Councillor, breached paragraph 3.1 of the PC's Code of Conduct for Members (“the PC Code”). Prior to local government reorganisation on 1 April 2020, the Defendant's functions in regard to this matter were carried out by South Bucks Council. The principal basis of the challenge is that the decision was in breach of section 6 of the Human Rights Act 1998 (“ HRA 1998”) as it violated his right to freedom of expression under Article 10 of the European Convention on Human Rights (ECHR).
Partial permission was granted on the papers by Linden J. on 25 June 2020. Although the Claimant was refused permission to challenge the Defendant's decision in respect of the complaint against Councillor Clapp, he was given permission to rely on the contrast between the Defendant's treatment of the two complaints.
Facts
The Claimant was elected to the PC in 2009. Mr Clapp was elected as a Councillor in 2008, and he was elected Chairman of the PC in 2015, until he resigned from the PC in 2018. Mrs Holder was the Clerk to the Council until she resigned in 2018.
The parish of Farnham Royal in Buckinghamshire has a large area of Green Belt land within its boundaries, and it is next to the ancient woodland of Burnham Beeches. In March 2016, the Defendant published its review of Green Belt land in which it stated that most of the Green Belt land in Farnham Royal now only contributed weakly to the Green Belt, due to the intensification of housing on it, or adjacent to it. The prospect of development on the Green Belt in and around Farnham Royal generated some interest among developers, but was controversial among local residents who wanted to preserve the Green Belt.
On 17 April 2018, the PC held a public meeting to discuss the Green Belt, which was chaired by Councillor Clapp. The minutes of the meeting, drafted by Mrs Holder, stated as follows:
“Notes taken by the Parish Council Clerk at the consultation meeting of 17 th April 2018 at 7.30pm Farnham Common Village Hall
In attendance approximately 180 residents including Parish Cllrs. Clapp, Hodges, Rowley, Thomas, Robinson, Rolfe and Tipping, and District Cllr. Dhillon.
Cllr. Clapp gave a presentation explaining that
• Developers had acquired options on areas of Green Belt (GB) land in the Parish and been making approaches to the Parish Council (PC) to try and discuss these options.
• The only planning role the PC has is as a consultee after a planning application has been submitted to SBDC. At that stage we had little influence on the scheme design
• The PC opposed inappropriate development in the GB as a matter of agreed policy
• In his opinion central government were putting increasing pressure for housing and in future those pressures would increase
• Going forward if a major development is proposed the PC's options were to carry on as before or,
• Many applications get passed at planning appeals despite the Parish and District councils opposition and whilst opposing the application in general in the case of GB land nevertheless to try and influence/shape any development by engaging with developers at the pre-application stage to try and negotiate the best worst case scenario should their scheme be granted by SBDC or the Secretary of State/Inspectorate.
• Any such discussions could consider the mix of housing, balancing housing needs, location, infrastructure and any s106 contributions
In response to questions Cllr Clapp stated that
• Major development could be defined as 10 or more units but was likely to be in the 100s of units.
• The aim of any involvement with developers would be for the Parish to understand their approach and the proposed scheme and to exert pressure to develop a scheme in the best way should it be granted despite our opposition. Whatever input the PC could make would be beneficial
• On the issue of whether developers were trying to outflank us and that it was best to wait until the Local Plan was finalised in the next year or so given no sites in the parish were earmarked for GB release and any discussions would only encourage developers where no opportunities existed, Cllr. Clapp said he wasn't pushing the agenda for this. The PC had been asked by the developers whether we wanted to engage in pre application discussions and he had called the meeting to find out what residents thought. He repeated the PC's position to resist all inappropriate development in the GB and that his position had been set as a response to the parish plan questionnaire.
• In response to the assertion that the impression being given was to encourage such development or to help developers, he said he believed it was possible to resist development and still try to shape it in case the resistance failed and given he anticipated greater pressure in future.
• In response to how much difference the PC could make Cllr Clapp felt that it would at least be a minimal influence and it could be greater
Mr. Cathcart said the PC has asked for residents input and this was residents chance to tell the PC what they could tell developers. The main issues were schools, doctors and dentists, and sewage problems for Farnham Royal that could be exacerbated. It was a good initiative to communicate these issues to potential developers.
Another resident argued that getting involved at the pre application stage would be better than waiting until the planning application was circulated as that limited the time available to respond
A resident felt it was good to get involved because eg Allerds Farm was right for development and it would be good to influence what went on there.
Bill Youel said rather than develop relationships with developers we would be better off developing links with SBDC planners.
Following debate it was agreed that in respect of Green Belt land (including Green Belt land with some brownfield development eg Miles and Miles land) the PC should not be involved at the pre application stage and should therefore comment on receipt of any application as is the current situation. For all other land the PC could get involved at the pre-application stage.
Mr Clapp stated that the Parish Council would write to the developers that had made approaches with this decision.
……”
The complaint against the Claimant
The complaint against the Claimant was made by Mrs Holder, Clerk to the PC, on 12 June 2018. The details of the complaint were as follows:
“Mr Robinson, a councillor of Farnham Royal Parish Council, addressed (from the floor) a public meeting called by the Council on 17 th April 2018 and made misrepresentations about the motivation and intentions of other councillors – namely that they were minded to allow development of the Green Belt, he met with residents and repeated those misrepresentations, he has refused to apologise or retract those misrepresentations and has added further claims against the Clerk. The Council has decided that his actions are in breach of the Council's Code of Conduct by bringing the Council into disrepute and failing to show respect to other Councillors. As a result of the public backlash whereby the integrity of the Chairman and Clerk have been questioned, the Chairman has already asked for himself to be referred to the Monitoring Officer for a determination as to whether he has been in breach of the Code of Conduct. That request was made by the Clerk on 23 rd May 2018.”
Mrs Holder described the steps which had been taken to resolve the complaint with the Claimant, as follows:
“Mr Robinson was given a written letter on 18 th April 2018 outlining the allegations against him and offering him a chance to respond which he did in writing before the council meeting scheduled for 23 rd April 2018. The Council meeting on 23 rd April heard the evidence in closed session and decided he was in breach of the Code of Conduct. He was given an opportunity to meet with a small group of councillors to try and resolve the issue but he would not apologise or retract his statements and refused to allow the Clerk to attend as he claimed she could not be objective. A subsequent closed session at the Council meeting of 21 st May 2018 received the report from the group of councillors who had met with him and decided that a further letter should be sent explaining in detail why the Council felt he was in breach and formally asking for an apology. This was sent on 23 rd May 2018. Nothing has been forthcoming and another closed session Council meeting was held by way of an extraordinary meeting on 12 th June 2018 which decided that Mr Robinson be referred to the Monitoring Officer for being in breach of the Code of Conduct.”
The minutes of the PC meeting on 25 June 2018 record that the PC decided to remove the Claimant from his leadership positions in the PC, as Signage Manager, Chair of the Play Area working group, and representative on the Local Area Forum. He continued to serve as a Councillor.
On 2 July 2018, Ms Swift, the Defendant's Monitoring Officer, wrote to the Claimant, enclosing the complaint and documents submitted in...
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