Planning consultancy wins appeal over conviction for wilfully obstructing officers (2)

A planning consultancy that was convicted and fined for wilfully obstructing a council officer in the course of their work has won an appeal.

Smart Planning was found guilty by North Essex Magistrates in November 2017 of wilful obstruction “by the act of another”, its employee Paul Clarke, of an officer acting in the exercise of a right of entry contrary to s.88B(3) of the Planning (Listed Buildings and Conservation Areas) Act 1990.

The offence was said to have happened in May 2016 in Ingatestone, when Brentwood Borough Council planning officer Mark Bray investigated a report that unauthorised works were being undertaken at the property.

Smart Planning was the planning agent for the owners, Mr and Mrs Fisher.

The background to the case, as set out in the Court of Appeal ruling, was that on the day in question (27 May 2016) Mr Bray attended the premises as arranged along with Mr Collins, a former tenant of the property, and two other council employees.

Mr Clarke was present, having been instructed by Smart Planning to attend the site inspection and, as the magistrates found, in so doing was acting in accordance with his duties as an employee.

When Mr Bray and Mr Collins arrived, Mr Clarke became aggressive, the Court of Appeal said. Mr Clarke then made a telephone call to the solicitors acting for Mr and Mrs Fisher, who advised him to tell Mr Collins to leave the property.

While Mr Clarke was outside on the telephone, Mr Bray and Mr Collins, along with the two other council employees, were admitted to the property by the current tenant, a Mr Johnson, who confirmed that he was expecting them as he had been made aware by the owners of their intended visit. No demand for entry was made as access was afforded voluntarily by Mr Johnson.

The Court of Appeal said that shortly after the visitors had entered the property, Mr Clarke also entered it and started shouting at Mr Bray and Mr Collins that Mr Collins must leave. “Mr Collins went to leave. Mr Clarke then stood in his way with his arms across the threshold of the door, preventing Mr Collins from leaving. Mr Collins tried to push past Mr Clarke, at which point Mr Clarke pushed him back. Mr Bray asked what Mr Clarke was doing. Mr Clarke then let go of Mr Collins, who left the premises and did not return. As a result of this incident, Mr Collins told the council that he was no longer willing to assist them with their investigation.”

The basis on which the appellant was convicted was that, so the magistrates held, it was liable for the actions of its employee vicariously irrespective of whether he was given specific instructions to obstruct the inspection. Mr Clarke was also found guilty of the s.88B(3) offence.

Smart Planning appealed. This appeal was heard by the Divisional Court (Lord Justice Leggatt and Mr Justice William Davis) by way of case stated.

In Smart Planning Ltd v Brentwood Borough Council [2018] EWHC 2372 (Admin) Lord Justice Leggatt said the two critical questions raised by the appeal were:

1. “whether on the facts found by the magistrates Mr Clarke was acting in the exercise of a right of entry conferred by s.88 of the Act when he told one of the persons present to leave and thereby, on the magistrates' findings, wilfully obstructed a planning officer”; and
2. “whether there was a basis in law for finding the appellant vicariously liable for an offence committed by Mr Clarke”.

Lord Justice Leggatt said: “On the facts found by the magistrates, there was no finding of any assertion or communication of a request or demand by Mr Bray or any other council officer to enter the premises in this case as of right.

“It follows, in my view, that when Mr Clarke ordered or demanded that one of those present, namely Mr Collins [a former tenant who had been asked by the council to attend], should leave, he was not guilty of an offence under s.88B(3) because none of those present on the property was acting in the exercise of a right of entry.”

The Court of Appeal judge said that that was sufficient to justify quashing the conviction of the appellant.

However, he went on to find that the magistrates were not entitled to find the appellant vicariously liable for the actions of Mr Clarke on the facts found.

“The basis of the prosecution and conviction, as is clear from the case stated to us, was simply a supposed principle of vicarious liability. There is nothing in the wording of the 1990 Act which suggests that, by way of very rare exception to the general rule, some principle of vicarious liability is intended to be sufficient to result in a conviction. In particular, there is no reason why the purpose of the statute would otherwise be defeated,” Lord Justice Leggatt added.

“…..the company cannot simply be liable on the basis that it is vicariously responsible for whatever its employee does acting in the course of his employment. It can only be liable if it is demonstrated that a controlling officer of the appellant committed an act capable of giving rise to the offence with the necessary intention.”

Lord Justice Leggatt said that Smart Planning’s conviction should be quashed.

Mr Justice William Davis said that he agreed with Lord Justice Leggatt that “vicarious liability has no place in criminal law, particularly in this context”.

Responding to the ruling, Russell Forde, director of Smart Planning, said: “We proved through this High Court judgement that our approach to the site visit was exemplary, that our conduct on the day was in accordance with the law and beyond reproach.

“This should send a message to local authorities that rights of access should be exercised with administrative diligence and most of all with wisdom.  Smart Planning’s team is an experienced group of competent professionals, who understand their craft and are an asset to the process of difficult development management decisions that have to be taken every day. We should not be attacked for objectively pointing out errors and weaknesses in the council’s approach.

“There are no winners in this judgement. The toil of these court processes and the reputational damage caused over the last ten months cannot be recouped.”

Brentwood Council has been approached for comment.