This is the first step in the legal action we are taking against EDC over their ‘woeful and unlawful’ Beacon Villages Consultation.
This note explains what we are doing. Below that you will find the actual letter that has been sent. It is the response we sent to the BBC when they asked us questions about what we are doing:
We are sending EDC a letter known as a pre action protocol letter ( PAP )
A PAP aims to avoid unnecessary use of litigation and proposes the use of Alternative Dispute Resolution. The Protocol sets out steps to typically follow, it recommends that in good time before making the claim, the claimant should notify the defendant, by letter, of their intention to litigate. The defendant should reply within 14 days and the letter may work to determine whether the issues in dispute can be narrowed or litigation can be avoided. If a resolution cannot be met through outside of Court the claimant may then issue a claim for Judicial Review.
In a nutshell if we do not get satisfactory answers to our demands, we are highly likely to proceed with an application for a Judicial Review of the process by which specificdecisions were taken by EDC in relation to the Masterplan.
Judicial Review (JR) is one of the ways the Court supervise government ministers and departments. A case of JR can be brought where the claimant believes a public body has acted unfairly, irrationally or illegally. A case of JR does not seek to determine the merits of the decision, but solely the legality of the process. Therefore, the Judge presiding over the case will only decide whether the public body carried out the procedure lawfully or not. The Judge may order that the public body carry out the procedure again, if it is held that the public body acted incorrectly the first time, with regard to the decision of the Court.
Our case for a Judicial Review is based upon an Opinion of Zach Simons in relation to the Masterplan.
A Counsel’s Opinion is an objectively justified analysis of the law applied to a set of facts by an expert practitioner of the law. A Counsel’s Opinion is advice that disregards the client’s preconceived opinion and will instead explain where you stand from a legal point of view, the strength of the case if the issue goes to court and what other options are available.
In his Opinion dated 25th September 2018 Zach Simons, a leading Planning Barrister of Landmark Chambers London,analysed the legality of the Masterplan Consultation and concluded that ‘..the Masterplan falls woefully short of the requirements of a lawful consultation’. In the Analysis section ( 11 ) Mr Simons makes various comments about its legality and lack of balance in particular in (iii) about the online questionnaire. This Opinion was copied to EDC on 25thSeptember 2018.
An important part of the claim we seek to make is that using data gathered from the public in this Consultation would result in a false impression of public opinion being represented to the Government, media and others by Eden District Council in any future planning applications and other matters. Our claim is that the Beacon Villages Consultation is so flawed that any data from it must be disregarded. We will say that Eden District Council must start again and consultlawfully with the people of the District if it wants to continue with the ideas and planning matters that they have been promoting to the public in the Masterplan.
There can be no certainty about how much this legal action will cost. If we win the costs will fall largely on Eden District Council ( EDC ). They can avoid these costs by simply agreeing with the legal points we make in our PAP letter now. If we lose then we may have to bear not only our own costs but also those of EDC. We would not expect costs for either side to be much more than £25,000. This risk is being borne by members of our group. To date the group has not sought to raise funding outside our core group of founding supporters, we have not had time to do so. If costs escalate we will want to rattle the tin and already have offers from the public of the District. The bill for our astonishing drone video was for example paid for, after it had been made, by one generous supporter. Our costs to date in total have roughly been equivalent to buying a modest new car for cash. If we lose this case, the total costs would be roughly equivalent to buying a new mid range Landrover Discovery for cash, of the kind one often sees locally. It would hurt but not be ruinous for us. We appreciate we are very fortunate to be able to say that. In part that is why we are taking this financial risk on behalf of our supporters. The beautiful Eden Valley would be scarredforever for everyone, our own financial scars would be modest in comparison.
We will send our PAP as soon as it is finally signed off by Zach Simons who is currently involved in a significant case. That will be in the next day or so. As stated above there will be sufficient but limited time for EDC to respond. We hope they will concede at this stage. If they do so it could all be settled in days. If they do not agree with us, they will still be obliged to answer our questions in a candid way. Then we will consider the response of EDC and if we think it appropriate we will proceed with our request to the Courts for a judicial review of their actions. That will take some months but we would expect any case to be well advanced before the end of the year.
Why do we think we will succeed?
Read Zach’s Opinion. EDC stopped calling it a Consultation after they received his opinion and described it as an engagement. In Paragraph 14 he says …’it is plain the Council has treated this consultation “formally” -at least until now. In any event, the claimed “informality” is not relevant. Once a public body decides to embark on a consultation exercise, it is bound by the strict legal requirements I refer to above. These requirements derive from the fundamental tenets of procedural fairness. They cannot be softened or circumvented only after a consultation exercise has been launched by describing that exercise as “informal”.’ That seems pretty clear to us. Of course it will be up to a Judge to decide.
Here is the Solicitor’s letter:
Click the link below to read it.