Signs of a Fiasco?
We read some good financial advice a while ago. It was
'Remember..... if something seems too good to be true, then it probably is.'
We were put in mind of that advice when we saw the (inferred) reason for Fylde's withdrawal of its prosecution of John Tootill for displaying notices warning of the
dangers of fracking - allegedly without Fylde's consent.
Shortly after barristers for Fylde and Mr Tootill had outlined the case they would argue in court, Fylde issued a press statement.
This statement spun the inference that is was Fylde's humanitarian concern for the wellbeing of Mr Tootill (rather than the weakness of its own case) which caused Fylde's
change of mind when it announced it "was no longer in the public interest to continue the case"
We saw Fylde's inferred reason as being 'simply too good to be true' as well.
We don't believe that the humanitarian road to Damascus begins in Fylde.
They displayed no such humanitarian concern for the residents of Melton Grove when they treated them so abominably, and if you read Fylde's press statement on discontinuing
the prosecution carefully, you can see how their spin doctors invite us to make a mental link between the fire at Mr Tootill's home and Fylde's decision that it is no longer
in the public interest to continue to prosecute him.
We regard that behaviour as both deceitful and shameful.
It is undoubtedly in Mr Tootill's interest for the prosecution to be discontinued - and we're delighted for him.
But the decision to abandon the prosecution because of the fire provides no justification in the wider 'public' interest.
So we think there are other reasons in play.
Our own take on this - having looked from several angles - is that when they thought they were just dealing with Mr Tootill, Fylde was happy to go ahead and prosecute.
But when Greenpeace supported Mr Tootill and arranged for a top London barrister to defend his case, (and that defence pivoted on something called 'Mala Fides'), it
became clear that Fylde's incompetence in the matter would be exposed.
It was also clear that Fylde Councillors who had declared interests because of money or benefits they had received from
Cuadrilla would be required to attend the court to be examined under oath by Mr Tootill's barrister about their motives for the prosecution, and about their interests
We believe that soon after this realisation dawned, someone at Fylde decided that damage to Fylde's 'reputational integrity' would cause people to lose confidence in the Council - and perhaps in
some of its councillors. There may also have been more serious outcomes.
In our view, this was the sub-text and the real reason for it not being 'in the public interest' for Fylde to continue with the prosecution.
In order that our readers can make their own minds up on this matter, we now publish the basis which leads us to hold that view.
Mr Tootill has notices about fracking on his land fronting Preston New Road - at the junction with Moss House Lane.
These 'anti-fracking' notices replaced the former advertising signs that had been there for over 20 years promoting his Maple Farm Nursery business (next to what is now
the Water World Gardening Centre).
The new notices were mostly alerting the public to Mr Tootill's deeply held belief about the adverse health, social and economic impacts that fracking would have on
himself, his children and other residents if it was undertaken - as had been proposed for a field close to his home and his nursery.
We are clear that the notices replaced the previous advertising signs.
Back in July 2014, we published a photograph showing how some of the new notices had simply been affixed over the former advertisement hoardings.
We had also published a series of articles on this matter which we now summarise before explaining the outcome of the prosecution, and what for us, are some rather worrying
prospects at its conclusion.....
The story begins when Cuadrilla's beefy security guards took occupation of, (and officially squatted in), part of a farmers field on Preston New Road that was due to be
explored for shale gas.
When that happened, we published our article "Fracking Squatters" on 4 July 2014. This contained our first mention
of Mr Tootill's notices, and it was soon after the signs were erected.
Then on 24 July 2014, as part of our Fracking Update article, we published 'Prosecution Threat' which reported how
Fylde Council had written to Mr Tootill to claim there was no consent for the signs he was displaying and, as such, they must be removed, or the case may be referred to a
Magistrates court with the threat of a fine of up to £2,500.
At that time, we don't think anyone else who had displayed anti fracking posters and signs (that were so obviously and widely displayed throughout several of Fylde's
villages) had been threatened with prosecution as Mr Tootill was.
In a preface to Fylde's formal notice to Mr Tootill, their enforcement officer said:
"I have been tasked to resolve various issues including unauthorised adverts within
the Fylde Borough Council area. I have received a number of complaints about the proliferation of the brightly coloured signs and notices at your property alongside Preston
New Road, the A583. (see attached photo array).These notices are classed as advertisements under the regulations and require authority from the Local Planning Authority,
Fylde Council, for their display. I understand that you feel strongly about the Fracking issue and I believe that you have made your feelings known. I feel that the Signs
have served to make your point and I ask that they are now removed. If you wish to reinstate and display the signs further you must obtain the required authority."
Readers can follow this link to download a copy of the relevant section of this letter.
We said at the time
"...we are quite amazed.
It sounds as though the requirement to remove the signs is based on - or at least linked to - the message conveyed by the signs, and there's is no legal justification for
this requirement in relation to their removal.
There is no power that gives Fylde the right to require signs to be removed because they seek to censor what the signs say.
There are only two reasons for a breach of advertising consent: that the signs are detrimental to the amenity of the area; or that they endanger highway safety.
Of course, whether permission exists or not is a matter for the owner to establish if he has proof of permission being granted."
We also said
"So to us, it looks very much as though this man is being singled out because of the content of the messages he has displayed"
"In our view the argument about censorship is given even more credence by the fact that we can remember the signs being there for (probably) about 15 years and maybe
longer. We recall the big ones used to say something like 'The North West's Premier Grower of Large Shrubs and Trees' or that sort of thing. And if we recall correctly, the
smaller ones on the grass at the back of the footpath said things like 'Shrubs'; 'Trees'; Conifers'; 'Specimen Plants' and such like. We can't be certain, but we think they
were cream and green, and they had a fancy border around them."
About six months later, and at its meeting of 4 March 2015, we now know that Fylde Council's Development Management Committee debated whether to prosecute Mr Tootill in the
But no-one knew this was going on at the time - because it was debated in an unusually secretive committee agenda item with the press and public excluded from the meeting..
The report heading on the agenda said only
"EXCLUSION OF THE PUBLIC.
This item is for consideration in the public part of the meeting.
1. Members are invited to consider passing a resolution concerning the exclusion of the public from the meeting in accordance with the provisions of Section 100(A)(4) of
the Local Government Act 1972 on the grounds that the business to be discussed is exempt information, as relating to any action taken or to be taken in connection with the
prevention, investigation or prosecution of crime, as defined in paragraph 7 of schedule 12A to the Local Government Act 1972."
(Note: It might seem odd, but the decision to exclude the press and public is taken in the 'public' section meeting, but once they have been excluded, the item itself is
considered in the secret session which follows the exclusion)
Now, we understand (and agree with) the need for Councillors to debate the pros and cons of a prosecution they might (or might not) decide to pursue with the press
and public excluded. It may involve personal information about an individual for example. But usually, when this sort of exclusion is applied to an agenda, the subject
matter and / or location of the alleged offence is identified in the title of the agenda item (generally without further detail).
Subsequently, when the Committee minutes are published, they usually give a bit more detail of what it was all about.
But in this case, when the minutes regarding this item were published, they said only:
"7. Authority to Commence Prosecution Ė Unauthorised Display of Advertisements
The Committee considered the report of Mark Evans (Head of Planning and Regeneration) relating to proposals to commence prosecution relating to the unauthorised display of
advertisements on land within the borough.
Following consideration of this matter IT WAS RESOLVED:
1. That authority be granted to officers to commence legal proceedings against the continued unauthorised display of advertisements at the land identified in the report,
including prosecution through the Magistrates Court.
2. That the authority to commence prosecution for any other breach of Advertisement Regulations be delegated to the Director of Development Services with such powers
pursued where it is expedient to do so and that the outcome of any actions taken be reported to the next available meeting of the Development Management Committee."
So even in the Committee minutes, there was still nothing to identify who or where or what was being prosecuted, and no-one knew it was happening.
We regard that as being a very unusual (if not wholly exceptional) state of affairs to exist *after* Fylde's decision has been taken, and we can only imagine that the
intention was to hide what was being done from the public gaze.
This is why we say Fylde's approach to this matter has been unusually secretive.
Once we became aware of it, we looked at the minutes more widely for further clues.
In the 'Declaration of Interests' section, they record "The Chairman, Councillor Ben Aitken declared a personal and prejudicial interest in Application No.
15/0001 ([an application for] advertisement consent) relating to St Peterís RC Church, Clifton Street, Lytham and withdrew from the meeting during the consideration
and voting thereon." Although the reason for his interests was not given, this was a perfectly proper thing for him to have done if he had some form of connection to
But we did note there was no record in the minutes of Cllr Fiddler (or indeed any other member) leaving the meeting for the 'Exempt Item' regarding the
prosecution decision - which was later found to be in respect of Mr Tootill's' fracking notices, and which their Enforcement Officer had apparently taken exception to based
on their content - as his first letter to Mr Tootill had showed.
We mention this because readers will recall that Cllrs Fiddler, Threlfall and Hayhurst had each declared prejudicial interests (for differing reasons) in an item to
debate a fracking moratorium in a previous Council meeting, and they had all left the Council meeting for that item.
At that same Council meeting (on 24th July 2014), several other Councillors (Heather Speak; Howard Henshaw; Maxine Chew; Susan Fazackerley; Albert Pounder; Ben Aitken;
David Chedd; and John Singleton) had declared personal interests in the matter of fracking as well. (See our article
Shambles' for more details).
Although Fylde's classification of 'Personal Interests' (which include, for example, being a member of an organisation that may be affected by the Council's impending
decision) are not thought to be so significant as to affect the individual's judgement, they are something that needs to be declared. And those Councillors did declare
them at that July 2014 Council meeting.
But there were no declarations of interest in the minutes of this Development Management Committee regarding the prosecution item, and no further information either.
So it's difficult to know what arguments were advanced during the debate about the prosecution.
What we do know is that those recorded as being present at the meeting were:
- Councillor Ben Aitken (Chairman),
- Councillor Kevin Eastham (Vice-Chairman),
- Christine Akeroyd (substituting for Cllr Tim Armit),
- Julie Brickles (substituting for Cllr Linda Nulty),
- Alan Clayton (substituting for Cllr Kiran Mulholland),
- Maxine Chew,
- Peter Collins,
- Charlie Duffy,
- Dr Trevor Fiddler,
- Angela Jacques (substituting for Cllr Fabian Craig-Wilson),
- Barbara Nash,
- Elizabeth Oades (substituting for Cllr Peter Hardy),
- Albert Pounder,
- Richard Redcliffe,
- Heather Speak, and
- Vivienne M Willder.
The significance of those who took part in this Development Management Committee meeting after having previously declared interests of one sort or another will become clear
shortly - we think it introduced a damaging and potentially fatal flaw in Fylde's case to prosecute Mr Tootill.
We also believe there was a significant procedural flaw in the decision that was taken on this day as well.
This is a matter that we don't think anyone else has recognised, and we expect to return to that matter toward the end of this article as well.
So, after our July 2014 article, things appeared to go quiet for a while, and we wondered if the matter had gone away.
However it now seems that officers from the Council were visiting the site gathering evidence to inform a prosecution.
In a move that was not known to us at the time, Fylde had issued proceedings against Mr Tootill in November 2015.
Scisco Media reported that Fylde's officers had made 62 separate visits made to the site to document and record what notices were present at various times.
And eventually, Mr Tootill received a summons to appear before Blackpool Magistratesí Court on the 21st January 2016, charged with 26 counts of 'Displaying
Advertisements Without the Consent of Fylde Borough Council or the Secretary of State'.
Some of the 'signs' scheduled in the prosecution were about half the size of a normal sheet of an A4 page.
We further understand that some of the signs he was accused of displaying were not signs he had put up himself, but had been put there by others.
Mr Tootill told Scisco Media he believed the prosecution was a politically-motivated attack, because he knew of a variety of large advertising signs across the Fylde Coast
- many on highway verges and roundabouts - all without the required planning permission, but no court action.
He told Scisco's Environment Editor Claire Stephenson: "The council are trying to bankrupt and criminalise me for doing what I should be doing which is all I can to
safeguard my children, community and livelihood. This is after all a basic duty of care the council should be performing to protect the residents of the Fylde. But, due to
lack of conscience, greed and political allegiances, they are instead choosing to bury their heads in the sand and do nothing."
Scisco also reported a Fylde Council spokesman had said: "The case against Mr Tootill has been adjourned until 25th February 2016, when a plea and case management hearing
will be held. It would be subjudice to comment any further and the case for and against Mr Tootill will be heard in court."
For as long as it lasts, readers can follow this link to see the full article on Scisco Media.
Shortly before his preliminary court date of 21 January, counterbalance became aware of the ill-fated decision to prosecute him, and, on 27 January 2016, we published our
'Signs of the Times' item, as part of another Fracking Update article.
In this item, we looked at the position with previous prosecutions for advertising notices in Fylde, and we could come up with only one previous prosecution by FBC in
the last 25 years or so.
We also looked elsewhere along the A 583 and more widely, and we published a photograph near to the signs that are currently offending Fylde's sensitivity, and which relate
to another garden centre.
Admittedly these were more neat, and in a common format, but even so, they have no less impact on amenity and / or safety than the ones at Maple Farm did, and either these
signs at the other garden centre had been granted permission, or Fylde Council did not find the content unacceptable enough to prosecute the owner.
We also published a photograph of the plethora of signs that had been at the Queensway/Kilnhouse Lane junction for years without any action being taken against the people
who put them there.
But the most important item in that 27th January article, was where we reported that proceedings against John Tootill had been issued in the preceding November, and the
matter had been to a preliminary sitting of Blackpool Magistrates Court on 21st January.
It had been adjourned (at Mr Tootill's request pending further information being obtained), and we understood the case was due to be heard next on 25th February 2016 - at
which time Fylde would present an outline of its case as to why Mr Tootill was guilty of an offence, and Mr Tootill would outline the case he intended to make to explain
why he was not guilty of the offence. (eg this pre-trial hearing would estimate how many witnesses each side would call, how long each part of the evidence would take, and
so on) - so that a timetable and arrangements for the actual court hearing of the detailed evidence could be programmed and scheduled.
Less than a week after we published 'Signs of the Times', (on 2 February 2016 to be exact) we also published
'Now You See Them - now you don't'
- All the signs we has drawn attention to at the Queensway junction had been removed, so we provided a light-hearted look at what might have caused all them all to
We concluded that because no-one at the Council admits to reading counterbalance, it couldn't have been because of what we had said, and the vanished signs were most
likely to have been the work of a sign-eating boggart from Lytham Moss.
More seriously, things had turned decidedly ugly for Mr Tootill.
It became clear that Fylde would not be using its own solicitor to present its case in the Magistrates Court.
Furthermore, the scale of the potential fines (up to £2,500 for each of the 26 notices that Fylde said were in breach of the law) represented a possible fine in the order
of £65,000 if he was found to be guilty.
And the case would be heard by a Judge, not by magistrates.
It then became evident that Fylde had received advice from, and had instructed, a high powered (and expensive) barrister from the Kings Chambers in Manchester.
The firepower Fylde had assembled here was ranged - not against a multinational corporation with assets backed by investors around the globe - but against a single
individual running a family gardening business.
The term 'overkill' hardly does justice to Fylde's position. We think it was setting out to 'Hang an Admiral' in order to keep the lesser ranks in order.
Up to now Mr Tootill had not really treated the matter that seriously. He had thought he would present his own defence of the charge against him to local magistrates. He
would explain his case, and all would be well.
But it became clear that those odds were not even.
Mr Tootill self-evidently needed some help to construct his defence, and a number of people stood ready to come to his aid.
First and foremost of these was Greenpeace, whose solicitor arranged for Mr Tootill to be represented in court by a very able (London) barrister Richard Wald, a specialist
in planning and environmental laws.
Mr Wald is a member of the Planning and Environment Bar Association, the National Infrastructure Planning Association, the Administrative Law Bar Association and a Council
Member and Trustee of the The UK Environmental Law Association.
So he's nobody's patsy.
He represented Mr Tootill at the 'plea and case management' hearing which, sadly, we were not able to attend. But some of our readers did, and we now report their views of
what happened at that meeting, (supplemented by the report of the case in the Gazette of 15 April 2016 and in the Lancashire Evening Post).
Speaking for Mr Tootill at the hearing, barrister Richard Wald was reported as telling the Judge "This area Preston New Road is littered with signs and posters and it
appears that Mr Tootill has been singled out for treatment." He asked the Council to provide details of any other similar prosecutions they had brought.
Fylde argued that their decision to prosecute was not made on fracking but is was to do with the posting of adverts.
Mr Wald said it was not accepted by the defence that the decision to prosecute Mr Tootill was properly and lawfully taken, and he named six Fylde Councillors who should not
have been involved in making the decision to take him to court.
These were listed in the Gazette as being "Trevor Fiddler, Tom Threlfall, Paul Hayhurst, Ben Aitken, Albert Pounder, Heather Speak and Maxine Chew", although at this time,
it was not clearly shown which six of these seven was included within his claim.
From what we said earlier, it will be apparent to readers that the Councillors who were members of the Development Management Committee that took the decision to prosecute
Mr Tootill, and who were also listed in the Gazette's report of the court proceedings as having been named by the defence barrister are: Councillor: Ben Aitken, Maxine
Chew, Dr Trevor Fiddler, Albert Pounder, and Heather Speak. But as readers will see, that only amounts to five, not six people.
We find this confusing.
The Gazette's report of the case also appears (to us) to confuse some of the events at the meeting where these Councillors did declare interests regarding fracking, with
the later meeting that took the decision to prosecute Mr Tootill - so we are not wholly confident of the reporting of this matter.
But the inescapable fact in respect of Mr
Tootill's prosecution is that there were some Councillors who had previously declared either a prejudicial interest or a personal interest in fracking at an earlier meeting
who were members of the DM Committee that took the decision to prosecute Mr Tootill.
And we suspect it was because of this that Mr Tootill's barrister was reported in the Gazette as claiming there
"had been an abuse of process by the planning committee"
He was also quoted saying that he believed their action was inappropriate and went against Fylde's Code of Conduct because their interests in fracking had continued.
He said "The code [we presume he meant FBC Members Code of Conduct] has clear guidance on prejudicial interests of councillors..... They should not have attended and not
contributed in whatever way they felt.....Those interests are clearly relevant to the decision to prosecute, and render the decision to do so unsafe.... It ought to offend
the court's sense of justice the fact that they had interests in the fracking development company...."
He then produced the bombshell argument that his defence case would be based on the doctrine of 'Mala Fides'
From what we have been told, his statement regarding Mala Fides seemed to have two effects:
Firstly, it seemed to rattle the District Judge, who, we (were told by one of our readers who was present in court) said that if that was the case, it may have to be
considered by a higher court.
Our correspondent's report to us on this matter was that 'Mala Fide' seemed to be a matter that was above this Judge's pay grade to deal with.
The second effect was on Fylde's barrister - who appears to have asked the Judge whether it was the case that the defence could call these named councillors as witnesses to
The judge replied in the affirmative.
The verbatim description of Fylde's barrister's reaction to hearing this confirmation has been provided to us by one of our readers present at the hearing. They gained the
following impression in the courtroom and told us:
"I attended the pre-trial hearing at Blackpool court. The same expensive Kings Chambers Manchester barrister was acting for FBC ab initio.
I witnessed the shock and obvious concern of this prosecuting barrister when the judge insisted that the named councillors would be required to face cross-examination by
John's barrister Mr Wald, regarding their own 'interests' and motivation for the prosecutions. (male fide etc)"
Now - our layman's understanding (and our ignorance of some Latin terms) suggested to us that 'Mala Fide' was probably something to do with ill faith, so we looked it up.
It seemed to be more or less the opposite of the more widely known term 'bona fide' (in good faith), and thus becomes translated as 'in bad faith'
It seems 'bad faith' is not the same as pre-determination or negligence, but rather it can arise when the rights of someone else are intentionally or maliciously infringed
upon. Such conduct is said to demonstrate bad faith.
We were also surprised to read that the existence of bad faith can minimize or nullify any claims that a person alleges in a lawsuit.
We looked at guidance from the Crown Prosecution Service regarding the 'abuse of process' that Mr Tootill had claimed. They said:
"The leading case on the application of abuse of process remains Bennett v Horseferry Magistrates' Court. This case confirmed that an abuse of process justifying the stay
of a prosecution could arise in the following circumstances:
i. where it would be impossible to give the accused a fair trial; or
ii. where it would amount to a misuse/manipulation of process because it offends the court's sense of justice and propriety to be asked to try the accused in the
circumstances of the particular case."
We found those words in (ii) very interesting because offending the court's sense of justice and propriety are exactly the words used by Mr Tootill's barrister as reported
in the Gazette.
So to Fylde, it would have become very clear at this plea and pre-trial hearing where the defence was going with their arguments.
The pre-trial hearing was adjourned by the Judge until 19th May, by which date the Council and Mr Tootill's legal team were told they had to provide written arguments about
the abuse of process by the Council.
We imagine that need will have come as a bit of a shock to FBC.
The next thing to happen was that meetings were taking place with Mr Tootill and his legal representatives to construct the detail of the defence case.
We imagine Fylde were also speaking with their barrister about how they would respond to the 'in bad faith' claim that was being made against them as well.
As part of the defence case, Mr Tootill needed people to support him and speak for his integrity and character. We were happy to be one of the ones who felt able to oblige,
and on 8th April we attended a meeting with a dozen or so other folk all of whom stood ready to help him.
For our part we provided a written statement about how long we could remember seeing the former advertising signs shortly after we moved to Fylde in the late 1970s and
early 1980s - as we have reported previously in earlier counterbalance articles, we can recall seeing four to six rectangular signs in the grass verge about 3 feet wide and
2 feet tall with a cream background with a greenish border, each one saying words like 'Trees', 'Shrubs', 'Conifers', 'Ornamentals', and perhaps 'Fruit Trees' in large red
letters. They were set into the verge on wooden stakes and were there for many years. There were also much larger hoarding type signs erected on the land inside the
roadside fence, some of which were fixed onto tractor trailers. These signs advertised the business. Again, like the roadside signs, these signs were present for more than
Others prepared themselves to give evidence as the character of Mr Tootill.
We also did some digging into the background of Fylde's allegation that there was no permission for the signs to be there.
And we found some interesting facts.
Whilst it is true that signs were applied for and refused permission on that piece of land in October 1993, a resubmission for advertising signboards on the land at the
junction of Moss House Lane and Preston New Road (Application Reference No.5/93/0727) was GRANTED planning consent by Fylde by January 1994 - and there have been signs
there ever since.
Readers can follow this link to see a copy of that grant of Planning Permission.
Whilst that permission included a time limit of five years for the signs to be in place, it also said the reason for this condition was that "In accordance with the
provisions of the Town & Country Planning (control of Advertisement) Regulations 1989, the maximum period of display of advertisements shall not normally exceed 5 years in
order to enable the Local Planning Authority to retain control over the situation."
So even though they had granted planning permission for advertising signs there, and the five year thing was a 'standard clause' in such planning consents at the time, it
was arguably possible for Fylde to claim they ceased to have permission at the end of five years and should have been taken down.
There is no record of
Fylde contacting Mt Tootill and requiring the signs to be removed at the expiry of the 5 years, and, what Fylde also did not seem to have remembered, is that there is the matter
of whether there were grounds for Mr Tootill to claim 'deemed consent' for the signs under the Clause 3 exemption rule of the Town and Country Planning (Control of
Advertisements) (England) Regulations 2007.
This talks about deemed consent being attributed to 'An advertisement displayed on a site that has been used continually for the preceding ten years for the display of
advertisements without express consent.'
In effect this is saying if you can prove you have had a sign on the site for 10 years or more and no one has required you to remove it, the sign becomes lawful because it
gains the status of having deemed consent.
If (as we pretty much think it would) that argument holds sway, then in Mr Tootill's case, FBC would be left with the rather interesting task of trying to prove it was the
changed content of the signage (from business advertising to anti-fracking notices) that gave rise to the offence.
And we think that would open the door more easily to the claim of abuse of process and a 'bad faith'
decision to prosecute - because the content of the signs was clearly to
do with fracking.
And, as comedian Jimmy Cricket was famous for saying - there's more.
But this next argument is a bit technical and hard to grasp, so please bear with us as we explain why we don't think Fylde had proper authority to launch the prosecution in
the first place.
It's all to do with which part of the Council had responsibility to decide whether to prosecute Mr Tootill.
Fylde knew that the decision to prosecute was not delegated to an officer.
But it assumed that its Development Management Committee had what is called 'delegated authority' to take this decision.
We don't agree.
We believe it should have been a
decision of the Full Council, and the DM Committee should only have made a recommendation to prosecute, not taken the actual decision itself.
The Council is
governed by its Constitution, a fundamental part of which says that all the Council's actions will be within the law and within its constitution.
In March 2015, Fylde had an Executive (Cabinet) Governance System in place, but the Council was preparing a new Constitution to come into force at their Annual Meeting in
May, after the change to the Committee Governance system.
The Cabinet system of governance gave Fylde's 'Planning Portfolio Holder' certain executive powers but, having checked the list of all the Portfolio Holder decisions, none
was used in relation to Mr Tootill's prosecution.
Nor was the DM Committee decision to prosecute confirmed by either the Cabinet meeting on 25 March or the Council meeting on 30th March.
However, the minutes of the DM committee of 4 March were confirmed by the subsequent DM Committee on 1 April 2015. (This is the process that would have been expected to
apply if the DM Committee had delegated authority to take the decision)
So the issue we looked at in more detail was whether DM Committee actually had the authority to confirm that part of the minutes relating to the prosecution.
Fylde has recent a history of treating its Constitution as a loose-leaf document and changing it whenever something doesn't go their way. (They are also prone to not dating
their versions and not documenting the changes each update makes - which makes life more difficult for those who would hold them to account). But, so far as we can tell, the
Constitution in force at March 2015 was in a file called 'v11' (presumably short for "version eleven"). It appears to have been published on 7 January 2014 and we
downloaded it from Fylde's website on 1 July 2014.
So the 'v11' of Fylde's Constitution was in place and governed the Council's actions at the DM Committee of 4th March 2015.
Part 3 of that Constitution establishes responsibility for functions.
Section 2 of Part 3 sets out the responsibilities of the 'regulatory' committees - including DM Committee.
Clause 1 of Section 2 says [the DM Committee will exercise]: "1. The functions of the Council as Local Planning Authority and any planning control functions which, by
virtue of agency arrangements between the County Council and the Borough Council, the Borough Council is authorised to discharge."
So it could be argued that this Clause 1 is a 'catch-all' that could embrace delegated authority for any action taken in relation to planning at FBC.
If that was the case, it should not be necessary for Clause 2 to exist and specify (as it does) the specific delegated powers that DM Committee has - vis
- "Determining applications for planning permission;
- for consent under the Town and Country Planning (Control of Advertisements) Regulations 1992;
- for listed building
- determining whether planning permission is required;
- certificates of appropriate alternative development;
- matters relating to the Building Regulations 1991, the
Building Act 1984, and the Building (Local Authority Charges) Regulations 1998;
- all matters relating to Tree Preservation and development proposals under Department of
Environment circular 18/84 or any amendment thereto"
It will be noted here that, in relation to advertising, there is no specific delegated authority in the above for anything other than determining consent (or not) of
Certainly there is no specific delegated authority for instituting a prosecution.
Fylde will no doubt argue that Clause 1 gives the DM Committee a general delegated authority to do anything connected with planning, but we believe Clause 1 is simply and
properly a descriptive - rather than a permissory - piece of text.
It is clause 2 that prescribes and circumscribes the Committee's delegated functions.
It is our belief that because the ability to authorise prosecution is not mentioned in this schedule of delegated powers, it was therefore not a power delegated to the
Committee, and there are clear grounds to believe that the DM Committee did thus not have delegated authority to take the decision itself.
That being the case, the Committee may only have debated the pros and cons of a prosecution of Mr Tootill and made a
RECOMMENDATION to the Full Council (who
were the ultimate authority in this matter). And it was *they* who had proper authority to take the decision.
So because that was not done, we don't think a proper authority existed for the prosecution anyway.
That said, we thought Fylde might also attempt to claim another justification for taking the decision....
Section 7 of the Constitution sets out delegations to officers.
The decision to prosecute is NOT listed as a delegation amongst those which are devolved to the Director of Development Services (who deals with other delegated planning
matters), but there is a delegation to the Head of Governance for 'Instituting Magistrates Court proceedings in cases of non-compliance with statutory notices under the
Town and Country Planning Act 1990'
However, we believe this is about the process to ADMINISTER a decision that has already been taken, not the taking of that decision itself.
And in any case, if this delegation to the Head of Governance constituted an authority to initiate a prosecution, there would have been no need for the matter to be
considered by DM Committee - would there?
So we believe the decision to prosecute was unconstitutional, and thus, not a valid decision.
We ran this view past a solicitor we know from another local authority and they concurred with our view.
So all told, we think Fylde was on pretty shaky ground in continuing with its prosecution of Mr Tootill.
And then, of course, Mr Tootill had a disastrous fire after an electrical fault destroyed his home on the nursery over the weekend of 23/24 April.
Late in the afternoon of Friday 29th April, and just before the May Day holiday weekend, Fylde appears to have sent out a press statement to say it was dropping the
We say 'appears to have sent a press statement' because (unlike all their other press statements) we couldn't find it on the 'News' section of Fylde's own website.
must have gone to the Gazette because in its 30th April edition the Gazette reported....
'A statement from Fylde Council said "Fylde Council has discontinued its prosecution of Mr John Tootill following the fire that destroyed his home in Westby earlier this
week. Mr Tootill had been charged with displaying 26 unauthorised advertisements at his premises at Maple Farm, Preston New Road. Mr Tootill denied the charges and argued
that they were an abuse of the process of the court. He was due to return to court on 19 May"
The Gazette report then says 'A Fylde spokesman added today: "Because of the devastating fire at Mr Tootill's home, we no longer feel it is in the public interest to
continue the case"
Then - in what we think was the most telling comment of this sorry saga - Fylde's spokesman continued: "We had been in the process of considering the detailed legal
arguments raised by Mr Tootill's representatives, but this was overtaken when news of the fire came through" [Our emboldening]
Fylde's anonymous 'spokesman' added
"Obviously this will be a difficult time for Mr Tootill and we would not wish to add to those difficulties"
The Gazette's article concluded by saying
'These charges will be formally withdrawn at Blackpool Magistrates Court on 19th May'
(This was the date which had been set for the court case itself).
Speaking after the Bank Holiday on 4th May, Mr Tootill told the Gazette: "I have mixed feelings about this. I would much rather that the judge had thrown this case out. I
was fighting it on the grounds that it was an abuse of process by the Council.
The Councillors have acted like children having a tantrum. It was vindictive.
These were not advertisements, they were signs which had no profit for me. They are designed to warn people about fracking, so are for the benefit of the wider community.
I have had this for two years. It could have bankrupted me. The council spared no thoughts about what this case has done to me, the stress, worry and cost.
My health has suffered, my business has suffered, and it has cost me in the time I have had to spend away from my family"
The same Gazette article said the court action had drawn criticism from anti-fracking campaigners who said they were pleased that the prosecution had been dropped - before
going on to say.....
"But we were also confused. If Fylde's action was indeed in the public interest, nothing has changed. We want to see the reasons they have withdrawn their action.
We want to know how this decision was taken. We want to know how the original decision to prosecute was taken.
We want to know in particular what part Trevor Fiddler, as a councillor who had a financial involvement with Cuadrilla, and Chairman of the Development Control Committee
played in approving the action.
This remains a scandal of the highest order. John Tootill was in our view persecuted and victimised for political reasons. At least we need a full statement to explain
The Gazette article concluded by saying 'The Gazette has asked Cllr Fiddler for a response'
To date, counterbalance has not seen such a response.
One of our readers wrote to tell us "Altruism for John has nothing to do with it. FBC must be delighted that the fire has given an easy excuse for themselves to be let off
the hook, particularly avoiding disclosure of their interests.
No doubt the high command of their political party will also be relieved to avoid further public disclosure under oath."
There has been no further communication on this matter from FBC since their statements just before the May Day Bank Holiday.
We did hear that when Fylde said they were dropping the prosecution on 29 April, they also said something about the costs hearing if there was to be one. We believe they
asked for it to be held quickly and perhaps even the following court day, and Mr Tootill's legal representation to say they were not able to respond that quickly.
So the matter rolled on toward 19th May when, as per the Gazette report, we expected Fylde to formally withdraw the prosecution.
However, two days before the trial date, the solicitor acting for Mr Tootill wrote to Fylde Council and said:
'Fylde Borough Council v John Tootill
We write having received instructions from our client, Mr Tootill, as to the hearing listed for Thursday 19th May in the Blackpool Magistrates Court.
On the understanding that the Council has decided to withdraw this prosecution we are able to confirm that, subject of course to any contrary view expressed by the Court,
neither Mr Tootill nor his legal representatives will attend this hearing.
However, for the avoidance of any doubt, we make plain that it is not accepted that the decision to prosecute was properly or lawfully taken or that it could have resulted
in a conviction in this case.
A copy of this letter is provided to the Court so that the position can be noted with any resulting observations made and so that it may be noted on the Court file when the
withdrawal of the Councilís prosecution is noted.'
But there was uncertainty in our minds as to whether the matter would still be before the court, so we - and others - went to the court to see what happened. It transpired
that, at the last minute, Mr Tootill decided to go as well.
Thankfully it's not a place we regularly frequent. The post-apocalyptic brutality of the concrete car park and court approach depresses the soul, and the
metal objects in pockets and bags by commercial security contractors using airport style firmness coupled with an electronic arch and handheld scanning devices did nothing
to improve the experience.
It was indeed a depressing place.
The case was eventually called and several of his supporters went into the public area of the court. Fylde's solicitor was seated in the body of the court, as was Mr
Tootill. On the bench, a magistrate - rather than the Judge - presided.
He seemed puzzled that anyone had come, and asked Mr Tootill what he had to say.
Mr Tootill said he had come to hear that the case had been dropped and after all the trouble and worry he had been put to, he hoped to hear an explanation from Fylde as to
why they had decided to drop the case against him.
The Magistrate told him that the court had no mechanism available to it to explain or even address that matter, and Mr Tootill would have to contact Fylde council to ask
As the exchange progressed, it became clear that we were all at crossed purposes.
We expected the court to tell Mr Tootill that his case had been formally withdrawn and he was no longer being prosecuted. Mr Tootill wanted to hear why Fylde had decided
not to proceed with his case, and the Magistrate thought the matter was about a claim for costs from Mr Tootill.
Clarity did eventually prevail.
Without knowing much about how court cases work, we had assumed that Mr Tootill's status had become that of someone who had not been prosecuted in the first place. That, it
turns out, was not correct.
The Magistrate explained to Mr Tootill that the letter sent to him by Fylde saying they intended to withdraw the prosecution was what caused the case to end. As far as the
court was concerned, the case was over and ended on the date of Fylde's letter to him, or on the day he received it.
The Magistrate also said that in technical terms, Mr Tootill had been
"found not guilty" of the charge Fylde had made against him.
We were slightly shocked at that because we had expected the hear he had no case to answer - but, of course, our expectation was incorrect because he had been summonsed to
appear at court and required to plead guilty or otherwise to the charge Fylde had made against him. So 'Not guilty' was the result of the case.
After several attempts to secure a better understanding of what was
happening to him and why Fylde was no longer pursuing him, Mr Tootill accepted that he was not going to
have that matter answered.
The Magistrate explained that the case had been discontinued by notice by Fylde Council, and his expectation was that Mr Tootill was in court that day to discuss a claim
for his costs because that was the only remaining matter in his case. He said he could consider making an order for costs if that was what Mr Tootill wanted.
Puzzled and uncertain, Mt Tootill considered this, and eventually said he had been put to expense to defend the case and as a result he would like to ask for his costs to
The Magistrate then granted an order for costs, telling Mr Tootill he would need to submit a statement of expenses which would be considered by (we think he said) some
central organisation in the midlands.
We found the whole process inhuman.
'The system' was in charge - and from what we could see it had little or no humanity.
So, where does all this leave us?
Well, we imagine that means that Mr Tootill's signs will stay there because the Magistrate told him he has been found not guilty of breaking the law by displaying them.
From our own perspective we think it left several unanswered questions.
We do know that Fylde's case began with a warning letter from Fylde's enforcement officer, but there is no clarity about how he came to decide to send that letter to Mr
Tootill when there were (literally) hundreds of impromptu signs against fracking erected along roads in Fylde and only Mr Tootill was prosecuted.
We find it difficult to imagine that a professional Enforcement Officer would, of his own volition, single out one individual when hundreds of others - and even Fylde's own
councillors - had erected notices warning of the dangers of fracking in their roadside gardens and land.
We do know that Fylde either had forgotten, did not realise, or had otherwise omitted to remember that they had granted permission for signs on this land in 1993.
We also know Fylde had not remembered there were grounds to believe that signs on this land had 'deemed consent' under the clause 3 exemption of the Town and Country
Planning (Control of Advertisements) (England) Regulations 2007 anyway.
We do know the process that decided to prosecute Mr Tootill was taken by Fylde's Development Management Committee. But as we have shown, there are
grounds to believe this
decision was not within its constitutional powers or the law, and thus may not have been a valid decision upon which to build a prosecution anyway.
We do know Fylde has spent significant sums of our money in officer time and travel expenses visiting the site 62 times and documenting the alleged offence. They will also
have paid significant sums for the barrister they engaged to advise, prepare and present their case. But we don't know how much it has cost us, and it is most unlikely that
anyone will ever be able to establish the cost because, as in the past, we expect Fylde will stonewall requests for such information.
And atop of all that effort and
cost, Fylde dropped the prosecution shortly after hearing an outline of Mr Tootill's defence, and they inferred the fire at Mr Tootill's home was the reason for dropping
Our one other remaining area of uncertainty was about the
decision to drop the prosecution.
It was not at all clear who had taken the decision, and what authority existed for
someone to take such a decision.
Fortunately, that question was asked at the Council meeting of 4th July 2016.
We have transcribed the exchange during the public question time at the start of the Council
meeting. It went ......
"In Blackpool Magistrates Court on 19th May, I heard Mr John Tootill ask the presiding magistrate to explain why he was no longer being prosecuted in respect of the
anti fracking signs he had displayed on his land. The magistrate told him that only Fylde Council could answer that question.
So would the Leader please explain to me *why* it became "no longer in the public interest" to continue with the prosecution of Mr Tootill ?"
Reading from a prepared text, Cllr Fazackerley responded, saying "Mr Mayor, Colleagues, Fylde Council discontinued the prosecution of Mr John Tootill for the display of 26
unauthorised advertisements on his premises at Maple Farm, Preston New Road, following the fire that destroyed his home at Westby.
Because of the devastating fire at Mr Tootill's home, it was considered that it was no longer in the public interest to continue the case. The possible sanctions for the
offence were outweighed by the financial challenge and potential stress ongoing legal action would have to a resident and local businessman that had lost his home.
Mr Tootill had also significantly reduced the number of advertisements that he had at his premises.
The Council felt to withdraw from the case was appropriate at what was a very difficult time for Mr Tootill, and would not wish to add to his difficulties.
Mr Tootill was informed of the reasons for withdrawing the prosecution in writing on April 29th 2016, well in advance of May 19th.
Thank you Mr Mayor."
Fylde's present Constitution provides for a follow up question if it is related to the answer given, and the Mayor asked if there was a supplementary question.
The answer was "Yes, if I may please. I'm still a bit puzzled. Given that the decision to prosecute Mr Tootill was actually taken by the Development Management Committee
because that function was not delegated to an officer, who was it that decided it was no longer in the public interest, and on what authority was that decision taken? "
Cllr Fazackerley said "Mr Mayor, colleagues, I understand that the decision was made by the Chief Executive.
The Chief Executive said "That's correct, we took legal advice, and we were able to withdraw the prosecution within legal boundaries"
We understand that, subsequent to his statement at the Council meeting, further clarification was provided by the Chief Executive to advise that "The authority to withdraw
prosecution proceedings was made under the delegated responsibilities of the Head of Governance (Council Solicitor), pursuant to Part 3, Section 5, paragraph 3.11 of the
Council's Constitution which states they have the authority to settle 'proceedings of any description after consultation with the Leader of the Council or appropriate
committee chairman together with the appropriate chief officer'."
And so we're back on the same treadmill as before about authority to take the decision.
We do not doubt that Fylde's Constitution provides for officers to discharge or administer a decision taken by elected members. That is fundamentally the basic purpose of
But implementing a decision is not the same as taking the decision itself.
Whilst they are the body to execute such a decision, officers are not empowered to
TAKE such decisions - unless the Council has explicitly given them delegated authority to
If Fylde are suggesting that paragraph 3.11 is an explicit authority for an officer to settle proceedings, then it begs the question as to why it was thought necessary
to have the decision to prosecute Mr Tootill taken by the Development Management Committee - when Paragraph 3.3 of Fylde's same Constitution delegates to the Head of
Governance authority for "Instituting legal proceedings on behalf of the Council and representing the Council before any Court, Tribunal, Inquiry or other hearing."?
So we don't agree with the clarification.
We maintain these paragraphs are merely a delegation to institute a decision taken by others - and the identity of those 'others'
remains confusingly mysterious.
We don't think it can have been an officer - because authority to TAKE (rather than implement) the decision was not delegated.
From what she said, it didn't sound as though it was Fylde's Leader
(and anyway, under the Committee system - which operated at the time of the decision to drop the prosecution - the Leader has no general powers to take individual
behalf of the Council - nor has any Committee Chairman)
And we thought it would have been at best unwise for the Chairman of Development Management Committee to have taken the
decision himself - because it's not that long since
he was declaring a prejudicial interest and not taking part in an earlier Council meeting where a vote about whether to call for a moratorium on fracking in Fylde was to be
But this state of play leaves us precisely nowhere - except wondering whether any proper authority did exist to withdraw the prosecution?
we think, the matter is likely to rest.
The only good thing to come out of it as far as we can see is that Mr Tootill has been found not guilty of the charge of displaying of 26 unauthorised advertisements on his
Based on what we're heard and seen of this matter, we come to the conclusion that the unfortunate fire at Mr Tootill's house provided Fylde with a heaven-sent smokescreen
as they scrambled to find a way to extricate themselves from the deep and unpleasant-smelling creek in which they had embedded themselves when it became clear that
individual Councillors would be examined under oath about their interests, their connections with Cuadrilla, and their motivation in bringing the prosecution, and that Mr
Tootill's barrister was going to claim the decision to prosecute Mr Tootill was not properly and lawfully taken: it was based on bad faith, and Mr Tootill's rights had been
intentionally or maliciously infringed to the extent that the court's sense of justice should be offended, and the case against him should be nullified.
recognise that a finding of not guilty after a trial might have given rise to a substantial claim for costs and perhaps even damages on Mr Tootill's behalf.
Fylde's version of these events is that they felt so sorry for Mr Tootill after the fire that destroyed his home, they simply couldn't continue with his prosecution.
We leave it up to our readers to make up their own minds as to which is the real reason.
Dated: 08 July 2016