A man complained to the Press Complaints Commission that an article headlined "Planning investigation: ‘we'd say cut down trees before they object'", published by The Daily Telegraph on 11 March 2013, contained information which had been obtained using subterfuge in breach of Clause 10 (Clandestine devices and subterfuge) of the Editors' Code of Practice and was misleading in breach of Clause 1 (Accuracy) of the Code.

The complaint was not upheld.

The complainant is a town councillor who also has a consultancy which assists clients with planning matters. The article quoted a number of comments made by him, which had been secretly recorded by the newspaper's journalists at a meeting in which they posed as representatives of a foreign investment consortium requiring planning advice for a potential project. The complaint was received almost four months after publication and was therefore considered in relation to the online article only.

The complainant strongly objected to the reporters' misrepresentation and their clandestine recording of the meeting. He considered that the investigation had exposed no unprofessional or illegal behaviour and said this demonstrated that the newspaper failed to research the matter fully before engaging in subterfuge. Moreover, the complainant considered that the article was highly misleading. Planning decisions are determined at borough level, not parish or town level. He has acted as a private planning consultant for over 30 years, but has only been in the role of a local councillor for the past two years and does not sit on the planning sub-committee that considers (at borough level) planning applications in his town. In fact, his company's success rates for planning application results are higher outside of his local borough. The complainant also believed the article suggested, wrongly, that he had engaged in unprofessional or illegal behaviour.

The newspaper defended its use of subterfuge as part of an ongoing investigation into the planning system. It said it had been told by confidential sources about potential conflicts of interest between the complainant's work as a planning consultant and his involvement in local council matters. A specific allegation had been made that the complainant was "circumventing the democratic process" by using his position on the council to advance his clients' interests, lobbying councillors behind the scenes about controversial developments and using his contacts and knowledge to assist clients. The reporters considered that the information was credible and the sources were not acting maliciously. Subterfuge was necessary to investigate the allegations further. The reporters could not rely upon the "tip-offs" and there was no documentary evidence to back them up; they would have been denied by the complainant. It could not have obtained details of the complainant's business practices by any other means.

With regard to the accuracy of the piece, the newspaper said that the complainant himself had described his role as helping clients overcome "little wrinkles" in return for a fee. The coverage had made clear that there was nothing illegal in what he was doing and there was no suggestion that he had been taking or offering bribes. While the newspaper noted the complainant's point that he does not sit on the relevant planning sub-committee, it emphasised that the article reported that there was "disquiet locally" over the potential for a conflict of interest because of his work as a planning consultant; it stood by this. The article made clear the periods for which he had been a planning consultant and town councillor.

Clause 10 (Clandestine devices and subterfuge) provides that the press must not "seek to obtain or publish material acquired using hidden cameras", except when it can be justified in the public interest, and then only when material cannot be obtained by other means. The decision to use subterfuge should always be made on the basis of evidence, rather than speculation. The terms of the Code also state that the public interest includes, but is not confined to, "detecting or exposing crime or serious impropriety".

The Commission considered, first, the newspaper's use of subterfuge. The newspaper had received specific allegations that the complainant had been using his role as a town councillor to "circumvent the democratic process" when acting for clients in his capacity as a planning consultant and that, specifically, he had been lobbying fellow councillors "behind the scenes". In the view of the Commission, these allegations were sufficiently serious to justify the newspaper's use of subterfuge to seek to obtain information about the nature of the services being offered to prospective clients by the complainant; had these involved impropriety, the newspaper was unlikely to uncover this through a direct inquiry.

In the event, the investigation had not exposed evidence of any "crime or serious impropriety" on the part of the complainant. However, the coverage had revealed the nature of the advice that he provided to clients, including advice intended to give them an advantage before an application for planning permission was made. While the practices advocated by the complainant might be familiar to professionals working in the planning industry, there was a public interest in bringing them to public attention. On balance, the public interest was sufficient to justify publication of the material which had been obtained during the newspaper's investigation. There was no breach of Clause 10.

In relation to the issues raised under Clause 1 (Accuracy), the Commission could not agree with the complainant that the article had suggested he was acting illegally. The article clearly set out the complainant's position that "ruthless determination" is what has led to his company's success in winning planning applications and, moreover, explicitly stated that his methods for removing "little wrinkles" that might hinder the application process are "totally legal".

The article had made clear that the complainant had been a consultant for decades before becoming a town councillor, and the newspaper was entitled to report that there was local "disquiet" over this development; indeed this did not appear to be denied by the complainant. The articles had not alleged that the complainant was playing a direct role in planning decisions, and it was not in dispute that as a result of his role as a local councillor he has been brought into contact with fellow councillors who do have these roles. As such the omission of specific information regarding the level at which decisions are made and the committees on which the complainant sits did not, in the Commission's opinion, render the coverage significantly misleading in breach of Clause 1. There was no breach of the Code.

Relevant rulings

Bell Pottinger Group v The Independent (2012)
Liberal Democrat Party v The Daily Telegraph (2011)