Breellen Warry, Sharing Legal Resources

The Innovation and Development of In-house Legal Teams: Sharing Legal Resources Within Local Authorities- Camden Council's Experience

BREELLEN WARRY BA, LLB (Hons) Planning and Licensing Team, Borough of Camden, UK

Local government has been subject to constant change over the past few decades. More recently, and pertinently, an ongoing theme in the planning reforms of 2004, is a recognition of the “place shaping role” that local authorities play in their communities, a role particularly highlighted in “Planning for a Sustainable Future: White Paper”.

“Place-shaping” is said to involve local authorities considering how they can respond to local priorities and meet the challenges of the future. In order to achieve this, it is recognised that local authorities will need to bring together various local agencies, from across the public sector, community and voluntary sector and the private sector to work in partnership. This partnership approach is considered vital in enabling authorities to respond to and tackle local issues and challenges.

The White Paper also envisages a stronger role for local authorities to lead their communities, shape their areas and bring communities together. It is also proposed that there be the increased ability for authorities to innovate and respond to local needs. In doing so however, the White Paper seeks to make local authorities challenge traditional methods of service delivery and minimise waste, in order to achieve efficiency.

In keeping with this theme, the white paper on the future of Local Government, “Strong and prosperous Communities” indicates that the efficiency agenda and the new performance framework will also require local authorities to work more closely together. Across the UK, local authorities are exploring how they can do this within the existing legal framework. While the development of shared services in the public sector is not a new concept, it has been given particular focus and attention across local government in recent planning reforms. In order to deliver the transformed services and value for money that communities want, local authorities are expected to challenge traditional methods of delivery and work with other public bodies to share assets, systems, data, skills and knowledge more effectively.

Yet despite these increased responsibilities and challenges, as has been recognised in the recent report by the Audit Commission entitled “Seeing the light: Innovation in local public services” (published in May of this year), it is clear from government announcements on public spending that in most areas within their ambit, local authorities will be expected to deliver against rising expectations within, at most, slow growing resources. In fact, the Gershon Review identified a target of £6.45 billion savings to be made in local government, including both cashable and non-cashable gains. Prime Minister Gordon Brown has also identified target savings of £21.5 billion by 2008, to implement the proposals in the White Paper, to action Sir David Varney’s recommendations and to reap the more challenging savings targets that are now expected as part of the Comprehensive Spending Review 2007.

As yet however, there appears to be little guidance from central government on how local authorities should go about achieving these savings targets and developing shared services. In this context therefore, fulfilling their role as place shapers in a climate of static resources will present many challenges for local authorities.

Therefore, how in the face of the increasing expectation of local authorities to deliver an improved service to their communities as effectively and cheaply as possible, can local authorities innovate through partnerships and what are some practical examples of the ways in which local authorities can meet the challenges they face through shared services? This paper provides a working example of an innovative arrangement involving partnership between a number of London local authorities in the provision of legal services and provides a relevant example of one of the ways that concept of shared services can help to achieve efficiency in local government whilst also providing a good service.

International In-house Counsel Journal Vol.1, No.2, November 2007 Breellen Warry, Sharing Legal Resources

Pressure point

An effective in-house legal service is essential for helping a local authority avoid unnecessary exposure to legal risks or challenges. This will have a direct effect on a number of a local authority’s services’ PI performance, quality of service and cost effectiveness. A cost effective legal service will also contribute to the overall cost effectiveness of the local authority.

However, a clear example of the difficulties some authorities can face in delivering an improved service to the community while being more efficient is in the context of in-house legal services. In order to cope with the pressure of huge workloads, coupled with inadequate staffing resources, authorities are often forced to outsource their legal work to external law firms at a high cost to the local authority. In fact, research shows that the amount paid per hour for private sector staff is between 119% and 248% more than the cost of using internal staff of a comparable grade. 1

This has also been exacerbated in recent times in the field of planning law by the pressure to improve turnaround times in the completion of planning agreements under section 106 of the Town & Country Planning Act 1990, which are prepared and negotiated with developers who are required to enter into obligations with authorities as part of the planning process.

Joint Working

A partnership between local authorities which has provided huge benefits and alleviated some of the pressures identified above is the shared planning legal service with the London Boroughs of Hackney and Hounslow, pioneered by the London Borough of Camden’s Legal Services planning and licensing team (“Camden PLT”).

The existing legal framework governing local authorities does provide relevant powers under which local authorities can provide services to one another.

For example, the primary section under which local authorities are able to provide services to other “public bodies” and to charge for them is section 1 of the Local Government Goods and Services Act 1970. Under this section, the terms on which one authority charges another are to be agreed between the parties and there is no requirement for this to be linked to the costs of providing the service. There are also a number of relevant provisions in the Local Government Act 2003 which provides the power for local authorities to charge for the provision of discretionary services (section 93) or set up trading companies to carry out their core functions and offer services to others (see sections 95 and 96).

Within this legislative context, since 2002 and until very recently, Camden PLT delivered large elements of the planning legal service to the planning department of the London Borough of Hackney, undertaking the majority of their legal agreements under section 106 of the Town & Country Planning Act 1990 (including all the Major applications), planning Inquiries and planning enforcement cases. Whereas previously, Hackney outsourced its planning legal work to external firms, the work was carried out by both Hackney’s in-house legal team and Camden PLT.

In August 2006, Camden PLT entered into a similar arrangement with the London Borough of Hounslow to carry out their “over-spill” planning work, including undertaking some major section 106 agreements and providing legal support in a planning Inquiry for Commerce Road, Brentford which involved a scheme for the demolition of existing buildings for mixed use development including residential development (992 units), A1 floorspace (limited to 374 sq.m.), A2 floorspace (limited to 500 sq.m.), A3/A4 floorspace (limited to 2495 sq.m.), 5835 sq.m. of B1 floorspace, a creche (500 sq.m.), a medical centre (880 sq.m.), community facilities (250 sq.m.), 833 car parking spaces, redevelopment of existing bus depot retaining bus depot use and provision of public open space. The Inquiry was a complex one with many issues, lasting 32 days intermittently held over a period reaching almost a year. The London Borough of Hounslow is awaiting the Inspector’s decision.

1 Welland Shared Services Project, Legal Services Feasibility Study 14 March 2005: http://www.welland-partnership.com/ppimageupload/Image46040.PDF

International In-house Counsel Journal Vol.1, No.2, November 2007 Breellen Warry, Sharing Legal Resources

Camden legal services has a proven record of successfully working in partnership with internal and external clients to deliver effective and professional legal services to other partners besides Hackney and Hounslow. These include the IDeA, the North London Waste Authority, the Camden and Islington Mental Health Care Trust, and the Primary Care Trust. Since 2006 Camden Legal Services has also worked with the Home Office and CPS to provide expert practitioner as speakers/facilitators on their Anti Social Behaviour workshops.

This flexible inter-borough working tailored to local authority needs has proven to be a better and cheaper way of working and has resulted in a huge range of benefits for all involved, including financial benefits, knowledge sharing and pooling of staffing resources. It has also ensured that staff have had the confidence and skills necessary to handle large and complex matters which normally would be out-sourced to a firm of external .

Cost savings

The most obvious of these benefits is the financial benefit to the boroughs. Whilst these arrangements have generated income for Camden, most of the cost is offset by fees recovered for the external Boroughs, for example, in 2005/2006 PLT reimbursed £198,000 in section 106 Agreement fees for Hackney, which nearly offset the total cost to Hackney of the service.

The consistently high levels of Planning Delivery Grant (PDG), which Camden PLT’s clients at both Camden and Hackney receive, also reflects the success of the shared service. PDG is central government funding for the planning service linked to performance and in successive years (2004 and 2005) Camden and Hackney received the highest level of PDG in the country. A key component is tied to delivery of Major Development section 106 agreements within deadlines. This has meant that Camden PLT has played a key role in Hackney Planning achieving very significant improvement in its own service levels. The recent Audit Commission CPA review has formally recognised this improvement (with ‘fair’ and ‘improving’ ratings) and this has had practical regenerative benefits for the borough. Hackney residents and businesses now have a considerably more efficient Planning Service, as noted in nationally competitive BVPI figures and increase in customer satisfaction as recorded by MORI. However the rewards have had far broader reaching benefits than purely monetary ones. Another key benefit has included the sharing of knowledge information and experience to facilitate benchmarking and standard approaches, both with planning clients and Hackney and Hounslow’s in house legal staff.

Over coming staffing issues

A commonly experienced hurdle encountered by some authorities is the ability to recruit and retain experienced staff. A study by Public Sector Review 2 (when?) revealed that 62% of respondents said it was difficult to attract staff. Amongst the reasons cited were volume – local authorities in England employ around 2 million people; and competition – local authorities are often competing for the same talent.

This is no different in the case of legal services, with demand for good local government often greater than the supply. In addition to the reasons mentioned above, local authorities often struggle to both recruit and retain lawyers experienced in the public sector, battling many misconceptions about the realities of practising in local government; for example, that the work is less challenging and demanding than in the private sector. These difficulties have serious implications for some authorities’ ability to provide an improved service, particularly while the demand for quality legal services continues to grow. Therefore, rather than competing with Hackney and Hounslow for finite staffing resources, Camden PLT provides access to a quality- shared service at a fraction of private practice rates, freeing up in house resources and ensuring that all three boroughs have access to good quality solicitors.

The service has also meant that with improvements in career development combined with a larger pool of work results in increased opportunities for existing staff there is greater scope to

2 Public Sector Review, “Misconceptions of working in the public sector”: http://www.publicsectorreview.com/?pid=4303&lsid=4303&edname=24834.htm&pe d=24834

International In-house Counsel Journal Vol.1, No.2, November 2007 Breellen Warry, Sharing Legal Resources specialize and gain experience by working with several authorities on the same area of law. Equally, other staff are attracted by the greater breadth of experience available.

Key achievements

As a result of the shared arrangements, Camden PLT has been able to build a strong team with a pool of skills, knowledge and resources which has put it in excellent stead to handle complex redevelopments and has ensured that staff possess the skills necessary to draft and negotiate major and complex developments.

For example, amongst Camden PLT’s achievements are helping to deliver two of London’s most important strategic planning projects of the decade: the King’s Cross Development in Camden and the Dalston Lane development for the East London Line extension for Hackney.

From 2002, Camden PLT worked with Denton Wilde Sapte solicitors (“”) on the redevelopment of Kings Cross, representing the largest single regeneration opportunity for the borough over the next 15 - 20 years. Given the scale of the development it was necessary to engage the services of an external firm however Camden PLT developed a unique legal negotiating team to work with Dentons in order to settle the section 106 Agreement with the Developer and its solicitors. This was an innovative arrangement - usually where local authorities engage private solicitors, the council lawyer role is a watching brief or else limited to narrow specific areas. This on the other hand, was a true joint effort.

Camden PLT were heavily involved in giving advice on the format of planning applications and environmental impact assessment, details of listed building information required, conservation statements, supplementary planning guidance and other related policy advice. Camden PLT also participated in negotiation of the heads for the section 106 Agreement - informed by extensive consultation of local stakeholders. This ensured the section 106 benefits delivered sustainable development, not just to new users and workers in the development but existing local residents in one of the most deprived areas in the country.

The two Camden PLT lawyers worked in partnership with Dentons, coordinating instructions from internal clients and other stakeholders and drafting large sections of the Agreement. Besides their legal expertise, PLT brought knowledge of council policies and political issues, extensive experience they have gained working on large section Agreements for all three boroughs and good relationships with council officers in service departments.

In March 2006 Camden approved (subject to a section 106 Agreement) proposals including commercial, housing, retail and education providing 24-27,000 jobs, 1,700 homes, open spaces and a range of supporting facilities, plus sustainability, local employment and training. Camden PLT also cleared the Committee report, which ran to 560 pages plus conditions.

Subsequent to the completion of the Agreement and the issue of the planning permission, a local interest group lodged a Judicial Review with the High Court contesting the validity of the Council’s decision in granting permission. Again, Camden PLT lawyers worked as an integral part of the team that successfully defended the Council against this challenge.

The Dalston Lane proposals are similar to Kings Cross in terms of profile, scale and regeneration potential, creating a Sustainable Development on derelict brownfield site - approximately 350,000 square feet above the East London Line station within the existing cutting at Dalston Junction, together with an adjoining site- incorporating a transport interchange, along with 550 additional dwellings (many of them affordable) and commercial accommodation. It is an integral part of a wider package of projects that will transform East London and will support regeneration of the wider Thames gateway area.

Camden PLT provided strategic advice to planners from earliest stages, for example, on the format of planning applications, environmental impact assessments and heads for the legal agreement in the committee reports.

Hackney’s negotiating team consisted of planning officers and one Camden PLT (with no private practice involvement). Two extremely complex multi party legal agreements had to be negotiated for the separate components of the development within very tight timescales. Legal

International In-house Counsel Journal Vol.1, No.2, November 2007 Breellen Warry, Sharing Legal Resources issues included complicated additional affordable housing requirements triggered by profit generation.

As at King’s Cross the agreements had to be defendable in the face of likely legal challenge. Camden PLT were successful in meeting the specified timescales, with one agreement completed and the other largely settled; failure to do so would compromise funding, potentially putting the whole East London Line Project in jeopardy.

Further examples include some of the flagship projects undertaken in conjunction with Hackney, including: • Camden PLT acting for Hackney in successfully rebutting a succession of legal challenges which culminated in the Court of Appeal in 2003 and 2004 in respect of the East London Line Extension. • A £104,000 fine in a Hackney prosecution handled by Camden in 2006 for a breach of planning control relating to unauthorised residential lettings.

Added benefits There are many other examples of the benefits and rewards that the service has produced with far reaching consequences. For example, the service and provide “added value” over private solicitors because unlike private sector lawyers, Camden PLT has day to day experience of how local authorities work today and all the subtleties that arise from being accountable to elected members and local communities.

The service has also encouraged and enabled sharing knowledge information and experience to facilitate benchmarking and standard approaches, both with planning clients and in house legal staff. For example, approaches to drafting used in Camden’s Kings Cross section 106 Agreement have been replicated in agreements drafted for Hackney on the Dalston Junction Interchange site. Another example is the development of a joint database of Counsel for Planning Inquiries using increased bargaining power to negotiate better deals for Counsel’s fees. The service has also helped to foster of closer working relationships between the boroughs. Whilst Hackney’s approach has been influenced by Camden, such as, in affordable housing policies, Hackney’s experience on high buildings, heritage issues and live/work arrangements has benefited Camden.

Conclusion

The White Paper’s aims will only be achieved if local councils grasp the opportunity to think and act differently, influence and harness the capacity of partners. Shared services are already delivering real improvements in the cost, quality and user-centricity of local service delivery, and are an area where still more could be achieved. The innovation and development of in-house legal teams by pooling knowledge skills and resources across different authorities is a cost- effective and efficient alternative to authorities rather than to out-source legal work to external firms. Camden PLT’s shared legal service has been a great success and was shortlisted for the Municipal Journal Legal Achievement of the Year Award in 2007. It is hoped that the lessons learnt are of value to other authorities in seeking to change the traditional ways of working to meet the challenges set by central government.

Breellen Warry was admitted as a solicitor of the Supreme Court of New South Wales, Australia in 2003 and as a solicitor of the Supreme Court of England and Wales in 2005. Before arriving in the UK in April 2005, Breellen worked in the local government and planning group of Abbott Tout Solicitors (now Home Wilkinson Lowry) in Sydney, advising many local government clients such as the City of Sydney and Byron Bay Council. After arriving in the UK, Breellen worked at the London Borough Hillingdon before joining Camden's planning law team in September 2005.

International In-house Counsel Journal Vol.1, No.2, November 2007