A small south Leeds company are crying foul over a long-running dispute with Leeds City Council, saying they feel ‘bullied’, and arguing that the Council are misusing legislation to protect their own financial interests.
Instaplanta – based in Hunslet Moor, and co-run by local resident Malcolm Simpson – install and maintain wooden planters with floral displays along major roads and streets; these generate income by carrying advertising boards for local businesses. They insist that they are supporting the local economy, and brightening communities – and that they also work with local charities and community initiatives like the ‘In Bloom’ groups.
They have 200 planters around West Yorkshire, but only 20 in Leeds – because, ever since starting out in 2015, they have struggled to get permission from Leeds City Council for their planters. Their applications have repeatedly been turned down, for a variety of reasons – but Instaplanta insist that the Council’s underlying reason is to protect their own roadside advertising income (worth £200,000 per year).
Legally, the Highways Act 1980 (section 115E) stipulates that local authorities such as Leeds City Council ‘may grant permission’ to others to install objects like planters on certain areas of the carriageway – especially footways (including pavements, and other spaces). This is known as a ‘discretionary power’, with further government legislation obliging councils to demonstrate a ‘reasonable’ approach in the way they exercise that power.
But Highways officers have offered a range of reasons for blocking Instaplanta’s applications. For example, they have argued that key sections of pedestrian islands and central reservations are part of the ‘highway’ (and therefore couldn’t accommodate installations); however, their own documents (such as community consultation maps) and street furniture (such as guardrails, and bobbly tactile paving) suggest they are in fact ‘footways’ (and therefore appropriate for installations).
They have also expressed fears about the increased risk of car crashes – but Instaplanta point out that this could apply to any piece of ‘street furniture’, and that other bodies like Otley and Horsforth Town Councils have been granted permission for very similar installations without any such concerns raised.
The Council did offer Instaplanta a tailored contract. However – with stipulations including one that the Council’s Parks and Countryside team could reject anything within 500m of any current or planned installations of theirs – Instaplanta rejected it as:
“A joke, hugely restrictive – just window dressing”.
Now though, a number of Freedom of Information and Subject Access requests have brought to light a number of emails between Council officers and councillors – that seem to confirm Instaplanta’s concerns that legislation is being misused to limit their operations as a competitor.
In one email, Sean Flesher (Chief Officer for Parks and Countryside) wrote to councillors:
“I appreciate the (Instaplanta) scheme is attractive because communities get free floral displays… However, we are concerned that if Instaplanta start to seek sponsorship of planters around Leeds, they will be competing in the same market as ourselves and thus make it less likely that we will successfully gain the maximum amount of sponsorship possible for our (roadside) floral features.”
In another email, Martin Dean (Area Leader, South East Leeds) says:
“The issue we want to explore further is any right which we have to control or restrict the quantity of Instaplanta installations, or the sites chosen to minimise the impact on the (Council’s roadside) advertising income”. In response, Mark Turnbull (Head of Legal Services) warns that “the (Council) was sued a few years ago for misfeasance in public office, and had to pay out quite a lot, where there was evidence that we had exercised certain highways powers for the purpose of protecting our own income, rather than for ‘highways’ purposes”.
A key 2017 report from the Competition Markets Authority – created to ensure that local government bodies do not operate in an anti-competitive manner – suggests the Council are on shaky ground. It warns that: “issues can arise if public ownership gives a trading company an unfair advantage over other competitors”; that “where it is a direct provider, a local authority needs to be aware of the risks of crowding out private sector activity”; and that councils are “likely to be subject to the same competition law as private sector competitors”.
Malcolm Simpson, Business Development Director at Instaplanta, commented:
“I devoted 25 years of my life to working for the Council, and I’m truly disappointed as I believe that senior Council officers have for the last 5 years misused highway law to thwart my business, and maintain their own dominant market position. In doing so, I also believe that they’ve intentionally misled myself, councillors, and the local MP. All we’re asking for is a level playing field and to be treated fairly, but that’s been denied us, and instead we feel bullied.”
A spokesperson for Leeds City Council said:
“This matter has been thoroughly investigated through stage 1 and stage 2 of our complaints process which found no fault. If the complainant was dissatisfied with our response they were entitled to refer the matter to the Ombudsman for investigation. They chose not to do that. We are satisfied that the council has acted in accordance with all relevant policies and legislation in considering in this matter.”