Conflicts of interest when consultants advise both sides

A conflict of interest is caught at the point of instruction or it is not caught at all. By the time a practice has taken the brief, seen the site and started the policy analysis, the choices have narrowed to declining a fee that has already been counted or continuing in a position that will be raised by the other side at the worst possible moment.

The professional codes are clear on the principle and light on the borderline cases, which is where consultants actually live. The RTPI code requires members to act with competence, honesty and integrity and to deal properly with conflicts. The RICS rules do comparable work for surveyors. Both leave the judgement about a particular set of facts to the member.

The four situations that arise

Directly opposing interests on the same matter. Acting for the applicant and for an objector on the same application. This one is straightforward and it is a refusal.

Confidential information from a former client. A practice that advised a landowner on the development potential of a site cannot act against that landowner on the same site, because the information cannot be unlearned. Time does not cure this. The relevant question is whether the information is still capable of being used, and on a site that has not changed, it usually is.

Commercial competition without a duty conflict. Acting for two housebuilders promoting different sites for the same allocation. Neither client is owed a duty that the other's instruction compromises directly, but each has an interest in the outcome for the other. This is the situation informed consent was designed for.

Personal interest. A shareholding, a family connection, an adjoining property, a role on a parish council. These are easy to spot and easy to forget to mention.

The fourth category deserves more attention than it gets in small practices, where the consultant often lives in the district they work in. Sitting on a neighbourhood plan steering group while promoting a site in the same parish is a conflict even where the two never touch, because the perception is enough to damage both roles. Declare it to the client and to the group, in writing, and let each decide.

Running a check that works

The check has to happen before the fee proposal goes out, because withdrawing after a proposal has been accepted damages the client and the practice.

1. Search the client and matter database for the site address, its previous addresses, the land parcel and every party named in the enquiry.
2. Search for the objectors and the adjoining owners where they are known.
3. Circulate the site and the parties to the whole team, because the person who acted on it four years ago may have left the department but not the firm.
4. Record the search and its result, dated, on the file.
5. Repeat the check when a new party joins the matter, which is the step most often skipped.

Keeping the record matters as much as running the check. A practice that can produce a dated conflict search is in a very different position from one relying on recollection.

Disclosure, consent and where they run out

Where a conflict is one of competing commercial interests rather than of duty, disclosure and informed written consent from both clients can allow the work to continue. Informed means the client understands what the conflict is and what it might mean for them, described in enough detail to be a real decision rather than a formality in the engagement letter.

Consent cannot cure everything. It does not help where confidential information from a former client is engaged. It does not help where the interests are directly opposed on the same matter. And it does not help where the practice cannot actually deliver undivided commitment to both.

Information barriers are the other management tool, and they are frequently claimed and rarely built. A barrier is real where the teams are separate, the files are access controlled, the personnel do not move between matters and someone independent supervises it. In a practice of eight people, none of that is credible, and saying so honestly is better than a paper arrangement that collapses under questioning.

The expert witness dimension

The position shifts when a consultant gives evidence rather than advice. An expert appearing at a hearing or inquiry owes an overriding duty to the decision maker to give independent, objective evidence within their expertise, and that duty sits above the client's interests.

Two practical consequences follow. An expert whose opinion has changed during the process has to say so, even where it damages the case. And the dual role of planning agent and expert witness, common on smaller appeals, needs to be handled carefully, because the person who negotiated the scheme is not always well placed to give detached evidence about it.

Where the evidence is technical rather than planning judgement, an independent author is worth the fee. That is one of the reasons a peer review or professional sign-off has value beyond quality control.

Councillors and officers play by different rules

Applicants sometimes assume the same code applies across the table. It does not. Members are governed by the statutory framework on disclosable pecuniary interests and by their authority's code of conduct, with rules on predetermination that were relaxed by the Localism Act 2011. Officers are subject to their employer's code and to the standards expected of local government employees.

What this means in practice is that a councillor expressing a view is not automatically disqualified from voting, while a councillor with a pecuniary interest in the outcome usually is. Raising the wrong objection at committee wastes the one opportunity you get.

If you think a member should not be taking part, the route is the authority's monitoring officer before the meeting, not an intervention from the public speaking slot. Monitoring officers deal with this regularly and they would rather hear about it in advance than after a decision has been made.

Illustrative example: a practice is asked to promote a site through a local plan examination. The conflict search shows the firm advised a different client on an adjoining parcel two years earlier, including confidential viability information relevant to both. The former client's information bears directly on the current instruction, so the practice declines, explains that it cannot act without giving reasons that would themselves breach confidence, and refers the enquiry elsewhere. This example is illustrative.

Declining work is uncomfortable and it costs far less than the alternative. A conflict raised by an opposing advocate at inquiry can cost the client the case as well as the consultant the fee.

There is one more habit worth building. Where a conflict is disclosed and consent given, revisit the position at each stage of the matter rather than treating consent as permanent. Applications change, parties join, and a conflict that was manageable at submission can become impossible by the time an inquiry is called. Consent given eighteen months ago against a different set of facts is not consent to the position now.

PlanScope drafts planning documents structured to UK planning policy, with site facts flagged where they need confirming, and the full report index shows which of the 66 report types a case is likely to need. Enter your postcode on the PlanScope home page to check a site against the constraint layers before taking an instruction.

This is general guidance, not legal advice. Check the position with your local planning authority or a qualified professional before relying on it.

PlanScope provides AI-assisted draft reports for planning applications. Reports should be reviewed before submission. We do not guarantee planning approval.