One day soon we may well see a TV documentary or even possibly a drama series based on the likely abandonment of the country’s most high-profile housing regeneration scheme.
For those interested in politics there is the ousting of a long-term Council Leader, Clare Kober, amid allegations of shenanigans and skulduggery. For housing and planning specialists there is the frustration of still struggling to find ways to bring about large-scale renewal of housing stock and ways to build more affordable homes. For those of us committed to better community involvement, there are questions as to whether the proposed Housing Development Vehicle (HDV) – a public/private partnership with Lendlease Ltd was subject to satisfactory consultation.
In the event, politics has effectively killed off this ambitious proposal, but last month we received the judgment of the High Court in the judicial review mounted by campaigners against the HDV. It found in favour of Haringey Council, but the arguments may now be academic, and talk of an appeal seems to be irrelevant.
But – actually, the judgment is quite useful in clarifying a number of issues as they affect the Law of Consultation, and raises issues we will need to consider carefully when the course is next run in London on 14th March.
In brief, campaigners sought to challenge the decision to set up the HDV, arguing, in part that there should have been a consultation on the proposal. The Court decided that there should indeed have been one under S. 3 of the Local Government Act 1999 – the provision about consultation on Best Value.
The trouble was that such a consultation should have taken place back in 2015 when the principle of the HDV had been agreed, and as judicial reviews have to be brought within 3 months of the relevant decision, the claim was ‘out of time’ and therefore failed.
It is very reminiscent of another London Borough case – Nash v LB of Barnet back in 2013. In that case, a major policy change to outsource almost everything in sight was challenged but similarly failed for being out of time. On that occasion, the Judge confirmed that there was a consultation duty, and that were it not for the timing issue, he would have found for the claimants.
There is a similar finding in last month’s Haringey case.
“Before deciding whether to make an arrangement for a HDV type vehicle as a means of fulfilling its duty, it is my judgment that the duty to consult arose. And it is not at issue but that it was not fulfilled.”
Mr Justice Ouseley (at par 170)
It gives a clear message to everyone in local government. Always consult early on anything remotely major that affects the way in which a Council is run. The words of the 1999 Act are very general. It amounts to having to consult on change proposals that amount to attempts ‘to secure improvement in the way on which its functions are exercised.’
What makes life complicated is that in a ‘formative stage’ consultation (per Gunning rule one), less is known about the proposal, so the debate is bound to be ‘high-level’ and those who know the Gunning Principles will, of course know that the second rule is that consultors must provide sufficient information about their proposed as will allow consultees to give them ‘intelligent consideration’.
David Wolfe, the barrister for the claimants in the Haringey HDV case argued that it was not possible for the Council to have consulted lawfully back in 2015 because there was not enough known about the details of the deal with Lendlease; indeed, the Joint Venture partner was not known at that time. Important matters were still to be settled, such as the degree of financial risk to the local taxpayers and the precise nature of democratic accountability. It is these that, in many ways inspired the political opposition that overturned the Haringey Council Leader.
In this case, the Judge disagreed. His view is that it is not necessary to wait until the extra information is to hand. Read his words ….
“I find it impossible to believe that those opposed to or uncertain about the principle of the HDV would have said that they could not comment usefully on an overarching single development vehicle for the regeneration and management of commercial and housing property and land, in 50/50 partnership with the private sector, until they had all the information available in July 2017.”
(per Par 177)
There are interesting details in this judgment that warrant further detailed consideration. The Judge notes that there had been other opportunities for opponents of the Scheme to have expressed their views – such as a consultation on the Council’s draft Strategic Plan. There was also a claim that the Council had not complied with S.149 of the Equality Act 2010, and had not had due regard. They also lost on this argument and the Judge endorsed the Council’s approach which committed to a detailed Equality Impact Assessment (EIA) when specific projects were brought forward by the Joint Venture Company.
In summary, this case is significant because:-
- It clarifies the requirement for Councils to consult early on strategic changes
- It follows and clarifies the ‘out-of-time’ ruling in Nash v LB of Barnet
- It considers the ‘insufficient information available’ argument but does not satisfactorily resolve it.
- Best practice advice from the Institute is therefore that a public body should consult both on the principle of its approach (early) and also when sufficient information is available (later – before implementation)
Rhion Jones LL.B
References:-
Gordon Peters v LB of Haringey and Lendlease [2018] EWHC 192
R (ex parte Nash) v LB of Barnet [2013] EWHC 1067
