Local authorities promising to exceed the statutory minimum of consultation can find themselves penalised if they fail to meet their promise. So should they just do the bare minimum? Constanze Bell says involving communities at the earliest opportunity can avert issues later on.
In R (Alconbury Developments) v Secretary of State for the Environment, Transport and the Regions [2003] 2 AC 295 the House of Lords considered the compatibility of the appeals procedure with Article 6(1) of the European Convention on Human Rights (ECHR). In the judgment of the court the right of parties to cross-examine witnesses and advance their case orally was a factor of critical importance(1).
However, the right of parties to participate in planning decision-making is (and should be) engaged long before the appeal process. Recent coverage of rich San Franciscan residents objecting to a proposed homeless shelter and violent protests in Rome against the housing of Roma people in a hostel highlight how vital community involvement is for the integrity of the planning system, but also how challenging it can be to get right.
The Planning and Compulsory Purchase Act 2004 requires that a local planning authority must prepare a statement of community involvement (SCI)(2). The SCI should set out how the local planning authority will involve people who have an interest in development matters in their area. An SCI review must be completed every five years from the date of adoption(3).
“An SCI review must be completed every five years from the date of adoption”
A duty to consult arises where: there has been an established practice of consultation; where a failure to consult will lead to conspicuous unfairness amounting to an abuse of power(4); or – crucially for SCIs – where there has been a promise to consult.
Local planning authorities that adopt ambitious SCIs may find themselves in difficulty when they fail to honour their requirements.
Legitimate expectation comes into existence when there is a promise or a practice to do more than what is required by statute. In R. (on the application of Majed) v Camden LBC [2009] EWCA Civ 1029, the Court of Appeal considered a case where the council’s SCI, which set out the minimum standards for planning application notifications by letter, site notice and advertisement, had not been adhered to in several respects. The standards went beyond statutory requirements.
In brief
- Community engagement is integral to good planning decisions
- Local authorities’ duty to consult is enshrined in statements of community involvement (SCIs)
- SCIs create “legitimate expectations” which may discourage councils from being ambitious with their consultation strategy
- Thought not required to, authorities should consider involving communities themselves in shaping their SCI, to help them understand what communities actually want
The Court of Appeal held that the SCI was a “paradigm example” of legitimate expectation. The right to attend and be heard at planning committee, when enshrined in an SCI, is a matter of substance, not form.
In R. (on the application of Kelly) v Hounslow LBC [2010] EWHC 1256 (Admin) the local planning authority’s SCI stated that objectors would be invited to attend and make representations at any relevant committee meeting. In Kelly, the letter informing the claimant of the details of the meeting was sent too late and was only received on the night of the meeting. The court held that the letter and SCI created a legitimate expectation of notification; notification had to be in time to enable a person to effectively exercise the right to address the committee.
Promising a high standard of involvement in an SCI can create fertile ground for legal challenge if such promises go unfulfilled. An obvious problem is the creation of a perverse incentive to adopt a ‘do minimum’ position in the SCI. There is no legal requirement for local planning authorities to consult when reviewing and updating their SCI. Creating such a requirement and asking a community how they wish to be involved rather than telling them what to expect, is worth serious consideration to ensure public support for a plan-led system.
This article originally appeared on The Planner magazine
Constanze Bell is a barrister with Kings Chambers specialising in licensing, public law, planning and environmental law.
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