Planning law and policy
The importance of consultation in planning decisions
Consultation is central to the planning system. It is undertaken at all stages, from formation of legislation and policy by central government to the application process itself.
About the author
Nikki Fonseka FCILEx is Head of Planning at Clapham & Collinge, Norwich.
Local planning authorities are required to carry out consultation as part of the planning application process, in accordance with the requirements of the Town and Country Planning (Development Management Procedure) (England) Order 2015 SI No 595 (as amended) or the Planning (Listed Buildings and Conservation Areas) Regulations 1990 SI No1519 (in relation to listed building applications) and as a result of central government policy. The requirements provide for public consultation, engagement with neighbouring residents and community groups affected by planning applications and statutory consultation with certain public bodies and agencies, such as other local authorities, the Highways Authority, Natural England, Historic England and the Environment Agency to name but a few. National planning policy and guidance requires some ‘non-statutory ’ consultation to take place with other organisations, such as the emergency services and the Ministry of Defence, and provision also exists for additional consultation by direction of the secretary of state.
This engagement ensures that all those affected by planning decisions have an opportunity to make representations, and for those representations to be taken into account, where relevant, before a decision is made. Failure to comply with the procedural requirements is a ground for judicial review of the decision by a person with sufficient interest in the subject matter of the proceedings.
The importance of consultation and ‘fairness’ have been highlighted in two recent cases in the High Court:
- R (Wet Finishing Works Ltd) v Taunton Deane BC and Strongvox Homes (interested party) [2017] EWHC 1837 (Admin), 20 July 2017; and
- R (Holborn Studios Ltd) v Hackney LBC and GHL (Eagle Wharf Road) Ltd (interested party); R (Brenner) v Hackney LBC and GHL (Eagle Wharf Road) Ltd (interested party) [2017] EWHC 2823 (Admin), 10 November 2017.
This case is the earlier of the two and was brought by the owner of a derelict Mill, which was intended to benefit from a heritage asset contribution for its restoration. It highlights that it is not just the main application process which is subject to challenge for failure to properly engage with those affected. It also raised the issue of fairness in terms of the consultation requirements.
The challenge was in relation to the decision to amend a planning permission, and a related planning obligation under Town and Country Planning Act (TCPA)1990 s106 resulting in removal of a heritage asset contribution. When the application to vary was made, the council consulted the claimant in the usual way but failed to consult in relation to the proposed terms of the revised planning obligation. The claimant succeeded under the ground of procedural unfairness due to the council's failure to consult the claimant in respect of the amendments to the section 106 agreement, and the permission was quashed.
This conjoined application is the more recent case, and involved a proposed redevelopment of industrial buildings in the Eagle Wharf area of Regent’s Canal in Hackney, east London. The application was submitted in 2015, and the usual consultation took place. The application was later amended to include changes to the design, an increase in the commercial floorspace, a reduction in the number of dwellings and removal of the affordable housing. No further consultation was carried out. The council took the view that the changes did not create any adverse impacts and would result in a positive change. The claimants applied to quash the decision.
The court considered that whilst a local planning authority had discretion to accept amendments to an application, the decision regarding consultation was linked to what fairness required. It was not whether the changes were positive in nature, but ‘whether, without re-consultation, any of those who were entitled to be consulted on the application would be deprived of the opportunity to make any representations that they may have wanted to make on the application as amended’ (para 91). The judge did not accept the approach that re-consultation was only necessary if the changes resulted in a ‘substantial difference’ or ‘fundamental change’ (para 73). A test of public law fairness now appears to be applicable to the decision to re-consult.
The case highlights that even where there is no specific statutory provision for consultation (as was the case in relation to the amended planning obligation) the council must act fairly and consult all those affected by an amendment to comply with its duty of procedural fairness.
While there are examples of decisions which do not require consultation, such as non-material amendments to planning permissions under TCPA s96A, these are minimal. Non-material amendments have limited scope as any amendment which has an impact in planning terms would mean that the local planning authority may refuse to entertain the application, perhaps now even more so bearing in mind the above decisions.
Councils and developers alike should take consultation requirements seriously. A cautious approach ensuring proper consultation with those potentially affected can safeguard all involved from challenge, and the significant costs and delay in dealing with such a challenge and rectifying the position.