Proceed at your own peril

Maze iStock 000010116024XSmall 146x219A recent High Court ruling emphasises how officers and members should think very carefully before they look to employ procedural shortcuts when holding consultations on planning issues, writes John Pugh-Smith.

Community engagement, through consultation and publicity, in the planning process is hardly a new concept. Now, the Localism Act, which received Royal Assent on 15 November 2011, provides an express statutory provision which will formalise the requirement for pre-application consultation for certain types of development (to be specified by Order) and for the responses of that consultation process to be taken into account.

As DCLG’s “Plain English Guide to the Localism Act – Update” advises, this requirement is: “To further strengthen the role of local communities in planning, the Act introduces a new requirement for developers to consult local communities before submitting planning applications for certain developments. This gives local people a chance to comment when there is still genuine scope to make changes to proposals”.

Legal Considerations

The basic principles in relation to the requirement to consult are straightforward and, essentially, common sense. Of course, the principles applicable in a particular case may be set down in a statute. But over recent years a body of case-law has developed which amplifies the requirements set down in statute (where amplification is needed and appropriate), and sets common law guidelines where there are no such requirements. In essence, a public body undertaking consultation must do so fairly, letting those who have a potential interest in the subject matter know in clear terms what the proposal is and exactly why it is under positive consideration, telling them enough (which may be a good deal) to enable them to make an intelligent response.

What happens when it goes wrong – a salutary tale

The recent decision of the High Court in R (Kelly) v Hounslow London Borough Council [2010] EWHC 1256 (Admin) is an instructive tale. There, the claimants, Mr & Mrs Kelly applied for judicial review to quash the defendant local authority’s grant of planning permission for an extension to a neighbouring property. The Kellys had objected to the proposal.

The local authority’s statement of community involvement stated that objectors would be invited to the committee meeting at which the relevant planning application was to be determined and would have the opportunity to make representations at the meeting. The local authority had informed the Kellys that they would be invited to the planning committee meeting, but the letter notifying them of the meeting was sent by second class post four business days before the meeting and was not received until the night of the meeting.

The Kellys’ case was that there had been a breach of their legitimate expectation to be notified of the meeting in time to address it. The local authority contended that: (a) the notification letter and statement of community involvement gave rise to a legitimate expectation to be notified of the meeting but made no promise as to when the Kellys would be notified; (b) it could not be held responsible for delays arising from post office operations; (c) even if there had been a breach of a legitimate expectation, the Kellys still had to establish prejudice and persuade the court to exercise its discretion in their favour.

Upholding the claim for judicial review, the judge held that:

  • Notice at a time when there was no realistic chance to organise oneself and make arrangements to attend the meeting was no better than no notice at all. The notification letter and statement of community involvement had to be treated as creating a legitimate expectation of notification in time to enable the Kellys to effectively exercise the right to address the committee.
  • Receipt of the letter on the day of the meeting clearly did not afford the Kellys that opportunity since, sensibly, the Kellys would need to digest the committee report which had been promulgated to martial the arguments pertinent to their objections, prepare their presentation and arrange to attend the meeting.
  • It was unnecessary to consider the consequences of a delay on the part of the post office. The local authority was required to post the letter at a time and in a manner which meant that it would arrive in time to enable the objector to organise himself and make use of the opportunity to speak. The letter’s arrival on the day of the meeting was consistent with the general promised performance of the post office and could have been anticipated.
  • Oral presentation of the objector’s case afforded the opportunity of persuading the committee members to depart from the officer’s recommendation. The statement of community involvement contemplated that an objector’s oral presentation of his case was a significant feature of the local authority’s consultation procedures.
  • It had to be concluded that the Kellys had been prejudiced by the breach of their legitimate expectation in the instant case, and it was inappropriate to exercise discretion against them.

Conclusions

Whilst it must be for the authorities to determine whether and to what extent it needs to address, expressly, and publish specific consultation procedures, its officers and members need to be aware that they proceed at their peril if procedural shortcuts are taken; for there is a growing library of High Court cases which demonstrate the willingness of the judiciary to intervene in such circumstances.

A further example is R(Vieira) v London Borough of Camden [2012] EWHC 287 (Admin) where the High Court found that a failure to inform objectors of an amendment to the planning application and to brief councillors before determining the application was a breach of a legitimate expectation.

Given, too, the principles of the Aarhus Convention, the increasing concerns of the English courts concerning access to environmental justice at reasonable cost, and, the prospective formulation of a European Commission Directive, the ability as well as the readiness of the aggrieved amenity society or residents’ association to bring judicial review proceedings in this type of situation could be that much greater; so forewarned is forearmed for 2012!

John Pugh-Smith is a barrister at 39 Essex Street. 

Richard Harwood of 39 Essex Street appeared in Kelly and Vieira.