Going public

The requirements for public consultation in relation to planning applications are set to change to keep in line with new forms of social media now available. For example, from April 2010 local authorities will be required to publish certain information on their website - a considerable shift in the administration of public participation in the planning system. Karen Cooksley and Colette McCormack explain what is involved.

What happens at present?

The publicity requirements for planning applications are contained in Article 8 of the GDPO 1995. The local authority is under a duty to publicise the application in the local area (and now on its website) and consult any relevant statutory consultees in accordance with its Statement of Community Involvement. It is at this stage that the public can make comments on the proposal. In theory, these publicity proposals are meant to be an important part of the planning process but they have become very much a ‘tick box’ exercise. The information is made available but without effective engagement. This is not a criticism of local authorities but the consequence of limited resources and budgets.

For the applicant, save in relation to the most substantial infrastructure projects, developers have largely engaged in what will soon be perceived as routine and rather unsophisticated methods of public consultation, for example, holding exhibitions in the local town hall or carrying out leaflet drops in the area. Councillors have always had a channel of communication with interest groups who object to a proposal.

Some developers and their advisers have embraced practices such as enquiry by design, which attempt to engage the community at the pre-application stage and incorporate local preferences and aspirations into the scheme. Others have seen how interaction with local people at an early stage can help to flush out issues and thus enable amendments at a point in the application process where it is easier and cheaper to make changes or to start managing the risks associated with anticipated objections.

What is happening now?

We are now seeing a real shift in legislation and policy as to what is expected in terms of consultation. This has already begun with the Planning Act 2008 which established the Infrastructure Planning Commission (IPC) for major infrastructure ranging from power generation to transport. The Act introduces a new legal duty for “effective consultation”. Significantly, the IPC can refuse to accept an application if effective consultation has not been carried out thus begging the question; what is effective consultation? Is it over and above the requirements already contained in PPS1?

At present, it is unclear what the requirements will mean in practice as published detailed guidance has not yet been tested and the IPC only took jurisdiction from 1 March 2010. However, we anticipate that the approach taken with major infrastructure projects will soon filter down to applications for most development. Indeed, the Conservative party’s policies (“Open Source Planning” Green Paper) are not dissimilar in terms of public participation in particular their emphasis on localism.

What does all this mean?

It may seem unusual for lawyers to discuss what has, until now, mostly been the concern of the public relations experts. However, in our view, this new legal requirement is a considerable extension to existing guidance in PPS1 and will place greater weight on the adequacy of the consultation process in decision making. There will be many traps for the unwary and those who are unwilling to adapt may well be exposed to legal risks such as judicial review. One only has to recall the difficulties following the introduction of the Environmental Impact Assessment Regulations in 1999 to appreciate how projects might be delayed due to lack of procedural compliance.

A more proactive approach will be needed to ensure compliance with the new requirements. Both developers and authoritieswill need to understand exactly when and where new forms of social media will be suitable. For example, will it be acceptable to use the internet as a tool for consultation purposes and on what type of project? Whilst it may be effective in urban areas where access to broadband is prevalent will this work in rural areas?

The following issues will need to be addressed:

• Consideration as to who the local community is and how best to reach it
• Implementation of sound methodologies able to withstand legal scrutiny appropriate to the project in question
• Ensuring compliance with other forms of regulation, for example, the Committee of Advertising Practice Code
• Demonstrating how representations have been taken into account

Public consultation is a legal requirement for major infrastructure and likely to become so for most other types of project. It is critical that those involved in the planning process are not complacent. We must engage with the implications of public consultation, in particular, in the light of new forms of social media.

Karen Cooksley and Colette McCormack are partners at Field Fisher Waterhouse (www.ffw.com).

They can be contacted at This email address is being protected from spambots. You need JavaScript enabled to view it. or (0)20 7861 4188, and This email address is being protected from spambots. You need JavaScript enabled to view it. or 0161 200 1791 respectively.