When a local planning authority prepares a development plan document under the plan-making provisions of the Planning and Compulsory Purchase Act 2004 (“the 2004 Act”) the public consultation must be undertaken lawfully.
The council will have adopted its statement of community involvement under the Town and Country Planning (Local Development) (England) Regulations 2004 (“the 2004 Regulations), as part of its local development framework.
Development plan documents are independently examined by Planning Inspectors and Section 20(5) of the 2004 Act says this is to determine:
1. whether the plan complies with sections 19 and 24(1) of the 2004 Act, regulations made under section 17(7) and any relevant regulations under section 36.
Section 19(3) provides that “[in] preparing the local development documents (other than their Statement of Community Involvement) the authority must also comply with their Statement of Community Involvement”;
2. whether it is sound; and
3. whether the local planning authority has complied with its duty to co-operate under section 33A.
The Town and Country Planning (Local Planning) (England) Regulations 2012 (“the 2012 regulations”) were made under statutory powers, including under sections 17(7) and 36 of the 2004 Act. Regulation 18 relates to the preparation of a local plan.
Paragraph (1) of regulation 18 requires a local planning authority to notify each of the bodies or persons, specified in paragraph (2), of the subject of a local plan it proposes to prepare, and to invite each of them to make representations about what a local plan on that subject should contain.
Paragraph (2) provides that the bodies or persons referred to in paragraph (1) are:
“(a) such of the specific consultation bodies as the local planning authority consider may have an interest in the subject of the proposed local plan;
(b) such of the general consultation bodies as the local planning authority consider appropriate; and
(c) such residents or other persons carrying on business in the local planning authority’s area from which the local planning authority consider it appropriate to invite representations.”
Paragraph (3) of regulation 18 requires the local planning authority, in preparing the local plan, to take into account any representation made to it in response to its invitations to make representations under paragraph (1).
Under article 5(1) of Directive 2001/42/EC “on the assessment of the effects of certain plans and programmes on the environment” (“the SEA directive”), when an environmental assessment is required under article 3(1), an environmental report must be prepared, “in which the likely significant effects on the environment of implementing the plan or programme, and reasonable alternatives taking into account the objectives and the geographical scope of the plan or programme, are identified, described and evaluated”.
Article 6, “Consultations”, says in paragraph 1 that a draft plan or programme and the environmental report prepared under article 5 “shall be made available to the authorities referred to in paragraph 3 … and the public”.
Paragraph 2 says:
“The authorities referred to in paragraph 3 and the public referred to in paragraph 4 shall be given an early and effective opportunity within appropriate time frames to express their opinion on the draft plan or programme and the accompanying environmental report before the adoption of the plan or programme or its submission to the legislative procedure.”
Paragraph 3 makes member states designate the authorities to be consulted “which, by reason of their specific environmental responsibilities, are likely to be concerned by the environmental effects of implementing plans and programmes”.
Paragraph 4 says:
“Member States shall identify the public for the purposes of paragraph 2, including the public affected or likely to be affected by, or having an interest in, the decision-making subject to this Directive, including relevant non-governmental organisations, such as those promoting environmental protection and other organisations concerned.”
Paragraph 5 says that the detailed arrangements for the information and consultation of the authorities and the public are to be decided by the member states. Article 8 requires that the environmental report prepared under article 5 and the opinions expressed under article 6 be borne in mind during the preparation of the plan or programme and in advance of its adoption or submission to the legal process.
Those provisions of the SEA directive are carried into domestic legislation by the Environmental Assessment of Plans and Programmes Regulations 2004 (“the SEA regulations”).
Paragraph (1) of regulation 13, “Consultation procedures”, requires that every draft plan or programme for which an environmental report has been prepared, under regulation 12, and its accompanying environmental report (“the relevant documents”) are to be made available for consultation in accordance with the provisions that follow.
Paragraph (2) says:
“As soon as reasonably practicable after the preparation of the relevant documents, the responsible authority shall:–
(a) send a copy of those documents to each consultation body [as defined in regulation 4];
(b) take such steps as it considers appropriate to bring the preparation of the relevant documents to the attention of the persons who, in the authority’s opinion, are affected or likely to be affected by, or have an interest in the decisions involved in the assessment and adoption of the plan or programme concerned, required under [the SEA Directive] (“the public consultees”);
(c) inform the public consultees of the address (which may include a website) at which a copy of the relevant documents may be viewed, or from which a copy may be obtained; and
(d) invite the consultation bodies and the public consultees to express their opinion on the relevant documents, specifying the address to which, and the period within which, opinions must be sent.”
Paragraph (3) says that the period mentioned in paragraph (2)(d) “must be of such length as will ensure that the consultation bodies and the public consultees are given an effective opportunity to express their opinion on the relevant documents.”
In the Planning Court case of Kendall v Rochford District Council & Anor  the claimant objected to the Rochford District Allocations Plan during its preparation, and, took part in the examination held by the inspector. She challenged the council’s adoption of the Allocations Plan under section 113 of the 2004 Act. This raised two main issues for the court:
1. Whether the inspector was irrational to conclude that the council had complied with its statement of community involvement (“Ground 1”); and
2. whether, the council’s preparation of its Allocations Plan failed to comply with article 6 of the SEA directive and with regulation 13 of the SEA regulations (“Ground 2”).
In 2009 the claimant wrote to the council raising the possibility of her land being developed for housing. The council responded that she should not expect a proposal for housing development to be approved. However, the core strategy process it was considering might allocate land to the south of London Road for employment development and she was told she had been added to its “consultation database”.
As to Ground 1, the submission draft core strategy for the Allocations Plan was submitted to the Secretary of State for examination in January 2010. Examination hearings were held in May and September 2010, and in February 2011. The council later consulted on proposed changes to the submission draft and said it wrote to the claimant about it.
The council’s consultation letter was sent out by e-mail. It recommended visiting the council’s website “to view the documents, access background information and, if required, obtain help on using the online consultation system” and said that comments on the soundness and legal compliance of plans and documents should be submitted by a deadline ideally by using the council’s “online system”. Though the documents could also be viewed at local libraries, and the council’s offices and a telephone alternative was offered.
In accordance with regulation 22(c) of the 2012 regulations the council produced a consultation statement to accompany the draft Allocations Plan.
The claimant took part in the examination hearing when issues relating to the proposed allocations in her locality were discussed. The inspector concluded that the Allocations Plan met all relevant legal requirements including the 2004 Act and the 2012 regulations. The council adopted the Allocations Plan in February 2014.
The examination inspector had found that “the broad expectations” of the statement of community involvement and the 2012 regulations had been complied with. The claimant said this was perverse.
However the court said it was not for the court to decide whether the inspector’s finding was right but whether his conclusion was within the range of reasonable judgment.
So any claim based on irrationality faced a daunting and difficult task. It had to show it was impossible for the inspector to have concluded rationally that the council had applied the approach to community involvement in plan-making described in a document, which it had itself prepared and adopted under the relevant statutory procedure.
Section 19(3) merely imposed on a local planning authority a duty to act in accordance with its own statement of community involvement and nothing more. It does not require the authority to satisfy either itself or the inspector conducting the examination of its draft plan that:
1. all the residents of its area, or
2. all the residents of a particular part of its area, or
3. a minimum number or proportion of those residents
were in fact aware of the draft plan at any particular stage in its preparation.
Nor did it require, or authorise, the inspector examining the draft Allocations Plan to apply objectives or obligations exceeding those in the statement of community involvement. Under section 20(5)(a) the issue being: had the authority complied with the statement of community involvement as it is, and not as it might have been?
The essential purpose of the council’s statement of community involvement, was providing a workable strategy for consultation, in plan-making and in development control. As such it is framed in deliberately broad terms.
It recognises the need for flexibility and does not impose a uniform approach for every plan-making process.
It allows the council to decide how it should go about preparing a development plan document or dealing with an application for planning permission.
In plan-making it accommodates an exercise involving a hierarchy of development plan documents and preparing successive drafts of each.
The council can consult differently on different plans.
The requirements of Regulation 18 of the 2012 regulations were specific to an authority’s deployment of its statement of community involvement.
It gave the authority latitude to exercise its own judgment in deciding whom it is going to consult on a draft plan, and how.
Paragraph (2)(c) meant the authority can decide which residents and businesses should be invited to make representations on a draft plan.
The authority is only required to seek representations from whoever it considers “appropriate” to ask. That was for the authority to judge in the particular circumstances of the relevant process taking into account how far it had got.
The claimant’s case was not that:
1. the council failed to provide those whom it did consult with adequate information about its proposals in the draft Allocations Plan, or
2. it allowed too little time for them to respond, or
3. what they had to say about the draft plan was not taken into account in the plan-making process.
It was as to the effectiveness of the council’s consultation in bringing the content of the draft plan to the claimant’s and others’ attention.
The claimant was directly consulted on the Allocations Plan. She lodged her objection to it, and pursued that objection at the examination. Many other residents of the district supported her. The council had publicised and consulted upon the draft Allocations Plan consistently with the objectives of the statement of community involvement and exercised its discretion properly in each of the three respects referred to in regulation 18(2). The inspector’s conclusions to that effect were not only reasonable; they were also, right.
The council had appropriately and at the right times published notices in the local press, consulted local community groups and voluntary organisations, and used its website.
As to Ground 2, the essential aim of the SEA directive, expressed in article 1, “Objectives” – is “to provide a high level of protection of the environment and to contribute to the integration of environmental considerations into the preparation and adoption of plans and programmes with a view to promoting sustainable development, by ensuring that … an environmental assessment is carried out …”.
The council’s Allocations SA/SEA Adoption Statement, in this case, had explained how sustainability considerations had been “integrated into” the plan. It described how the options considered and the consultation responses on the plan and the sustainability appraisal had been taken into account, and gave the council’s “reasons for choosing the [plan] in light of other reasonable alternatives”.
It was not suggested that:
1. there was no environmental assessment within the definition in article 2(b) of the SEA directive;
2. there was any deficiency in the content of the environmental report prepared for the draft Allocations Plan, or in the form of the sustainability appraisal;
3. any of “the likely significant effects on the environment” was missed or inadequately described and evaluated, or that the selection and treatment of “reasonable alternatives” were insufficient or unclear.
The court said again the claim concerned only the procedural integrity of the plan-making process i.e. whether in its formal consultation on the draft Allocations Plan and the sustainability appraisal the council failed to comply with regulation 13 of the SEA regulations, and whether that entailed a breach of Article 6 of the SEA directive.
The claimant did not suggest the council omitted to send copies of the draft Allocations Plan and the sustainability appraisal to the “consultation bodies” or that it failed to invite any of them to express its opinion on those documents.
The contentious issue concerned only the effectiveness of the council’s consultation of the “public consultees,” the general public. Whether there was a breach of regulation 13(2) and (3) because the “affected public” were not given the required opportunity to express their opinions on the draft Allocations Plan and “the accompanying environmental report” before the plan was adopted. The claimant was saying either:
1. the council took a perversely narrow view of who the “public consultees” were, leaving out people who were obviously going to be affected by the decisions involved in the assessment and adoption of the Allocations Plan, or
2. it recognised that those people were going to be affected by those decisions but nevertheless failed to consult them as it should have done.
The court said the planning authority is permitted – indeed, required – to decide who should be consulted, and how. The authority decides which “persons” are affected or likely to be affected by, or to have an interest in, the decisions involved in the assessment and adoption of its plan. An authority’s duty in regulation 13(2)(b) relates to the “public consultees”, not to the general public or every individual member of the public resident in the authority’s area. It decides what steps it should take to bring the plan and environmental report to the attention of the “public consultees”. No particular steps are indicated or ruled out. Paragraph 2(c) allows it to decide where the plan and its environmental report may be seen, and specifically permits the use of a website. Paragraph (2)(d) allows the authority to specify the address to, and period within, which the “public consultees” must respond.
However if an authority resorts to the internet alone when consulting the public under its duty in Article 6 of the SEA directive, those who were not consulted directly, i.e. the overwhelming majority, were left to find the consultation for themselves on the internet, either once they had been prompted by someone else to do so or acting on their own initiative. Unless you knew that the sustainability appraisal for the draft allocations plan was being prepared and unless you were resourceful or inquisitive enough to be regularly checking the council’s website to find out if formal consultation on those two documents had begun, you would not have known of their existence or that consultation on them had started. You would not have known where to go to look at the documents or to get hold of copies, or that the chance to formally comment on them had arrived, or the timescale for doing so. That was not good enough.
It was explicit in article 6(2) and implicit in regulation 13(2)(d) and (3), that the public had to be given an “early” and “effective” opportunity to express:
1. their opinions on the documents, including,
2. their opinions on the assessment of alternative allocations in the sustainability appraisal.
For individual members of the public, not being “consultation bodies” or “public consultees” whom the council consulted with proactively, it would have been early enough if they were aware of it. So the crucial question was whether it was an “effective opportunity”, for them, in that particular respect. It was not. It relied on them discovering it for themselves on the council website or in some other way, and there still being time to submit comments before the deadline.
The council could not properly consult the general public under the SEA regulations in that way. Its failure effectively to notify the public that it was using its website to consult them, under the SEA regulations, on the draft Allocations Plan and the sustainability appraisal and its failure to use an extra means of consultation, which would have extended the consultation to people who, for whatever reason, were unable to use the internet, amounted, in this case, to a breach of Article 6 and regulation 13.
Where the council went wrong was not in what it did, but in what it failed to do. In addition to using the website as it did, it ought to have announced and carried out its consultation on the draft plan and the sustainability appraisal by some other means, not excluding those without internet access. It was the council’s omission to do those two things that put it in breach of regulation 13 and Article 6.
However, the remedies available under section 113 of the 2004 Act are discretionary and it would not be a reasonable and proportionate exercise of the court’s discretion to make a draconian order quashing an adopted Allocations Plan here.
The plan-making process as a whole gave the public a sufficient opportunity to reflect upon and respond to the policies and allocations proposed in the draft plan in the context of the sustainability appraisal. During the plan-making process, they could consider the options assessed in the sustainability appraisal, to:
1. prepare their objections to the draft plan in the light of those options, and
2. urge the council to reconsider its preference for the sites it had chosen to allocate in the plan, or
3. consider any other alternatives, and
4. argue the case for any of those alternatives or any other options they sought to promote
both when the draft plan was discussed at an examination held by an independent inspector and when modifications to it were produced and consulted upon. So that any harm done by any breach of the SEA directive was fully repaired within the plan-making process itself and well before the plan’s eventual adoption.
The breach, such as it was, did not:
1. result in the claimant or anyone else being substantially denied any European legal right; and
2. frustrate the essential aim of the SEA directive.
There was no substantial prejudice to the sole claimant in the proceedings – or to any other individual member of public. She took part in the plan-making process and there was no evidence she was significantly prejudiced by the defects in the council’s formal consultation under SEA regulation 13 in preparing and pursuing her objections to the draft Allocations Plan. She objected to some proposals in the draft plan and tabled alternatives to them, which the inspector considered.
The outcome of the plan-making process would have been no different if the breach had not occurred.
The harm to the public interest in quashing part of the Allocations Plan would be the delay and expense entailed in repeating part of the plan-making process, and the repercussions for development control while that was going on. The balance of prejudice in this case was firmly tipped against a quashing order being granted.
So the claimant’s application was dismissed.
This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.