Are you listening? Digital Consultation in Plan-Making: A Warning for Local Authorities

Are you listening? Digital Consultation in Plan-Making: A Warning for Local Authorities

It may be called the 'world wide' web but can local authorities treat online channels as a 'one-stop shop' when seeking to discharge legal duties to alert and consult the general public on plan-making issues?

And to what extent will the court exercise its discretion as to remedies where a breach of such duties is found?

Jamie McKie examines  the answers - and warnings - found in the judgment of Lindblom J in Kendall v Rochford DC 2014.

What prompted Mrs Kendall’s claim?

Mrs Kendall, a local resident, challenged the adequacy of the consultation process followed by Rochford District Council in the adoption of its Allocations Plan ("the AP"). The AP is a key local development framework document which allocates specific sites and details policies for a range of uses in Rochford, such as residential and employment.

During its preparation of the AP, the council chose to limit direct consultation primarily to 'key stakeholders' rather than individuals. When it did consult the general public, it relied almost exclusively on its own website for issuing alerts and collecting comments.

Mrs Kendall argued that this was inadequate and denied residents the opportunity to feed into the plan-making process in the required way. As such, she submitted that certain policies in the AP should be remitted back to the council or quashed.

Questions for the Court

It fell to the court to consider a critical issue - whether the council was entitled to rely on its website in the way it did to discharge its duty under European legislation, namely:

  • Article 6 of Strategic Environmental Assessment Directive; and
  • Regulation 13 of the Strategic Environmental Assessment Regulations.

Had it failed to notify individual members of the public 'early and effectively' as required by law?

Was the council's consultation with the 'affected public' such that they were denied the opportunity to express opinions on the draft AP together with the accompanying environmental report before the plan was adopted?

The Court's view

The judge was clear that the council's methods fell short of 'effective' consultation, observing that it must be recognised that not everyone has access to the internet. Further, the limited direct consultation with individuals meant that most would only have known about the document it they had found it on the website in time to submit comments.

This approach was, the court found, in breach of European law requirements.

Judicial discretion is paramount

What is particularly interesting about the court's judgment in this case is the way in which, despite finding a breach of European legislation, it exercised its discretion as to remedies and decided against granting relief in this case.

In doing so, it considered the harm to the public interest an important factor. Weight was also given to factors such as cost, delay and the uncertainty which would have arisen had the AP been remitted or quashed.

Had the claimant succeeded, the position would have resulted in considerable uncertainty for development planning in Rochford - a point not lost on the judge. The "draconian" remedies of remitting or quashing the AP proved too strong for the court, notwithstanding the finding that European requirements were breached. Thus it appears that the bar to successfully challenging development plan documents such as the AP is set high.

Take-homes from decision

The court grappled with some important issues surrounding public consultation in plan-making It cast a judicial eye over the increased use of digital media by councils and effective public engagement in the development of planning policy. In highlighting the inherent tension between the effects of dwindling council resources and compliance with statutory consultation duties, just how far should councils go to alert and engage with their communities when preparing planning policy documents? The answer to that question does, inevitably, depend upon the circumstances.

However, Lindblom J fired a clear warning shot in the direction of those that are over-reliant on electronic means as a method of consulting with their communities when he said:

Even in this era of electronic communication, my judgment here should not be seen as encouraging local planning authorities, when consulting the public under the SEA regulations, to rely on their websites in the way the council did.

Jamie is a practising planning lawyer and an author of LexisNexis’ Butterworths Planning Law Service. His detailed profile can be found on our Contributors page.

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