Turley – Caselaw on Lack of Options on Consultations

James Anderson of Turleys rightly highlights the case of Moseley v the London Borough of Haringey (October 2014) – a council tax consultation case with much wider bearing.  Of course with development plans there is always the extra issue of SEA requiring consultation on realistic options.The main area I think this is not being don is in old style ‘county carve ups’ of housing numbers from joint SHMAs.  As ever you cant get away with a plan with consultation with options.

The judgment referred to a small body of case law on public consultations. The key case quoted at length, R v Brent Borough Council, ex p Gunning (1985), established the basic principles of a consultation in that it: (1) must be at a time when the proposals are still at a formative stage; (2) that  sufficient information must be given; (3) that adequate time must be given for consideration and response; and (4) the product of consultation must be conscientiously taken into account in finalising any proposals.

Other cases also provided more guidance. Nichol v Gateshead Metropolitan Borough Council (1988) made clear that making consultees aware of previously discounted options was important in consultation exercises. The case ruled that it did not matter that a decision-maker had a preferred option, provided it was clear what the other options are.

It was this lack of an alternative option or options that was the important factor in the Haringey case. The Borough did not present alternatives as to how to address the shortfall in funding: the Borough had concluded that the other options were unacceptable before undertaking the consultation. This was considered unfair by the judges presiding over the case and, as a result, the consultation was judged unlawful.

It is interesting to note that other authorities that proposed a reduction in CTB, such as Birmingham City Council, were deemed to have conducted a fair consultation as they advised consultees of the implications of paying for the shortfall in other ways, and asked for their view on these options.

Are there any implications for consultations as part of planning applications?

Clearly the case involved a public consultation delivered by a public authority. The vast majority of planning applicants are not public authorities, and therefore use the results of consultations to guide their proposals in different ways.

As a result it is unclear of the extent to which the case will have implications for planning proposals.

Irrespective, the case has reiterated the importance of presenting proposals for consultation in a way which makes clear how they have evolved, and provides space for commenting on alternative options as part of the consultation. Useful lessons to bear in mind for all public consultations but especially for Nationally Significant Infrastructure Projects where the requirements to consult are more rigorous.

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