Public consultation The procedures for planning applications are changing, obliging developers and public authorities to consider what this will mean and what they need to do. By Karen Cooksley
The legal requirements for public consultation in respect of planning applications are changing. Developers and local authorities are beginning to see a significant shift in legislation and policy. They need to consider how best to comply with legal requirements, policy and best practice, including, for example, the use of new media tools.
The Planning Act 2008 created the Infrastructure Planning Commission (IPC), which began to receive applications for major infrastructure projects on 1 March. The coalition has confirmed its abolition and its functions will transfer to the major infrastructure planning unit (MPIU) within the Planning Inspectorate. Until then, the IPC remains in force. Under its regime, applicants are required to carry out public consultation before submitting applications: if they fail to do so, the application will be rejected. The coalition is not expected to alter this requirement.
In addition, on 6 April, article 8 of the General Development Procedure Order 1995 (GDPO) was amended. A new statutory duty requires local authorities to publish on their websites certain information relating to planning applications namely a description of the development and the date by which any representations should be made.
What happens now
The publicity requirements for planning applications that do not fall within the IPC regime are contained in article 8 of the GDPO. The local planning authority (LPA) is obliged to publicise the application in the local area by way of a site notice, notification to adjoining landowners and advertisements in local newspapers and to consult relevant statutory consultees. The requirements have been extended and now include an obligation to publish on the LPA’s website certain information that reflects wider moves towards using the internet as a means of conveying information from government to the public.
Under the Planning and Compulsory Purchase Act 2004, an LPA must also provide a statement of community involvement setting out its policy on community consultation on planning applications. As a minimum, this must meet the statutory requirements contained in article 8 and be tailored to the individual LPA’s circumstances.
Once the LPA has publicised an application, the public can comment on the proposal within a period of not less than 21 days. The publicity proposals are meant to form an important part of the planning process, but they have often become a tick-box exercise. The information is made available but, in most cases, there is no effective engagement on the part of the LPA. This often results from a lack of resources (which is likely to become even more widespread in the light of the impending public spending cuts) and can have serious effects for applicants.
The position in respect of statutory consultees is similar. It is not unusual to receive a “holding” response from these consultees within the statutory period and only later to receive their substantive comments, when the timescales to resolve objections become more critical. In recognition of this, the previous government consulted on new national policy guidance aimed at improving the way in which and speed at which statutory consultees respond to applications.
Applicants for new developments will also have to consider the policy set out in paras 40 to 44 of PPS 1, setting out the approach for community involvement. This makes it clear that local communities should be consulted on proposed development and an inclusive approach should be adopted to ensure that different groups have an opportunity to participate.
Effective community involvement requires an approach that:
? informs communities of emerging policies and proposals in good time;
? enables communities to put forward ideas and suggestions and to participate in developing proposals and options;
? consults on formal proposals;
? ensures that consultation takes place in locations that are easily accessible; and
? provides and seeks feedback.
Some developers and their advisers have embraced practices such as enquiry by design, which attempt to engage the community at an early stage and to incorporate local requirements 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 to be made when it is easier and cheaper to do so or to manage the risks associated with opposition to the scheme.
However, except for the most substantial infrastructure projects, applicants for new developments have usually engaged in standard methods of public consultation, by for example, holding exhibitions in the local town hall or carrying out leaflet drops in the area.
What will change
The requirements for public consultation have changed significantly in respect of major infrastructure that is to be considered by the IPC. The 2008 Act has imposed a new legal duty on applicants to carry out what is referred to as “adequate consultation”. The IPC can refuse to accept an application if it considers that this has not been done. A sound and robust methodology for public consultation must therefore be at the forefront of any major infrastructure development proposal.
The applicant must prepare a statement of community consultation, in conjunction with the LPA, and carry out consultation in accordance with the proposals set out in the statement before submitting an application: see section 47(7). The Planning Act 2008: Guidance on pre-application consultation, published by Communities and Local Government, provides further guidance. Promoters of new development are also required to have regard to the guidance under section 50(3) of the Act. This specifies a range of possible approaches that act as a toolkit, but does not require the applicant to adopt one in particular.
At present, it is unclear what the statutory requirements will mean in practice because the detailed guidance has not yet been tested and the IPC has only just taken jurisdiction.
However, it is likely that the following issues will need to be addressed.
? Who is “the local community”?
The Act requires an applicant to consult people living in “the vicinity of the land”. The guidance states that the aim is to “capture the views of those who work in or otherwise use the area, as well as those who live there (for example consulting small businesses, leisure users, and other groups as appropriate to the area in question)”. The first key decision for developers will be to establish what this means with regard to their particular development.
? How best to reach the community?
The guidance states that a range of methods should be used and that it should be remembered that not everyone in a community will have the same level of literacy, understanding of English or access to a computer.
The use of local exhibitions and leafleting will continue to play a part in the consultation process (a consideration of the relevant language may be necessary). However, developers will need to decide which forms of social media to use in carrying out their statutory duty. For example, Second Life may enable members of the public to explore how the development will affect their surroundings. Online forums, such as Twitter and Facebook, facilitate the provision of information and offer an opportunity for the public to comment.
To render the consultation “effective”, it will first be necessary to put in place procedures to moderate and collate the information received through social media. The developer will have to determine whether only those people within the identified “community” are able to contribute and whether comments will be anonymous. (If they are anonymous, how can one be sure that they are from a local person?) They will also need to decide whether they will consider only those opinions expressed through forums under their control or whether they will also take into account views expressed on social websites created by objectors.
All applications will have to demonstrate that they have been the subject of “high quality” public consultation.
While the Labour government pursued effective consultation, the Conservative’s policies, contained in the Open Source Planning Green Paper, are not dissimilar in terms of public participation, particularly the emphasis on localism. It is therefore anticipated that the approach taken to major infrastructure projects will soon percolate down to applications for development of all types.
What does this mean?
The new legal requirements for major infrastructure projects set out in the 2008 Act build on the existing guidance in PPS 1 and will give greater weight to the consultation process in decision making.
There will be many traps for the unwary and those unwilling to adapt, and legal risks, such as judicial reviews to the decision-making process or to the permission, could result. One only has to recall the problems encountered with the introduction of the Town and Country Planning (Environmental Impact Assessment)(
Public consultation is now a legal requirement for major infrastructure projects under the 2008 Act. However, it is anticipated that it will soon become a legal requirement for all types of development and it is crucial that those involved in the planning process are not complacent. Everyone will need to engage with the implications and effects of public consultation, particularly given new forms of social media.
In the light of these major changes, a booklet – New Techniques for Risk Management in Planning and Public Consultation – featuring contributions from planning consultants, architects and a district councillor can be found at www.ffw.com/practices/real-estate/planning-and-environmental-law.aspx.
Karen Cooksley is a partner at Field Fisher Waterhouse
