Nick Jones and Simon Ricketts ask: has pre-application consultation become a material consideration in England through the new National Planning Policy Framework?
The updated National Planning Policy Framework includes, in paragraph 128, the sentence: “Applications that can demonstrate early, proactive and effective engagement with the community should be looked on more favourably than those that cannot.”
What does this mean for the role and status of pre-application engagement?
Background
As long ago as 2001, the then Labour government proposed that “as far as possible, consultation should take place and issues should be resolved before an application is submitted”.
Since then, in Scotland, Wales and Northern Ireland, pre-application engagement has become a statutory requirement, in contrast to England where this is only the case in relation to nationally significant infrastructure projects and some windfarms.
Section 122 of the Localism Act 2011 did introduce a wider requirement for pre-application consultation for specified categories of planning applications.
This requires that prospective applicants consult with the majority of those in the vicinity of a proposed development, allowing them to comment on, or collaborate with, the prospective applicant on “the design of the proposed development”.
However, this provision has been largely ignored. The only specified category of development to date (one that was no doubt politically driven) has been wind farms of more than two turbines or with a hub height exceeding 15m. Aside from that, the requirement within section 122 has not been switched on.
One can assume that the position was expected to be different, with more categories of development specified, when the NPPF was published in 2012.
Paragraph 189 urged that local planning authorities should (“where they think this would be beneficial”) encourage any applicants “who are not already required by law” to engage with the local community before submitting their applications.
As it stands, in England most applicants are not “required by law” to undertake pre-application engagement and local planning authorities’ statements of community involvement can still only encourage it.
This approach needs to be considered with reference to our international obligations under the Aarhus Convention to ensure that there is adequate public participation in decision making in relation to environmental matters.
So, does paragraph 128 of the new NPPF herald a new approach?
What does it mean in legal terms?
While paragraph 128 is within the “Achieving Well-Designed Places” section of the revised NPPF we do not consider that its implications are restricted to issues of design.
Although the NPPF only comprises non-statutory guidance for local planning authorities, the framework is an important material consideration in their decision-making. In our view, the passage plainly envisages “tilting the balance” in favour of applications where there has been “early, proactive and effective engagement with the community”.
Applicants should expect decision-makers to give weight to engagement, although the precise weight to be given will be a matter of judgment for the decision-maker. Decision-makers will need to articulate their reasoning to protect against any risk of legal challenge.
What does it mean in practice?
Developers that already engage effectively at an early stage have nothing to worry about. Indeed, they should now be focusing on making sure that the quality of engagement is given appropriate weight in decision-making.
But for those who may not have taken an open approach, the stakes are higher: the lack or quality of pre-application engagement can now be legitimately be taken into account by the decision-maker in determining the application.
What is the right approach
Paragraph 128 does not specify what level of engagement is required; who is to be approached; how and over what period. Nor is there, yet at least, any accompanying Planning Practice Guidance.
What does “early, proactive and effective mean?”
■ “Early” will surely mean different things to different participants in the process – to a developer it may be before scheme freeze, to a parish council it may be before any design work is started – so which is right? In our view, in line with case law as to the key ingredients of lawful consultation processes undertaken by public bodies, it would be prudent to start public consultation while the proposals are still at a formative stage, giving sufficient reasoning for the proposal so as to allow for intelligent consideration and response, and show how the results of the consultation have been conscientiously taken into account.
■ “Proactive” – by definition, if a developer is undertaking consultation on its proposals, surely this is complied with? Indeed, one might wonder if this is a meaningless word in the context.
■ “Effective” – this may be the trickiest element: if “effective” is simply about quantifiable processes (in terms of activities undertaken and the level of involvement secured) then it is equivalent to existing regimes and relatively easy to measure, once we know what the decision-maker’s expectations are. However, if it is about outcome (eg did they like it? Is there evidence of changed perceptions as a result of the process?) then the task becomes more challenging; more akin to a beauty parade or, dare one say it, a referendum.
At present, the risk is that the vagueness of the language in paragraph 128 may allow members of planning committees to decide (with whatever motive) that the consultation was not effective and then move to defer or refuse, or may cause objectors to scrutinise the way in which the authority has weighed the consultation process in the balance.
What happens next?
The NPPF has taken effect immediately for development management purposes so we have no transitional period to get this right.
We would suggest that local planning authorities review their statements of community involvement so as to provide more specific guidance as to their expectations: what do they mean by “early” and “effective”?
In the meantime, applicants should certainly review their approach to pre-application engagement and agree details with the LPA so as to protect against questions later in the process. As well as improving design outcomes, there are now significant potential benefits from going the extra mile.
Nick Jones is head of strategic communications at Turley and Simon Ricketts is a partner at Town Legal LLP
