An increasingly litigious scene for consultation

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So far this century, we have experienced a huge increase in the number of consultations ending up in the courts. The Consultation Institute, specifically its two-day The Law of Consultation training course, provides a very comprehensive overview. Several of the examples featured involve planning and development.

Due to the absence of a requirement to consultation in some planning scenarios, consultation in planning is not governed by strict rules and regulations as the consultations carried out by public bodies.  However, the legal aspect is important because simply using the term ‘consultation’ creates expectations which can be challenged in the courts.

There are several ‘layers’ of law which affect public consultation.

Most case law on regulatory consultation is viewed in the light of the Gunning Principles which set out the legal expectations of what is appropriate consultation, and, importantly, provide an extremely helpful means of ensuring that a consultation is sound.

The Gunning Principles

Gunning 1: when proposals are still at a formative stage

Consultations have been found to be at fault on this basis if a decision has already been made; if the critical question is avoided; if consultees are not consulted on all options; if a single ‘over-engineered’ option is the only option; if the options are portrayed inaccurately.

Gunning 2: sufficient information to give ‘intelligent consideration’

Case law includes promises for an extensive consultation being broken; a lack of transparency in options development; failure of the consulting body to give adequate reasons for decisions made; unclear information; failure to ask the right questions; failure to provide adequate information; proposals not adequately communicated.

Gunning 3: adequate time for consideration and response

Failure at this hurdle has been the result of the consultation process not being visible or effectively publicised, inadequate time being allowed for responses, and inappropriate phasing.

Gunning 4: must be conscientiously taken into account

Consultations have been taken to court because of inappropriate weighting of consultation responses, the withdrawal of options before they have been consciously considered, failure to summarise responses adequately, unfair reporting of consultation outcome, failure to consult ‘out of area’ consultees and failure to re-consult if situations / options change.

The ‘three pillars’ (Articles 4-9) of the Aarhus Convention

The Aaarhus Convention stipulates three public rights which have become an important benchmark in consultation, specifically in relation to dialogue between the public and public authorities:

  1. Access to information
  2. Public participation in decision-making
  3. Access to justice

The Doctrine of Legitimate Expectation

The Doctrine of Legitimate Expectation originated in United Kingdom and has since become incorporated in the other common law jurisdictions in relation to the practice of public bodies.

A procedural legitimate expectation exists when an organisation commits to following a certain procedure – such as consulting – prior to making a decision. If the expectation to consult is created but not delivered upon, the organisation may lose a Judicial Review on the basis of failing to comply with the Doctrine of Legitimate Expectation.

Extract from Chapter 2 Planning: effective communication through consultation by Penny Norton in Communicating Construction: insight, experience and best practice, to be published by Routledge in early 2021.

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