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10/11/2021

Legal landscape: When is a consultation not a consultation?

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The overturning of Scottish Ministers’ amendments to planning policy shows the importance of paying attention to the rules, says Lynsey Reid

In July 2021, the Court of Session quashed amendments made by Scottish Ministers to Scottish Planning Policy (SPP) in December 2020, and Planning Advice Note 1/2020, ‘Assessing the extent of the 5 years supply of effective housing land’ (PAN 1/2020), when giving judgment in (1) Graham’s the Family Dairy (Property) Limited and Mactaggart and Mickel Homes Limited and (2) Elan Homes Scotland Limited v Scottish Ministers [2021] CSOH 74.

The consultation which preceded the December 2020 amendments followed the June 2020 case of Gladman Developments Limited v Scottish Ministers [2020] CSIH 28, in which the Court of Session found against the Scottish Ministers in relation to their interpretation of SPP, and confirmed that SPP provided a ‘tilted balance’ in favour of the grant of planning permission where a shortfall in housing land supply was identified, or where a development plan was “out of date” (ie, more than five years old).

The consultation proposed to remove from SPP the presumption in favour of development that contributes to sustainable development (from which the ‘tilted balance’ arose). It also proposed to make amendments to policy on housing land supply (HLS), including setting out a method for calculating HLS which used the ‘average method’ – in essence not taking into account shortfalls in previous years. 

"What fairness requires depends on the circumstances, including the extent to which those consulted can be expected to understand the issue"

In December 2020, Scottish Ministers published their ‘Finalised Amendments’, which kept a presumption in favour of sustainable development, but removed the ‘tilted balance’. Various amendments to HLS policy were made, but the methodology for calculating HLS was put into the new PAN 1/2020, to be treated as technical guidance rather than policy. 

The petitioners had made representations during the consultation process, and their ground of challenge was that the consultation process had been so unfair as to be unlawful, as there was a lack of evidence for assertions made regarding the impacts of the proposals, and the final amendments relied heavily on a research paper which had not been consulted on.


In brief

 

  • Scottish Ministers amended planning policy and guidance to remove the tilted balance and amend housing land supply calculation
  • Multiple petitioners challenged the decision on the grounds that the consultation on which it was based was unlawful
  • Lord Clark agreed, finding the consultation was based on poor information and wrongful assertions
  • It is advisable to follow established principles and rules when conducting a consultation

 

The UK’s legal systems share their fundamental legal principles regarding consultation, and Lord Clark’s opinion sets out a useful outline of the relevant case law regarding whether a consultation process has been unlawfully unfair. In summary:

  1. What fairness requires depends on the circumstances, including the extent to which those consulted can be expected to understand the issue, and how a reasonable reader would understand the documentation.
  2. Whether non-disclosure of information makes a consultation unfair depends on various considerations, including the importance of the information to the justification for the ultimate decision, and whether consultees were prejudiced by the non-disclosure.
  3. The consulting body must put consultees in a position to properly consider the consultation request, giving enough (sufficiently clear) information to enable an intelligent response.
  4. It is not necessary to reconsult on matters that emerge during consultation unless there is a fundamental change of circumstances.

"A reasonable reader would be unable to give an informed response to the consultation"

In applying these principles to the Scottish Ministers’ consultation, Lord Clark concluded that the process had been so unfair as to be unlawful:

  1. The basis upon which the assertion that the proposals would have ‘no impact’ on decision-making was not made clear, and so a reasonable reader would be unable to give an informed response to the consultation. The comparison upon which the assertion appeared to be based was not the right one.
  2. There was little or no evidence supporting the proposals, and Scottish Ministers’ assessment regarding impacts. The consultation failed to identify consequences of changes to HLS provisions. Carrying out a consultation where evidence of important factual issues is not made available cannot be justified by the fact it is not available at the time of the consultation. Although he did not consider the research paper constituted a fundamental change that required reconsultation, he did consider that its content demonstrated the lack of evidence and analysis on material issues in the consultation documentation.
  3. Scottish Ministers’ description of the proposals as “technical and procedural” was incorrect, as, in the court’s view, they were “substantive and potentially far-reaching”. This resulted in the reasonable reader being (unintentionally) materially misled, and unable to give a “proper and affective response”.

For these reasons, Lord Clark quashed the December 2020 amendments and PAN 1/2020. The decision is an important reminder to policymakers of the importance of proper consultation. There is a clear trail of case law setting out the relevant legal principles, and lessons learned from this case, and those preceding it, should be kept in mind by both central and local government.

Lynsey Reid is an associate in Burges Salmon’s planning and compulsory purchase team

Image Credit | Shutterstock

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