In BARD Campaign v Secretary of State [2009] EWHC 308, the High Court considered and rejected wide-ranging challenges to the adequacy of the Government’s ongoing, multi-stage consultation process on eco-towns. The judgment clarifies the law in relation to consultations on high-level Government policy. It has particular importance in the planning context, because multi-stage consultations leading to the selection of areas for development are a feature of the Planning Act 2008 regime for major infrastructure projects.

The key points were:

Absent a legitimate expectation, consultation on issues of principle need not:

  • Set out alternatives to the Government’s proposals.
  • Raise specific questions about the proposals, provided the public's views are sought.
  • Consultation “in principle” can take place before specific sites have been identified. However, the Government will be obliged to consider arguments about the issues of principle made in response to the later consultations on specific sites.
  • Government is entitled to seek information from the public to formulate later stages of its consultation without presenting all the information necessary for the public to comment fully. However, there must be proper consultation on the issues at some point in the process.
  • The fact that Government is working with potential developers whilst a policy is under consultation does not necessarily indicate pre-determination.
  • Strategic Environmental Assessment (“SEA”) need not be undertaken until a “plan or programme” is actually being formulated, so preliminary consultations might fall outside the requirement to conduct SEA.  

The decision indicates that the courts will resist creating detailed legal requirements in relation to the structure of consultation processes and the content of consultation documents, even in the environmental field where the importance of consultation is arguably reinforced by the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (“the Aarhus Convention”).

Background

Since 2007, the Government has been considering the development of eco-towns (zero/low carbon new towns) to facilitate meeting its climate change and housing objectives.

In July 2007 the Government published a Housing Green Paper (“HGP”) which set out a range of proposals on housing supply in the UK, including general material on the development of eco-towns and the broad criteria on which proposals for eco-towns would be judged. The HGP asked specific questions on a number of issues, but none on eco-towns. However, it did invite “views on the range of ideas and proposals contained in this Green Paper”.

The Government next published a “prospectus” and sought bids from local authorities and others wishing to develop eco-towns. It provided more detail on the Government’s requirements. 57 bids were submitted, of which the Government chose to progress 15.

The Government then announced a 4-stage process building towards the commencement of development:

  • A “three-month consultation on preliminary views on eco-town benefits and these shortlisted locations”.
  • Further consultation on a Sustainability Appraisal, which would include “a more detailed assessment of these locations, and a draft planning policy statement.”
  • A decision on the locations with the potential to be eco-towns.
  • Planning applications in relation to individual developments.  

The Government published the first consultation,“Eco-towns - Living a Greener Future" (“ELGF”), in April 2008. ELGF sought views on “the way in which the eco-towns concept is being developed and the different potential benefits that an eco-town could offer” and “preliminary views on the 15 locations going forward for further assessment”. It provided brief summary information in relation to each of the 15 sites. The Government published a response in July 2008.

At that point, the Claimants challenged the adequacy of the consultation process on several interrelated grounds. The next stage of consultation has continued, but the Government extended time for responses pending resolution of the proceedings.

The law of consultation

Walker J’s starting point was the well-known rule in Coughlan [2001] QB 213 that:

  • Consultation must “be undertaken at a time when proposals are still at a formative stage”;
  • Consultation must “include sufficient reasons for particular proposals to allow those consulted to give intelligent consideration and an intelligent response”; "adequate time must be given” to respond; and
  • Responses “must be conscientiously taken into account” in reaching the decision.  

The Judge did not accept that recent cases had imposed additional requirements as to consultation, save that if there was a question about whether a document was a consultation paper or an issues paper, the test was whether it was reasonably foreseeable that it would lead to a decision on the issue of principle: Greenpeace [2007] Env. LR 29. Nor, on the facts, did the Aarhus Convention add anything to the common law requirements of consultation. Indeed, the Judge left open whether the Aarhus Convention, which has not been incorporated into UK law, had any relevance whatsoever.

The Judge also did not accept that a higher standard of scrutiny should be applied where the Government has a financial interest in the proposals.

Failure to consult “in principle”

The Claimants alleged that the Government had failed to consult properly on whether eco-towns were appropriate “in principle”. The Judge rejected the argument, holding that HGP had been sufficient. Absent a legitimate expectation, there was no obligation to:

  • Set out alternatives to eco-towns for consideration; or
  • Ask specific questions in relation to eco-towns.  

Multi-staged consultation processes

Walker J noted that potentially affected local residents were unlikely to be mobilised to make representations about whether eco-towns were appropriate “in principle” until specific sites were identified. But this did not invalidate the “in principle” consultation in HGP. Rather, it meant that the Government would need to keep an open mind if further representations were made later in the process.

Pre-determination

The Judge considered that the fact that the Government had undertaken preliminary steps to attract bids did not indicate pre-determination. It would have been obvious to bidders that the Government was consulting on eco-towns and that there was no guarantee that they would ultimately proceed. The Government was entitled to take steps to ensure that development would proceed quickly if it ultimately decided to approve eco-towns.

Sufficiency of information about sites

ELGF arguably did not provide enough information for consultees to respond on whether the 15 nominated sites were appropriate, in particular because it gave limited information about potential alternatives. However, the Judge held that Government was entitled to seek preliminary views on sites without being bound to provide full information about them. It would, however, need to consult properly at a later stage in the process.

SEA

The Judge held that the requirement to undertake SEA did not arise until the Government was consulting on a draft plan and programme to shortlist sites. ELGF was not “a full consultation on shortlisting” and accordingly SEA was not required.

Implications

The case indicates that even in the environmental/planning field, the Government retains a broad discretion as to how it formulates consultation documents and structures multi-stage consultation processes. Furthermore, notwithstanding the Aarhus Convention, it seems that relatively little information must be provided to the public to consult on a policy “in principle”.

On the other hand, where consultation processes are multi-stage, it might well be difficult for the Government to settle issues of principle until the final decision is taken. It must always consider whether consultees have anything new to say. This requires a difficult balancing act given that proposals will build up an “increasing head of steam” over time. It could prove to be a fertile ground for challenges in the future.