Proposals that require a re-consultation. The ‘Eagle Wharf’ High Court decision has implications well beyond Planning.

We have new confirmation that Judges will not easily tolerate people’s rights to be consulted being overlooked or otherwise circumvented. This month’s High Court judgment in the case of Holborn Studios v London Borough of Hackney was about planning permission but raises issues which will be applicable much wider.

It concerned the redevelopment of Eagle Wharf on Regents Canal in London – a site currently occupied by London’s largest photographic film studio, where almost 300 people are employed. The Scheme was ambitious, and involved the demolition of existing buildings and replacing them with a mixed development, some affordable housing and space specifically intended to re-house the studios and safeguard the jobs of those who were employed. However, that Scheme was amended and approved by the Council, and Holborn Studios sought a Judicial Review because the new proposals were not made subject to re- consultation. Holborn Studios won the case.

A simple story but it carries important messages for anyone concerned with public consultations:

• It IS in the public interest to amend proposals after a consultation; otherwise it would be a significant deterrent to listening to consultees. In the planning world, the Wheatcroft principle is observed allowing certain amendments, and Courts are reluctant to intervene.
• The test for re-consultation is not just how significant the changes may be (as suggested in other important precedents like the Kent & Canterbury hospitals case in 2002 – considered at the Institute’s Law of Consultation course. The test is also whether the amendments prevent legitimate stakeholders from exercising their right to be consulted.
• This is because the law protects two different public interests. One is to facilitate reasonable amendments in the cause of improving schemes and listening to suggestions. The other is for notification and publicity without which planning permission cannot be lawfully granted. Note the judgment’s words:-
  “In considering whether it is unfair not to re-consult … it is necessary to consider whether not doing so deprives those who were entitled to be consulted … of the opportunity to make representations that, given the nature and extent of the changes proposed, they may have wanted to make on the application as amended.” 
• Part of the amended proposal included letters of support which the Council refused to disclose to consultees; when they finally did so, they redacted the names of the correspondents and so deprived those consultees of the chance to challenge their credibility. The Judge ruled this behaviour prejudicial to Holborn Studios.
• Lawyers for the Council argued – as many have before – that the failure to re-consult would, in all likelihood, not have resulted in a different decision by the Planning Committee – and that therefore no remedy should be offered by the Court. This was rejected – who knows what impact consultee views may have had?

Two further points to note. The Statement of Community Involvement featured strongly in this case – as did the doctrine of legitimate expectations.  Stated simply, the Courts enforce the community involvement commitments made by Planning Authorities to their residents and stakeholders. Hackney made promises, and consultees could expect them to be kept.

Stripped of the legal technicalities, this case is really about Transparency, and how public bodies cannot evade best practice by making it difficult for communities to find out what is happening. The Eagle Wharf case is surprising in that, given the trend towards openness and transparency in recent years, who could have imagined collusion between a developer and planning officers to conceal (or make difficult to detect) important changes – including the abandonment of the entire ‘affordable homes’ element?  It is a case that the entire Planning profession should take seriously.

Given the pressures for rapid change throughout the public sector – and the tendency for some senior managers to try to force through their proposals with minimal or tokenistic dialogue, this is a timely reminder that Courts will defend the right to be consulted. Parliament and politicians have decreed that consultation should occur under specified circumstances and until they withdraw those requirements, the law will be enforced. If, like us, you believe this to be a critical civic right In a representative democracy, be grateful for Judges who come down hard on attempts to sidestep this important obligation.

TRIGGER POINTS

1. The Eagle Wharf case is Holborn Studios v London Borough of Hackney and GHL (Eagle Wharf Road) Ltd [2017] EWHC 2823 (Admin).
2. Does your organisation have a policy document – similar to a Planning department’s Statement of Community Involvement – that lays down the way you expect to behave – and which may create ‘legitimate expectations’ among your stakeholders?
3. Are you meticulous in advising stakeholders of any changes to your consultation proposals before a decision is taken?
4. Have you reviewed the Transparency of your public engagement? Should you seek an independent audit in order to assess your compliance with best practice?
5. This case will be considered in depth at the next Law of Consultation course in Birmingham on 31^st January.

This is the 331^st Tuesday Topic; a full list of subjects covered is available for Institute members and is a valuable resource covering so many aspects of consultation and engagement.