Emphasis on consultation greater than ever

3rd January 2012

The focus on consultation has never been greater. Any major application involving the Infrastructure Planning Commission requires a front-loaded consultation process if a developer is to have the application accepted - let alone approved – and, when the Localism Act comes fully into force in April, statutory consultation will become a material consideration at planning committee and planning appeal.

This cuts two ways for developers. When a developer embarks on a meaningful consultation strategy that lets stakeholders have good opportunity to let their views be known, the outcome is usually beneficial, even if the consultation indicates that many stakeholders are opposed to the scheme. This is because a thorough consultation process adds legitimacy and can also identify stakeholder issues that may be resolvable.

However, if a developer attempts to minimise financial outlay or promotion of a proposal through inadequate consultation, it is now more likely that the tactic will backfire and be seized on by opponents. The irony is that perfectly good schemes can be kyboshed - not by errant planning committees - but by ardent objectors capable of using the law to good effect to prove inadequate consultation has occurred. The net result may be that the developer has to go back to the drawing board and consult properly from scratch if the project is to progress. And that ignores the bad will and poor publicity generated in the relevant communities because of an initial inadequate consultation process highlighted by a legal challenge.

The warning signs are already flashing. In November 2011, a judicial review into the proposed closure of a heart unit at the Royal Brompton Hospital concluded that an NHS-led consultation had been “seriously distorted” while, in December 2011, plans to introduce 24/7 car parking charges by Westminster Council were criticised by a High Court judge who said: "The consultation carried out by Westminster Council was arguably far too limited.”

Alex Doyle, managing director at Pendragon, said: “The need to genuinely consult with communities will take on far greater importance for developers. The trick will be to embrace the new requirements positively and make sure that it helps to strengthen a proposal rather than weaken it.”

Nobody wants the kind of litigious culture where genuine attempts at public dialogue almost always end in court cases. The answer is for developers to be better aware of the pitfalls of inadequate consultation and to up their game accordingly. A solid consultation record will be enough to deter many scheme opponents from going legal to contest a planning consent, while developers that are forced to defend a legal challenge will find far greater success if they can demonstrate that their consultation strategy has been both meticulous and meaningful.