#53: HOW DO PLANNERS GET AWAY WITH IT?

DSC_0004THE LEGISLATIVE CONTEXT.

The Basics.

For the process to have any meaning consultation has to be meaningful and something other than a tell and sell exercise that puts inverted commas around “consultation”.

It’s not as if there isn’t enough guidance to point planners to the right path, rather than the righteous one they insist every decision of theirs takes them down.

What seems to drive them – whilst offering justification of their adopted stance – is the business case for whether to engage or not; what the costs and benefits of alternative actions would be, enabling them to work out the ‘opportunity costs’; what the alternative uses of those resources could have been. This could be doing nothing, BUT, as they are officers of a local authority that just happens to be the Local Planning Authority (LPA) with legal obligations and constraints, doing nothing is not an option, which is when the planners start to look for a “different method of engagement” that has all the outward characteristics of “consultation”, which is when they stop listening to anyone who isn’t saying what they want to hear.

They justify that with reference to their local authority being cash-strapped and the consequent need to avoid “unnecessary” cost to the taxpayer, in the process missing the irony that the taxpayer is the one being screwed by whatever scheme they’re pushing through. In the case of Shropshire Council the most common justification for cutting corners is “lack of resources”.

None of my readers will be surprised to hear that I have little sympathy with such pleas of poverty for the simple reason that NOTHING supersedes the Public Law Duty to Consult.

There is another tactic used by planners which is to insist that “nothing has yet been decided”, meaning: What’s all the fuss about? Hmmm. Really?

[I’m here quoting extensively from a paper produced by Eversheds Sutherland… https://en.wikipedia.org/wiki/Eversheds_Sutherland ]

Key Principles

The public law duty to consult is one aspect of the principle that public authorities should exercise fairness in the exercise of their functions.

Where the duty to consult is imposed by statute, then the procedure to be adopted is also likely to be prescribed by the legislation. In other contexts, the issues for a public authority will usually relate to; (1) whether there is a duty to consult anyone at all; and (2) if so, what “fair consultation” entails in the circumstances.

It’s the way that our planners interpret those “issues” that I take issue with!!

Guidance as to how those issues should be addressed can be found in the Cabinet Office Consultation Principles (“the Cabinet Office Principles”) and relevant case law.

The Cabinet Office Principles do not prescribe the requirements for a valid consultation. [However…] The message the Government has attached to the Cabinet Office Principles is that:

…the goveming principle is proportionality of the type and scale of consultation to the potential impacts of the proposal decision being taken, and thought should be given to achieving real engagement rather than following bureaucratic process.

There are five pages of guidance which public servants are advised to follow to guarantee that both the letter and the spirit of what’s universally known as “consultation” is carried out to everyone’s satisfaction, I’m not going to reprint all five pages but I strongly urge everyone to Google for “the public law duty to consult”.

I’ll end my visit to Eversheds Sutherland with a final reference to their excellent paper because they bring the ‘Gunning principles’ into the discussion…

…the Cabinet Office Principles augment but do not displace the general principles derived from case law as to how consultations should be conducted. Those principles, known as the “Gunning principles” are:

Consultation should occur when proposals are at a formative stage;

Consultations should give sufficient reasons for any proposal to permit intelligent consideration;

Consultations should allow adequate time for consideration and response;

There must be clear evidence that the decision maker has considered the consultation responses, or a summary of them, before taking its decision.

All of which says to me that there isn’t just a public law duty to consult but a common sense duty to consult.

I take a relatively simple view of any failure on the part of any officer working for any local authority, to me it’s all about ethical standards at a level every citizen has a right to expect of both the elected Members of their council and the salaried officers who are professionally tasked to carry out the roles they’re appointed to. In short, a basic level of professional behaviour governed by the basic standards I’ve just run through.

There’s another paper I often refer to when I need to reassure myself that I’m not being as anal as some of my critics try to make out, it’s Local Government Ethical Standards: A Review by the Committee on Standards in Public Life. It’s great bedtime reading, guaranteed to send you off after about five pages — but at least you can sleep soundly with a good conscience if standards in public life are important to you.

Shropshire Council makes much of its commitment to “involve” the public in its decision making, whether it be along the lines of a “plan-led planning system”, or the creation of “managed spaces”, otherwise known as “place making”; they are all “Statements of Community Involvement”, and if they’re made within sight or earshot of me then, by god, I’ll hold the person making such a statement to account if they subsequently renege on that commitment.

A Statement of Community Involvement (SCI) should not be made and certainly should not be published unless it is considered by everyone, and not just understood by the general public, to be a statement of intent, a clear one at that, stated unequivocally.

Legal precedents exist, case law is clear.

There is (relatively) recent case law on the reach of this procedural expectation:

EWCA Civ 1029 (2009) R (Majed) v London Borough of Camden

The court of appeal held that a local planning authority’s Statement of Community Involvement gave rise to a legitimate expectation that the consultation process set out in that SCI would be carried out.

https://www.casemine.com/judgement/uk/5a8ff70f60d03e7f57ea6ea2

5. The place of legitimate expectations in public law was broadly summarised in the judgement of Laws LJ in:

EWCA Civ 755 (2008) R (Bhatt Murphy) v lndependent Assessor

As follows:

“The power of public authorities to change policy is constrained by the legal duty to be fair (and other constraints which the law imposes). A change of policy which would otherwise be legally unexceptionable may be held unfair by reason of prior action, or inaction, by the authority”.

https://www.casemine.com/judgement/uk/5b46f20d2c94e0775e7f15eb

Planners give the impression that they depend on public ignorance. Planning law is complex and forbidding for the layman, which is why I stick to the principles involved and, as a general rule, if something seems wrong you can be fairly sure that there will be what Private Eye calls a whiff of something.

Ever heard of ‘Pareto’s principle’? It’s a shady business model, otherwise referred to as the 80/20 rule: you get 80% of the gain from 20% of the effort.

This is known as the “Vital Few, Trivial Many”, or “Law of the Vital Few”.

Now whilst ‘Pareto’s Principle’ has a place within a commercial business where marketeers have a place on the board, it has no place in planning and especially not in the management of a contentious policy where the needs of a community should determine how that policy is applied.

If anyone needs an object lesson from within Shropshire Council on the application of Pareto’s principle then look no further than the “consultation” preceding the implementation of the ‘Shropshire Affordable Housing Allocation Policy & Scheme’ in January 2014, when Shropshire Council proceeded on the basis of feedback from nine out of the 6,500 people on the waiting list at that time, a (hardly) representative sample size of 0.0013846 of the people on the waiting list at the time.

The “Vital Few” became the Pathetic Few, But hey…

…it was a sign of what was to come!