Unfair and unlawful?

‘Listen carefully, then ignore completely’ – the cynic’s definition of public consultation, according to one legal commentator. But the authorities may have to up their game following a Supreme Court decision against Haringey council on October 29.

In R (on the application of Moseley (in substitution of Stirling Deceased)) (Appellant) v London Borough of Haringey (Respondent) [2014] UKSC 56, the court declared that a consultation that failed to mention alternative options was unfair and unlawful. The judgement refers to procedural fairness (interested persons should be consulted not only on the preferred option but also upon discarded options) and to the need for consultees to at least be made aware of the existence of alternative options in order to be able to express meaningful views on the proposals.

The decision endorses and strengthens the Gunning/Sedley principles (1985), which state that consultation must be at a time when proposals are still at a formative stage; the proposer must give sufficient reasons for any proposal to permit of intelligent consideration and response; adequate time must be given for consideration and response; and the product of consultation must be conscientiously taken into account in finalising any statutory proposals. These principles were defined by the Court of Appeal in 2012 as “a prescription for fairness”.

The Haringey case involved council tax, but the Supreme Court’s judgement applies equally to other public consultations. It notes that “Sometimes, particularly when statute does not limit the subject of the requisite consultation to the preferred option, fairness will require that interested persons be consulted not only upon the preferred option but also upon arguable yet discarded alternative options” and that “even when the subject of the requisite consultation is limited to the preferred option, fairness may nevertheless require passing reference to be made” to such alternative options.

In the case of the Faversham Creek Neighbourhood Plan, it cannot be denied that “arguable options” have been put forward to the steering group/town council, who have refused to consult on them or refer them in consultations – most recently on April 1, when the steering group voted to exclude options from the pre-submission draft of the plan. Since one of the Basic Conditions for neighbourhood plans is that they must be in accordance with the law, this judgement raises the possibility of failure because of an unlawful consultation process.

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