40 - Consultation, Aarhus and planning processes

This is (sort of) an update on Post 2 – The Aarhus Convention at Planning Inquiries.

It concerns a very recent decision in Scotland on an application for consent under section 37 of the electricity act 1989 and direction under section 57(2) of the Town and Country Planning (Scotland) Act 1997 to install and keep installed approximately 13.3km of double circuit 275kv overhead line from Dalmally to Inverarnan located in the planning authority area of Argyll and Bute. The Scottish Ministers’ decision is dated 21 August 2024.

The decision letter records (see (41)) that the Glenorchy & Innishail Community Council objected and in doing so commented that the applicant “has not engaged in any meaningful community consultation and has not followed the Aarhus Convention”. The decision also noted that objections included that “the applicant has merely paid lip service to the consultation process and has maximised shareholder return over all else. The consideration of potential alternatives and the engagement of the public in that process does not respect the Aarhus Convention” ([22]) and that there had been “[n]o respect of the Aarhus Convention” ([54]).

The Scottish Ministers rejected these complaints shortly, saying “The Scottish Ministers have had regard to the requirements regarding publicity and consultation laid down in the Consents Regulations and the EIA Regulations and are satisfied the general public as well as statutory and other consultees have been afforded the opportunity to consider and make representations on the proposed Development” ([13]).

Now complaints along the lines of those made in this case, whether explicitly referencing the Aarhus Convention or not, are very commonly made at planning inquiries by local objectors.

The complaints are usually: (i) that there was no or insufficient consultation with the community in advance of the application being made; or (ii) that while there was consultation undertaken the developer did not really listen.

Are these oft made complaints justified? Well, I guess they may be in some cases but generally they turn out to be somewhat ill-conceived complaints.

In a recent appeal where I was instructed by the appellant I made the following submission:

“…. there were repeated attempts to criticise the quality and good faith of the public consultation and engagement programme undertaken by the Appellant. The reality is, as set out already, that there was very extensive engagement over a number of years. That this is the position is not actually disputed. In the end the complaint that emerged was not that there was not consultation on the Appeal Scheme but that in response to the points raised the Appellant did not pack up shop and go home despite the site being allocated. If your position is that you object to the principle of development on an allocated site you are bound to be disappointed with consultation on a scheme or schemes that will seek to deliver the aspirations of the allocation”.

The problem is that when complaints are made about the consultation process an appellant inevitably has to respond and inquiry time is spent on this in evidence and in closing. Such complaints must waste hundreds of hours of inquiry time and rarely is this justified. There must be a better way of dealing with these kinds of complaints which , of course, rarely if ever go to the planning merits.

There is a further point. As the PPG records (Paragraph: 010 Reference ID: 20-010-20150326):

“Is pre-application community consultation compulsory?

Pre-application engagement with the community is encouraged where it will add value to the process and the outcome. It is mandatory to carry out pre-application consultation with the local community for planning applications for wind turbine development involving more than 2 turbines or where the hub height of any turbine exceeds 15 metres.”

So, pre-application community consultation is largely not mandatory. That means that these things are not really matters for the Inspector to rule on in a planning appeal at all.

This blog post was written by James Maurici KC.

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Authors of the Aarhus blogs

– James Maurici KC – James has been in many of the leading cases on Aarhus costs including: R (RSPB) v SSJ [2017] 5 Costs L.O. 691; Case C 530/11 Commission v United Kingdom; Case C-260/11 Edwards v EA; R (Edwards) v EA (No.2) [2011] 1 Costs L.R. 70 and [2013] UKSC 78; and R (Edwards) v EA [2011] 1 W.L.R. 79. He has also appeared a number of times before the UNECE Aarhus Compliance Committee in Geneva, cases include: ACCC/C/2010/45; ACCC/C/2010/53; ACCC/C/2011/60; ACCC/C/2011/61; ACCC/C/2012/77; and ACCC/C/2014/100 and 101. He is currently acting for the UK Government on the Brexit communication to the Compliance Committee – ACCC/C/2017/150. He was one of the contributors to the Aarhus Convention: A Guide for UK Lawyers (2015) and he has written and lectured extensively on the Aarhus Convention.

– Jacqueline Lean – Jacqueline has also been instructed on a number of matters concerning the Aarhus Convention, including appearing (with James Maurici KC) for United Kingdom before the Aarhus Compliance Committee on two communications concerning the Government’s decision to proceed with HS2 (ACCC/C/100 & 101); representing the Secretary of State for Communities and Local Government Secretary of State in R (CPRE Kent) v Secretary of State for Communities and Local Government [2019] EWCA Civ 1230 in which the Court of Appeal considered the approach to summary assessment of costs at permission stage when an Aarhus costs cap applied; and acting for the Secretary of State in R (RSPB) v Secretary of State for Justice [2018] Env LR 13, a challenge to the Government’s amendments to the Aarhus costs protections in the CPR (also with James Maurici KC). She is also a contributing author to Coppel’s ‘Information Rights’ on Environmental Information.

– Nick Grant – Nick joined Chambers in 2019 and has regularly advised on Aarhus related matters. He has represented the UK twice before the Aarhus Convention Compliance Committee, appearing with James Maurici KC in ACCC/C/2017/150 (the Withdrawal Act case) and unled in the admissibility hearing for ACCC/C/2022/194 (the free trade agreements case).

– Alex Shattock – Alex has been involved in a number of environmental claims including Friends of the Earth v SSLUHC (the Cumbria coal mine case: acting for Friends of the Earth in the Planning Inquiry and High Court, with Paul Brown KC and Toby Fisher); Cox and Ors v Oil and Gas Authority [2022] EWHC 75 (Admin) (representing Extinction Rebellion activists in a challenge to the Oil and Gas Authority’s Strategy, with David Wolfe KC and Merrow Golden); R (Hough) v SSHD [2022] EWHC 1635 (acting for the claimant in an environmental and equalities challenge to the controversial use of Napier Barracks as asylum seeker accommodation, with Alex Goodman KC and Charles Bishop). He regularly advises individual and NGO clients on Aarhus costs protection. Alex also has a keen interest in treaty law generally. He has a masters and PhD in public international law and has been involved in various treaty negotiations and treaty ratification processes.