Letter: Why Wider Public Consultation on Major Planning Proposals Can Be Difficult

Published on: 4 Jun, 2023
Updated on: 6 Jun, 2023

From: Julian Lyon

R4GV candidate at the recent election

Following his earlier letter: The Planning Hierarchy

There has been plenty of noise about consultation but not much feedback about the formal rules around consultation in planning matters – the statutory and regulatory obligations. The actual application of these rules may vary by specific case and over time.

As such, the table below should be seen as an illustration rather than an exhaustive legal guide. I apologise if this topic is a little dry, and I should note that I am not a planning expert, and so there is no substitute to checking sources directly:
Please note that these laws are subject to change from time to time and the table above may not cover all potential statutory obligations, regulatory obligations, and best practices in all cases.

Section 47 of the Planning Act 2008 which deals with Development Consent Orders (DCO) for major infrastructure projects sets out the detailed duties placed on applicants in respect of consulting the local community. My team and I at Savills are used to supporting the DCO process for large-scale projects, working on projects such as the Thames Tideway Tunnel, for example.

In terms of planning policy documents, the Local Planning Authority (Guildford Borough Council in our case) is required to adopt a statement of community involvement (SCI) – and it has done so, primarily for DPDs [Development Plan Documents] and SPDs [Supplementary Planning Documents].

It says: “The council has a duty to involve you. You have the right to be heard. This document is a legal requirement of Section 18 of the Planning and Compulsory Purchase Act 2004 (as amended by the Planning Act in 2008 and the Localism Act in 2011) and it sets out how and when we will involve and consult with you on planning matters.”

What it does not do is set a basis for council-led consultation on planning applications over and above the statutory obligations – which (monitored by the planning officers and the Development Management lead member) are intended to be carried out by the developers.

What Robin Horsley’s [“Battle for Guildford”] campaign seems to suggest is that there may have been an opportunity missed and that the Development Management Policies DPD should, perhaps have set out a broader framework for engagement on major projects, but even so, the major project threshold (used in the DMP DPD for Affordable Housing policies) is 500 housing units, so that would also need to have been revised (there were 473 in the North Street proposal).

The DPD document, which the Strategic Planning officer team took through its pre-submission consultation (Regulation 18) in June and July 2020 under then-Cllr Jan Harwood (Lib Dem Strategic Planning lead member at the time) did not seek to introduce more onerous consultation requirements on either the council or (more appropriately) the developers as an enhanced (s61W) policy – this would have had to have been included in the previous consultations so that all participants in the planning process had an opportunity to comment on how this could work best without becoming unwieldy or disproportionate.

By the time Cllr Bigmore (R4GV) took over the Strategic Planning role at the end of 2021, just before the Regulation 19 consultation (Jan-Feb 2022) only minor changes could be made. It would, therefore, have been too late to introduce such a policy change (or, for that matter to introduce heights and views policies into the DPD) whilst still keeping to the council-adopted Local Development Scheme timescale: (https://www.guildford.gov.uk/lds)

This topic is not simple because the obligation to consult more widely than is already done is not only onerous, it is also fraught with difficulty. It would be impracticable and contrary to General Data Protection Regulations (GDPR), for example, for the council to use email contacts gathered from, say, the electoral register entries to send push-notifications of planning applications.

It would also be hugely expensive to send letters to everyone in the borough, possibly for several planning applications in a year – and should that include variations to planning documents or applications under section 96a or 73 of the Planning Act? The borough only retains 9 per cent of council tax raised (about £11.4 million) and has more responsibilities than 9 per cent of the council tax could ever actually cover.

Guildford Borough Council operates, therefore, on the basis that individuals choose to sign up to be notified along with the ward councillors, residents’ groups and other groups – who themselves have registered to be notified. The response to Mr Horsley’s Freedom of Information request suggests that process doesn’t include very many individuals.

The council, as is required by the regulations (the TCP Order 2015), publishes the application and representations on the Planning Portal, and it holds its planning meetings in public. The council is meant to decide planning applications within set periods under section 34 of the Town & Country Planning (TCP) Act Order 2015 (https://www.gov.uk/guidance/determining-a-planning-application) – with which it has been struggling in recent times even without additional burdens of council-led consultation which could only be carried out after an application has been registered and assessed.

That is, in fact, why the obligations of the council in Section 122 of the Localism Act 2011 are the developer’s responsibility, (see clause 61W of TCPA 1990 (as amended)).

There is probably some sort of equitable balance, therefore, between being interested and becoming informed. If being interested is limited to waiting for information to drop through the letterbox, then it is highly likely that there will be a consequential information gap which might be frustrating but should be recognised by the resident as almost inevitable.

If being interested means signing up to receive notifications, then it would be perfectly reasonable to feel aggrieved if, having signed up to receive updates, no notifications were sent.

As someone who has been interested all my adult life in what is going on in Guildford, I have signed up to receive notifications, I have monitored planning application lists, I have engaged with the Local Plan processes, I have argued for or against all manner of developments in the borough.

I see that as a fundamental responsibility as a citizen. I see this as essential if I want to comment on local issues. I would urge others to approach this topic in the same vein if they wish to engage in consultations and make objections or support planning applications.