The law surrounding statutory consultation is extensive.

And yet when developers consult on planning applications, there is a stark absence of official guidance, regulation and case law. Why, in a discipline led by professionals – chartered surveyors, planning consultants and lawyers – is the approach to consultation so lacking in professional rigour?  Because in most cases, there is no statutory requirement for consultation and therefore no legal framework.

True, there is law relating to consultation on Local Plans, Nationally Significant Infrastructure Projects (NSIPS), Neighbourhood Planning and on that carried out by local authorities prior to determining planning consent.  But for many new schemes there is no duty to consult under English law.

The situation might have been very different.  The 2010 Localism Bill introduced a requirement for developers to consult communities before submitting planning applications.  But this was omitted from the resulting Localism Act except in the case of wind turbines.  Developer engagement is instead determined by the relevant planning authority, and local authorities’ inclination towards consultation varies considerably.

The advantages of developer consultation are numerous.  Consultation can deliver a real insight into a local area, create enduring beneficial relationships and enable an early understanding of any issues or misunderstandings which may stand in the way of planning success, thus save time and money.

I recently attended tCI’s The Law of Consultation conference.  As a consultation consultant working with developers and planners, I was immediately struck by the extent to which regulations and case law impacts on so many consultations, but not on mine.  Rather than feel relieved to be free of such restraints, I saw how guidelines and past cases drive up standards in consultation in a way which is lacking in my industry.

There are some excellent examples of best practice consultation in planning, but a lack of consistency:  enlightened developers devise consultations which are open, transparent, accessible and engaging, but too much engagement is minimal.  While enough to qualify for planning consent, ‘consultations’ are invariably rife with leading questions, lacking in information and used solely to justify a foregone decision.  Sadly it is this which is reported in the local media, tarnishing the reputation of both planning and consultation.

The Government has recently consulted on changes to the National Planning Policy Framework.  The Consultation Institute, of which I am an Associate, responding requesting a tightening up of legislation surrounding planning and development.  I see this as necessary to reduce the current confusion over obligations, to put in place some consistency and in doing so, to drive up standards in consultation.

Prior to any legislative changes taking place, for anyone responsible for community engagement on behalf of developers, I would thoroughly recommend The Consultation Institute’s Consultation Law training:  far from being irrelevant it is an excellent means of gaining understanding best practice across a variety of sectors which can have enormous benefit on pre-planning consultations.

First published on the Consultation Institute website March 2019

Penny Norton is the director of PNPR and founder of ConsultOnline.  Her book Public Consultation and Community Involvement in Planning: a twenty-first century guide is widely available, and two further books Promoting Property:  insight, experience and best practice and Communicating Construction: insight, experience and best practice will be published by Routledge in 2020.