A decision of the Highland Council ("the Council") has been set aside by the Court of Session in a judicial review because of a defective consultation. The judgment serves as a useful reminder to local authorities of the requirements of effective consultations and the dangers for local authorities and their officers in changing approach without adequate consultation.

Facts

On 26 August 2021, the Council decided to retain a "Spaces for People" scheme on Academy Street in Inverness. In May 2022, the Council launched a public consultation which did not indicate that there was any intention to prevent the use of Academy Street for vehicular traffic and this was not mentioned during any subsequent meetings held during the consultation prior to November 2022. These proposals are referred to in the judgment as Option A.

However, the Council made the public aware of proposals to restrict vehicular traffic on Academy Street in November 2022 prior to a meeting of a relevant committee and this was referred to as Option B.

On 28 August 2023, a Committee of the Council decided that council officers should finalise a proposed design for Academy Street in Inverness and consult on a Traffic Regulation Order. The design would lead to restrictions on the use of Academy Street and approval of the development of Option B. That decision was affirmed at a meeting of the full Council on 14 September 2023 ("the 2023 decisions").

Owners of property on Academy Street challenged the 2023 decisions and claimed that a non-statutory consultation exercise had been launched in May 2022 on Option A which did not indicate that there was any intention to restrict the use of Academy Street as a through route for private vehicles as had been approved in Option B. They claimed this was procedurally unfair and unlawful.

Judgment

The Court concluded that the consultation launched in May 2022 was a full and general consultation process intended to canvass the views of residents, businesses and interested parties as to the future use and form of Academy Street.

Although the consultation process in this case was started voluntarily by the Council, the Court concludes that it was subject to a requirement to be procedurally fair and the scope and way in which the consultation was managed was not entirely a matter for the Council. The consultation had to comply with procedural fairness.

Under reference to the decision in R v Brent London Borough Council, ex parte Gunning (1985) 84 LGR 168, the Court confirms that where a consultation process is undertaken it must comply with the following principles:

  • consultation should take place when proposals are at a formative stage
  • sufficient information and reasons should be provided to enable an intelligent consideration and response
  • that adequate time be afforded for such a response, and
  • that the results of the consultation should be conscientiously evaluated and considered.

The Court went on to analyse the consultation exercise undertaken by the Council. The Court found:

  • during the initial stage of the exercise, until November 2022, Option A was consulted upon and there was no indication from the Council that any active consideration was being given to Option B (the possibility of Academy Street being closed to through private traffic);
  • those participating in the consultation were not invited or encouraged to respond on Option B;
  • the move from Option A to Option B took place due to funding no longer being available for Option A;
  • Option B was materially different from Option A and consultees could reasonably be expected to have made different representations if Option B had been consulted upon; and
  • from November 2022 until the 2023 Decisions, the focus was on development of Option B and consultees were no longer invited to comment on Option A.

The Court concluded, under reference to the principles from the Gunning case, that:

  • the sequence of events failed to assist the Council to choose whether or not to take action but also to select which course of action could advantageously be taken;
  • the actions of the Council would produce a legitimate sense of injustice on the part of the people challenging the decision and others in a similar position; and
  • the future consultation on a Traffic Regulation Order would not prevent these difficulties arising as that consultation would not be taking place where proposals were in any meaningful way at a formative stage.

The Court noted that the Council and its officers had not had any intention to run an unfair consultation and that it is sometimes only with the benefit of hindsight that problems can be spotted with consultations. Despite this, the Court found the consultation process adopted was procedurally unfair and unlawful, and set aside the 2023 decisions.

Comment

Local authorities should not be discouraged from voluntarily consulting on proposals. The Court in this case recognises the benefits of consulting effectively, which include producing better decisions by ensuring all information is available to decision makers, consultations can help avoid a sense of injustice in those affected by decisions and they can assist with the overall democratic process.

However, this case serves as a useful reminder to local authorities and officers. Even if a consultation exercise is voluntarily undertaken and is not required by the law, the law will still regulate the consultation process. If the consultation process is in breach of the Gunning principles, the Courts may find that the process was so unfair as to be unlawful and set aside any decisions taken following defective consultation.

Fairness is a concept that will vary depending upon the facts and circumstances. Local authorities and their officers should remain alive to the requirements for procedurally fair consultations when conducting consultation exercises and arriving at decisions.

Contributors

Niall McLean

Partner & Solicitor Advocate

Lewis Newlands

Associate