The Bard Campaign & Anor v Secretary of State for Communities and Local Government (Rev 1)

Consultation on a staged government policy is lawful if consultees are told clearly what is proposed, why it is under consideration, and are given sufficient information and time for an intelligent response. Consultation need not generally include alternatives unless fairness or a legitimate expectation requires it. The point at which a proposal ceases to be formative is fact-sensitive. A preliminary consultation may properly address only selected aspects of a wider process, leaving alternatives and detailed site assessment to later stages. A government financial interest does not impose a more stringent consultation test. Strategic environmental assessment requirements arise no earlier than the stage at which a plan or programme is being prepared.

The claimants challenged the Secretary of State’s consultation on proposed Eco-towns. They opposed the inclusion of Middle Quinton and Weston Otmoor among 15 locations proceeding to further assessment. The challenge concerned the April 2008 consultation document, Eco-towns—Living a Greener Future (“ELGF”).

They alleged inadequate consultation on the principle, number, size and criteria for Eco-towns, failure to consult on rejected locations, insufficient information, inadequate time, and breach of strategic environmental assessment requirements. Weston Front advanced additional objections concerning Green Belt, Sites of Special Scientific Interest and alternatives.

1. Claims dismissed. The court held that the consultation on the principle of Eco-towns had occurred through the Housing Green Paper. It clearly identified the proposal and the reasons for pursuing it, and invited general comments as well as responses to specified questions.
2. The common-law requirements stated in R v North and East Devon Health Authority, ex parte Coughlan [2001] QB 213 applied. Consultation had to occur while proposals were formative, provide sufficient reasons and information for an intelligent response, allow adequate time, and be conscientiously considered. The point at which a proposal ceased to be formative was fact-sensitive.
3. Consultation on alternatives was not generally required. The Secretary of State was entitled to use ELGF as a preliminary consultation on the concept, potential benefits and 15 locations, leaving detailed consideration of rejected or alternative sites to later stages. The Aarhus Convention added nothing relevant to the issues decided.
4. The number, size and criteria remained subject to continuing consultation. The absence of specific questions, and the provision of only brief site summaries, did not invalidate ELGF because it was intended to obtain preliminary local knowledge rather than determine the final shortlist.
5. A possible government financial interest did not require a more demanding consultation standard. The approach in R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2003] 2 AC 295 did not support such a requirement.
6. The strategic environmental assessment regime did not apply at the ELGF stage. Any relevant plan or programme would arise no earlier than the shortlisting stage. The disclosure application was refused because the material sought could not assist grounds that were misconceived in principle.