Enhancing Public Consultation and Material Considerations in National Planning Policy: Insights from Stephenson v. Secretary of State [2019] EWHC 519 (Admin)

Introduction

The landmark case of Stephenson v. Secretary of State for Housing And Communities And Local Government [2019] EWHC 519 (Admin) addresses critical aspects of public consultation and the incorporation of material considerations within the National Planning Policy Framework (NPPF) of England. The claimant, acting on behalf of Talk Fracking, an organization advocating against the environmental risks posed by hydraulic fracturing (fracking), challenged the inclusion of paragraph 209(a) in the NPPF. This paragraph emphasizes recognizing the benefits of onshore oil and gas development, including unconventional hydrocarbons, in securing energy supplies and supporting the transition to a low-carbon economy.

Summary of the Judgment

The High Court examined four grounds of challenge raised by the claimant:

Ground 1: The Defendant failed to account for material considerations, specifically scientific and technical evidence post the 2015 Written Ministerial Statement (WMS).
Ground 2: The Defendant did not align the revised Framework with the government's obligations under the Climate Change Act 2008.
Ground 3: The Defendant did not conduct a Strategic Environmental Assessment (SEA) for the policy revision.
Ground 4: The Defendant failed to execute a lawful consultation process regarding the Framework's revisions.

The court concluded as follows:

Ground 4: Granted permission, recognizing that the consultation process was fundamentally flawed and unlawful.
Ground 1: Granted permission, acknowledging the Defendant's oversight in considering essential material evidence.
Grounds 2 and 3: Refused, as the court found no substantial breach of duties regarding climate change obligations and the necessity of an SEA.

Analysis

Precedents Cited

The judgment references several pivotal cases and legal principles that influenced its outcome:

R (West Berkshire District Council) v Secretary of State for Communities and Local Government [2016] EWCA Civ 441: Clarified the extent of material considerations in policy-making under common law powers.
R (Jayes) v Flintshire County Council and Hamilton [2018] EWCA Civ 1089: Discussed the duty of decision-makers to acquaint themselves with relevant information.
R (Mosely) v Harringay LBC [2014] UKSC 56: Explored the nature of fair consultation processes.
Carltona Ltd v Commissioners of Crown Lands: Established that ministers can rely on their civil servants' expertise in decision-making.
R v Devon County Council, ex parte Baker [1995] 1 All ER 73: Highlighted the importance of procedural fairness in consultations.
R v Brent London Borough Council, ex p Gunning (1985) 84 LGR 168: Emphasized essential requirements for fair consultation.

These precedents collectively reinforce the necessity for transparent, fair, and material-informed consultation processes in public policy formulation.

Legal Reasoning

The court's legal reasoning centered on two main aspects:

Public Consultation Integrity: The court emphasized the Sedley principles, derived from the Gunning case, which outline requirements for fair consultation. These include conducting consultation at a policy-formulating stage, providing sufficient information and reasons, allowing adequate time for response, and conscientiously considering consultation outcomes.
Material Considerations: Under the common law, particularly drawing from R (West Berkshire District Council) v Secretary of State, the Secretary of State must account for all "obviously material" considerations when formulating policy. In this case, the scientific evidence presented by the claimant was deemed evidently material and required consideration.

The court found that the Defendant's consultation process did not align with these principles. The public was led to believe that their input on paragraph 209(a) would be considered substantively, but the Defendant merely incorporated previous policy without genuinely engaging with the consultation feedback, thus neglecting material considerations.

Impact

This judgment has significant implications for future public policy formulation and statutory planning processes:

Strengthening Consultation Processes: Public authorities must ensure that consultations are meaningful, transparent, and genuinely inform policy decisions. Token consultations that do not consider participant feedback may be deemed unlawful.
Mandatory Consideration of Material Evidence: Policy-makers are obliged to consider all relevant and material evidence, especially scientific and technical data, to uphold legal obligations and ensure informed decision-making.
Clarification of Common Law Duties: The case reinforces the obligations under common law to prevent the arbitrary or superficial formulation of policy, ensuring that policy changes are substantiated by comprehensive evidence and public input.
Precedent for Future Judicial Reviews: The decision serves as a precedent for challenging administrative decisions where public consultation and material consideration obligations are allegedly breached.

Complex Concepts Simplified

1. National Planning Policy Framework (NPPF)

The NPPF is a key document setting out the government's planning policies for England and how these are expected to be applied. It provides a framework within which local planning authorities must develop their own local plans.

2. Sedley Principles

Derived from the Gunning case, the Sedley principles outline the requirements for fair public consultations. These include consulting at the right stage, providing adequate information, allowing sufficient time for responses, and genuinely considering the feedback received.

3. Material Considerations

These are factors that are relevant and significant to the decision-making process. In policy formulation, all material considerations must be taken into account to ensure decisions are lawful and justified.

4. Strategic Environmental Assessment (SEA)

SEA is a process of evaluating the environmental impacts of proposed policies or plans to ensure that environmental considerations are integrated into decision-making. It is mandatory for certain types of plans, including major policy revisions like the NPPF.

Conclusion

The High Court's decision in Stephenson v. Secretary of State underscores the paramount importance of conducting fair and substantive public consultations in policy formulation. By granting permission to Grounds 1 and 4, the court affirmed that public authorities must not only seek public input but also genuinely incorporate material considerations derived from such consultations into their decision-making processes. This case serves as a potent reminder that procedural integrity and substantive fairness are indispensable in upholding democratic principles within administrative law.

Moreover, while Grounds 2 and 3 were not upheld, the judgment delineates the boundaries of governmental obligations concerning climate change policies and environmental assessments. Future policy revisions will undoubtedly be influenced by this precedent, prompting authorities to meticulously align policy formulations with legal obligations and public expectations.