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Losing the local? Public participation and legal expertise in planning law

Published online by Cambridge University Press:  20 January 2020

Carolyn Abbot Open the ORCID record for Carolyn Abbot [Opens in a new window]
Carolyn Abbot*
Affiliation:
University of Manchester, Manchester, UK
*
*Author email: [email protected]
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Abstract

Local community opposition to environmentally significant development proposals is commonplace, with environmental issues often at the forefront of community concerns. Whilst the development consent system provides multiple opportunities for local community groups to participate in the initial decision-making process, a legal commitment to such participation ensures neither its quality nor its effectiveness. This is especially so for local group ‘have-nots’ who lack resource and expertise, and whose focus on locally-based objections can delegitimise their valid and often broader concerns about the proposed development. This paper argues that access to legal expertise plays a significant role in promoting principles of fairness and competence in participation by helping shape local opposition views in a way that is both understood and accepted as valid by the planning system. Whilst there are important and valuable sources of advice and support currently available, many local groups find themselves in the position of having to raise considerable funds to pay for the legal expertise they need. This unsatisfactory position needs to be addressed if local groups are to meaningfully engage with the planning process.

Keywords

environmental lawplanningpublic participationlocal community groupslegal expertise
Type
Research Article
Information
Legal Studies , Volume 40 , Issue 2 , June 2020 , pp. 269 - 285
Copyright
Copyright © The Society of Legal Scholars 2020

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Footnotes

†

For feedback on earlier drafts, thanks to Ruth Lamont and audiences at both the University of Manchester and the SLS Environment Section in Preston. Thanks also to the Legal Studies peer reviewers and editors. I would like to say a special thank you to Maria Lee. The focus on law and legal expertise was prompted by our British Academy-funded empirical project that examines how NGOs have used law and legal expertise to shape post-Brexit environmental law and policy. Thanks also to Maria for her insightful feedback on earlier drafts of this paper.

References

1 Fischer, FCitizens, Experts and the Environment: The Politics of Local Knowledge (Durham: Duke University Press, 2000) p 143Google Scholar.

2 Hereafter referred to as local community groups. Groups may of course form a set of collective goals around non-environmental issues. The focus of this paper is on those groups who have environmental concerns at their core.

3 For example, local community groups used a range of tactics when objecting to wind farm developments. See Ogilvie, M and Rootes, C ‘The impact of local campaigns against wind energy developments’ (2015) 24 Environmental Politics 874CrossRefGoogle Scholar.

4 See for example local group protests co-ordinated under the Frack Off banner: https://frack-off.org.uk/.

5 Legal participation relates to the ability of individuals and groups to initiate and engage with legal processes through which the legality of state action is questioned. The distinction between political and legal participation is discussed in G McKeever ‘A ladder of legal participation for tribunal users’ (2013) PL 575 at 576–580. McKeever acknowledges the differing objectives of political and legal participation, with the former focusing on empowerment and the latter premised on access to the courts.

6 These challenges are, however, relatively rare. For example, Bondy, Platt and Sunkin found that of the 502 judicial review cases that went to a final hearing from July 2010 to February 2012, 9% (n=45) of those cases were categorised as planning cases: Bondy, V et al. The Value and Effects of Judicial Review: The Nature of Claims, their Outcomes and Consequences (Public Law Project, October 2015)Google Scholar.

7 The overwhelming majority of planning applications are determined at the local level. For example, in 2018–2019, only 13 applications were called-in by the Secretary of State, and 23 applications were accepted for examination under the Nationally Significant Infrastructure Project process, for determination by the Secretary of State. For detailed planning statistics see https://www.gov.uk/government/statistics/planning-inspectorate-statistics (last accessed 2 January 2020).

8 See for example the discussion of planning in the recently completed Raynsford Review. This review recognises the multiple obstacles to effective participation of the ‘public’ in the planning system: TCPA Planning 2020 – Final Report of the Raynsford Review of Planning in England (November 2018) available at https://www.tcpa.org.uk/raynsford-review (last accessed 2 January 2020).

9 This may relate to the making of plans, programmes, policies or laws, or to individual decisions that affect communities (both local and national). There are, however, some notable exceptions to this and the current paper draws upon much of this work.

10 See for example Lee, M ‘Knowledge and landscape in wind energy planning’ (2017) 37 LS 3Google Scholar; Rydin, Y et al. ‘Local voices on renewable energy projects: the performative role of the regulatory process for major offshore infrastructure in England and Wales’ (2018) 23 Local Environment 565CrossRefGoogle Scholar.

11 For a detailed analysis of public participation see Lee, M and Abbot, C ‘The usual suspects? Public participation under the Aarhus Convention’ (2003) 66 MLR 80CrossRefGoogle Scholar.

12 For an overview of the environmental movement in Great Britain see Rootes, C ‘The environmental movement in Great Britain’ in Doyle, T and MacGregor, S (eds) Environmental Movements Around the World: Shades of Green in Politics and Culture Vol 2 (California: ABC Clio, 2013) ch 3Google Scholar.

13 See for example the WWF: https://www.wwf.org.uk/.

14 See for example Frack Off!: https://frack-off.org.uk/.

15 See for example the Badger Trust: https://www.badgertrust.org.uk/.

16 See for example Sandbag: https://sandbag.org.uk/.

17 There is little doubting the fact that in many respects the environmental movement has become increasingly institutionalised. Van Der Heijden argues that the degree of institutionalisation varies from one country to another, and is determined primarily by the political opportunity structure of the country in question. See Van Der Heijden, H-A ‘Political opportunity structure and the institutionalisation of the environment’ (1997) 6 Environmental Politics 25CrossRefGoogle Scholar.

18 As noted in the introductory section, groups often combine a range of tactics to achieve their desired aims, with choice influenced by factors including political and legal opportunities, resource, identity and values. See Hilson, C ‘New social movements: the role of legal opportunity’ (2002) 9 JEL 238Google Scholar.

19 Raynsford Report, above n 8, p 9.

20 This paper does not look at the role of public participation in the making of plans and programmes (both at national and local level). Public participation at this strategic level is widespread. For an overview of, for example, the Local Development Framework, see Duxbury, RTelling and Duxbury's Planning Law and Procedure (Oxford: Oxford University Press, 16th edn, 2018) pp 69–85Google Scholar. A more radical example of participation in plan-making can be found in the Localism Act 2011, s 116 (and Sch 9). For a brief overview see Layard, A ‘The Localism Act 2011: what is local and how do we (legally) construct it?’ (2012) 14 ELR 134Google Scholar.

21 For a general discussion of grassroots environmental organisations see Carter, NThe Politics of the Environment: Ideas, Activism, Policy (Cambridge: Cambridge University Press, 2nd edn, 2007) ch 6CrossRefGoogle Scholar.

22 Local groups may use their experience to develop in other ways. See for example Rootes, C ‘Acting locally; the character, contexts and significance of local environmental movements’ (2007) 16 Environmental Politics 722CrossRefGoogle Scholar. The Druridge Bay Campaign from the 1990s provides a good example of how individual group members may develop new skills and knowledge, and embark on new careers. One campaign member became a public relations officer for an MP, another set up a renewable energy company, and many became involved in campaigning on other issues. See R Baggott ‘Nuclear power at Druridge Bay’ (1999) Parliamentary Affairs 384 at 392.

23 Rydin, Y and Pennington, M ‘Public participation and local environmental planning: the collective action problem and the potential of social capital’ (2000) 5 Local Environment 153 at 157CrossRefGoogle Scholar. There is, however, a body of literature which points to the fact that in the case of significant development where the public and private sector work in partnership, elite capture can crowd out local community participation, with participatory procedures seen as an unnecessary hurdle that will simply delay project completion. For a discussion of ‘mega-event syndrome’ see M Müller ‘The mega-event syndrome: why so much goes wrong in mega-event planning and what to do about it’ (2015) Journal of the American Planning Association 6.

24 A copy of the report can be found at https://webarchive.nationalarchives.gov.uk/20180608131859/https://www.gov.uk/government/publications/called-in-decision-land-at-winslade-farm-frogmore-kingsbridge-devon-ref-3136298-19-january-2017 (last accessed 2 January 2020).

25 Galanter, M ‘Why the “haves” come out ahead: speculations on the limits of legal change’ (1974) 9 Law Soc Rev 95CrossRefGoogle Scholar. Galanter's work, although focusing on how different legal players fare in litigation, has been adapted and applied widely to a range of legal areas and non-litigation contexts. See for example Hoffman, EA ‘The “haves” and the “have-nots” within the organization’ (2008) 71 Law and Contemporary Problems 53Google Scholar, whose work utilises Galanter's analysis in the context of internal dispute mechanisms. Also see the collection of papers in Law and Society Review Special Issue (1999) 71 which considers Galanter's work 25 years later.

26 Developers are not the only ‘repeat players’ in the planning process. Local Planning Authorities are also repeat players who have (albeit limited) access to resources to support activity and may usefully align with local community groups when a planning application is being decided at central government level.

27 This is not the first time that contentious development has been proposed at Druridge Bay. In the 1980s it was a possible site for nuclear power generation. The Druridge Bay Campaign (and others) successfully halted the proposals. For an eloquent and enlightening account of the campaign against development at Druridge Bay see Baggott, above n 22.

28 Banks Mining challenged the decision under s 288 of the Town and Country Planning Act 1990. The court quashed the Secretary of State's decision and the proposal is now being considered afresh. See HJ Banks and Co Ltd v Secretary of State for Housing, Communities and Local Government [2018] EWHC 3141 (Admin).

29 For an excellent overview of historical perspectives on participation see Richardson, BJ and Razzaque, J ‘Public participation in environmental decision-making’ in Richardson, BJ and Wood, S (eds) Environmental Law for Sustainability (Oxford: Hart Publishing, 2006)Google Scholar.

30 See for example Black, J ‘Proceduralizing regulation: part I’ (2000) 20 OJLS 597CrossRefGoogle Scholar; Steele, J ‘Participation and deliberation in environmental law; exploring a problem-solving approach’ (2001) 21 OJLS 415CrossRefGoogle Scholar. For a recent discussion of the distinction between models of engagement directed at participation and those aimed at ‘public acceptance (in the context of major wind farm decisions) see Armeni, C ‘Participation in environmental decision-making: reflecting on planning and community benefits for major wind farms’ (2016) 28 JEL 415Google Scholar.

31 The UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Aarhus, 25 June 1998) available at https://www.unece.org/env/pp/treatytext.html (last accessed 2 January 2020). It would be wrong, however, to assume that the content, scope and purpose of procedural rights in international law documents are all the same. See further Peters, B ‘Unpacking the diversity of procedural environmental rights: the European Convention on Human Rights and the Aarhus Convention’ (2018) 31 JEL 1Google Scholar.

32 See for example Lee, M ‘Public participation and EU governance of technology’ in Brownsword, R et al. The Oxford Handbook of Law, Regulation and Technology (Oxford: Oxford University Press, 2017)Google Scholar.

33 Arnstein, S ‘A ladder of citizen participation’ (1969) 35 Journal of the American Planning Association 216Google Scholar.

34 Aarhus Convention, above n 31.

35 See further Lee and Abbot, above n 11.

36 The term ‘everyday evidence’ has been borrowed from Holder and McGillivray's critical evaluation of the law on local open green spaces and the involvement of local people in decision-making, and refers to the evidence contained in witness statements at a planning inquiry. See J Holder and D McGillivray ‘“If this were to be lost”: relating environmental justice and an ethic of care in everyday shared spaces’ SSRN, 22 July 2018.

37 Armeni, above n 30, at 419.

38 See for example Wynne, B ‘May the sheep safely graze? A reflexive view of the expert-lay knowledge divide’ in Lash, S et al. (eds) Risk, Environment and Modernity: Towards a New Ecology (London: Sage Publications, 1996)Google Scholar.

39 Corburn, J ‘Bringing local knowledge into environmental decision-making: improving urban planning for communities at risk’ (2003) 22 Journal of Planning Education and Research 420 at 421–42CrossRefGoogle Scholar.

40 Ibid, at 420.

41 These rationales are inevitably intertwined and mutually reinforcing. See for example Steele, above n 30. Also see Baldwin, R and Black, J ‘Really responsive regulation’ (2008) 71 MLR 59CrossRefGoogle Scholar.

42 There are also opportunities for local community groups to be engaged in legal participation. In the absence of third party rights of appeal in planning law, legal participation through the courts is achieved through judicial or statutory review procedures.

43 For an excellent overview see Duxbury, above n 20, ch 8 (for general participatory requirements), ch 9 (for EIA development), ch 20 (review procedures) and ch 21 (for nationally significant infrastructure planning).

44 See generally Town and Country Planning Act 1990, s 65, and Town and Country Planning (Development Management Procedure) Order (England) 2015, SI 2015/595.

45 Town and Country Planning (Environmental Impact Assessment) Regulations 2017, SI 2017/571.

46 House of Commons Written Ministerial Statement, col 72WS, 26 October 2012.

47 See Planning Inspectorate, Guide to Rule 6 for Interested Parties Involved in an Inquiry – Planning Appeals and Called-In Applications – England (April 2016) available at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/514284/guide_rule_6_planning_April_2016.pdf (last accessed 2 January 2020).

48 See generally Planning Act 2008, Pt III. For a detailed consideration of the NSIP development control process see Duxbury, above n 20, ch 21.

49 See generally Planning Act 2008, ss 47–49.

50 For a critical, practitioner-based assessment of these claims, see references in Wesselink, A et al. ‘Rationales for public participation in environmental policy and governance: practitioners’ perspectives’ (2011) 43 Environment and Planning A 2688 at 2689CrossRefGoogle Scholar.

51 Aarhus Convention, above n 31.

52 Ibid, Art 6(2) and (4).

53 Ibid, Art 6(3).

54 Ibid, Art 6(2) and (6).

55 Ibid, Art 6(7).

56 Ibid, Art 6(8).

57 Webler, T ‘“Right” discourse in citizen participation: an evaluative yardstick’ in Renn, O et al. (eds) Fairness and Competence in Citizen Participation: Evaluating Models for Environmental Discourse (Boston: Kluwer Academic, 1995)Google Scholar.

58 Webler, T and Tuler, S ‘Fairness and competence in citizen participation: theoretical reflections from a case study’ (2000) 32 Administration and Society 566 at 571CrossRefGoogle Scholar.

59 Ibid, at 570.

60 Ibid, at 569–570.

61 See for example Gallent, N and Robinson, SNeighbourhood Planning: Communities, Networks and Governance (Bristol: Policy Press, 2012)Google Scholar.

62 Due to the perceived ‘social gap’ between public acceptance of the need for renewable development on the one hand, and local resistance to such projects on the other, there has been a particular focus in recent years on studies of renewable development, most notably wind energy infrastructure. For an account of local objections in the context of wind farms see Bell, D et al. ‘The “social gap” in wind farm siting decisions: explanations and policy eesponses’ (2005) 14 Environmental Politics 460CrossRefGoogle Scholar.

63 See for example Natarajan, L et al. ‘Participatory planning and major infrastructure: experiences in REI NSIP regulation’ (2019) 90 Town Planning Review 117CrossRefGoogle Scholar; E Hartley and C Wood ‘Public participation in EIA – implementing the Aarhus Convention’ (2005) EIA Review 319.

64 Raynsford Report, above n 8, p 58.

65 See M Lee et al ‘Decision-making for major renewable energy infrastructure’ (2018) JPL 507 at 509.

66 Natarajan et al, above n 63, at 131–133.

67 Holder and McGillivray, above n 36, p 11.

68 Raynsford Report, above n 8, p 28.

69 Aitken, M ‘Wind power planning controversies and the construction of “expert” and “lay” knowledges’ (2009) 18 Science as Culture 47 at 60CrossRefGoogle Scholar.

70 Natarajan et al, above n 63, at 130.

71 Hartley and Wood above n 63, at 332.

72 For an excellent review of the literature see Williamson, KResearch Summary 2:11, Litigant in Person: A Literature Review (Ministry of Justice, June 2011)Google Scholar available at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/217374/litigants-in-person-literature-review.pdf (last accessed 2 January 2020).

73 Sandefur, RL ‘Elements of professional expertise: understanding relational and substantive expertise through lawyers’ impact’ (2015) 80 American Sociological Review 909CrossRefGoogle Scholar. In her statistical analysis of how lawyers affect case outcomes, Sandefur finds that their greatest impact is in being familiar with basic procedures.

74 Much has been written about expertise and how individuals acquire expert status. See for example Collins, H and Evans, RRethinking Expertise (Chicago: University of Chicago Press, 2007)CrossRefGoogle Scholar in which expertise is seen as ‘the real and substantive possession of groups of experts and that individuals acquire real and substantive expertise through their membership of those groups. Acquiring expertise is therefore a social process – a matter of socialization into the practices of an expert group’ (pp 2–3).

75 All documents pertaining to the development consent, including written objections and letters of support can be found at https://publicaccess.northumberland.gov.uk/online-applications/applicationDetails.do?activeTab=documents&keyVal=NW46GVQS0HJ00 (last accessed 2 January 2020).

76 House of Commons Select Committee on Environment, Transport and Regional Affairs, The Planning Inspectorate and Public Inquiries (13th Report, 1999–2000) para 35. See also Sandefur, above n 73, at 922.

77 Planning Inspectorate, above n 47, para 13.1. Such advocates are not, however, required to have legal qualifications.

78 Sandefur, above n 73, at 911–912.

79 Natarajan et al, above n 63, at 127.

80 See Martin, D et al. ‘Making law, making place: lawyers and the production of space’ (2010) 34 Progress in Human Geography 175 at 184CrossRefGoogle Scholar.

81 See further Foster, S and Glick, B ‘Integrative lawyering: navigating the political economy of urban redevelopment’ (2007) 95 Calif L Rev 1999 at 2053–2054Google Scholar.

82 For a summary of what has been called law in the ‘service of organising’ see also Gordon, J ‘The lawyer is not the protagonist: community campaigns, law and change’ (2007) 95 Calif L Rev 2133Google Scholar.

83 For an overview of ‘framing’ see C Hilson ‘Framing fracking: which frames are heard in English planning and environmental policy and practice?’ (2015) JEL 177.

84 Ibid. For an analysis of the judicial response to fracking frames see Pedersen, O and Zito, A ‘Fracking frames and the courts’ (2018) 20 ELR 202Google Scholar.

85 See Lee, above n 32, for further discussion.

86 For an example of evolving national policy on climate change infrastructure see Lee, M et al. ‘Public participation and climate change infrastructure’ (2015) 25 JEL 33CrossRefGoogle Scholar.

87 Ibid. A clear national policy in favour of development (in say, airport expansion, road development or renewable energy) will undoubtedly be a significant challenge for objectors. However, it has been argued that where this is the case, local campaigns can quickly evolve into national issues, thereby generating support from national NGOs. See further Rootes, C ‘From local conflict to national issue’ (2013) 22 Environmental Politics 95CrossRefGoogle Scholar.

88 For a discussion of the rhetorical means by which debates on the shaping of environmental regulation are advanced see Pedersen, O ‘The rhetoric of environmental reasoning and responses as applied to fracking’ (2015) 27 JEL 325CrossRefGoogle Scholar.

89 Garavan, M ‘Resisting the “costs” of development: local environmental activism in Ireland’ (2007) 16 Environmental Politics 844 at 846–847CrossRefGoogle Scholar.

90 Rootes, C ‘More acted upon than acting? Campaigns against waste incinerators in England’ (2009) 18(6) Environmental Politics 869CrossRefGoogle Scholar.

91 See for example Lee, above n 10, at 19–20.

92 A good example of this are the methodologies and models used when measuring the ornithological impact of wind farm development. See M Lee et al ‘Techniques of knowing in administration: co-production, models, and conservation law’ (2018) JLS 427.

93 See for example Lee, above n 10, and Aitken, above n 69.

94 Aitken, above n 69, at 58–59. This further highlights the importance of knowledge framed as ‘expertise’.

95 For a discussion of the role of universities in access to justice see O Drummond and G McKeever Access to Justice Through University Law Clinics (University of Ulster, 2016) available at https://www.ulster.ac.uk/__data/assets/pdf_file/0003/132654/Access-to-Justice-through-Uni-Law-Clinics-November-2015.pdf (last accessed 2 January 2020).

96 Environmental Law Foundation, (in association with BRASS) Costs Barriers to Environmental Justice (2009) available at https://www.unece.org/fileadmin/DAM//env/pp/compliance/C2008-33/correspondence/FrELF_Report2009.pdf (last accessed 2 January 2020).

97 Ibid, p 12: 29% sought advice on judicial/statutory review and 27% of cases concerned complaints, civil law and enforcement issues and associated environmental legal advice.

98 For an overview of the different models of crowdfunding see Perry, R ‘Crowdfunding civil justice’ (2018) 59 BCL Rev 1358Google Scholar.

99 See further J Tomlinson ‘Crowdfunding public interest judicial reviews: a risky new resource and the case for a practical ethics’ (2019) PL 166.

100 Ibid, at 183.

101 See further https://www.law.com/legal-week/2018/06/25/crowdjustice-founder-julia-salasky-on-democratising-access-to-law-changing-case-funding-and-taking-on-stormy-daniels-vs-trump/ (last accessed 2 January 2020).

102 See for example https://www.crowdjustice.com/case/public-inquiry/ (last accessed 2 January 2020).

103 Tomlinson, above n 99, at 177–183.

104 See further Gomez, MA ‘Crowdfunded justice: on the potential benefits and challenges of crowdfunding as a litigation financing tool’ (2015) 49 USFL Rev 307Google Scholar.

105 Community groups must be constituted and must have less than six months free reserves or an annual income of less than £10,000. For eligibility criteria see https://i.emlfiles4.com/cmpdoc/6/2/1/9/5/1/files/59247_pae_eligibility_criteria_-_july_2015.pdf (last accessed 2 January 2020).

106 See further G Parker and E Street ‘Neo-advocacy for neo-liberal times: planning aid and the advocacy project in England’ (2017) Town Planning Review 443.

107 Above n 87, at 98.

108 Report to the Secretary of State, para 240, available at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/692060/18-03-23_DL_IR_Highthorn_3158266.pdf (last accessed 2 January 2020).

109 Lee et al, above n 65, at 510.

110 See further CEEA, Participant Funding Program – National Program Guidelines available at https://www.canada.ca/en/environmental-assessment-agency/services/policy-guidance/participant-funding-program-national-program-guidelines.html#ex (last accessed 2 January 2020).

111 Fitzpatrick, P and Sinclair, J ‘Learning through public involvement in environmental assessment hearings’ (2003) 67 J of Env Management 161 at 162CrossRefGoogle ScholarPubMed.

112 Ibid.

113 Holder, J and McGillivray, D ‘Bringing environmental justice to the centre of environmental law research: developing a collective case-study methodology’ in A Philippopoulos-Mihalopoulos and V Brooks Research Methods in Environmental Law (Cheltenham: Edward Elgar, 2017) p 204Google Scholar.