Introduction
Although participation is a political virtue in and of itself, as a practice it is a challenging and often frustrating endeavour. Collective citizen participation is not something that can simply happen. It has to be organised, facilitated, and even nurtured. Without concern for the quality of participation, it is better to forgo the effort. Such endeavours will almost surely fail, and the failure will only offer the critics of participation ammunition to suggest the foolishness of the commitment.Footnote 1
One does not have to look hard to find examples of contentious developments that have raised serious environmental concerns and attracted significant local (and national) interest. Housing development, highway construction, airport expansion and renewable energy infrastructure, for example, may all play a critical part in meeting societal needs, but can have major consequences for local residents, communities and the environment near the development. Local community environmental groupsFootnote 2 may seek to influence the development consent process in multiple ways, none of which should be considered in isolation from each other.Footnote 3 They may see direct action and protest as an effective means of influencing outcome, as has been a tactic for those opposing consents related to fracking in recent years.Footnote 4 The courts are, of course, the forum for legal participation.Footnote 5 Here, groups may challenge the legality of planning decisions ex post by initiating and engaging with statutory or judicial review processes.Footnote 6 In addition, they can and do seek to exert pressure and influence through formal ex ante avenues of participation. This political (as opposed to legal) participation empowers local groups to influence decisions made by local and central government (ie non-judicial bodies).Footnote 7
As illustrated in the opening quotation, promoting effective political participation is difficult, as indeed is agreeing on what that looks like. Whilst a desirable outcome (usually rejection of a planning application) is undoubtedly the ultimate measure of success for local community groups, effective participation is about more than that and, for these groups at least, necessitates the meaningful inclusion of locally-held views in decision-making. Their participation in the planning process is undoubtedly important. But it places onerous demands on often under-resourced groups who have little relevant in-house professional expertise and/or the financial means to pay for that expertise. This paper explores the value of legal expertise in promoting the effective participation of local community groups in the development consent process. As decision-making takes place within a hugely complex and contested area of law and policy where local concerns may not fit neatly into legal categories, access to legal expertise is important, especially when local opposition is pitted against more articulate and powerful actors who can mobilise significant resources and skills in order to influence an outcome that will serve their own interests. Whilst legal expertise is held by a range of planning professionals, lawyers, through knowledge, skill and experience as ‘repeat players’ of the planning system, are well positioned to advise groups and represent their local interests both in written submissions and, if the opportunity arises, at oral hearings. However, the financial barriers faced by these groups in accessing this important resource are significant and although important work is done by the pro bono legal community and others to guide groups through the planning process, more needs to be done to bridge the funding and resource gap. Of course, guaranteeing access to legal expertise will not address all obstacles to effective public participation and there remain considerable challenges in improving the accessibility of the planning process.Footnote 8 The links between effective local community group (political) participation in planning and the role of legal expertise is ripe for empirical study. In the absence of such work, this paper draws upon some recent examples of local community groups who have sought legal advice and representation during the development consent process.
The paper builds upon and expands the existing literature in several important ways. First, the focus here is on local community groups. Much of the socio-legal and political science literature considers how highly professionalised and seemingly well-financed pressure groups shape decision-making through legal and political opportunity.Footnote 9 Secondly, whilst there is much discussion in the literature on the role of technical and scientific expertise in environmental decision-making and the ability of local residents and their community groups to be able to challenge that evidence on its own terms,Footnote 10 the role of legal expertise in this context is relatively under-studied. Thirdly, literature that considers the availability of legal expertise focuses primarily on litigation as opposed to ex ante participatory processes.
The paper begins in section 1 by identifying the key features of local community ‘environmental’ groups, features which differentiate them from the kaleidoscope of other environmental pressure groups who seek to influence decision-making at various levels of governance. Their limited (or more likely lack of) experience, expertise and resource (often but not always relative to developers) and their seemingly local focus, underpins both why legal expertise is needed and the challenges such groups face in accessing such expertise. Galanter's typology is used as a framework for discussing the relative position of many local groups and developers in the planning process. Section 2 provides an overview of public participation in planning law. It considers, albeit briefly, the multiple dimensions, meanings and rationales of public participation and provides some examples of how public participation is reflected in the development consent process.Footnote 11 Here, the focus is on political participatory opportunities that may arise in the context of development that is likely to have a significant impact on the environment. Section 3 turns to the all-important question of the role of legal expertise. It identifies the broad principles of fairness and competence as core components of ‘effective’ participation, and considers how those with legal expertise use their professional knowledge (both substantive and procedural) to promote fairness and competence by, amongst other things, strengthening the narrative around local community objections. In short, it argues that those advising local community groups must position objections within a pre-determined policy framework, framing arguments in the context of more universal concerns whilst recognising that decisions in planning law are based on narrow, land-use planning considerations. Section 4 considers how groups can and do seek legal expertise when exercising their collective rights of participation, and the challenges they face in this regard. It concludes that more needs to be done to improve access to this crucial resource.
1. The position of local community ‘environmental’ groups in the planning process
Environmental pressure groups come in many shapes and sizes.Footnote 12 Some have a general aim (eg wildlife protection),Footnote 13 some focus on a specific sector (eg fracking)Footnote 14 or species (eg badgers)Footnote 15 and others mobilise around specific policy areas and regulatory instruments (such as climate policy and emissions trading).Footnote 16 Groups may be local, national or international in their reach and remit. There are organisations which are professional, centralised and well-funded and those which are comprised of a small number of local people who rely solely on small, individual donations.Footnote 17 They also differ greatly in the tactics and strategies they adopt to achieve change, ranging from litigation in the courts, to political campaigning, to direct action and anti-protest campaigns.Footnote 18 All these groups are key players in shaping the environmental agenda and may, to a greater or lesser extent, seek to influence the outcome of site-specific planning applications.
It is easy to overlook the fact that much of the environmental movement action that we see and participate in is at the local level and, in fact, ‘planning decisions are one of the greatest catalysts of local political activity because of their direct impact on people's lives’.Footnote 19 Opposition to, for example, development that restricts access to environmental goods (eg local green space) or exposes communities to environmental harm (eg pollution from a waste treatment plan) is commonplace and local people and community groups are faced with difficult choices about how best to influence the development consent process.Footnote 20 The focus in this paper is on these grassroots environmental groups,Footnote 21 specifically groups based in local communities. Their motivation for collective action is, at least in the first instance, usually based on a threat to individual members and their immediate locality as opposed to an ideological commitment to environmentalism.Footnote 22 The focus on local groups as opposed to individuals is important, for the impact of collective participation is likely to amount to more than the sum of its individual members. Individual residents are unlikely to have a sufficient influence on the decision-making process to make up for the costs of engagement. By forming local groups, ‘where the potential participants know each other and there is the prospect of strategic bargaining in an iterative social context’, participation is arguably more likely.Footnote 23
Local residents and their groups may of course view the proposed development in different ways; one should not presume that the local community, tied by virtue of place, is bound by a common conception of interests. Regardless of aim and scope, these local community groups have a number of key features in common. They are generally less professionalised than vocal and more organised interest groups, and rely heavily on voluntary action. They are also resource-poor. They are unlikely to have access to in-house expertise (both legal and non-legal) unless members of the group have accumulated relevant knowledge by virtue of their profession, and use fund-raising activities (often events held in their local communities) to raise financial resources. They are equally unlikely to have experience of using the legal system. A good example of such a group is the Friends of South Hams, set up by local residents with the specific purpose of opposing a planning application submitted by the Perraton family to construct a large wind turbine on their 450-acre dairy farm in Frogmore, within the South Devon Area of Outstanding Natural Beauty. Following a successful judicial review of the council's decision to grant permission, the application was ‘called-in’ by the Secretary of State for Communities and Local Government and a three-day planning inquiry was held.Footnote 24 In the absence of in-house legal (and other) expertise, the Friends of South Hams group had to raise money through crowdfunding and community events to pay for legal representation and expert witnesses.
These groups frequently find themselves pitted against developers who have invested considerable resource in seeking to gain approval for their proposed development. In other words, the planning system often embodies the epitome of David and Goliath battles. Galanter's work provides a useful framework within which to consider the dynamics of this relationship.Footnote 25 In many instances, well-resourced companies seek permission for significant developments. Following Galanter, these are the ‘haves’, with the money to hire the best legal representation and pay for the costs of extensive legal and technical research. They are better able to absorb the costs of protracted and often lengthy decision-making processes and, in the case of litigation, are in a stronger position to pay the other party's costs if the case is lost. These developers are also the ‘repeat players’ in Galanter's typology, organisations (public and private) who use the legal system frequently and strategically to secure desirable outcomes and for whom the stake in the outcome may be small relative to their total worth.Footnote 26 In contrast, the features of local community groups discussed above make them resource-poor ‘have-nots’, the ‘one shotters’ who only have recourse to participatory forums and the courts on occasion and for whom the stakes are high. The varied position of power of participants vis-à-vis financial and human resources, time, experience and general ability to contribute has a significant impact on the effectiveness of public participation.
The SAVE Druridge campaign against an application by Banks Mining to develop an open-cast coalmine in Druridge Bay, Northumbria neatly illustrates the ‘have’ and ‘have-not’, ‘repeat player’ and ‘one-shotter’ typology.Footnote 27 The planning application was called-in by the Secretary of State for Communities, Housing and Local Government. Following a 13-day planning inquiry, and despite the recommendation of the Inspector to grant permission, the application was refused.Footnote 28 The Banks Group (of which Banks Mining is a part) is undoubtedly an example of the ‘haves’ and ‘repeat players’ in Galanter's typology. Established in 1976 as a family-owned business, the company now has over 400 employees, an operating profit of £17.4 million (£5.9 million of which is from Banks Mining) and over 40 years’ experience in the coal industry (and related planning processes). In contrast, SAVE, an initial group of eight people, was established with the primary purpose of opposing the Banks Mining development. Although the group now has hundreds of members (both local residents and those from further afield), and a significant presence online and in social media, it relies solely on the volunteering efforts of its members. Like the Friends of South Hams, the group had to raise significant funds through community events and crowdfunding to pay for legal and other professional expertise at the planning inquiry.
Before turning to the role of legal expertise in the planning process, Section 2 begins with an overview of the multiple dimensions of and rationales for public participation. It then moves on to consider some examples of participatory opportunities in the development consent process.
2. The how and why of public participation in public law
In recent decades, there has been an increasing emphasis placed on the importance of ensuring public involvement in environmental decision-making at all levels of governance.Footnote 29 This proceduralisation of environmental law is much discussed in the literature.Footnote 30 Public participation is a common feature of international environmental policy statements and international legal instruments such as the Convention on Biological Diversity and the Paris Agreement, with a detailed framework of rights provided in the UNECE Aarhus Convention.Footnote 31 It is also now routinely included in EU environmental legislation that covers a multiplicity of substantive areas,Footnote 32 and UK planning and environmental law incorporates a range of formal participatory mechanisms guaranteed in law that are designed to ensure input into decision-making processes that will have an impact on the environment. Despite its prevalence in law and policy, there is no commonly agreed definition of public participation: it is a slippery concept to explain or judge. Sherry Arnstein's ladder of citizen participation captures the broad spectrum of participation opportunities, ranging from tokenistic ‘right to know’ or notification requirements to consultation and citizen power, with the lowest levels of participation amounting to non-participation, and the highest levels essentially transferring power away from professionals and towards communities.Footnote 33 There are also multiple components of public participation, neatly illustrated by the Aarhus Convention's three distinct but interrelated pillars – providing adequate access to information, promoting participation in decision-making (political participation) and providing access to justice (legal participation).Footnote 34 Participation is not, however, defined in the Convention itself. This paper does not attempt to provide a definition but rather proceeds on the basis that participatory opportunities will enable ‘the public’ to consider, comment upon and potentially influence the outcome of decision-making.
Of course, the rationale(s) for public participation in any given context will likely influence the favoured participatory model. One need only look at the Aarhus Convention's preamble to capture the multiplicity of both substantive (output legitimacy) and procedural (input legitimacy) arguments in favour of participation, all of which are relevant when considering the participation of local groups and the value of local knowledge in the planning process.Footnote 35 Involving the public in decision-making arguably leads to ‘better’ more informed decisions. It exposes decision-makers to public preferences and local, ‘every day’ evidence that may otherwise be overlooked, and can remove the privileged status of experts employed by government (both local and central) and industry.Footnote 36 As Armeni eloquently notes, ‘knowledge is dispersed, contingent and constructed’ and outputs that reflect a range of values and experiences ‘tend to be qualitatively superior in terms of environmental performance and protection’.Footnote 37 Knowledge that has been gathered in local contexts or settings can help provide innovative solutions to planning problems. Defining the boundaries between expert and non-expert, lay, local and professional knowledge is far from unproblematic and there are numerous examples of where these knowledge cultures interact.Footnote 38 Nevertheless, local, non-expert ways of knowing may be characterised by factors such as who holds the knowledge, how that knowledge is gathered, what makes it credible and in which forums it is tested.Footnote 39 The value of this knowledge-base ‘should never be ignored by planners seeking to improve the lives of communities experiencing the greatest risks’.Footnote 40 From a procedural perspective, participation has a democratic or normative value in that the public has a right to be involved in decision-making that impacts on their life and the world around them. Providing citizens with the opportunity to participate enhances the democratic legitimacy of the decision-making process, promotes accountability and transparency and, in some cases, can strengthen trust in an institution and heighten public support for the project or proposal in question, thereby limiting future challenges to implementation. In short, public participation can improve the substantive quality of the decision, and enhance its procedural legitimacy.Footnote 41
This paper focuses on what has been termed political participation – that is, the ex ante participation of ‘publics’, including local community groups, in the initial decision-making process.Footnote 42 The planning system provides a range of opportunities for political participation which are well-developed relative to other areas of environmental decision-making. Space precludes any detailed analysis of participatory provisions so what follows is a brief overview of participation in planning, along with two examples of specific procedures adopted for significant, often controversial, developments.Footnote 43 All planning applications must be publicised (with specific requirements varying according to the type and size of development). The public is then legally entitled to make representations and local authorities must have regard to these representations when determining the application.Footnote 44 Where the development in question requires an Environmental Impact Assessment (EIA), the application must be accompanied by an environmental statement.Footnote 45 The environmental statement, along with any representations made by consultation bodies and any other person about the environmental effects of the development is, for all intents and purposes, a material consideration that must be taken into account in deciding whether to grant planning permission. Additional provision is made for certain developments that are more likely to raise significant issues of general local concern. In some cases, the decision is removed from the local planning authority. For example, certain applications may, at the discretion of the Secretary of State, be called-in under section 77 of the Town and Country Planning Act 1990. Such powers are used rarely and selectively in cases where, for example, the development could have significant effects beyond its immediate locality or where the development deviates substantially from national policy.Footnote 46 Where this power is exercised, and in addition to the submission of written representations, Rule 6 ‘interested parties’ have the right to be heard at a public local inquiry or other hearing.Footnote 47 Both SAVE Druridge and members of the Friends of Hams group were granted Rule 6 status. There is also a separate development consent process for nationally significant infrastructure projects (NSIPs), namely large-scale developments of a particular type such as hazardous waste facilities, and road or power stations that exceed certain thresholds.Footnote 48 Under the Planning Act 2008, participatory mechanisms are provided during both the developer's pre-application consultation and the examination of the application. At the pre-application stage, and in addition to consulting with a range of statutory and non-statutory bodies, the applicant must prepare a statement setting out how it proposes to consult with the local community. The consultation must be carried out in accordance with that statement and responses received as a result of that consultation must be considered before submitting an application to the Secretary of State.Footnote 49 The applicant must also conduct an EIA. If the application is ‘accepted’, then the application moves to an examination which is led by an Examining Authority. All ‘interested parties’ can make representations during the examination. There is an emphasis on the consideration of written representations, although there are usually a number of hearings. Unlike the planning inquiry process noted above, there is a general presumption against cross-examination, with a focus on ensuring that such hearings are inquisitorial in nature.
3. Effective participation and the role of legal expertise
This paper does not seek to revisit the well-trodden literature on the merits (or otherwise) of public participation but proceeds on the basis that public participation is in and of itself a good thing.Footnote 50 However, a legal commitment to participation does not, in any way, guarantee that its procedural and substantive benefits will be realised; the obstacles to effective participation are significant. This section begins with an overview of what ‘effective’ participation looks like by drawing both on the principles of the Aarhus ConventionFootnote 51 and academic literature. It then moves on to consider the role of legal expertise in promoting effective participation for local community groups looking to object to planning proposals.
An overarching principle throughout the Convention is that of ‘effectiveness’ – of ensuring that ‘effective’ public participation can take place. Here, Article 6 is of particular relevance as it applies to public participation in decisions on specific activities. It identifies timing (for example, the public must be informed early in the process, must be able to participate when all options are openFootnote 52 and must be given a reasonable time within which to participateFootnote 53), access to all relevant informationFootnote 54 and submission (by the public) of comments, information, analyses or opinions as important.Footnote 55 It also states that due account be taken of the outcome of participation.Footnote 56 Similarly, the academic literature on ‘effective’ public participation acknowledges the breadth of factors that influence public participation. For example, Renn and Webler, drawing on Habermas's theory of the ideal speech situation and communicative competence, identify two meta-principles of good participatory processes, namely fairness and competence.Footnote 57 Both principles capture the multiple features of public participation specified in Article 6. Competence refers to ‘the construction of the most valid understandings and agreements given what is reasonably knowable to the participants at the time the discourse takes place’.Footnote 58 Here the emphasis is on ensuring that all relevant information is available to participants in a format that is accessible and understandable, and that the best rules and procedures are used to gather, evaluate and select knowledge. Webler and Tuler define fairness as ensuring that everyone must have ‘an equal chance to make their voices heard and shape the final decision’.Footnote 59 They identify four key features of fairness, namely the ability: (1) to attend appropriate meetings, hearings etc (where available); (2) to initiate discourse (in other words, make statements within participatory forums, either orally or in writing); (3) to participate in the discussion (by asking for clarification, making challenges, answering questions and arguing a case); and finally (4) to participate in decision-making.Footnote 60 Fairness is, therefore, not just about substantive outcomes but demands procedural legitimacy, transparency and inclusiveness. Principles of competence and fairness are closely linked, with the latter being contingent on appropriate access to information, and an understanding of the legal rules and processes that frame decision-making. In addition, the perceived fairness of decision-making (in terms of both substantive outcome and procedural openness and inclusivity) is crucial in developing a trusting relationship between the public and decision-making authorities and may strengthen support for seemingly controversial development.Footnote 61
Stakeholder views of participatory processes also reflect the central importance of fairness and competence, with much of the research indicating that in many instances, participatory procedures fall short.Footnote 62 Timing and location of hearings (accessibility), and access to documentation are perceived as crucial, as is the forum within which the public can make statements and argue their case (with a preference for more informal and relaxed settings), and the extent to which the process is capable of accommodating different arguments.Footnote 63 One of the most significant challenges to effective public participation is the imbalance in terms of access to expertise and resource as the ‘development sector is far better resourced than communities to engage in the planning process, and this leads to systemic feelings of “unfairness”’.Footnote 64 This is a strong theme in much of the empirical research on participation in planning. For example, a study of the experiences of local community actors in NSIP renewable-energy infrastructure (REI) projects (mainly wind farms) finds that ‘whilst participation makes onerous demands of all stakeholders, the resources and capacities (including time and funding) to meet those demands are unevenly distributed’.Footnote 65 The same study concludes that where this is the case, powerful, well-resourced developers, and their behaviour within the NSIP process, can diminish not only the level of trust in the applicant, but also in the decision-making process itself and the ongoing governance of the project.Footnote 66 And in a different context, Holder and McGillivray, in their study of an inquiry relating to the registration of land as a village green also note the significant resources needed by those groups attending the inquiry.Footnote 67
An underexplored element of the resource imbalance is that of legal expertise. The town and country planning system has recently been described as ‘one of the most complex legal frameworks of any part of English public policy … [it is] hard to navigate with multiple amendments to primary and secondary legislation’.Footnote 68 It is therefore unsurprising that empirical work has identified lack of legal knowledge as a barrier to effective participation. For example, at a planning inquiry into a wind farm development in Scotland ‘the developers had hired a team of legal advisers and expert witnesses to deal with every topic that was addressed, whilst the local opposition group did not have the same level of resources …’.Footnote 69 In the NSIP study referred to previously, particular reference was made to the legal terminology involved: ‘A typical comment was, “the gobbledegook and the language were so complicated, I think it would have put most people off getting involved. You needed to be a Philadelphia lawyer [ie exceptionally competent] just to understand it”’.Footnote 70 Hartley and Wood also identified poor public knowledge of planning, legal and waste licensing issues as significant challenges to participation.Footnote 71 So, how can access to legal expertise improve the participation of local community groups? Its value rests on the fundamental premise that law's complexity creates barriers to those not trained in it. This point is most obviously made in the context of legal participation, in other words litigation in the courts, where lawyers act as ‘gatekeepers’ of justice and the absence of legal representation has an adverse impact on the outcome of the case.Footnote 72 But it can also be similarly applied to groups looking to mobilise around traditional ex ante participatory levers including formal and informal consultation, examinations, hearings and planning inquiries. In short, legal expertise may help in bridging the gap between the ‘haves’ and the ‘have-nots’ in the planning process. Whilst their contribution will likely vary depending upon the legal ‘space’ within which participatory opportunities are exercised (with much of the literature focused on the role of lawyers in litigation),Footnote 73 lawyers are professional experts. They have substantive expertise (they are experts in legal rules and procedures), are trained in legal thought and argumentation and have developed skills in legal practice.Footnote 74 As discussed in more detail below, access to such expertise will, at the very least, promote competence and fairness.
Legal expertise can speak to the principle of competence by improving local participants’ understanding of both the law and policy framework within which planning decisions are made, and the swathes of detailed information and evidence pertaining to the application itself. Take the planning inquiry relating to the open-cast coalmine in Druridge Bay as an example. The international, national and local legal and policy framework within which the decision was taken was far-reaching. Furthermore, over 4000 documents relating to the application were stored on the Northumberland County Council website and a number of additional submissions were made to the Planning Inspectorate prior to the planning inquiry.Footnote 75
The value, to local community groups, of professional knowledge is amplified by virtue of the fact that lawyers are likely to be ‘repeat players’. The importance of such experience should not be underestimated. By knowing ‘the rules of the game’, community groups arguably gain an advantage when co-opting those with legal expertise irrespective of the merits of the case, especially in planning inquiries pursuant to the Secretary of State calling-in a planning application. In contrast with decision-making processes at the local planning authority level, planning inquiries are legalistic, adversarial forums where the professional expertise of those representing participants is understood to influence key decision-makers in the process.Footnote 76 A perusal of planning inquiry document reveals that in the majority of cases, developers are represented by barristers, often QCs. Planning guidance itself states that it is ‘customary for each of the main parties at an inquiry to have an advocate represent them’.Footnote 77 By instructing legal counsel with significant experience of planning inquiries, groups like SAVE Druridge and the Friends of South Hams can level the playing field in this regard. Lawyers also bring with them ‘relational’ expertise in that they understand ‘the social distribution of knowledge and discretion in the actual relationships through which professional work takes place’.Footnote 78 Evidence also suggests that even in the NSIP process, where decision-making forums are inquisitorial and where the Examining Authority attempted to reassure participants, the formality of the procedure was overwhelming to some participants, the forum was difficult for people who were unfamiliar with presenting in public, and ‘professional manners reduced participants’ confidence in engaging’.Footnote 79 In fact, lawyers arguably change the existing social dynamics between other participants in the process by virtue of their being members of the ‘community elite’: ‘a lawyer intends to exert power, through conscious, planned interventions, towards an outcome desired by one or more participants’.Footnote 80 In addition to bringing expertise and skill, lawyers can perform other functions. They may, for example, use procedural tools to organise local residents and potentially form coalitions of common goals.Footnote 81 In doing so, local groups will be in a stronger position to take their struggle beyond the local political arena and, by forming larger collective groups, may place them on a more equal footing with the ‘have’ and ‘repeat player’ developers. These more established and expansive organisations view lawyering in a different light and see lawyers participating in activities outside the scope normally associated with legal representation. In such cases, the role of lawyers is to adopt creative legal strategies and, by educating, organising and lobbying, to support such groups in their longer-term goals.Footnote 82
Providing better access to legal expertise and experience can clearly strengthen the hand of local groups looking to participate in the planning process. But what is of particular relevance to this paper is the role of lawyers in ensuring that local knowledge claims are effectively represented during the consultation process. As discussed in Section 2 above, this ‘every day’ evidence should not be ignored. The remainder of this section considers the challenge of ‘framing’ in the context of planning law and policy, the delegitimising effect of the ‘local’ label and the knowledge claims of local community groups. The language of framing has received significant traction in environmental law scholarship in recent years. At its most basic, framing goes beyond argument and is about the strategic choices that individuals and groups make when representing a particular issue or issues in order achieve goals and create shared understandings.Footnote 83 The debate around fracking provides a topical and timely example of the importance of framing with scalar (local, national and global) and technology-based frames potentially useful in generating support for or against the fracking industry.Footnote 84 Particular frames may mobilise public opinion for or against a particular development. But at the decision-making level, the planning and environmental permitting systems do not necessarily provide equivalent ‘space’ for these different frames to be aired and the relative influence of, in particular, local (principally environmental harms) and global (primarily global climate risks) claims varies significantly. In some cases, the statutory framework itself may provide a narrow set of grounds upon which to make representations and local objections may not easily fit into those pre-defined categories.Footnote 85 In addition, all development proposals have to be considered within a broader national (and regional) policy context that may be evolving rapidly.Footnote 86 Policy may already create a strong presumption in favour of development with the effect that many important decisions are made before the formal consultation process begins.Footnote 87 Planning lawyers will (or at least should) be cognisant of the highly specialised policy and legal language that frames site-specific planning decisions. They may counsel groups on how best to present their local knowledge within that existing legal and policy framework, and may represent group interests either orally or in writing.Footnote 88
Framing is a particular challenge for those community groups whose concerns are labelled (by developers and others) as narrow and local-ist, thereby undermining the value of local knowledge. Whilst ‘place’ is crucial in the rhetoric of these groups, their opposition can be far more politically and socially relevant than might otherwise be assumed. As noted by Garavan:
[L]ocal-level protest often implicitly, and sometimes explicitly, raises fundamental claims regarding the nature of modern society. Frequently buried in disputes ostensibly about specific grievances, are claims regarding the good life, the nature of modernity and the costs of maintaining the industrial system.Footnote 89
In such cases, local community groups may be inclined to present their concerns as broader public interest issues. However, the constraints of planning law often mean that it is only particularistic, localist arguments that are admissible, so experience, knowledge and skill are required if local views are to speak to more universal concerns, within the confines of pre-determined policy considerations. Christopher Rootes’ work on the impact of local campaigns against new waste incinerators in England highlights the difficulties faced by local community groups in this regard.Footnote 90 He finds that whilst universalistic arguments are useful in legitimising the claims of such groups, their impact is limited and groups are often pulled back to local concerns. He concludes that as decisions are ultimately made on the basis of narrow, land-use planning considerations, broader arguments against development must be made in the context of the local. Given that decision-making powers in planning law are placed in the hands of locally-elected officials unless otherwise decided by legislation or national policy, the favouring of localistic arguments is perhaps unsurprising.
The nature of the knowledge claims presented may also influence the impact of local community-based objections. Most studies indicate a strong preference in the planning process for technical as opposed to lay knowledge even when concerns relate to, for example, landscape and visual impacts, both of which are most obviously open to value judgements and local, lay contributions.Footnote 91 The emphasis on formalised, approved methodologies recognised in planning policy or professional ‘good practice’ can provide shelter against any criticism of the applicant's methodology and, furthermore, can crowd out the value of local knowledge claims.Footnote 92 This is particularly so when decisions are taken centrally (such as at planning inquiries and NSIP examinations) where the process demands that all evidence be backed by ‘scientific’ proof.Footnote 93 Local objectors seem better placed to influence outcomes at earlier stages of consultation. Furthermore, a study of the NSIP examination process found that matters relating to biodiversity were central to decision-making despite the fact that they are often not of general concern to the lay public. This, combined with the emphasis on technical ‘know-how’, can alienate the local from decision-making. Whilst input (and indeed evidence) from those with scientific and technical expertise is obviously important here, legal expertise and oratory skill can be used to position local knowledge within contemporary understandings of relevant knowledge claims. Legal expertise can also be used to frame substantive counter-arguments to those put forward by developers and their experts, in terms that planners understand. Furthermore, it may facilitate local community groups in challenging the arguments of opposing parties by cross-examining witnesses, notably in more adversarial forums such as planning inquiries. In doing so, legal expertise can be used to undermine the credibility of evidence presented by others in terms of reliability, not just in relation to the probity of the evidence itself. For example, one study of a Scottish planning inquiry into a wind farm development identified lawyers as playing a key role in cross-examining expert witnesses with a focus on their credentials rather than on the substance of the evidence that they were presenting.Footnote 94
4. Access to legal expertise
It is not, of course, only the absence of legal expertise that defines local community groups as ‘have-nots’. Accessing such expertise comes at a significant cost and, as discussed previously, lack of financial resource is itself a barrier to participation for local groups. Legal aid has never been available for communities looking to participate in ex ante decision-making and this is unlikely, at the least in the current climate, to change. In light of this funding and resource gap, many community groups have over the years sought support from the pro bono legal community. For example, charitable organisations such as the Environmental Law Foundation (ELF) connect local groups with over 150 environmental lawyers undertaking pro bono work, and other experts. The ELF handles over 200 cases per year and offers in excess of one million pounds’ worth of free help per annum. In addition, it has a number of university-based law clinics, thereby involving students (and academics) in its work.Footnote 95 An ELF Report published in 2009 reviewed all case files which were referred to either one or more advisers between January 2005 and July 2009.Footnote 96 Whilst in some cases this related to advice on challenging a decision in the courts (through judicial and statutory review), over one third of clients (34%) received support during the planning consultation process, including early and informal consultation in advance of an application being submitted, with 10% seeking help during a public inquiry.Footnote 97
Groups may wish to instruct legal counsel on a fee-paying basis and, in the absence of financial resources, will launch local fund-raising activities and events in order to pay for this. Social media has had a major impact on the ability of these groups to reach out to and beyond their local community for support. One of the most positive developments in recent years has been the growth of crowdfunding, which relies predominantly on individuals donating small amounts in support of a ‘cause’ through specialised online platforms.Footnote 98 With its modern roots in Artistshare (where supporters of artists’ projects could make a financial pledge online in return for certain benefits such as attending recording sessions), crowdfunding in general has grown significantly in recent years and has even been used by the government in its support for business.Footnote 99 Crowdfunding has also entered the domain of civil justice, most commonly as a form of third-party litigation funding. As noted by Tomlinson, crowdfunding is ‘qualitatively different in multiple respects’ from community fund-raising activities, not least because its online status means that ‘causes’ are widely circulated and contributions can be made by people who are geographically dispersed.Footnote 100 CrowdJustice is one example of a crowdfunding platform in the UK. Launched in 2015, it enables those seeking funding to publicise and raise funds for a particular case, a large number of which are in the area of planning and environmental law. Case owners present their case on the funding site, and set a target amount and a deadline by which that amount must be raised. If the target is met, the funds will be transferred directly to the solicitor involved in the case. CrowdJustice takes a small fee from the overall total but if the target is not met, the pledges are cancelled. If the case proceeds, unused funds are returned to CrowdJustice with the case owner deciding whether to donate them towards another case on CrowdJustice, or to donatee them to the Access to Justice Foundation. So far, CrowdJustice has raised over £7 million and over 200,000 people from over 100 countries have donated to causes.Footnote 101 A search through the CrowdJustice funding pages reveals that whilst most groups are looking to fund litigation, some also seek contributions to fund legal advice and/or representation (both written and oral) during the planning consultation process or as part of a hearing, examination or inquiry.Footnote 102 For example, the Friends of South Hams group used CrowdJustice to raise over £9,000, in addition to the £20,000 raised by community-led activities. This money has been used to pay for expert witnesses and consultants as well as lawyers and barristers. Crowdfunding is not, however, a panacea and there are significant legal and ethical concerns, particularly about its use in the litigation context.Footnote 103 Whilst it opens the doors for individual and group litigants who have neither the resources nor the expertise to litigate and levels the playing field by altering the dynamics between opposing parties, it can potentially encourage meritless claims and lead to an overall increase in public law litigation.Footnote 104 However, the use of crowdfunding for ex ante political participation in the planning and environmental field is arguably far less contentious and can be used to both mobilise public support for local community group endeavours and close the participation gap by enabling groups to access legal and other professional expertise.
Many groups both access pro bono advice and, especially in the context of planning inquiries, will raise funds to pay for legal counsel. The SAVE Druridge group provides a good example of this two-pronged approach. Early in the process, the group reached out to and received help from ELF. The Foundation assisted with the drafting of the inquiry call-in letter and, according to their website, continued to support the group through the inquiry. SAVE also raised funds to pay for additional independent legal advice, and legal representation at the planning inquiry. They raised over £21,000 through crowdfunding initiatives (£19,000 on CrowdJustice, and £2,155 on JustGiving) and, in addition, used local fund-raising events such as concerts and public auctions to raise additional financial resource to support their participation in the decision-making process (including appearing as an interested party at the Banks Mining review).
Whilst direct access to legal expertise, either pro bono or on a fee-paying basis, is one route to levelling the playing field, local community groups may also benefit from other, more indirect sources of advice. One such example is that of Planning Aid England, established in 1973 and funded by the Royal Town Planning Institute. It offers impartial and independent planning advice to individuals and community groups on all aspects of the planning process. Although the emphasis here is not on legal expertise per se, Planning Aid England seeks to empower those who lack the means and resources to participate effectively, with the primary aim of capacity building. It offers a free web resource for all and, with the support of over 300 volunteers, provides bespoke planning support for eligible individuals and organisations who cannot afford professional planning advice.Footnote 105 This support is targeted at those who have not traditionally engaged in the planning system or at groups based in areas of multiple deprivation. Planning Aid England also offers free workshops and training events (for example, on an overview of the planning system, community engagement, writing policy and evidence base) to eligible individuals or community groups. However, a chronic lack of funding and a consistent lack of support from within the planning profession has undermined the real potential of Planning Aid England to reach out and help those community groups who need it most, with many volunteers unable to involve themselves in case work that may be lengthy and at times may be prone to conflict.Footnote 106
Legal advice and expertise may also be available where local community groups network and form alliances with better-resourced national NGOs, although, as noted by Rootes:
The success of these strategies depends in large part upon something over which local campaigners have negligible influence: the existence of a salient translocal issue such as may be provided by a national government policy or actions by a government or corporation that simultaneously affect a number of localities and thereby provide a target for the articulation of local grievances as particular instances of a translocal issue.Footnote 107
Friends of the Earth and SAVE Druridge formed an important alliance during the early stages of the campaign with both groups coordinating their efforts to focus on different but complementary objections to the proposal:
SAVE focuses on the proposal being contrary to policy for conserving and enhancing the natural environment, its unacceptable adverse effects on tourism and recreation (and policies relating to them), along with its adverse effect on the local economy and unnecessary risk to highway safety. However, SAVE supports the submissions by FoE about the proposal being contrary to policies about climate change, the sustainable extraction of minerals, and the commitment to phase-out coal-fired power stations, and the conflict with both the guidance on renewables and a low carbon economy, and the development plan for the area.Footnote 108
Collaboration of this kind undoubtedly goes some way to levelling the playing field between developer and objector, with SAVE drawing upon Friends of the Earth's expertise and experience of the development consent process. However, it cannot and should not detract from the proposition that local groups need better access to legal expertise if they are to participate effectively. With its clear connection to climate change, and in light of government commitments to reducing greenhouse gas emissions, the Druridge Bay development was always likely to attract the attention of a national environmental NGO such as Friends of the Earth, with its network of local groups providing a good connection to grassroots environmental politics. Not all controversial development transcends local boundaries in this way. Furthermore, even the better-resourced and professionalised NGO community has neither the financial nor human resource to form alliances with all local community groups with legitimate and important environmental concerns about a proposed development. Important strategic internal decisions have to be made by such groups as to which proposed developments to mobilise against.
Overall, improving access to legal expertise for these local community groups is imperative if rights to collective participation in planning are to be exercised meaningfully. There is, of course, scope to consider providing direct financial support to groups. The introduction of a dedicated funding stream to support local residents (and by extension, their community groups) in the NSIP process has been recently proposed.Footnote 109 And one can look outside the UK jurisdictional context to find examples of state-centred funding. For example, under the Canadian Environmental Assessment Agency's Participant Funding Program individuals, non-profit organisations and Aboriginal groups who are interested in participating in the environmental assessment process can apply for funds. This support is not available as of right. Applicants must demonstrate that their participation in the process will add value and that they meet one or more of the eligibility criteria.Footnote 110 In terms of capacity building, there is certainly scope to develop the work of Planning Aid England with a view to creating a better funded and more independent body which retains advice and challenge as its core objectives. This legal empowerment through education is ‘both a precondition for, and an outcome of, fair and effective consultation of stakeholders’Footnote 111 and could also be provided in a number of additional and innovative ways that are utilised within planning and environmental processes in other jurisdictions. For example, Fitzpatrick and Sinclair, in their analysis of public participation in the Sable Gas Panel Review Environmental Assessment process in Canada, point to some interesting examples of how education, in combination with other empowering strategies, can be used to support individuals and local groups.Footnote 112 The Sable Gas proposal (a joint venture between Mobil Oil, Shell and others) involved the exploitation of natural gas off shore of Sable Island. It was a complex process with multiple regulatory regimes at play at both federal and provincial/territorial levels. Under the now-repealed Canadian Environmental Assessment Act 2012, the Minister of the Environment could refer an environmental assessment to an independent panel of reviewers. Public hearings allowed interested parties to present evidence, concerns and comments regarding the potential environmental impacts of the designated project. The panel considering the application presented a course for participants on how to be an intervenor. In addition, they provided leeway with respect to the standard rules of practice for judicial hearings, and offered the services of the National Energy Board counsel to assist groups in developing their submissions. Encouraging the development of both formal and informal networks between residents, local community groups, applicants etc can also promote the sharing of experience and ‘create opportunities for formal and informal learning about law and legal practice’.Footnote 113
Concluding thoughts
This paper argues that the participation of local community environmental groups in the planning consent process is important and that access to legal expertise can play a role in empowering those groups who lack the means to participate effectively. By virtue of their professional expertise and skill, and their positioning as repeat players in the planning process, lawyers can – amongst other things – counsel groups on how best to present their knowledge and maximise influence and, if appropriate, can represent their groups at oral hearings. Although the majority of planning applications are determined by written representations, the most controversial developments are still heard by inquiries. As these are adversarial and driven by framing in technical terms, legal expertise is particularly important in this forum. Of course, it is important to caution against the over-involvement of the legal profession. Communities introduce valuable lay knowledge to planning and it is crucial that this is not overshadowed by legalistic arguments. The role of legal professionals is to position their knowledge within the relevant legal framework, policy and guidance without detracting from the value that knowledge has in influencing planning outcomes.
What is undoubtedly clear from the literature is that there is a general dissatisfaction with participatory processes in planning law, and that greater access to legal expertise would go some way to bridging the participatory gap between the haves and have-nots. There are clearly multiple ways by which access to legal expertise could be improved. A detailed empirical investigation into the value and impact of legal expertise in this forum would be a useful starting point to further consider how we can better promote an equality of arms – how the ‘have-nots’ can more effectively challenge the ‘haves’.
