Otterpool Park Update: A consultation & a lack of transparency regarding the LLP

On Friday 26th March 2021, Otterpool Park LLP will hold two virtual public information and consultation events on phase one of Otterpool Park, which includes the town centre.

You can register to be part of the virtual consultation here

https://phaseone.otterpoolpark.org/register/ 

The first session runs from 1pm until 2.30pm and the evening session from 5.30pm until 7pm, all open to the public.

The engagements will be recorded and published on the Otterpool Park website, so that those that are unable to attend can watch it at a later date and provide their feedback.

Before moving onto what constitutes a consultation we need to make a few things clear.

Folkestone & Hythe District Council decided to set up Otterpool Park LLP  to act as the master developer for the project and as the planning applicant; amongst other roles. It will facilitate the development of up to 10,000 homes on the Otterpool site rather than the Council. The LLP is controlled by FHDC as it owns the the shares of the company, as it does Otterpool Park Development Company Ltd.  As such, they are subject to a code whose purpose is to secure that the company’s activities are treated financially as part of the council’s activities. The relevant legislation,  Part V of the Local Government and Housing Act 1989, breaks down the legal screen between the council as one corporation and the company as another making it clear the LLP is subject to the council’s control.

As the Council owns the shares of the LLP, it must, according to Arnold-Baker on Local Council Administration, print on all its operative documents and stationery, including its Otterpool Park website, the fact that it is owned and controlled by the council.  Alas the website makes no mention of the fact it is a controlled company and Folkestone & Hythe District Council are pulling the strings.  Of course, such detail is a mere oversight by those involved and has nothing to do with any unwillingness to be open and transparent.

Otterpool Park LLP resolved to seek up to £75m from the Council. We should be able to know how any money will be spent, on what, when, where with who and why.

As Otterpool Park LLP is controlled by the Council it means it becomes a company which must accept and respond to Freedom of Information Requests (FoIs) and Environmental Information Requests (EiRs). And for the first time since its set up, and due to our intervention, Otterpool Park LLP and Otterpool Park Development Company Ltd  can now be sent FoIs and EiR’s, via what do they know dot com.

So coming onto the consultation: What are the ingredients of a consultation?

Four basic requirements are essential if a consultation process is to have a sensible content.

• First, that consultation must be at a time when proposals are still at a formative stage.

• Second, that the proposer must give sufficient reasons for any proposal to permit of intelligent consideration and response.

• Third,… that adequate time must be given for consideration and response and;

• Fourth, that the product of consultation must be conscientiously taken into account in finalising any statutory proposals

In slightly more detail, in order for the consultation to achieve its objective, it must fulfil certain minimum requirements. Meaningful public participation in this particular decision-making process, in a context with which the general public cannot be expected to be familiar, requires that the consultees should be provided not only with information about the draft scheme, but also with an outline of the realistic alternatives, and an indication of the main reasons for the authority’s adoption of the draft scheme. That follows, in this context, from the general obligation to let you the consultees know what the proposal is and exactly why it is under positive consideration, telling you enough (which may be a good deal) to enable you to make an intelligent response: See para 112, per Lord Woolf MR.

That said there is or rather can be a requirement to provide information about other options; which means that there must be a detailed discussion of the alternatives, or the reasons for their rejection.

The consultation required in the present context is in respect of the draft scheme, not the rejected alternatives; and it is important, not least in the context of a public consultation exercise, that the consultation documents should be clear and understandable, and therefore should not be unduly complex or lengthy.

Nevertheless, enough must be said about realistic alternatives, and the reasons for the Council’s preferred choice, to enable the consultees to make an intelligent response in respect of the scheme on which their views are sought.

Three further general points also need to be considered

First, the degree of specificity with which, in fairness, the public authority should conduct its consultation exercise may be influenced by the identity of those whom it is consulting.

Thus, for example, local authorities who were consulted about the government’s proposed designation of Stevenage as a “new town” (Fletcher v Minister of Town and Country Planning [1947] 2 All ER 496 at p 501) would be likely to be able to respond satisfactorily to a presentation of less specificity than would members of the public, particularly perhaps the economically disadvantaged.

Second, when statute does not limit the subject of the requisite consultation to the preferred option, fairness will require that interested persons be consulted not only upon the preferred option but also upon arguable yet discarded alternative options. For example,  see R (Medway Council and others) v Secretary of State for Transport.

Third, the concept of Legitimate Expectation which is set out clearly by both the Local Government Association and The Consultation Institute.

The 10,000 home Otterpool Park development is NOT  part of the Council’s Carbon Action Plan.

So there you have it. We hope the LLP will address the matter of ownership and control and place this on their website. We wouldn’t want any one to be mislead by omission.

And we hope that the consultation is fair and proper, so as not to bring about a costly and unwarranted judicial review.

The information contained in the blogpost above is provided for informational purposes only and should not be construed as legal advice on any matter.

The Shepway Vox Team

The Velvet Voices of Dissent