Denying opponents the right to be heard; a new Canterbury Tale!

This is Blog no 109

None of Chaucer’s surviving Canterbury Tales of 1392 feature a wine-maker seeking to expand its business.

But a recent Court of Appeal decision turned on the extent to which objectors to the planning application could prevent the development because they were denied a three-minute opportunity to speak against the proposal.

Presenting arguments verbally … in public … has long been a salient feature of consultation in the UK. It’s a little like our fondness for public meetings – in spite of doubts about their effectiveness. It carries the flavour of an ancient right derived from the ‘Magna Carta’, even if, in reality, it is nothing of the kind!

In planning, for example, there is no statutory right to speak to a planning committee, but many Councils have adopted the practice and in the case of Canterbury Council, enshrined this right in its constitution. This provided for up to three people on both sides of the argument three minutes each to address the elected members. It made separate provision for one representative of an amenity or advisory group with a relevant interest also to speak. Legal precedent has already established that “Whilst it is under no general obligation to do so, if the planning authority voluntarily provides for a process for speaking at a meeting, it is obliged to ensure that the adopted process is fair.”

By mistake, the Council misapplied its own rules! As a result, in R (Sarah Moakes) v Canterbury City Council, the Kent branch of the Council for the Preservation of Rural England (CPRE), through Ms Moakes, challenged the decision to grant Chapel Down winery permission to expand in the Kent Downs Area of Outstanding Natural Beauty.

At the original Judicial Review, Judge Alice Robinson found that poor advice and misunderstanding, led to the Kent CPRE and one other being denied their right to speak. The question was whether this, of itself, was sufficient to justify quashing the planning decision. She ruled that it did not, on the grounds that although it might have been procedurally unfair, the claimant had failed to demonstrate that she suffered ‘material prejudice’ as a result. At the Court of Appeal, this finding was supported in the clearest terms.

It quoted an old 1971 observation by Lord Wilberforce that struck me as being relevant to the wider concepts of public engagement. He said:
          “A breach of procedure, whether called a failure of natural justice, or an essential administrative fault,  

           cannot give [a claimant] a remedy in the courts unless behind it there is something of substance which

           has been lost by the failure.”

How often have consultation practitioners heard consultees complain that they were denied or prevented from expressing their views in person? Insufficient or inaccessible public events are often cited as unfair, and we often hear articulate objectors to complex projects point out that two or three minutes is hopelessly inadequate to present a detailed argument.

So, what is achieved by a personal appearance before decision-makers?

It is unlikely that an individual can add much to what will have been included in written consultation responses or in officers’ reports of the public reaction. In the Canterbury case, the Court made much of the fact that there had been no evidence that those denied the chance to speak had anything particular to add to what was already known. They had made written representations and there was no evidence that anything new had come to light since they did so. Hence no material prejudice!

On the facts of this case, the Court of Appeal was surely right to dismiss the claim. In the words of one of the legal commentators: 
          “For local authorities, the case offers comfort that minor mishandling of public-speaking protocols will not

          automatically scupper permissions, provided objectors’ substantive points are before the committee.”

However, I worry about the principle of appearing in person.

We are in danger of slipping into a technocratic culture where too much is automated and the human element is disregarded. AI makes it worse. Any day now, we will have large-scale consultations written and prepared using AI and eliciting hundreds of responses – also written by AI. Then they are analysed by AI and only then (hopefully) assessed by a human.

Paradoxically, the outcome may be to place a new premium on face-to-face encounters. That way, we can ask and hear real people express their own views …. in their own words. For, although AI is increasingly able to factor ‘sentiment’ into its texts, there is still no-one better then themselves to explain the likely impact of proposals upon individuals, their families and their communities.

We have, to an extent, started to acknowledge this in the criminal justice system through live in-person presentation of Victim Statements. Judges have consistently reported that the emotional tone, body language, and sincerity of victims have helped them appreciate the real impact of the crime. For victims of crime themselves, having their voice heard publicly is an important part of healing. They report that It restores a sense of agency in a process that can otherwise feel dominated by lawyers and legal rules.

Should we therefore, apply the same logic to those that take planning or other public policy decisions?              It might not be popular with Ministers right now, who just want planning committees to say yes to virtually everything, but, in principle, adding a human dimension to decision-making cannot be wrong. When trust in democracy and in the integrity of institutions is at such a low ebb, we cannot afford a further slide into disillusion.

The issues of the moment are rarely clear-cut choices between right and wrong. Difficult trade-offs oblige us to prioritise some values over others, and the only way to handle these is to better understand the situations – and how we got to where we are. The ancient art of storytelling remains at the heart of understanding the narrative, and the human voice remains a terrific way to communicate.

As the continuing popularity of Geoffrey Chaucer confirms, it isn’t always what you say … but the way you say it!

Rhion H Jones LL.B

August 2025

Commentaries are prepared primarily to help consultation practitioners take account of developments in the law and to guide them on situations where legal advice should be sought. They are no substitute for reading Court judgments or studying statutory provisions or associated Guidance.

Rhion Jones LL.B has monitored and written commentaries on the Law of Consultation since 2007 but does not provide legal advice. He will, however, be happy to discuss the content of this or any other commentary.           

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