Law of Consultation Overview and Case Update – 29th September 2015

On 29th September 2015 Burges Salmon LLP generously hosted the third meeting of SWALA. The meeting was well attended by a number of solicitors and barristers who have an interest in Administrative Law in the South West of England. There was a healthy mixture of practitioners in private practice and those employed by public authorities.

The focus of the meeting was twofold. Firstly, consideration of the law of consultation and recent case law. Secondly, the linked but distinct topic of the role of judicial review in renewable energy industry in the UK.

The first speaker was Emily Heard of Bevan Brittan who provided a very helpful and insightful summary on the duty to consult, the Gunning principles of lawful consultation and the basis on which the Administrative Court will grant relief. Emily’s talk was infused with practical examples from recent cases and how the duty to consult can apply in practice, drawing on her wealth of experience of advising public authorities.

The second speaker was Michael Barlow of Burges Salmon who gave a fascinating overview of the renewable energy industry in the UK and the legal and financial mechanisms deployed by government to promote it. The second half of his talk drew out valuable lessons to be learned from recent decisions of the Administrative Court and the Court of Appeal in relation to the regulation of the solar energy business. Michael also raised a number of interesting points from the recent decision in Breyer Group plc & Ors v Department of Energy and Climate Change [2015] EWCA Civ 408 regarding the successful Human Rights damages claims (A1P1) by a group of solar panel companies, which arose from the effects of the (lawful) consultation in relation to an unlawful proposal.

The final speaker was Polly Sweeney of Irwin Mitchell who revisited the topic of consultation with a particular focus on how the duty to consult on alternative options has been applied following the Supreme Court decision of R (Moseley) v London Borough of Haringey [2014] UKSC 56. Polly’s talk provided a brilliant exposition of how the courts have grappled with the scope of the duty to consult on public bodies in the face of budget cuts and the possible direction of future challenges in this area on behalf of members of the public who may be affected by such proposals.

The meeting finished with some lively comments and questions from the floor followed by drinks and canapés.

A copy of the slides and notes can obtained here.

The next SWALA meeting will commence at 5.45pm on 16th November 2015 (venue to be confirmed) where we will be joining the Constitutional and Administrative Law Bar Association (ALBA) by video link for their annual lecture, which will be delivered this year by Lord Kerr, Justice of the Supreme Court.  A drinks reception will follow at 7pm.

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