Legal report - Consultation hits trouble on advertising standards

Last month's Advertising Standards Authority (ASA) ruling on a brochure and letter issued to local residents in Cloughton, North Yorkshire, follows similar rulings on communications materials relating to schemes ranging from wind farms to airports, eco-towns and supermarkets.

While these have not passed unnoticed in the industry, the potentially significant ramifications for the development sector and communications professionals have attracted little comment. Public consultation has been an accepted part of the planning process for years but to date it has not attracted intensive qualitative or legal scrutiny. This may be set to change as the Infrastructure Planning Commission comes into operation, implementing a system in which consultation becomes a formal legal obligation.

Material scrutiny brief claimed

A more immediate, although incremental, threat of regulation has come to light from an unexpected source, in the form of the ASA. At the heart of the issue is the authority's view that unregulated materials used for public consultation fall into its remit as forms of advertising. Therefore, any facts or claims asserted in them are subject to its scrutiny on accuracy and truthfulness.

This principle was challenged during a recent investigation into a circular about a proposed supermarket development in Manningtree, Essex, but the ASA upheld its right to adjudicate on such materials. The ruling against the Duchy of Lancaster at Cloughton reveals that this trend is growing. Complaints on 17 separate points were lodged, seven of which were upheld.

The ASA assesses materials that are subject to complaints against the Committee of Advertising Practice code. It requires production of supporting evidence, which has to have been available at the time of publication. Where complaints have been upheld, these have mainly been on the basis that the facts presented do not fully support the claims.

In the case of the Duchy of Lancaster's communication, for example, the residents' association took issue with its claim that "residents agree the village is in decline". The Duchy's response to the ASA presented the results of a local questionnaire in which the closure and loss of facilities were seen as an indicator of decline. It supported this argument by citing coverage in the local media, which it claimed demonstrated the need for future investment in the village.

The ASA noted that the Duchy's evidence illustrated that suggestions for improvement had been made and concern for the future of the village expressed by local people. However, it upheld the complaint on the basis that there had been no specific statement of the type claimed. So, what are the ramifications for developers and communications professionals?

Complaints risk trust breach

In certain respects, the bark of the ASA can be seen as much worse than its bite. The authority cannot impose financial penalties on developers falling foul of a ruling. It can only direct that a certain claim or fact must not be made again. That said, quite apart from the time and cost implication of an ASA investigation, the publicity surrounding such complaints and rulings could have a lasting impact on building community trust at a local level and corporate reputations generally.

More worrying still is the question of whether objectors to planning proposals will see ASA involvement as a means of delaying or hindering unpopular developments. The solution is preparation, as is so often the case. In-house property PR teams and the planning communications industry that has grown to maturity over the past decade need to be aware of the implications of the ASA's role and how the application of the code might be used against them.

They must ensure that they adhere to the highest quality of control and convey messages accurately and robustly to the relevant people at the right time. Carrying out a legal review of your consultation processes represents a cheaper option than firefighting once a complaint has been submitted.

With a new system for major infrastructure projects demanding more systematic consultation and the Conservative Party promoting a more community-focused approach to planning, the clear message for developers and their advisers is that they cannot afford to be complacent when it comes to consultation.

Phil Brogan is a director at GGR Planning Communications, part of DLA Piper. Sian Croxon is a partner in DLA Piper's intellectual property and technology group.

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