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The eco towns proposals continue to attract controversy and debate. Opponents of the programme are now looking closely at the arguments which are being played out in Warwickshire where a legal challenge has been brought against the proposed Middle Quinton eco-town. This article considers the legal issues and the possibility that objectors elsewhere in the country will follow suit and attempt to use the courts to block the programme.

The Middle Quinton challenge

The Middle Quinton site lies between Stratford-upon-Avon and Evesham. Its development as an eco-town has been opposed by Better Accessible Responsible Development (BARD). BARD put together a fighting fund to challenge the proposal. In June they applied to the High Court for a judicial review of the candidate shortlist. Their challenge was based on a number of grounds, including:

• Insufficient consultation;

• Breach of the duty to carry out a strategic environmental assessment of the eco-towns policy; and

• The potential for perceived bias if the Secretary of State (having been seen to support the eco-town programme) has to deal with the actual planning applications which may then becalled in for her determination.

Judicial review is a process of subjecting decisions of public bodies to scrutiny to ensure that they are taken in accordance with the law. It is not concerned generally with the merits of a decision but with the way in which it was taken. The first stage is to seek the court's permission to proceed with the application on the basis that there is an arguable case. On 11 September Mr Justice Sullivan ruled that BARD indeed had an arguable case. It is likely that the application will come back for a full hearing and a decision before the end of the year. The application for permission to mount judicial review is being strongly opposed by the government.

More legal arguments

In July, the Local Government Association (LGA) published an opinion from leading barristers on the government's approach to eco-towns. The main issues which they raised were that the Planning Policy Statement to promote the successful candidate sites:

It is difficult to ignore the impression of bias despite the government's protestations that the sites will be subject to the normal planning process.

• Will run contrary to the basic premise behind a plan-led planning system in which, plans and policies are promoted at a local and regional level; and

• Will be in breach of European law which directs that a strategic environmental assessment of the PPS should be carried out - and there is no evidence that the anticipated PPS has been subject to SEA

The advice concludes that the proposed PPS is likely to be unlawful. Not surprisingly, the government disagrees with these claims.

The candidate site promoted by English Partnerships and the Co-Operative Group at Pennbury in Leicestershire is also opposed by another local group, Campaign Against the Stoughton Co-op Eco-town (CASCET). This group has received legal advice that the consultation process for that site is flawed, unfair and unlawful. In particular, they say that the website set up to show information about the proposal has unreadable plans and information is not readily available in languages other than English. In response, the Co-Operative Group say that the web site is simply one part of a wider and ongoing consultation on the proposal which has so far received a high level of engagement and response. If pushed that far, it will be for the courts to decide whether the consultation process has been fair.

The first of many?

The government have set up a site selection process which is not unlike a beauty competition – entrants were invited to come forward, candidate sites shortlisted and the finalists soon to be announced in the forthcoming PPS. Whilst not quite comparable to the 1980s "decide – announce – defend" approach to radioactive waste disposal sites the impression remains that these eco-town sites will receive favourable treatment in the planning process. It is difficult to ignore the impression of bias despite the government's protestations that the sites will be subject to the normal planning process.

Legal challenges based on inadequate consultation are not uncommon and have very often led to decisions being quashed by the courts – indeed the government have already had their fingers burned by the successful Greenpeace challenge to the nuclear consultation. The requirement to subject plans and policies to strategic assessments is a more recent legal development. It provides ample ammunition to objectors, and should be treated seriously. The outcome of the Middle Quinton challenge is therefore eagerly awaited.