Factual and Procedural Background
This claim for judicial review concerns a challenge by the Plaintiff to the Defendant’s consultation process regarding the Arun to Pagham flood and erosion risk management strategy ("the strategy"). The Defendant, in partnership with an interested party, began public consultation on a draft strategy in June 2009, covering five coastal frontages in West Sussex, including the Climping frontage which is the focus of this claim.
The Plaintiff are farmers at Climping whose land is protected by two historic legal agreements requiring the Defendant to maintain sea defence works. The draft strategy recommended a "Do Nothing - withdrawal of maintenance" option for Climping, excluding the costs of complying with these agreements in the appraisal of options, which the Plaintiff challenged as flawed.
Following significant objections, including from the Plaintiff, the Defendant later acknowledged that the cost of complying with the agreements should be included and published revised documents in 2010 reflecting this change. The Defendant’s Large Projects Review Group recommended further work before final approval of the strategy. The Plaintiff commissioned a technical review disputing the Defendant’s assessments, which the Defendant is considering. The Plaintiff contends the consultation was fatally flawed and seeks an order requiring recommencement of consultation for the Climping frontage.
Legal Issues Presented
- Whether the Defendant’s consultation process was unlawfully flawed by failing to include the cost of complying with legal agreements in the appraisal of options for the Climping frontage.
- Whether the changes made to the preferred option for Climping after the consultation period required the Defendant to recommence consultation on that part of the strategy.
Arguments of the Parties
Appellant's Arguments
- The consultation was "fatally flawed" because the appraisal did not include costs of complying with legal agreements, contrary to Defra policy guidance.
- The preferred option for Climping changed materially after consultation from "Do Nothing" to "Do Nothing (legal)," necessitating re-consultation.
- The Plaintiff sought relief limited to recommencing consultation only for the Climping frontage.
Respondent's Arguments
- Although no statutory consultation was required, the consultation undertaken had to be proper and was so.
- The omission was identified and corrected following consultation responses, demonstrating the consultation process functioned as intended.
- The changes to the preferred option were modest and did not require re-consultation as a matter of fairness.
- The Defendant maintained an ongoing process of considering representations and would undertake further consultation if necessary.
- Regarding costs, the Defendant argued the Plaintiff’s claim was a high-risk strategy and costs should be awarded accordingly.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| R v North and East Devon Health Authority ex parte Coughlan [2001] QB 213 |
Standards of proper consultation: consultation must be at a formative stage, provide sufficient reasons, allow intelligent response, and take responses into account. |
The court applied these principles to assess whether the consultation was proper, concluding that despite the omission, the consultation was not fatally flawed. |
| R v Brent London Borough Council ex parte Gunning [1985] 84 LGR 168 |
Proper consultation requirements including adequate time and information. |
Referenced as part of the proper consultation standard alongside Coughlan. |
| Wilson v Secretary of State for the Environment [1973] 1 WLR 1083 |
Consideration of wider public support in consultation fairness. |
Used to illustrate that the Plaintiff was not deprived of wider community support opposing the Do Nothing option. |
| R (Greenpeace Limited) v Secretary of State for Trade and Industry [2007] ELR 29 |
Consultation process only interfered with if something "clearly and radically" wrong occurs; flawed consultation not necessarily unlawful. |
The court agreed the test is whether the process was so unfair as to be unlawful, not merely flawed. |
| Devon County Council and Norfolk County Council v Secretary of State for Communities and Local Government [2011] EWHC 1465 (Admin) |
Clarification of the test for unlawful consultation as unfairness rather than a rigid dichotomy of error severity. |
Supported a nuanced approach to assessing consultation fairness. |
| R (Smith) v East Kent Hospital NHS Trust [2002] EWHC 2640 (Admin) |
Re-consultation only required if there is a fundamental difference between proposals consulted on and those adopted. |
The court applied this to find that the change to "Do Nothing (legal)" was not so fundamental as to require re-consultation. |
Court's Reasoning and Analysis
The court accepted that the Defendant failed initially to include the costs of complying with the legal agreements in the appraisal of the Do Nothing option, contrary to Defra policy guidance. However, the consultation documents expressly identified this omission, allowing consultees to make informed responses. The Defendant later corrected the omission through published documents and newsletters, which were publicly available and invited further representations.
The court emphasized the purpose of consultation is to identify and correct errors or omissions in decision-making. The fact that the Defendant amended its position in response to consultation feedback indicated the process worked rather than being fatally flawed.
Applying established legal principles from leading authorities, the court found the consultation was proper and not so unfair as to be unlawful. The change from "Do Nothing" to "Do Nothing (legal)" was a modest adjustment within the wide scope of the strategy and did not require re-consultation.
The court also considered post-consultation events and representations, concluding that fairness must be assessed on the consultation process as a whole, including subsequent engagement by the Defendant. The Defendant’s willingness to consider further representations and potentially re-consult if necessary further supported the fairness of the process.
Regarding costs, the court found the Plaintiff was justified in commencing proceedings before the Defendant publicly acknowledged the omission but should have reconsidered continuing after detailed grounds were served. Costs were ordered accordingly.
Holding and Implications
The court dismissed the Plaintiff’s application for judicial review.
The decision confirms that a consultation process which initially omits a relevant factor but expressly identifies that omission and subsequently corrects it in response to consultation feedback is not necessarily fatally flawed or unlawful. Changes to consultation proposals that are modest and part of an evolving strategy do not automatically require re-consultation. The ruling underscores the importance of assessing consultation fairness as a whole, including post-consultation engagement. No new precedent was set; the court applied and affirmed established principles on proper consultation and judicial review.