JL Anor, R (On the Application Of) v Arun District Council

A non-statutory consultation must be conducted fairly and in accordance with the Coughlan principles. An initial error or omission does not automatically invalidate the process. Consultation is intended to expose errors in the decision-maker’s analysis, and the process will be unlawful only where, viewed as a whole, it is so unfair that consultees cannot make an intelligent consideration or response. Subsequent events may be taken into account. Re-consultation is required only where the proposed decision has changed so materially that fairness requires it. Detailed developments in a complex strategy, including correction of an identified appraisal error, will not necessarily meet that threshold.

The claimants, farmers at Climping, sought judicial review of the Environment Agency’s consultation on a flood and coastal erosion risk management strategy. The consultation material assessed a preferred “Do Nothing” option without including the cost of complying with existing legal agreements protecting the claimants’ land. The Agency later accepted the error, included those costs in a revised “Do Nothing (legal)” option, and published further strategy material.

The claimants argued that the original consultation was invalid and that the later changes required re-consultation. The central issues were whether the omission made the consultation unlawfully unfair and whether the revised proposal was so different from the consulted proposal that fairness required a fresh consultation.

1. Disposition. The claim for judicial review was dismissed.
2. The Agency accepted that the appraisal of the “Do Nothing” option should have included the costs of complying with the legal agreements. That was an error and a failure to follow the relevant Defra guidance.
3. Nevertheless, consultation is intended to enable consultees to identify factors which the decision-maker may have overlooked. An error will not ordinarily invalidate the process merely because it was corrected after representations. Only in exceptional cases, where the omitted factor is so fundamental that consultees cannot give intelligent consideration or an intelligent response, will the process be procedurally unfair. The agreements were expressly identified in the consultation documents, and consultees could understand and challenge their omission from the cost appraisal.
4. The fairness of consultation must be assessed as a whole. The court may consider events after the formal consultation period, although later opportunities for representations may carry less weight if less widely publicised. The Agency publicly explained the revised approach and remained willing to consider further representations.
5. The test for re-consultation is whether the proposal ultimately pursued is so different from the proposal consulted upon that fairness requires a fresh consultation. It was unnecessary to decide whether the “fundamental difference” formulation in R (on the application of Smith) v East Kent Hospital NHS Trust [2002] EWHC 2640 (Admin) stated the only applicable test. The change from “Do Nothing” to “Do Nothing (legal)” concerned one part of one frontage and was relatively modest. The remaining changes were the expected result of developing a complex strategy and responding to consultation.
6. The Agency was ordered to pay the claimants’ costs up to service of its detailed grounds. The claimants were ordered to pay the Agency’s costs thereafter, all on the standard basis. Permission to appeal was refused.

The judgment records that permission was granted by Collins J and that Ouseley J later permitted an amendment adding the re-consultation ground. The Administrative Court dismissed the judicial review claim.