QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
London WC2A 2LL
B e f o r e :
|THE QUEEN ON THE APPLICATION OF JL AND AT BAIRD||Claimant|
|THE ENVIRONMENT AGENCY||Defendant|
|ARUN DISTRICT COUNCIL||Interested Party|
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MR G NARDELL QC (instructed by THE REGIONAL SOLICITOR FOR THE ENVIRONMENT AGENCY) appeared on behalf of the Defendant
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LORD JUSTICE SULLIVAN:
"The strategy area covers the West Sussex coast from the western bank of the river Arun at the Ford Railway Bridge down to the mouth of the river and then west to the boundary between Pagham and Aldwick. Flooding and erosion is a real risk facing people and their property in this area. With the climate changing, rising sea levels and more frequent and intense storms, our existing defences are under increasing threat from the elements. If the existing defences were not maintained, more than 530 residential properties in low lying areas could flood or be lost to erosion from a 1 in 200-year chance event. With rising sea levels this number could increase to 3024 in the next 100 years. Subject to funding being available, our recommendations will help to manage the risk of flooding and erosion to communities throughout this period.
The defences between the Arun and Pagham are managed by a number of private landowners as well Arun District Council and the Environment Agency.
This is a draft strategy, and no final decisions have been made. Your input is important to ensure that we can consider your opinions in producing the final strategy. We welcome your comments and will make use of any new information when we make our final recommendations. You can find out how to send us your comments on page 19."
|Option a: Immediate no active intervention - let nature take its course - no further
maintenance or repair work is undertaken except to manage health and safety at the
site, allowing existing defences to deteriorate over time.
Option b: Withdrawal of maintenance – maintain defences for two years before
stopping our flood risk management activities then let nature take its course - no
further maintenance or repair work is undertaken except to manage health and
safety at the site, allowing existing defences to deteriorate over time.
|Do minimum||Maintain existing defences until they fail and then do nothing (as above).|
|Hold the line – active
intervention with three
|Maintain – defences are maintained at their current levels, as sea levels rise flood
risk increases over time.
Sustain – defences are raised and strengthened as sea levels rise keeping the level
of protection the same as it is now.
Improve - defences are improved to reduce flood and erosion risk.
|Managed realignment||Improve coastal stability by moving coastal defences to a more sustainable location
usually further inland, allowing controlled flooding to occur.
"The Climping frontage extends from Poole Place to the mouth of the River Arun. The defences comprise a shingle beach with groynes which becomes a wide sandy beach with sand dunes close to the mouth of the river. Behind these defences the area is primarily agricultural land with a small number of residential and commercial properties. The frontage is very exposed and the shingle beach requires continual maintenance during the winter months. Our initial consultation with stakeholders and a local residents group identified concerns over the poor condition of the defences at Atherington where we recently completed some repair works.
It is important to highlight that the Environment Agency has legal agreements with a landowner at Climping in relation to the frontage between Poole Place and the west end of the car park at Atherington. The environment Agency recognises that these agreements impose obligations and will work closely with this landowner to identify a longer term solution. However, for the purposes of like for like comparison of each option, these agreements have not been included in our appraisal work."
"There is a legal agreement between the Environment Agency and the landowner which covers some of the Climping frontage. Any costs the Agency may incur meeting the requirements of this agreement have not been included in the Do Nothing option set out here. It is considered that the Do Nothing option at the Climping frontage may give rise to positive environmental effects such as restoring natural coastal processes."
"The principles that should guide decision making on the sustainable management of flood and coastal erosion risk in England... the statement sets out why appraisal is necessary and the principles and policies that should guide this work."
"Any legal requirements which may influence the options should be fully considered throughout the appraisal process."
"Operating authorities should clarify early in the appraisal process whether any specific obligations apply and if so, whether such requirements can be met, or possibly rescinded. In all cases legal requirements should be clearly defined by the relevant authority and not exaggerated."
"A Do Nothing or no active intervention option should always be considered so as to provide a consistent baseline against which to compare the benefits of possible interventions. This is also important because in most cases there is no legal requirement on Government to reduce risk and therefore the case for further intervention needs to be very seriously considered in the face of other calls upon public funds. A do minimum option should also be appraised even where a legal requirement means some action must be taken. (However, where there is a legal requirement the do minimum option will be the option that does minimum to meet the legal requirements.) This is to allow costs and benefits to be properly quantified and to make sure costs not excessive."
"The costs and benefits of projects that are promoted principally to meet legal requirements should be assessed in accordance with the guidance on valuing the impacts below. However, options that would clearly not meet the minimum legal requirement should be screened out at an early stage. The exception to this is that the Do Nothing option should always remain in the appraisal to provide a consistent baseline against which to assess the costs and benefits of doing something. Where the costs of meeting the minimum legal requirements exceed the benefits, a cost effectiveness analysis should be made to ascertain the most cost-effective way of complying with legislation."
"The information set out in the appraisal summary table, should provide a comprehensive assessment of the positive and negative impacts of all options. It should also make transparent which impacts have been evaluated in the monetary terms and which have not, as well as revealing information about the distributions of costs and benefits of different options."
"Consultation. Formal and informal consultation should be undertaken in the development of plans and projects. This should enable stakeholders affected, including the community and statutory consultees, to make a meaningful contribution to the appraisal processes. Consultation should be coordinated and structured to enable interested parties to understand the decision making process... As part of the consultation process the potential benefits and the beneficiaries should be clearly identified. This should enable stakeholders to understand the distribution of costs and benefits. It may also encourage contributions towards projects which could enable measures to be promoted that otherwise might not be afforded or allowed to proceed sooner. Such contributions should allow public funding to go further, and deliver improved risk management in areas that otherwise would not benefit."
"We have produced a frequently asked questions (FAQs document) to show how the comments have helped to shape our decisions on how we manage the flood and erosion risk in the area. The FAQs will be included in the consultation report. You can download a copy of this report from our website [reference given]."
" • There was general support for the proposed options at the Aldwick, Bognor Regis and Felpham and, Elmer frontages.
• There was significant opposition to the proposed Do Nothing withdrawal of maintenance option for Climping.
• Residents at Middleton-on-Sea were unhappy that the preferred option had changed from the draft 2004 strategy option of 'hold the line (sustain)' to 'hold the line (maintain)'..."
"We have responded to the comments received during the consultation and reviewed the options in the draft strategy. As a result of this we have clarified technical details and made minor amendments to the strategy documentation without altering the meaning of the strategy or its aims.
Here are the main revisions:
• We have clarified the preferred option for Climping. It is now "Do Nothing - withdrawal of maintenance" whilst taking into account the legal agreements along the Climping frontage.
• We will carry out maintenance works at Climping to meet our legal obligations with respect to the legal agreements for the foreseeable future."
"The strategy will be presented to Arun District Council to seek its agreement for its adoption in July 2010. The strategy will then be taken through a technical review in winter 2010 and issued to the Environment Agency's board of directors for their approval in summer 2011. The strategy will be implemented following this approval..."
"The legal agreements with landowners at Climping are an important factor in the decision making process and need to be resolved."
"How have the legal agreements at Climping been taken into account?"
"There are two legal agreements which relate to the length of frontage between Poole Place and Climping car park. The.Defra guidance directs us to identify the least costly method of satisfying any legal agreements when assessing options. In line with this guidance, when the draft strategy went out for consultation in June 2009 we did not include the costs of recycling shingle at the part of the frontage relating to the legal agreements in our preferred option of 'Do Nothing'. Having considered the options further, we have clarified that the 'Do Nothing' preferred option for the whole of the Climping frontage to include the works needed to comply with the legal agreements. This is now least costly method." (emphasis as in the original).
"At Climping, we have clarified the Do Nothing preferred option for the whole of the Climping frontage to include continuing the beach management works at the frontage relating to the legal agreements, as this is currently the least cost option to satisfy the legal agreements. We have updated the Do Nothing, Do Minimum and Maintain options to include these costs and reviewed the selection of the preferred option."
"The preferred option remains Do Nothing - Withdrawal of Maintenance whilst continuing maintenance operations on the legal frontage. Once the strategy is approved, we will prepare the withdrawal notice in accordance with Defra guidance on withdrawal of maintenance from uneconomic sea defences."
There are several steps to undertake before the strategy is finalised and formally approved. The strategy will be presented to Arun District Council to seek its agreement for its adoption in July 2010. The strategy will then be taken through a technical review in winter 2010 and issued to the Environment Agency's board of directors for their approval in summer 2011. The strategy will be implemented following this approval..."
"The most economical (and legally permissible) option is Do Nothing (legal) along the Climping section of the frontage while seeking to sustain the SoP [Standard of Protection] along the River Arun's west bank. This includes activities to comply with the legal agreements at Climping it is recognised that the BCR [benefits costs ratio] of 1.26 is low and we further investigated the robustness of the BCR through a number of sensitivity tests..."
"The preferred option of Do Nothing (legal) along the Climping section of the frontage, while seeking to sustain the SoP along the River Arun West Bank consists of -
1. Undertaking maintenance activities at Climping to comply with the legal agreements.
2. Improving the linear defences along the river south of the A259 crossing.
3. Providing an embankment along the A259.
4. Providing a low secondary embankment at the western side of Rope Walk to reduce of risk of 'back door' flooding.
5. Maintaining River Arun West Bank tidal embankments north of the A259 crossing to Ford railway bridge to 2055. Sustain from then onwards."
"At Climping we will continue to comply with the legal agreements by means of beach recycling and repair and replacement of timber groynes as necessary. We will implement the Do Nothing (legal) option for the frontage outside of the legal section. Delivery of this is reliant on continued Natural England assent to recycle beach material through the Climping Dunes SSSI."
"I should stress that the October 2010 StAR is by no means the end of the decision making process... if the outcome of ongoing discussions between Herringtons and Atkins is agreement to effect that the choice of options is affected by a flaw of this kind, the officers and the LPRG would be bound to look again at the case for the various options. If, as a result, a significantly different approach is indicated for the future management of the Climping Frontage, we would consider whether and to what extent that necessitates further consultation of the public."
The claimants' grounds
"It is common ground that whether or not the consultation of interested parties and the public is a legal requirement, if it is embarked upon it must be carried out properly. To be proper, consultation must be undertaken at a time when proposals are still at a formative stage. It must include sufficient reasons for particular proposals to allow those consulted to give intelligent consideration and an intelligent response. Adequate time must be given for this purpose and the product of consultation must be conscientiously taken into account when the ultimate decision is taken; R v Brent London Borough Council ex parte Gunning  84 LGR 168."
"There was significant opposition to the proposed Do Nothing - Withdrawal of Maintenance option for Climping."
"62. This difference between the parties is one of semantics rather than substance. A consultation exercise which is flawed in one or even in a number of respects is not necessarily so procedurally unfair as to be unlawful. With the benefit of hindsight it will always invariably be possible to suggests ways in which a consultation exercise might have been improved upon. That is most emphatically not the test. It must also be recognised that a decision maker will usually have a broad discretion as to how a consultation exercise should be carried out. This applies with particular force to a consultation with the whole of the adult population of the United Kingdom. The defendant had a very broad discretion as to how best to carry out such a far reaching consultation exercise.
63. In reality, a conclusion that a consultation exercise was unlawful on the ground of unfairness would be based upon a finding by the court not merely that something was wrong but that something went "clearly and radically" wrong."
"Valuable though that contrast is, I have a reservation about treating that contrast between something going merely wrong, which would not suffice to show an unfair and unlawful consultation process, and something going clearly and radically wrong, which would suffice to show such an error as the litmus test.
Not all cases could readily be fitted into one or other category as if they were the only two categories of error available to be considered with no un-excluded middle. That phrase should not become the substitute for the true test, which is whether the consultation process was so unfair that it was unlawful."
I respectfully agree with that observation. The test is whether the process was so unfair as to be unlawful. In Greenpeace, I was not seeking to put forward a different test, but merely indicating that in reality a conclusion that a consultation process has been so unfair as to be unlawful is likely to be based on a factual finding that something has gone clearly and radically wrong.
"This means that there should only be re-consultation if there is a fundamental difference between the proposals consulted on and those which the consulting party subsequently wishes to adopt."
"Adoption of the Do Nothing policy at Climping would allow the opportunity for the creation of a new inter-tidal marsh habitat between Arlington and the A259. However, the nature and extent of the opportunity has not been quantified and as such not taken into consideration in the outcome measures assessment."
By the time of the StAR in 2010 that had become a proposal.