England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		18th March 2011

LORD JUSTICE SULLIVAN:

Introduction

1. In this claim for judicial review the claimants seek an order that the defendant recommences part of the consultation process in respect of the Arun to Pagham flood and erosion risk management strategy ("the strategy").

Factual background

2. The consultation process began on 1 June 2009 when the defendant, in partnership with the interested party, published the Arun to Pagham draft flood and erosion risk management strategy summary document ("the summary") for public consultation. The introduction to the summary explains that:

"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."

3. The strategy area is divided in to five frontages along the coastline of West Sussex. The five frontages are: A Aldwick; B, Bognor Regis and Felpham; C, Middleton-on-Sea; D Elmer and E, Climping and River Arun mouth to Ford railway bridge.
4. This claim for judicial review is concerned with frontage E, which is divided into two parts, the Climping frontage and the River Arun mouth to Ford railway bridge frontage (the River Arun frontage). The claimants are farmers at Climping. Their farmland includes coastal land. They have the benefit of two agreements which were made with the defendant's predecessors, the Sussex River Authority, and the Southern Water Authority, in 1967 and 1977 respectively, and which are now binding on the defendant ("the agreements"). The agreements require the defendant to maintain the sea defence works which protect the claimants' land. The precise terms of the obligations imposed on the defendant by the two agreements are slightly different, but the differences are not material for the present purposes.
5. For the purposes of the strategy, the Climping frontage is divided in to three beaches. From west to east they are beaches one, two and three. The frontages covered by the two agreements cover the whole of beach one, the eastern end of the neighbouring Elmer frontage to the west, and a small stretch at the western edge of beach two.
6. Under the heading "optional appraisal", the summary explains that the defendant and the interested party had assessed various options for each frontage of the coast line against technical, economic, social and environmental criteria to make a recommendation for the best option. The options considered were set out in a table as follows:

Management option	Description
Do nothing	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 sub-options	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.

7. The draft strategy recommendations for the four frontages A to D were "hold the line - maintain (with beach management plan)." For frontage E, the recommendation for Climping was "Do Nothing - withdrawal of maintenance." And for the River Arun frontage it was "hold the line - sustain."
8. Each frontage was then discussed in turn in the summary. The discussion of the Climping frontage included the following passages:

"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."

9. The summary includes a section headed "withdrawal of maintenance? What does this mean for Climping?" This is followed by a section headed "Where can I find out more?" This refers consultees who wish to know more to exhibitions where the project team would be able to explain their recommendations. There were three exhibitions and one of those exhibitions, took place at the Climping village hall.
10. In July 2009 a more detailed document "River Arun to Pagham flood and erosion risk management strategy options review for consultation" ("the options review") was published on the defendant's website and was made available in mid July 2009 to those persons, including the claimant, who had asked for more technical information. In table 3.2 the options review described the Do Nothing option for Climping in these terms:

"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."

11. Table 4.1 gave a "Summary of Climping option assessment". The total PV costs of the Do Nothing option were given as £119,000. A note to the table said "all options exclude legal and other compensation and other costs".
12. In June 2009 the Department for the Environment, Food and Rural Affairs ("Defra") published a policy statement "Appraisal of flood and coastal erosion risk management" ("the policy statement"). An earlier draft statement of the policy statement had been published for consultation in 2008. The policy statement set out:

"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."

13. In chapter five, which deals with appraisal principles, the final sentence of paragraph 5.1, 'general principles', says:

"Any legal requirements which may influence the options should be fully considered throughout the appraisal process."

14. Paragraph 5.3 deals with various matters which are relevant for the purpose of defining issues and setting objectives. It includes the following guidance in respect of 'other legal requirements':

"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."

15. Paragraph 5.4, which is concerned with developing, describing and valuing options, says this about the baseline option:

"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."

16. Paragraph 5.4 also contains another reference to legal requirements as follows:

"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."

17. The policy statement also advised in paragraph 5.5:

"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."

18. There was a further reference to the advice in paragraph 5.4 as to legal requirements. Chapter 6 of the policy statement deals with public participation and consultation. Paragraph 6.1 says in part:

"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."

19. Returning to the strategy, the consultation period was due to end on 28 August 2009, but in due course it was extended to December 2009. Perhaps unsurprisingly, the draft recommended "Do Nothing" option for Climping produced a significant number of objections. Those objections included an objection from the claimants' solicitors, who contended that the appraisal of the options for Climping described in the summary was flawed because the recommended Do Nothing option did not include the cost of continuing to comply with the agreements, contrary to the advice in the policy statement that the cost of complying with legal obligations should be included. At that stage the defendant did not accept that criticism of the consultation process and the claimants therefore commenced these proceedings. The claim form was filed on 29 January 2010.
20. What is significant for present purposes is that in due course the claimant's objection did cause the defendant to change its mind on this issue and to accept that the Do Nothing option should include the cost of complying with the agreements.
21. This became apparent in June 2010 when the defendant published a newsletter explaining how the comments made in the consultation exercise had shaped its decisions. The newsletter said that the full consultation summary report (also dated June 2010) could be downloaded from its website ("the consultation report"). The newsletter told consultees:

"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]."

22. This is what it says:

" • 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)'..."

23. Under the heading "What's happened since the consultation?" The newsletter said:

"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."

24. The newsletter said under the heading "What's next?":

"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..."

25. Under the heading "How can I find out more?" addresses eand telephone numbers are given.
26. Those wishing to find out more would therefore have been able to download a copy of the consultation report. That explained the consultation process in some detail, including the extension of the consultation period to the end of December 2010. It summarised the main messages which had emerged from the consultation process. Those messages included:

"The legal agreements with landowners at Climping are an important factor in the decision making process and need to be resolved."

27. Table 1.3 set out a number of frequently asked questions, and the defendant's answers to those questions. One of the questions was:

"How have the legal agreements at Climping been taken into account?"

28. To which the answer was:

"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).

29. Chapter 4 of the consultation report described the revisions to the draft options which had been proposed in the summary. There was no change to the preferred options for the other four frontages or to the preferred option for the River Arun frontage. There was a revision to the Climping frontage:

"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."

30. The recommendations are set out in chapter 5 of the document,, and paragraph 5.4, dealing with Climping, says:

"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."

31. Under the heading "What happens next?" the consultation report says:

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..."

32. In October 2010 the defendant published on its website a Strategy Appraisal Report for the River Arun to Pagham Flood and Coastal Erosion Risk Management Strategy ("the StAR"). The StAR was presented to the defendant's Large Projects Review Group ("LPRG") in January 2011, but the LPRG has recommended that further work be undertaken by those responsible for preparing the strategy before it decides to recommend the defendant's national board to approve the strategy. Table 6.1 in the StAR summarised the benefit cost assessment and selection of the preferred economic option. As far as Climping is concerned, the PV costs of Do Nothing were given as £119,000. The PV costs of Do Nothing (legal) were given as £6,112,000 with no PV benefits. By way of contrast, the PV costs of do minimum were £8,041,000 with the PV benefits being £2,515,000 and an average benefit to cost ratio of 0.31. PV costs and benefits and benefit:costs ratios are also given for the various other options.
33. Paragraph 6.1.3 of the the StAR says:

"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..."

34. 6.1.5:

"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."

35. 6.1.7:

"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."

36. To complete the factual background, following the publication of the StAR, the claimants' instructed technical experts, Herrington Consulting, to review the technical information in and underpinning the StAR. The claimant's review [the Herrington review] was sent to the defendant on 10 December 2010. The claimants contend that the Herrington review identifies a number extremely grave flaws in the StAR and the technical information underpinning it. That is disputed by the defendant. It is not suggested by either party that it would be appropriate for this court to seek to resolve those disputes. What is important for present purposes is that the defendant, through its consultants Atkins, is engaging with the points made by the claimants' technical experts, and the defendant has made clear in a witness statement dated 3 March 2011 of the project manager for the strategy, Miss Matthews that:

"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

37. Against this background, I turn to consider the grounds in the claim form. As amended there are three grounds but Mr Holgate QC confirmed that grounds one and two raise substantially the same issue. In summary they contend that the consultation process was "fatally flawed" because the cost of complying with the agreements was not taken into account in the appraisal of the options on which the public was consulted in 2009. The third (in reality the second) ground of challenge contends that the consultation exercise was unlawful because the preferred option for Climping as described in the StAR in October 2010 is materially different in a number of respects (including the change from Do Nothing to Do Nothing (legal)) from the preferred option in the summary on which the public were consulted between June and December 2009. Mr Holgate made it clear that the relief sought was not the re-opening of the whole consultation process, merely that part of the process which related to the options for the Climping part of the Climping and River Arun frontage.

Discussion

38. I readily accept the claimants' submission that the appraisal of the Do Nothing option in 2009 in the summary and the options review should have included the cost of complying with the agreements. There was a failure to follow the guidance to that effect in the policy statement. It is unnecessary to embark on a detailed analysis of the policy statement in order to establish that point, because the defendant has accepted, even if somewhat belatedly, that the Do Nothing option should include the costs of complying with the agreements; see the newsletter and consultation report in 2010.
39. So there undoubtedly was a defect or omission in the material placed before the consultees in June to December 2009. Does that mean that the consultation exercise was "fatally flawed" so that there was in effect no valid consultation in respect of the Climping frontage, as is contended in the claimants' detailed statement of grounds, with the consequence that the consultation process must be recommenced insofar as it relates to that frontage.
40. The defendant a accepts that even though there was no statutory requirement to consult in the present case, the consultation process which it did undertake must meet the requirements of a "proper" consultation, as encapsulated in the R v North and East Devon Health Authority ex parte Coughlan [2001] QB 213, see per Lord Woolf MR at paragraph 108:

"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 [1985] 84 LGR 168."

41. When applying those principles, it is important to bear in mind that one of the principal purposes, it not the principal purpose, of any consultation exercise is to enable consultees to identify and draw to the attention of the decision maker relevant factors which the decision maker may, either by accident or design, have overlooked when deciding upon a preferred option for consultation. The Coughlan principles do not require as their starting point an omniscient decision maker who will have correctly identified each and every relevant factor at the outset; there would be little point in having a consultation if that were to be the underlying assumption. If a consultation document makes it clear that a decision maker has not considered a particular factor, 'factor X', when deciding upon a preferred option, and a consultee contends that factor X should have been taken into account, and in response to that representation the decision maker agrees that factor X should be considered, then that is an example not of a flawed consultation process, but of a consultation process that has done the job that it was intended to do.
42. Take legal agreements, such as the agreements in the present case, as an example. The Environment Agency and the relevant local authority might not have included the cost of complying with such agreements in an appraisal of options published for public consultation for a variety of reasons. They might, for example, have been unaware of the existence of the agreements, or have misinterpreted the obligations imposed by the agreements, or the policy requirements from Defra requiring that the cost of complying with the obligations be included in the appraisal.
43. Such errors, failure to appreciate the existence, or the legal or policy significance, of a particular factor, are precisely the kind of errors that are intended to be "flushed out" by a proper consultation process. I would accept Mr Holgate's submission that the fact that a decision maker eventually takes a relevant factor into account does not necessarily mean that the process leading to that decision will have been procedurally fair. I accept that there could be cases where the factor that has been omitted at the outset by the decision maker is so fundamental that those consulted are effectively prevented from giving intelligent consideration to the proposals, and/or are unable to give an intelligent response to them. But those cases will be very much the exception, given that one of the underlying purposes of any consultation process is precisely to identify errors or omissions in the decision maker's analysis of the options and to give the decision maker an opportunity to correct those errors before taking a final decision.
44. In my judgment, the present case is not one of those exceptional cases. In these proceedings there has, understandably, been an intense focus on the significance of the agreements on the Climping frontage. However, when considering the significance of the failure to include the costs of complying with the agreements in the preferred "Do Nothing" option for Climping, it is necessary to keep a sense of proportion and to remember that the agreements were but one, albeit an important, factor in respect of one part (the Climping frontage) of one of the five frontages that were under consideration in the strategy. The summary and the options review did not 'ignore' the agreements, as submitted on behalf of the claimants. Both documents expressly drew attention to the agreements and told consultees that the costs of complying with them had not been included in the Do Nothing option for Climping. There was, therefore, sufficient information on which consultees could, and indeed did, make an intelligent response: that those costs should be included in the cost of the Do Nothing option.
45. Mr Holgate submits that the public in 2009 did not have the defendant's estimate of the cost of complying with the agreements, which was subsequently estimated in the StAR as a PV of about £6 million in excess of the Do Nothing option in the summary and options review. That is true, but those consulted in 2009 were perfectly well able to make the all too obvious point that if the cost of complying with the agreements was to be included, then this would reduce the different between the cost of, for example, the Do Nothing option and the Do Minimum option, or the Holding the Line option, and make those 'higher' options relatively less unattractive in PV cost terms. That is indeed one of the points which is being made by the claimants, who do not accept the accuracy of the defendant's figures in any event.
46. Nor is this a case where the claimants, in making this point themselves, have in reality been deprived of the wider support of the community that is potentially affected by the options for the Climping frontage; compare, for example, Wilson v the Secretary of State for the Environment [1973] 1 WLR 1083 per Browne J at page 1096. The consultation report made it clear that:

"There was significant opposition to the proposed Do Nothing - Withdrawal of Maintenance option for Climping."

47. It would have been obvious to any decision maker that those who were opposed to the Do Nothing option would welcome the adoption of one of the higher options, if it became relatively less unattractive in PV terms, in view of the costs of complying with the agreements in the Do Nothing (legal) option.
48. This is not a case where consultees have been lulled into some false sense of security, for example by a proposal at the consultation stage to" Hold the Line", which then changes after consultation to "Do Nothing." In reality, all those, including the claimants, who considered that the cost of complying with the agreements should be included in the appraisal of options, had an opportunity to say so and to say what they considered the implications of including such costs would be for the overall appraisal exercise.
49. When considering the extent to which the process would have made the wider public aware of the position, it is also relevant to note that the interested party which may be expected to represent the wider interests of the community affected by the Climping proposals, was a partner in the decision making process.
50. In R(on the application of Greenpeace Limited) v the Secretary of State for Trade and Industry [2007] ELR 29, it was submitted on behalf of the defendant that the court should interfere with a consultation process "only if something has gone clearly and radically wrong." The claimant had submitted that there was no support for this proposition in the authorities. In paragraphs 62 and 63 of my judgment, I said:

"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."

51. Ouseley J commented on this passage in of the judgment in Greenpeace in Devon County Council and Norfolk Country Council v the Secretary of State for Communities and Local Government [2011] EWHC 1465 (Admin). In paragraph 70, he accepted the submission of Leading Counsel for the defendant that a flawed consultation process is not always so procedurally unfair as to be unlawful. Having referred to paragraph 63 of Greenpeace, he said:

"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.

52. I do not accept the claimant's submission that for the purpose of deciding whether this consultation process was so unfair as to be unlawful one should draw the shutters down on 31 December 2009 and ignore any subsequent events. There were, after that date, a number of meetings to which the defendant has referred. The fairness of the process must be considered as a whole and if, after the close of the formal public consultation, the decision maker had in fact been prepared to accept and consider further representations, then those subsequent events should not be ignored. It may well be appropriate to give them less weight because, for example, the opportunity to make further representations was not given such widespread publicity as was given during the formal public consultation, but the question whether a particular consultation process considered as a whole has been unfair is fact-sensitive. Arbitrary distinctions should not be drawn between particular stages of the process as a whole.
53. Looking at the facts of the present case, those who were concerned about the proposed Do Nothing option for Climping would have known from the newsletter in June 2010 that the defendant had changed its mind, and that the cost of complying with the agreements was now to be included in the Do Nothing option, which had changed from Do Nothing to Do Nothing (legal). If those persons had wished to obtain more information, then they would have been able to read the consultation report where the matter was dealt with in somewhat more detail.
54. While the newsletter and the consultation report did not say that the consultation period was extended, there was nothing to prevent those, such as the claimants, who felt that the implications of this change might not have been appreciated by the defendant, from making further representations to that effect. Similar considerations apply to the publication of the StAR in October 2010.
55. It is important to note that the StAR was not a final decision. Again, it was a public document, and there was nothing to prevent those who felt that it had failed to grasp the implications of including the cost of complying with the agreements in the Do Nothing (legal) option from making representations to the defendant to that effect. That is precisely what the claimant has done, and the defendant's response has been not to say that those representations will not be considered because the consultation process closed on 31 December 2009, but to consider the representations and to make it clear that if it accepts that in the light of the Herrington report there is a flaw in its choice of options then the matter will be reconsidered and if a significantly different option emerges it will consider whether further consultation is necessary.
56. The claimants say that the defendant is here simply responding to their representations, and the public is not involved in the process, as it was between June and December 2009. That is true, but the defendant clearly told the public in June 2010 what it proposed to do. It said that it was changing the preferred option from Do Nothing to Do Nothing (legal) and there is no suggestion that the defendant has been unwilling to consider representations from anyone as to the implications of that publicly announced changed position.
57. For these reasons I am satisfied that while there was an error or an omission in the summary of the options review in October 2009, that did not "fatally flaw the process" such as to render it invalid. I am not persuaded that the error led to any unfairness. The consultation process worked, consultees were able to and did point the error out, and it was corrected by the defendant. Even if the error did lead to some degree of unfairness, it could not sensibly be said that the process as a whole was so unfair as to be unlawful.
58. I can deal briefly with the second ground of challenge, which contends that there should be re-consultation because of the changes between the proposals for Climping on which the public were consulted on in 2009 and what is now proposed in the StAR. In a statement of agreed matters ("SAM") the differences between the summary document and the StAR are set out under eleven headings, and the parties have set out their respective views as to the significance or otherwise of those changes.
59. The question is not whether there have been changes since the consultation exercise began in June 2009; it would be truly remarkable if there had not been changes as a result of both the consultation process and the more detailed work which would inevitability have been carried out by the defendant over the intervened period. The question is whether the option which is now proposed is so different from the option on which the public were consulted that fairness requires re-consultation; see R(on the application of Smith) v East Kent Hospital NHS Trust [2002] EWHC 2640 (Admin) per Silber J at paragraphs 39 to 45. Silber J concluded in paragraph 45, having considered the relevant authorities, that:

"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."

60. Mr Holgate submits that there is no need for the claimant to demonstrate that the change is a fundamental one. In my judgment it is unnecessary to decide whether the test is so stringent, because on the facts of this case the change between the proposals consulted upon and those which, subject to the consideration of the claimants' technical report, the defendant will be recommended to adopt is on any basis relatively modest.
61. It is important to remember that the strategy covers a substantial length of coastline. While the focus in these proceedings has been on the Climping frontage, the strategy goes much wider. The only change between the proposals consulted on and those in the StAR is the change from Do Nothing to Do Nothing (legal) as the preferred option for the Climping part of one of the five frontages considered in the strategy.
62. For the reasons set out above, that change did not require new consultation as a matter of fairness. Apart from those changes which relate to the change from Do Nothing to Do Nothing (legal), the majority of the other changes are attributable to the inevitable differences between the contents of a summary document which is issued for consideration by members of the general public, and a fully worked up strategy which is prepared for consideration by the LPRG and the defendant's national board. A number of the details which were not included in the summary in 2009 were included in the options review, for example the options review referred in paragraph 4.3.3 to the fact that:

"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.

63. Insofar as there are any other changes between the two documents, they are precisely the kind of detailed changes which are to be expected as a strategy of this scale and complexity is worked up, partly in response to the consultation process and partly as a result of further work undertaken by the defendant on its own initiative. The fact that there have been such changes does not begin to approach the kind of circumstance in which the court would think it appropriate to say that fairness demands that the consultation process should be reopened.

Conclusion

64. For these reasons this application for judicial review must be dismissed.
65. MR NARDELL: My Lord, I am much obliged. May I suggest first of all two small corrections to the matters in your Lordship's judgment?
66. LORD JUSTICE SULLIVAN: Of course.
67. MR NARDELL: There may be others when it comes back to your Lordship.
68. LORD JUSTICE SULLIVAN: I am sure there probably will be.
69. MR NARDELL: Early on in your Lordship's judgment, I have timed it about 12.40 for the benefit of the shorthand writer, your Lordship referred to the options review as having been distributed in August 2009. I thinks it is common ground that the options review was distributed in mid July. It was another set of documents given by the claimant in August, I hope that is not controversial.
70. MR HOLGATE: Yes.
71. MR NARDELL: I am much obliged.
72. LORD JUSTICE SULLIVAN: As between mid July and August, I don't think I need to completely go out and redo the judgment.
73. MR NARDELL: Indeed not. Another very small matter. I have timed this at 12.50, the consultation having been extended to December 2010, that is 2009.
74. LORD JUSTICE SULLIVAN: Obviously a slip. It was 31 December 2009?
75. MR NARDELL: It was, yes.
76. LORD JUSTICE SULLIVAN: Right, the shorthand writer will rewrite history and correct that as he goes through.
77. MR NARDELL: My Lord, the Agency applies for its costs of the whole of the proceedings on ordinary daily and Aylesbury principles those ought to include the costs of the pre-action step, the Agency having complied, as it is fair to say, to the claimant's pre-action protocol. Now, particularly judicial review proceedings it is acknowledged that the court is exercising a discretion; there is not an automatic entitlement to costs for the winner. It seems to me for that reason I ought to make a few short submissions in support of that. Inevitability it might involve anticipating submissions made by my learned friend. There are two ways of doing this - either I can leave your Lordship and my learned friend with the application and your Lordship can hear from my learned friend and I can reply.
78. LORD JUSTICE SULLIVAN: Well, it is now Friday afternoon. Why don't I try to cut through it a bit and say that up to say the June 2010 document, which makes it clear publicly in the newsletter and the other document that came out in June 2010, that things were going to be changed, I reckon you have an uphill task to persuade me that you ought to have your costs because, and I will explain why, because the response to the letters moaning about not taking the costs into account was not to put up hands and say mea culpa, we should have done, terribly sorry, we are going to, it was frankly to circumlocute.
79. MR NARDELL: Self-justification, I suppose.
80. LORD JUSTICE SULLIVAN: Yes. After 2010, it does seem to me, and certainly after they have had a reasonable time to consider what happened in June 2010, then the gradient is reversed, as far as I am concerned. I emphasise, a provisional decision, subject entirely to you making representations so you can point out factors that I have failed to take into account, but that is the position that I adopt.
81. MR NARDELL: If I may I will shift down to first gear so I can clamber up the facing slope. My submission is this: it is a short point, and your Lordship either accepts it or he does not. The essence of the Environment Agency's response to the grounds of correspondence in November and December 2009, was to say look, if you think there is something you want to say to us, something we should have taken into account and we have not, then tell it to us as a consultee. What we don't accept is that the consultation process is legally flawed as a result of that omission. It must be right that a party who says I am terribly sorry, I are not going to respond to your consultation, I am going to threaten you with judicial review, I am going to persist in that threat and then issue judicial review proceedings must adopt something of a high risk strategy. Ultimately your Lordship has accepted the essence of the case made by the Environment Agency in its response, which is that whatever you have to say, Mr and Mrs Baird, you say as a consultee because there was nothing inherently unfair in the consultation exercise such as to make it unfair, that was the Agency's position at the outset, it is a position entirely vindicated by your Lordship's judgment and does not provide a reason for depriving the Agency of their costs of the claim.
82. LORD JUSTICE SULLIVAN: You would have so much more of a leg, as it were, to stand on if, in response to pre-action protocol letter or at some time in January, you had said look here, you have a good point, we quite accept that the policy document says we ought to include the costs, we are going to do so. Then, in a sense, they would have proceeded thereafter at their own risk. I understand your submission. The thing is I don't accept it.
83. MR NARDELL: I understand that. The further difficulty for the claimant is this: it is one thing to complain after the event, once a decision that affects you has been taken about inadequate consultation alongside any other flaw in the decision. It is quite another to launch proceedings well before any decision which actually prejudices you was taken. We say this was a rush judgment, it should not have happened and at the claimants' risk as to costs.
84. LORD JUSTICE SULLIVAN: I don't need to hear you further. I will come back to you on cost after June 2010, or after some appropriate period after June 2010 when the penny should have dropped in my view, but that is subject to what Mr Holgate says.
85. MR NARDELL: Your Lordship has my submissions.
86. LORD JUSTICE SULLIVAN: Why did the penny not drop after June 2010?
87. MR HOLGATE: On your Lordship's provisional view, could I ask for the claimants' costs up to whatever time is appropriate in your Lordship's judgment.
88. LORD JUSTICE SULLIVAN: The claimants costs, I see.
89. MR HOLGATE: May I borrow my learned friend's comment of a moment ago, high risk strategy. That is a double-edged point, because quite clearly if we had not started judicial review proceedings we faced the risk that the whole process right up to the eventual decision would be carried out on an incorrect basis, failing to comply with government policy, and then we might have faced an argument from the Agency not that the claim was premature but that we were rather too late, and why did we not take proceedings sooner. If I may respectfully say so, the starting point should be June plus a reasonable time for consideration, and the only remaining issue, respectfully, I suggest, is whether I can persuade your Lordship to push that date further -- I was about to say backwards or forwards, I was not quite sure which way to put it. There were two dates I was going to suggest to your Lordship. One was going to be Miss Matthews' statement of 3 March of this year, plus 7 days for consideration, on the basis that a seminal and key factor in your Lordship's judgment was the fact that in paragraph 38 of that witness statement it was then made clear that the Agency was willing to consider further representations based on the Herrington report either from my client or other members of the public. There was no such statement prior to that date. Indeed, what we had when we applied to amend our grounds for judicial review before Ouseley J was a witness statement from Mr Martin Davies, the Agency's solicitor handling the matter, in paragraph 11 of which our representations were effectively rejected as being invalid. At paragraph 11 in the first volume of the bundle.
90. LORD JUSTICE SULLIVAN: We have not had a look at that before, have we.
91. MR HOLGATE: No. The Agency is changing its position again.
92. LORD JUSTICE SULLIVAN: Yes, page 105, paragraph 11, you want me to look at?
93. MR HOLGATE: Paragraph 11, which was something which rather impressed Ouseley J, I am instructed; I was not present on that occasion. "I have seen a copy of the Herrington review..." And your Lordship will see the last sentence.
94. LORD JUSTICE SULLIVAN: Atkins and no case to answer.
95. MR HOLGATE: Yes, that approach was what I would call a closed door rather than suggesting an ongoing process which was being engaged in. That is why I ask for our costs down to 3 March plus 7 days, which would take us to 10 March. The other alternative date I was going to suggest was 4 August 2010, when the defendant filed detailed grounds of opposition.
96. LORD JUSTICE SULLIVAN: What did they say did they say? Did they effectively say we have changed our mind?
97. MR HOLGATE: They take the point about the June process. They don't hold out any prospect of consultation at that stage, that is why my submission primarily is based on 3 March.
98. LORD JUSTICE SULLIVAN: Yes, right. Thank you very much. If you think that you can improve on 4 August 2010 when the detailed grounds went in, do so. Otherwise don't.
99. MR NARDELL: My Lord, I suspect it makes little difference for this reason: Collins J granted permission towards the middle or end of June, but there is preparatory work on the detailed grounds. That preparatory work proceeds on the basis that there has been a change of position, so if one is going to take the detailed grounds as the cut off, as it were, certainly the preparatory work on the detailed grounds should not be excluded. Could I make this short submission on what my learned friend has said?
100. LORD JUSTICE SULLIVAN: Of course.
101. MR NARDELL: It seems to me that there is no basis in this case for your Lordship to award these unsuccessful claimants any part of their costs. The range on which discretion should be exercised would be to what extent should they be relieved from having to pay the costs of the Environment Agency, who have succeeded in the proceedings. As regards the significance of Miss Matthews' statement, that goes essentially to the third ground of appeal, added by permission of Ouseley J very late in the proceedings. For this reason that ground proceeded on the basis that there should have been re-consultation at a late stage after the StAR was published. Miss Matthews' answer to that is whether in effect there is going to be, because nothing had been decided yet. Most marginally, the original grounds of appeal to which most of the proceedings have focused throughout their length. That is a very marginal factor; it cannot really go to the cost of the bulk of proceedings. If it went to anything it would the costs of dealing with the further ground. It would seem to me some what arbitrary to separate that ground out. If your Lordship thinks there is a cut off date somewhere between June and August 2010, the right approach would be for the whole of the Agency's costs between then and the conclusion of this hearing to be paid.
102. On the question of change of position, I am going to make this short point: these claimants are in no position to make any point about change of position. Perhaps it would be wrong to use the analogy of shifting sands; shifting shingle might be more appropriate in this case, but following the submission of the Environment Agency's summary ground, the claimant originally brought a very lengthy document described as a reply to summary grounds, it comes in, it is a new argument presented in that document which persuades Collins J to grant permission. Detailed grounds go in, yet another lengthy reply quite outside anything described by the Civil Procedure Rules comes in. There is a late attempt to amend. I don't say the Environment Agency has not altered their position, but as between the parties there is no justice to be found in allegation and counter allegation that one party or another have changed their position; that is not a factor that can, in my submission, influence your Lordship's decision on costs. Those are my submissions in response, unless I can give your Lordship any further assistance?
103. LORD JUSTICE SULLIVAN: No, thank you very much indeed. I think the circumstances of this case are somewhat unusual in that I quite accept the submission that normally it would not be right to order a successful defendant to pay any part of an unsuccessful claimant's costs, but I do think that here the position is that the claimants were justified on the material that they had at that time in commencing the claim for judicial review; in other words they had a perfectly good point that the Agency should take account of the costs of complying with the agreements. It does seem to me that until such time as it was made clear in the proceedings that that was indeed what the Agency proposed do, that the proceedings were justified and therefore I do consider that up until the service of the detailed grounds the defendant should pay the claimants' costs.
104. However, I am quite satisfied that having received those detailed grounds, the claimants should have reconsidered their position and considered whether they were justified in continuing with the proceedings, and should have reached the conclusion that they were not, for the reasons given in the judgment, and therefore so far as the cost after the detailed grounds is concerned, the Agency is to have its costs from the claimant. All of those costs are to be dealt with on the standard basis and they are to go for detailed assessment if not otherwise agreed.
105. MR HOLGATE: My Lord, may I have the temerity to ask for permission to appeal?
106. LORD JUSTICE SULLIVAN: Of course, yes.
107. MR HOLGATE: Briefly, two short points of principle. First of all, the authorities which are available to the court only considered, in my submission, a situation where a proposal is modified, as opposed to the correct approach, as a matter of principle to take, where the allegation is that the consultation is flawed at the outset. Secondly, we respectfully suggest that the correct guiding principle in this area is as stated a GCHQ case, that this is rooted in legitimate expectation, which is concerned not just with fairness but also good administration, and the contribution made by consultation to that. The legitimate expectation argument in this case derives from the Defra policy statement, and on that basis we say that there is an important point of principle here for the Court of Appeal to consider.
108. LORD JUSTICE SULLIVAN: I heard the words 'legitimate expectation', I heard you mention them once in the course of your submissions, and I thought to myself ah ha, is he running a legitimate expectation point? But then I thought no, he is not, because he did not mention it again and did not mention it in the authorities, but you say anyway this raises an important legitimate expectation point?
109. MR HOLGATE: Sometimes, perhaps, I am guilty of brevity.
110. LORD JUSTICE SULLIVAN: Maybe you are. Did you say there are two points?
111. MR HOLGATE: The second is GCHQ.
112. LORD JUSTICE SULLIVAN: I hope you won't feel me discourteous at this stage in the day to say I refuse you permission. I don't think that there is a real prospect of success, for the reasons given in the judgment. You may well be able to persuade the Court of Appeal otherwise. Anything more?
113. MR HOLGATE: Thank you, my Lord.
114. LORD JUSTICE SULLIVAN: Thank you both for very helpful skeleton arguments and for a mercifully slim bundle of authorities.