R (Greenpeace) v DTI [2007] EWHC 311 (Admin)

High Court judgment (about 40 pages) finding that a Government consultation on nuclear power did not fulfil “legitimate expectations to fullest public consultation”.

The judgment outlines a distinction between different types of consultation, and finds that the Government's documents, whilst an adequate "issues paper", was not a proper consultation on a proposed decision:

116. For the reasons set out above, the consultation exercise was very seriously flawed. ... The purpose of the 2006 Consultation Document as part of the process of "the fullest public consultation" was unclear. It gave every appearance of being an issues paper, which was to be followed by a consultation paper containing proposals on which the public would be able to make informed comment. As an issues paper it was perfectly adequate. As the consultation paper on an issue of such importance and complexity it was manifestly inadequate. It contained no proposals as such, and even if it had, the information given to consultees was wholly insufficient to enable them to make "an intelligent response". The 2006 Consultation Document contained no information of any substance on the two issues which had been identified in the 2003 White Paper as being of critical importance: the economics of new nuclear build and the disposal of nuclear waste. When dealing with the issue of waste, the information given in the 2006 Consultation Document was not merely wholly inadequate, it was also seriously misleading as to CoRWM's position on new nuclear waste.

117. On both the economics and the waste issues all, or virtually all, the information of any substance (the cost-benefit analysis and supporting reports, and CoRWM's draft and then final recommendations) emerged only after the consultation period had concluded. Elementary fairness required that consultees, who had been given so little information hitherto, should be given a proper opportunity to respond to the substantial amount of new material before any "in principle" decision as to the role of new nuclear build was taken. There could be no proper consultation, let alone "the fullest public consultation" as promised in the 2003 White Paper, if the substance of these two issues was not consulted upon before a decision was made. There was therefore procedural unfairness, and a breach of the claimant's legitimate expectation that there would be "the fullest public consultation" before a decision was taken to support new nuclear build.

For further information or advice please contact Franck Latrémolière.

Filed under DTI/BERR, Electricity, Guidance, UK courts.

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