Environmental Law and the Duty to Consult

The duty to consult affected parties before granting planning or environmental consents is a well-established principle of English administrative law, yet its precise scope and enforceability remain contested in both the case law and the academic literature.¹ This essay critically evaluates the duty to consult in environmental and planning contexts, arguing that whilst the courts have affirmed its procedural importance, the remedy for breach remains inadequate to vindicate the substantive interests it is intended to protect.

The foundational authority for the common law duty to consult is R v North and East Devon Health Authority, ex parte Coughlan, in which the Court of Appeal held that where a public authority has created a legitimate expectation that consultation will occur, it is under an obligation to conduct that consultation properly, meaning that it must be carried out at a formative stage, based on sufficient information, and with adequate time for a response to be considered.² These procedural requirements have been applied consistently in the environmental context, where the duty to consult arises both at common law and under statute, most significantly through the Environmental Impact Assessment Regulations 2017.³

A critical limitation of the duty as currently understood is its exclusively procedural character. As observed by Craig, the duty to consult does not require the decision-maker to be persuaded by the representations received, only to take them into account in a genuine and open-minded way.⁴ This means that a developer who has conducted technically compliant consultation may proceed with a project despite overwhelming objection from affected communities, provided that the procedural requirements have been satisfied. This outcome has been criticised by environmental lawyers as allowing form to triumph over substance, and it has prompted calls for a stronger requirement to give reasons when consultation responses are not followed.

The adequacy of judicial remedies for breach of the duty to consult further limits its practical effectiveness. As demonstrated in R (Moseley) v Haringey London Borough Council, even where a breach is established, the court retains a discretion to refuse relief where it concludes that proper consultation would have made no difference to the outcome.⁵ This counterfactual discretion significantly reduces the deterrent value of the duty, as it permits authorities to absorb the cost of procedural failure without necessarily reconsidering the underlying decision.

In conclusion, the duty to consult in English environmental and planning law represents a meaningful but structurally limited procedural protection. Its common law and statutory foundations are well established, but the exclusively procedural nature of the obligation and the courts' discretion to refuse relief for breach mean that it falls short of the participatory standard that environmental governance increasingly demands. Reform to introduce a substantive requirement to engage with consultation responses, accompanied by a stronger presumption in favour of relief for procedural breach, would better serve the democratic and environmental objectives the duty is intended to advance.