UK: Burning Tyres, Fairness and Consultation

Last Updated: 8 August 2006
Article by Nicholas Dobson

Burning Tyres

The smell of burning tyres might call to mind the racetrack or perhaps (for maturing Steppenwolf fans) easy riding with 'smoke and lighting' and plenty of 'heavy metal thunder'.

However, burning tyres conjured up decidedly different connotations for the Court of Appeal on 27 June 2006. For Auld, Rix and Maurice Kay LJJ then had to determine an appeal against the refusal in the first instance by Lindsay J to grant relief in respect of the grant of a conditional permit to an operator by the Environment Agency enabling the burning of waste tyres in partial substitution for conventional fuels. The case in question was R (Edwards) v Environment Agency and Others [2006] EWCA Civ 877.

Common Law Duty of Fairness

Amongst the matters before the Court was the scope and effect of the common law duty of fairness in the present context. The issue in question was whether Lindsay J had been wrong not to grant relief in respect of failure to disclose two reports by the Air Quality Monitoring and Assessment Unit (AQMAU) of the Environment Agency (the Agency) in the course of a public consultation process.

Auld LJ in giving the leading judgment noted that whilst the Judge had found the failure to disclose the reports to be in breach of the Agency's common law duty to provide consultees with enough information on the proposal to enable them to make an intelligent response, in exercising judicial discretion he had refused relief in respect of that breach.

The Court of Appeal noted that it was an accepted general principle of administrative law that a public body undertaking consultation must do so fairly as required by the circumstances of the case. As Lord Woolf MR (as he then was) had indicated in R v North Devon Health Authority, ex parte Coughlan [2001] QB 213:

'. . .the consulting authority is not required to publicise every submission it receives or (absent some statutory obligation) to disclose all its advice. Its obligation is to let those who have a potential interest in the subject matter know in clear terms what the proposal is and exactly why it is under positive consideration, telling them enough (which may be a good deal) to enable them to make an intelligent response. The obligation, although it may be quite onerous, goes no further than this.'

Must the internal workings of the decision-maker be disclosed?

But does fairness in decision-making subject to public consultation require the internal workings of the decisionmaker also to be disclosed? This issue had been addressed by the House of Lords in Bushell & Another v Secretary of State for the Environment [1981] AC 75. There Lord Diplock had expressed the principle in the context of a minister's decision-making role on his department's motorway proposal in which the minister had taken into account government policy as to the method of assessing future traffic growth which was unavailable or unpublicised at the material time. Lord Diplock indicated that whilst once a minister has reached his decision he must be prepared to disclose his reasons for it, nevertheless:

'. . . he is, in my view, under no obligation to disclose to objectors and give them an opportunity of commenting on advice, expert or otherwise, which he receives from his department in the course of making up his mind. If he thinks that to do so will be helpful to him in reaching the right decision in the public interest he may, of course, do so; but if he does not think it will be helpful - and this is for him to decide - failure to do so cannot in my view be treated as a denial of natural justice to the objectors.'

Whilst the House of Lords approved and applied those observations in R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2003] 2 AC 295, Lord Clyde in that case did express the important qualification that parties should be allowed to comment if 'some significant factual material of which the parties might not be aware comes to his notice through departmental inquiry'.

In the light of this and other dicta of Lord Diplock in Bushell as well as a consideration of other material caselaw, Auld J took the view that if in the course of decision-making, a decision-maker becomes aware of a new factor or some internal material of potential significance to the decision to be made, fairness may demand that the party or parties concerned should be given an opportunity to deal with it.

Therefore, the Court of Appeal concluded that in general in a statutory decision-making process, once public consultation has taken place, the rules of natural justice do not require a decision-maker to disclose its own thought processes for criticism before it makes a decision (see Bushell). However, if in the course of decision-making a decision-maker becomes aware of some internal material or a factor of potential significance to the decision to be made, fairness may demand that the party or parties concerned should be given an opportunity to deal with it. The facts of the instant case took it outside the general principle outlined in Bushell. Amongst other factors, the AQMAU reports raised subjects which were potentially important to an adequate assessment of the proposal of which interested members of the public were unaware and might well fail to examine for themselves. In the circumstances, failure to disclose the information was a breach of the Agency's common law duty of fairness.

Discretionary Refusal of Relief

A domestic law procedural defect which does not contravene EU law or render the ensuing decision ultra vires does not necessarily lead to the quashing of a decision. It is for the judge, looking at all the material facts of the case to determine in the exercise of his discretion whether (per Lord Woolf in R v Inner London South District Coroner, ex parte Douglas-Williams [1999] 1 All ER 344) it was 'necessary or desirable for him to do so in the interests of justice'.

The range of factors which 'may or may not properly bear' upon such a decision include:

'. . . the prejudice or absence of prejudice to a claimant in being deprived of an opportunity to make informed representations; whether a claimant acted with all reasonable speed in raising the grounds on which he relies; the conduct of the interested party; and whether it would be in the interests of good public administration to quash, leaving the parties to re-start the process.'

Depending on the relative weight of relevant factors in any particular case, no single one of these is necessarily decisive. The proposition that a court will quash a decision if a different result might realistically have followed from a consideration of overlooked material is not necessarily conclusive in the light of all the other material factors.

In the instant circumstances, the Court of Appeal took the view that given (amongst other things) that the Judge found on the evidence before him that there was no environmental harm from the plant, it would be pointless to quash the permit simply to enable the public to be consulted on out of date data. So whilst the Agency was in breach of its common law duty of fairness, no relief was afforded to the Appellants.


This case tackles some interesting issues surrounding how deeply the public law duty of fairness should penetrate into decisions underpinning a public consultation process. Whilst as a general rule, fairness will not require disclosure of the internal workings and deliberations of the public body carrying out the consultation, it may do if some significant factual material emerges in the course of inquiries which would have a material bearing upon the fairness and quality of the consultation process. And of course whether to grant relief in respect of any breach is a matter of discretion for the court having regard to all the material facts and circumstances.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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