This form of phased introduction would
allow for the impact to be reviewed on an evidence based approach with
consultation at that
stage on whether to proceed with the remaining proposals and, if so, whether that should be some or all of them.
The fundamental principles are famously (although not for the first time — see R v Brent London BC ex parte Gunning [1985] 84 LGR 168) set out by Lord Woolf MR (as he then was) in R v North and East Devon Health Authority, ex parte Coughlan [2001] QB 213, [2000] 3 All ER 850, at [108] as follows: whether or not
consultation 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.
The court expressed its concerns that
allowing such a collateral attack would
allow for certain mischief, including
allowing a Nation to ignore the judicial review process by stating no concern at the
consultation stage, only to later invalidate the approval by claiming Aboriginal title.