Devon County Council and another v Secretary of State for Communities and Local Government

Local government reorganisation – Consultation – Defendant inviting proposals for single-tier unitary authorities to be assessed against five criteria – Defendant maintaining position proposals to be rejected unless all criteria met – Defendant adopting certain proposals despite non-compliance with one criterion – Whether decisions so unfair as to be unlawful – Claim allowedThe claimant county councils formed part of the two-tier system of local government. By a White Paper of October 2006, the defendant, acting under section 2 of the Local Government and Public Involvement in Health Act 2007, invited proposals to replace the two-tier system with a single tier. The paper set out five “headline” criteria that, by section 3(5), had to be taken into account in formulating any proposal. The criteria related to the cost of, and support for, the change and to its objectives. The two interested parties, Exeter and Norwich City Councils, each submitted a proposal for unitary status on their existing boundaries.Throughout the process of statutory consultation, and thereafter, statutory guidance and other documents produced by the defendant’s department reiterated that proposals would be acceptable only if they met all five criteria. The advice of the Local Government Boundary Commission was also sought and provided on that basis. In its December 2009 report, the commission recommended unitary authorities for Devon and Norfolk and further advised that the interested parties’ proposals should be rejected owing to concerns over the ability of the Exeter proposal to meet the affordability criterion and the Norwich proposal to meet the value-for-money criterion.After soliciting further representations from consultees, the defendant decided to implement the proposals sought by the interested parties. The defendant took the view that there were compelling reasons to implement the proposals, notwithstanding that they each failed to meet one of the five criteria. Those reasons related to the potential of the proposals to deliver economic growth and their accordance with the government’s “Total Place” initiative for the delivery of public services, as set out in a December 2009 White Paper. Draft orders to implement the proposals were approved by resolution of both Houses of parliament and the orders were subsequently made.The claimants brought proceedings to quash the orders. They contended that the defendant’s decisions had been taken on a radically different basis from that which had always been stated, and on which the statutory consultation had proceeded. The consultation had therefore been unfair, had failed to meet the requirements of section 7 of the 2007 Act and breached the claimants’ legitimate expectations. They further submitted that the decisions were irrational because there was no evidence to support critical matters on which they turned.Held: The claim was allowed. Although the nature of the decisions and of the statutory decision-making process might create a very hurdle for the claimants, the types of errors that they had asserted could in principle lead to the quashing both of the decisions and the consequent orders.The duty of fair consultation required that sufficient information was provided in respect of the proposals being consulted on to enable the consultees to offer an intelligible response that would be conscientiously considered by the decision maker before reaching a decision. Although the provision of information was a matter for the person carrying out the consultation, that information had to indicate the nature of the proposal and the factors that were likely to be of importance to the decision or the basis on which that decision was likely to be taken: R v Brent London Borough Council, ex parte Gunning (1985) 84 LGR 168 and R (on the application of Capenhurst) v Leicester City Council [2004] EWHC 2124 (Admin); (2004) 7 CCLR 557 applied. Where a decision maker set out the crucial criteria and how they would be used in the decision-making process, that would affect the topics that consultees covered and in what depth. Accordingly, where criteria and their precise role were expressly stated, a fair and lawful statutory consultation might require that no departure should be made from the criteria and their stated significance without further consultation to enable representations to be made on that changed basis.In the instant case, the defendant had chosen to set specific criteria. It had been his decision not merely to use them as guides but to require all proposals to meet each criterion, thereby giving them a decisive negative role. At no time during the consultation process had the defendant indicated that he might approve a proposal if it failed one criterion, despite having opportunities to change his position before announcing his final decision. He had adopted a different approach to the decisions from that which he had said he would adopt. Although there had been an opportunity, in the final round of consultation, to alert consultees to the possible importance of the “Total Place” policy and to invite representations on its effect, the defendant had given no warning of it. Accordingly, the consultees had had no opportunity to anticipate the last-minute change of stance, which had led to the adoption of a fundamentally different approach, or to make any representations in respect of it. Having repeatedly set out the basis on which he would refuse proposals, the defendant had without warning adopted a wholly different approach and had reached decisions that he would not have reached on the original approach. His decisions made a mockery of the consultation process and had been so unfair as to be unlawful. The orders would be quashed.Timothy Straker QC and Jonathan Moffett (instructed by Knights Solicitors, of Tunbridge Wells) appeared for the first claimants; Timothy Straker QC and Andrew Sharland (instructed by Knights Solicitors, of Tunbridge Wells) appeared for the second claimants; Samuel Grodzinski and Timothy Buley (instructed by the Treasury Solicitor) appeared for the defendant; James Goudie QC and Peter Oldham QC (instructed by the legal departments of Exeter City Council and Norwich City Council) appeared for the interested parties.Sally Dobson, barrister