R (on the application of Breckland District Council and others) v Boundary Committee for England; R (on the application of East Devon District Council) v Boundary Committee for England

Local government reorganisation – Consultation – Part I of Local Government and Public Health Act 2007 – Appellants proposing single-tier unitary authority – Judge finding respondent properly consulting on proposals in stages and deferring consideration of affordability – Whether judge erring in law – Appeals dismissedIn October 2006, the secretary of state (the first interested party) invited English councils to submit proposals for local government structural and boundary changes from two tiers to a single tier of local government, in anticipation of the enactment of the Local Government and Public Involvement in Health Act 2007.She received proposals from the appellant councils and asked the respondent to advise as to whether alternative unitary resolutions might be available for Norfolk and Devon. The respondent was assured that any review that it carried out would not have to compare the merits of the existing two-tier government with alternative proposals for a single-tier government.By July 2008, the respondent had received legal advice informing it that the 2007 Act and the request by the secretary of state for advice prohibited it from publishing more than one draft alternative proposal or making more than one alternative proposal to the first interested party. The respondent invited the appellants to develop broad concepts that outlined their preferred pattern of unitary authorities. As a result of the number of unitary patterns suggested and the cost of providing the necessary information, the respondent decided to assess affordability only when it had reached a conclusion on the draft proposals and it had published them for public comment.The appellants subsequently sought judicial review of the respondent’s process, raising issues as to whether, and to what extent: (i) the respondent was under a duty to consult on affordability; (ii) the consultation could be carried out in stages; (iii) the respondent had sufficiently consulted on affordability; (iv) it could have consulted on more than one alternative draft proposal; (v) it had been wrong to exclude a comparison of any proposed unitary scheme with the benefit of the two-tier structure; and (vi) it had been was obliged to compare alternatives with the original proposals submitted to the first interested party. The first appellants’ application was dismissed by the High Court: see [2009] EWHC 2929 (Admin); [2009] PLSCS 7. The second appellants’ application succeeded in part: see [2009] EWHC 4 (Admin);; [2009] 02 EG 81 (CS). The appellants appealed.Held: The appeals were dismissed.The judges had been right to decide that the statute obliged the respondent to carry out a process of public consultation. That consultation had to be undertaken properly, but the respondent enjoyed a degree of flexibility as to how it should be done since it section 6(4)(b) required it to take such steps as it considered sufficient. The critical parts of section 6(4) were the requirements to publish a draft of the alternative proposal and to inform interested parties of the draft proposal to enable it to make representations. That was not merely a process of gathering information. In order to enable effective representations to be made, it was necessary to publish not only the proposal in a narrow sense but also a summary of the reasons as to why that change was proposed and, in the instant case, why the proposed change was considered to meet the secretary of state’s criteria. Advice on affordability was required in the event of an alternative proposal, and a draft of that proposal had to be published for consultation, which might be recommended to the secretary of state under section 5(3). It was for the respondent to decide how it structured its recommended proposal. However, what had to be published was a draft of the entire proposal, not merely part of it and, because of the nature of the subject matter, interested parties might include the public.The judges had been correct to decide that the consultation could take place in stages and that the crucial question was whether the respondent had consulted adequately on affordability by publishing material in stages. However, if the publication were carried out in stages, the full package had to be sufficiently identified as part of the final stage of publication, and adequate time had to be afforded after the publication of the final part for the package to be considered as a whole and for representations to be made. The publication of financial information in the form of workbooks did not in itself constitute sufficient consultation on affordability because the respondent was required to explain the financial side of the draft proposals to the public in an understandable way. Moreover, the respondent had allowed insufficient time for interested parties to respond on affordability and financial matters generally.Section 6(4) did not state that the respondent could not consult on more than one draft proposal. Although the secretary of state could not implement more than one alternative proposal, the use of the words “that alternative proposal” in section 7(1)(b) did no more than recognise that necessity. They did not compel a conclusion that the secretary of state could not receive more than one alternative proposal. The request for advice by the secretary of state did not ask for a comparison beyond those that section 6(5)(a) required. A separate blanket comparative judgment was unnecessary. The context in which the respondent had to decide which of the available courses to follow under section 5 did not demand a comparison, where the respondent was giving advice, rather than making the eventual decision. In so far as a comparison might be required that was not implicit in section 6(5)(a), it was appropriate for the secretary of state to make such a comparison under section 7.Timothy Straker QC and Andrew Sharland (instructed by Knights Solicitors, of Tunbridge Wells) appeared for the appellants in the first appeal; Andrew Arden QC and Jonathan Manning (instructed by the legal department of East Devon District Council) appeared for the appellants in the second appeal; Michael Beloff QC, Gerard Clarke and Anna Burne (instructed by the Treasury Solicitor) appeared for the respondent; James Eadie QC and Catherine Callaghan (instructed by the Treasury Solicitor) appeared for the first interested party, the secretary of state for communities and local government; James Goudie QC and Peter Oldham (instructed by the legal department of Devon County Council) appeared for the second interested party.Eileen O’Grady, barrister