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 Involvement in Health Act 2007 – Proposal for single-tier unitary authority – Defendant asked to advise on alternative proposal to be assessed against five criteria – Whether permissible to consider affordability criteria at later stage after formulation of draft proposal – Whether more than one proposal permitted – Claim dismissedIn 2007, the secretary of state for communities and local government considered a proposal from Exeter City Council for a new unitary authority, which she was minded to refuse owing to problems of affordability. She asked the defendant committee to advise on “an alternative proposal”, within section 5 of the Local Government and Public Involvement in Health Act 2007, for a single tier of local government for Devon, excluding the existing unitary authorities for Plymouth and Torbay. The proposal was to be considered against five criteria, including affordability, which had to be met “in aggregate”.Following consultation with the public and the requisite local authorities, including the claimants, the defendant published a report that set out a draft proposal for a single unitary council for Devon, upon which it invited further representations. The defendant proposed only one option in the belief that this was what the 2007 Act required and that it had no power to seek views on a range of potential options. However, it noted that it had identified a further possibility, involving two unitary authorities within Devon. It further stated that the criterion of affordability had not been considered, so as to avoid the resource cost to local authorities in providing financial information on a range of options before any one of them had been chosen for the draft proposal.Financial information was subsequently provided, a report on which was released on the defendant’s website. The deadline for public response and for the defendant’s report was extended following R (on the application of Breckland District Council) v Boundary Committee [2008] EWHC 2929 (Admin), in which a challenge to a separate assessment of affordability, in respect of proposals in Norfolk, had been dismissed. Meanwhile, the secretary of state issued further guidance on what was meant by “in aggregate”.The claimants sought judicial review of the defendant’s report on local government. They challenged, inter alia, the correctness of the decision in Breckland with regard to consultation in stages and the defendant’s view that it was confined to making a single proposal. They also raised challenges relating to the adequacy of public consultation on affordability and the approach to aggregation.Held: The claim was dismissed. (1) It had been open to the defendant, in performing its statutory task, to defer consideration of affordability until its draft proposal had been published. That had not been irrational in the light of its wish to avoid the imposition of undue burdens on local authorities at an early stage. It had made its approach plain from the outset, and had since published the financial information through the workbooks and financial consultants’ report. It was in a position to consider affordability prior to making a decision as to what advice to give to the secretary of state: Breckland applied. The crucial question was not staging per se but whether that approach had permitted adequate consultation on the issue of affordability. Whether the public had been consulted in a meaningful manner had to be assessed against the backdrop of the particular consultation exercise. Opinion leaders, in particular public bodies, had a duty to assist the public in understanding complex issues such as affordability. The mediation process would usually produce a “bottom line”, and it was to that stripped-down version of a complex issue to which the public would react. Against that background, the defendant had met its statutory obligation to consult on affordability since it had published the financial information on its website; it had, through press releases, encouraged ordinary members of the public to comment; and there had been extensive coverage in the local press, such that members of the public had been given the “bottom line” on affordability. The defendant had not been obliged to consult on retaining the status quo or on the Exeter proposal.(2) The words “an alternative proposal” in section 5 of the 2007 Act were to be construed according to the ordinary rule that the singular included the plural. No contrary intention could be found in the legislation; no such intention could be inferred from the use of the plural in section 5(5)(b) when dealing with the specific context of a collective proposal containing several proposals that stood or fell together. If the defendant considered that the appropriate course was to formulate and consult on one or more alternative proposals, it had been entitled to do so. It therefore had to reconsider whether to advance more than one pattern of unitary local government for Devon and, should additional options be advanced, whether they met the criteria “in aggregate” in line with the meaning of that concept as set out in the new guidance. For a proposal involving two or more unitary authorities in Devon, that meant having to consider whether the five criteria could be met across the area as a whole, rather than in respect of each individual unitary authority proposed. Any challenge on those grounds was premature given the extended deadline for the defendant to provide its advice, which might permit it to comply with its statutory duties.Andrew Arden QC and Jonathan Manning (instructed by the legal department of East Devon District Council) appeared for the claimant; Michael Beloff QC and Gerard Clark (instructed by the Treasury Solicitor) appeared for the defendant; James Eadie QC and Catherine Callaghan (instructed by the Treasury Solicitor) appeared for the interested party, the secretary of state for communities and local government.Sally Dobson, barrister