Breckland District Council & Ors v The Boundary Committee & Anor

The statutory procedure for an alternative local-government proposal imposed a duty on the Boundary Committee to consult. Consultation required an early and sufficiently explained proposal, adequate time for representations, and conscientious consideration of those representations. The Committee had to consider affordability before giving its advice, although the weight given to that criterion was for it. At the date of the hearing, consultation on affordability was premature because the consultation period could still be extended. The Committee was not legally required to compare a proposed unitary structure with the existing two-tier system.

Three Norfolk district authorities sought judicial review of the Boundary Committee’s draft proposal for a single unitary authority covering Norfolk and the Lowestoft area. They challenged the consultation process, the Committee’s treatment and timing of affordability, and its refusal to compare the proposed unitary structure with the existing two-tier system.

The Committee had published its draft proposal and was collecting financial information, but intended to advise the Secretary of State by 31 December 2008. The central issues were whether the Committee had complied with its statutory consultation duty, whether its consultation on affordability was adequate and timely, and whether comparison with the status quo was required.

1. Consultation duty. The claimants’ judicial review was properly brought. Section 6 of the Local Government and Public Involvement in Health Act 2007 imposed a duty on the Boundary Committee to publish a draft alternative proposal, inform interested persons, receive representations and take them into account. The statutory language required consultation equivalent in substance to ordinary public-law consultation. It required an early proposal, sufficient reasons for an informed response, adequate time, and conscientious consideration of representations. The Committee’s own statements also created a procedural legitimate expectation that it would consult.
2. Intensity of review. The court was the first judge of whether the Committee had published its proposal and taken representations into account. The Committee retained a discretion over the steps used to inform interested persons and the response period. Those matters were reviewable on conventional public-law grounds, with enhanced scrutiny given the importance of the proposed abolition of representative local authorities and associated institutional structures.
3. Affordability. Affordability was a material consideration and had to be considered before the Committee decided whether to advise and before it formulated its advice. The Committee was required to have regard to the Secretary of State’s Guidance, but that did not require slavish compliance or assessment of every possible local-authority concept at the draft stage. The Committee had lawfully treated affordability as relevant, collected financial information and published sufficient information to enable representations. The weight given to affordability remained for the Committee.
4. Timing. Consultation on affordability began, in practical terms, when the workbooks and related financial information became available in mid to late September. The intended reporting date of 31 December did not leave adequate time for representations and conscientious consideration. However, the issue was premature because the consultation could readily be extended. The claim on this ground therefore did not yet justify relief.
5. Two-tier structure. Neither the 2007 Act nor the Request required the Committee to compare a proposed unitary structure with the existing two-tier system. The statutory scheme contained a presumption in favour of single-tier government and required any alternative proposal to be for such a structure. The omission of a comparison was therefore not a failure to take account of a relevant consideration, nor was there an obligation to consult on it.

First-instance judicial review in the High Court (Administrative Court). The claim was dismissed on the grounds advanced, subject to the court’s findings that the Committee was under a duty to consult and that consultation on affordability would require more time if the Committee was to comply with that duty.