Breckland District Council & Ors, R (on the application of) v The Boundary Committee & Ors

Section 6(4) of the Local Government and Public Involvement in Health Act 2007 requires a genuine public consultation before an alternative unitary-government proposal is made. The complete proposal, including intelligible reasons and material on affordability, must be published so that the public can respond effectively.

Consultation may proceed in stages, provided that the final publication identifies the full package and allows adequate time for representations on it as a whole. The Boundary Committee may consult upon and recommend more than one alternative proposal. A general comparison with the existing two-tier structure is unnecessary, although particular statutory criteria may require comparisons with existing arrangements.

The Secretary of State requested the Boundary Committee to advise on possible alternative unitary local-government arrangements for Norfolk and Devon. The Committee published a single draft proposal for each area. It deferred detailed consideration of affordability and believed that it could publish and recommend only one alternative proposal.

Cranston J dismissed the Norfolk claim in [2008] EWHC 2929 (Admin). He allowed part of East Devon’s claim in [2009] EWHC 4 (Admin), but granted no remedy because the challenge was premature. The councils appealed.

The central issues were the scope and adequacy of the statutory consultation duty, staged consultation on affordability, the power to formulate more than one alternative proposal, and whether comparison with the existing two-tier structure or the original proposals was required.

1. The appeals succeeded in part. The court declined substantive relief because the Boundary Committee’s incomplete process was capable of lawful repair.

2. The Local Government and Public Involvement in Health Act 2007 enables, but does not require, a move to unitary local government. It does not create a general presumption that unitary government is preferable.

3. Section 6(4) imposed a public-consultation duty. Having embarked upon consultation, the Committee had to conduct it properly in accordance with the principles stated in R v North and East Devon Health Authority, ex parte Coughlan, [2001] QB 213. The Committee retained flexibility over the process, but had to publish the whole draft proposal, sufficient reasons for it, and intelligible material enabling the public as well as local authorities to make effective representations.

4. Consultation could be staged. However, before a recommendation was made, the final publication had to identify the complete package and permit adequate time for representations on it as a whole. Affordability was an essential component. The July 2008 proposals and the later publication of workbooks did not supply adequate public consultation on that issue. The Committee had published sufficient financial information no earlier than 21 November 2008, and the proposed December deadlines were inadequate.

5. The singular references to an alternative proposal did not prevent the Committee from consulting upon, or making, more than one alternative proposal. Section 6(c) of the Interpretation Act 1978 applied, and section 5(5)(b) of the 2007 Act disclosed no contrary intention.

6. No separate, blanket comparison between a proposed unitary structure and the existing two-tier system was required. The Committee nevertheless had to consider relevant representations supporting the existing structure and the comparisons inherent in the statutory criteria, including savings resulting from restructuring and the quality and cost of public services. It also had to consider the original proposals under section 5(3), but no extensive reconsideration was required and it had done so.

7. The claims were not barred by delay and were not prematurely commenced in their original form. Nevertheless, it would be unusual to quash part of an incomplete process. The identified errors did not establish that a lawful outcome could not be achieved through further proposals and adequate consultation.

• Court of Appeal (Civil Division): Allowed the councils’ appeals in part, holding that the Boundary Committee had proceeded under errors of law concerning multiple alternative proposals and had allowed inadequate time for consultation on affordability. No substantive relief was granted.
• Administrative Court: Cranston J dismissed the Norfolk judicial-review claim: [2008] EWHC 2929 (Admin) .
• Administrative Court: Cranston J upheld part of East Devon’s claim, but granted no remedy because the challenge was premature: [2009] EWHC 4 (Admin) .