East Devon District Council v Electoral Commission (The Boundary Committee for England)

The Boundary Committee may stage its consultation on statutory criteria, including affordability, provided that consultees later receive sufficient information and a meaningful opportunity to comment before the Committee advises the Secretary of State. Consultation under section 6(4)(b) of the Local Government Act 2007 extends to the public generally, not merely expert consultees. The Committee may advance more than one alternative proposal where the statutory context permits it; the Secretary of State’s request and guidance cannot restrict powers conferred by primary legislation. Where proposals comprise multiple authorities, “in aggregate” permits assessment of the package together, including costs, savings and reserves. Challenges concerning matters still capable of correction before the reporting deadline may be premature.

East Devon District Council challenged the Boundary Committee’s review of local government in Devon. The proposed restructuring would abolish the district councils and create a single unitary authority. The challenge concerned the staging and adequacy of consultation, the treatment of the existing two-tier system and the original Exeter proposal, the number of alternative proposals the Committee could advance, and the meaning of assessing the statutory criteria “in aggregate”.

The claim followed the court’s earlier decision in Breckland District Council v Boundary Committee, [2008] EWHC 2929 (Admin), concerning a comparable review in Norfolk.

1. The claim was substantially unsuccessful, but the court declared that the Boundary Committee had misdirected itself as to its statutory power to publish and consult on more than one alternative proposal. The challenge remained premature because the reporting deadline had been extended and the Committee could still comply with its statutory duties.

2. The court reaffirmed the approach in Breckland District Council v Boundary Committee, [2008] EWHC 2929 (Admin), that consultation could be staged. Deferring affordability until after publication of the draft proposal was not irrational where the Committee had explained that approach, needed financial workbooks, and intended to consider affordability before final advice. The decisive question was whether consultation on affordability was adequate and meaningful.

3. Section 6(4)(b) of the Local Government Act 2007 required consultation with the public as a whole. This included taxpayers, tenants, employees and actual or potential recipients of local authority services and grants. Complex financial issues did not justify limiting consultation to experts. The Committee had nevertheless met its obligation because relevant financial information, independent consultants’ analysis and publicity were available in time for meaningful representations.

4. The Committee was entitled to give substantial weight to the Secretary of State’s view that the Exeter proposal was unaffordable and, in the interests of good administration, to draw a line under it, provided it reached its own decision. The court found no public law flaw in that approach. The existing two-tier system likewise remained a matter on which representations could be made, although it was not a required comparative option.

5. The statutory reference to “an alternative proposal” did not prevent the Committee from advancing more than one alternative proposal. Section 5(5)(b) concerned proposals which stood or fell together, and did not displace the ordinary presumption that singular words include the plural. The Secretary of State’s request and guidance were subordinate to the statute.

6. If the Committee chose to advance further proposals, it would have to consult on them under section 6(4), although the extent of any further consultation could take account of consultation already undertaken. If multiple authorities formed one unitary solution, the “in aggregate” criterion required assessment of the package together. The independent consultants would need to reconsider affordability on that basis, with further consultation if the analysis changed.