Buck v Doncaster Metropolitan Borough Council

On a renewed application for permission to appeal, permission should be granted where the proposed grounds are sufficiently arguable and raise an important issue about the division of powers between a directly elected mayor and cabinet and the full council. That remains so where the dispute may become practically overtaken before the appeal is determined. The proposed grounds concerned section 31A of the Local Government Finance Act 1992 and Schedule 4 to the Local Authorities (Functions and Responsibilities) (England) Regulations 2000.

Doncaster Metropolitan Borough Council challenged the lawfulness of the directly elected mayor and cabinet’s decision not to spend money in accordance with a full-council amendment supporting community libraries. Hickinbottom J had held that the stated intention was lawful. Sir Richard Buxton had refused permission on paper. The Council renewed its application, arguing that the first-instance judgment had misconstrued section 31A of the Local Government Finance Act 1992 and had failed to address, or had not properly focused on, arguments under Schedule 4 paragraphs (2) and (3) of the Local Authorities (Functions and Responsibilities) (England) Regulations 2000. The central issue was whether those grounds had a reasonable prospect of success and raised an important wider question about the allocation of powers between the executive and full council.

1. Permission granted. The renewed application was allowed in respect of all proposed grounds.
2. The argument under section 31A(1) and (2) of the Local Government Finance Act 1992 was not especially persuasive, but it was sufficiently arguable to be advanced on appeal. It concerned the full council’s calculation of estimated expenditure and allowances for contingencies.
3. The arguments under Schedule 4 of the Local Authorities (Functions and Responsibilities) (England) Regulations 2000 were stronger. Paragraph (2) concerns a matter in the discharge of an executive function relating to the authority’s budget where the executive is minded to determine it contrary to, or not wholly in accordance with, that budget. Paragraph (3) concerns a function relating to a plan or strategy adopted by the authority where the executive is minded to act contrary to, or not wholly in accordance with, that plan or strategy. The judge below had not dealt with the paragraph (2) argument and had not focused on the particular paragraph (3) argument concerning the draft budget described as a financial strategy and its eventual approval, including the libraries amendment.
4. The issue was of general importance to other local authorities operating with a directly elected mayor and cabinet. The fact that the financial year might end before the appeal could be decided, and that events might meanwhile have passed, did not remove the justification for appellate consideration.

Order: Application granted.

• Court of Appeal (Civil Division): Sir Richard Buxton had refused permission on paper on 26 October 2012. Lord Justice Aikens granted permission on renewal on 23 January 2013 in respect of all matters raised.
• High Court of Justice, Queen’s Bench Division, Administrative Court: Hickinbottom J’s decision, handed down on 1 August 2012, held that the stated intention not to spend the money proposed by the full-council amendment was lawful.