Harris & Anor, R (on the application of) v Broads Authority

A public authority may adopt a statutory expression as a marketing brand where it does not claim the corresponding statutory status or functions. The words “National Park” are ordinary language and are not reserved exclusively to areas designated under the National Parks and Access to the Countryside Act 1949. A branding decision is lawful if it falls within the authority’s statutory purposes and powers and does not mislead the public about its legal functions. The Sandford Principle does not apply merely because the words “National Park” are used. Consultation is adequate where the proposal and its legal consequences are stated clearly, and a later resolution does not require fresh consultation if it causes no material prejudice. The claim for judicial review was dismissed.

The claimants, residents of the Broads, sought judicial review of the Broads Authority’s resolution adopting “Broads National Park” as a marketing brand. The Broads Authority was established under the Norfolk and Suffolk Broads Act 1988, which gives it conservation, public enjoyment and navigation purposes but does not apply the Sandford Principle. The claimants argued that the resolution was ultra vires, misleading, irrational, relied on an immaterial consideration and was procedurally unfair because the consultation did not address abandoning a long-term ambition for statutory National Park status.

1. Disposition. The claim for judicial review was dismissed. Permission to appeal was refused. Each claimant was ordered to pay £5,000 towards the Authority’s costs, within the overall £10,000 cap.
2. The Authority had power under sections 2(7) of the Norfolk and Suffolk Broads Act 1988, 111 and 144 of the Local Government Act 1972 to market the Broads and adopt a brand name promoting its statutory purposes. The detailed designation code in the National Parks and Access to the Countryside Act 1949 did not regulate marketing names. The phrase “National Park” was ordinary language and was not legally monopolised by that Act.
3. The Authority would have acted ultra vires if it had claimed that the Broads or the Authority possessed statutory National Park status or the functions and duties of a National Park Authority. It had not done so. The resolution expressly limited the name to marketing and preserved the legal regime under the 1988 Act.
4. A public authority acts unlawfully if a statement or decision has the effect of misleading the public about its statutory functions. The question was treated as objective, although it was unnecessary finally to decide the standard of review. The resolution and consultation documents clearly stated that the Sandford Principle would not apply. A reasonable member of the public would understand “Broads National Park” as a promotional reference to the area’s qualities, not as a statement about the precise statutory regime.
5. The Authority’s reliance on the protections in the Conservation of Habitats and Species Regulations 2010 did not render the decision unlawful. The Authority had to exercise judgment about the need for the Sandford Principle, and its conservation duties under the 1988 Act applied throughout the Broads. In any event, the branding decision did not depend legally on whether that principle should be introduced.
6. The consultation satisfied the Sedley principles approved in R (Moseley) v Haringey London Borough Council [2014] 1 WLR 3947. The decision not to pursue the long-term vision did not alter the existing Broads Plan, and any formal variation would require the statutory consultation procedure. There was no fundamental difference from the proposal consulted upon and no material prejudice.
7. The costs provisions in CPR 45.43 and Practice Direction 45 could apply to each claimant. The court nevertheless treated the existing order as imposing an effective total cap of £10,000 and limited each claimant’s liability to £5,000.

This was a first-instance judicial review claim in the Administrative Court. The court dismissed the claim and refused permission to appeal.