CUMBRIA COUNTY COUNCIL (R on the application of) v SECRETARY OF STATE FOR LEVELLING UP HOUSING AND COMMUNITIES

In a renewed application for permission to bring judicial review proceedings, a challenge is not arguable merely because a decision-maker adopts flexible statutory guidance rather than an alleged freestanding policy. A population figure expressed as an expectation or rule of thumb does not necessarily constitute a minimum legal requirement. Where several proposals satisfy stated criteria, the decision-maker must undertake an overall comparative evaluation and may give decisive weight to a particular feature, provided all material considerations have been addressed. Public-law consistency requires like cases to be alike in relevant circumstances, not identical outcomes in fact-specific evaluations.

Cumbria County Council challenged the Secretary of State’s decision of 21 July 2021 to proceed, subject to Parliamentary approval, with a proposal for two unitary councils for Cumbria. The proposal had been assessed against statutory guidance issued under the Local Government and Public Involvement in Health Act 2007. The claimant argued that the guidance unlawfully departed from an earlier Government policy requiring a population exceeding 300,000, that the assessment wrongly treated a possible combined authority as irrelevant, that the Secretary of State failed to compare competing proposals, and that the decision was inconsistent with decisions concerning North Yorkshire and Somerset.

The matter came before the Administrative Court as a renewed application for permission after permission had been refused on the papers. The central question was whether any of the proposed grounds had a realistic prospect of success.

1. Permission refused. None of the grounds disclosed a viable claim for judicial review with a realistic prospect of success.
2. The statutory scheme placed the relevant policy criteria in the statutory guidance issued for the particular proposal process. The earlier Parliamentary statement did not create a separate, higher-level policy governing the Secretary of State’s section 7 decision. The reference to a population exceeding 300,000 was an indicator or rule of thumb, not a binding minimum requirement. The guidance’s allowance for a different figure, having regard to local circumstances, therefore did not arguably constitute an unlawful departure requiring special justification.
3. The possible establishment of a combined authority was a matter for a separate statutory process under the Cities and Local Government Devolution Act 2016. It was legitimate to treat that possibility as an open question, without assuming or prejudging its establishment, while considering it as part of the wider context. The assessment nevertheless considered the proposal’s reliance on a combined authority and concluded that the unitary proposal could stand independently.
4. The decision-maker was required to evaluate the competing proposals overall, rather than select one by reference only to a single favourable feature. The evidence showed that the Secretary of State had considered the detailed circumstances of each proposal, the three criteria and matters including value for money, service delivery, geography and consultation responses. His ultimate emphasis on Cumbria’s size, rurality and geographical barriers was an evaluative judgment, not unlawful cherry-picking.
5. The comparison with North Yorkshire did not establish unlawful inconsistency. The same methodology had been used, but the relevant geographical, identity and partnership circumstances differed materially. The principle that like cases should be treated alike did not require identical conclusions in different factual contexts.
6. The claimant accepted that the reconsultation ground was parasitic on the combined-authority ground. The existing costs order concerning the acknowledgment of service stood. No additional costs order was made for the oral permission hearing.

This was a renewed application for permission for judicial review.

• Administrative Court: HHJ Stephen Davies refused permission on the papers on 14 January 2022.
• High Court (Administrative Court): Mr Justice Fordham reconsidered the application afresh and refused permission.