Michael James Daw & Ors, R (on the application of) v Staffordshire County Council

A public authority which consults before making a decision must conduct a genuine and fair consultation and conscientiously take account of the responses. The decision must be made after the consultation closes. Consultees, including local councillors, may have strong prior views, provided they remain willing to consider the merits. A decision-maker may attach considerable weight to reasoned representations from elected representatives without thereby surrendering the decision-making power or demonstrating predetermination. Delegated powers are interpreted realistically and in context, having regard to the authority’s structure and the nature of the function. Reasons are adequate when, read as a whole, they intelligibly explain the principal controversial issues and the balance reached; they need not address every consideration in detail.

The claimants, residents affected by a traffic regulation order restricting heavy vehicles from turning onto the A515, challenged Staffordshire County Council’s decision not to include an agricultural exemption when varying the order for HS2 construction traffic.

They alleged unlawful delegation, unfair consultation, predetermination or apparent bias, and inadequate or inaccurate reasons. The central factual issue was whether the decision had been made in August 2022 by the council’s officer and local councillors, or in February 2023 by the officer alone after considering the consultation responses.

1. Disposition. The claim was dismissed. The decision was made by Mr Heminsley in February 2023 in the exercise of his own judgment.
2. Delegation. Section 101(2) of the Local Government Act 1972 permitted delegation of the relevant function. Properly interpreted, the council’s Scheme of Delegation gave Mr Heminsley authority under the hierarchical structure of the relevant departmental table. The provision requiring referral where a councillor objected prevented an officer from overriding such an objection while proceeding with a proposal. It did not prevent the officer from accepting the objection and abandoning the proposal.
3. Consultation and predetermination. Applying the Gunning criteria, a consultation must be genuine, properly conducted and fair. The decision-maker must take account of the consultation product and therefore must not decide the issue before the consultation closes. The councillors acted as consultees, not decision-makers. Their predisposition was lawful because they advanced a reasoned case and were not shown to have closed minds. Mr Heminsley was entitled to attach considerable weight to their views, particularly because they were elected representatives and their objections were reasoned.
4. Reasons. The reasons given in the 7 February 2023 email were truthful, intelligible and adequate when read as a whole. They identified the practical concerns about enforcement and misuse, and explained the balancing exercise between the interests of agricultural users and the wider community affected by heavy vehicle movements. A reasons challenge does not require every material consideration to be addressed separately.