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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Breckland District Council & Ors, R (on the application of) v The Boundary Committee & Ors  EWCA Civ 239 (25 March 2009)
Cite as:  PTSR 1611,  EWCA Civ 239,  BLGR 589
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
The Hon Mr Justice Cranston
 EWHC 2929 (Admin),  EWHC 4 (Admin)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE DYSON
LORD JUSTICE RICHARDS
| The Queen on the application of Breckland District Council & Others
|- v -
|The Boundary Committee
|The Queen on the application of East Devon District Council
|- v -
|The Boundary Committee for England
|The Secretary of State for Communities and Local Government
|Devon County Council
Andrew Arden QC/Jonathan Manning (instructed by Head of Legal, Licensing and Democratic Services, East Devon District Council) for East Devon
Michael Beloff QC/Gerard Clarke/Anna Burne (instructed by Treasury Solicitor) for the Boundary Committee
James Eadie QC and Catherine Callaghan (instructed by Treasury Solicitor) for the Secretary of State
James Goudie QC and Peter Oldham for Devon County Council
Hearing dates: 18-20 February 2009
Crown Copyright ©
Sir Anthony May President of Queen's Bench Division:
The 2007 Act
" on any matter that (a) relates to the proposal; and (b) is specified in the request" section 4(2).
The Boundary Committee are to advise no later than a date specified in the request, but the Secretary of State can at any time substitute a later date section 4(3). Thus, the first place to look for what the Boundary Committee are requested and, subject to an apparent discretion, expected to do, is the Secretary of State's request.
"(4) Before making an alternative proposal under section 5(3)(c) the Boundary Committee must
(a) publish a draft of the proposal; and
(b) take such steps as they consider sufficient to secure that persons who may be interested are informed of -
(i) the draft proposal; and
(ii) the period within which representations about it may be made to the Boundary Committee.
(5) The Boundary Committee
(a) must take into account any representations made to them within that period, and
(b) if they make any proposal to the Secretary of State, must inform any person who made such representations -
(i) of the proposal made; and
(ii) that representations about the proposal may be made to the Secretary of State until the end of the relevant period."
The relevant period in section 6(5)(b)(ii) is four weeks from the date specified by the Secretary of State for the Boundary Committee to advise.
The Secretary of State's requests to the Boundary Committee
"1. Any unitary arrangements, if these were to be implemented, should be reasonably likely to deliver the following outcomes;
I. the change to the future local government structures is to be:
- affordable, i.e. that the change itself both represents value for money and can be met from councils' existing resource envelope;
- supported by a broad cross section of partners and stakeholders; and
II. those future unitary local government structures are to:
- provide strong, effective and accountable strategic leadership, including that strong economic leadership recognised in the Government's Review of sub-national economic development and regeneration;
- deliver genuine opportunities for neighbour-hood flexibility and empowerment, in particular for empowering citizens and communities as envisaged in the Government's Green Paper Governance of Britain and in the Government's and the LGS's An Action Plan for Community Empowerment: building on success;
- deliver value for money and equity on public services."
The "outcomes" are then described in more detail. Under the heading "Affordability" is the following:
"3. The change to a unitary structure should deliver value for money and be self-financing so that:
a) transitional costs overall must be more than offset over a period ("the payback period") by savings;
b) the "payback period" must be no more than 5 years;
c) in each year, capital transitional costs incurred are to be financed through revenue resources, or the normal process of prudential borrowing or the use of capital receipts;
d) in each year, other (i.e. revenue) transitional costs incurred are to be financed through a combination of the following:
- in year revenue savings arising as a result of restructuring;
- other in year specified revenue savings that are additional to annual efficiencies (e.g. Gershon savings) which local authorities are expected to make;
- drawing on available revenue reserves, subject to ensuring that satisfactory amounts remain to meet unforeseen pressures or other potential calls on reserves. Use of revenue reserves should be the final option considered, both because of the need to preserve a contingency to meet future pressures and because use of reserves adversely affects the fiscal aggregates in a given year, increasing spending but not receipts and so placing further pressure on the Government's fiscal rules;
e) the use of capital resources to meet revenue costs will not be permitted.
4. All costs incurred as a result of reorganisation must be met locally without increasing council tax.
5. Central Government will accept no liability for any miscalculation or cost overrun in the final outturn. The Government will not accept that any additional, unforeseen costs of restructuring should be recovered from council tax payers and that, therefore, any unforeseen costs will need to be financed from other sources."
"What will be the draft proposals?
The Committee intends consulting on one or more draft proposals for a pattern of unitary local government for each county area. It will indicate which of these is its preferred option for each county. The draft proposals would be identified on the basis that, subject to public consultation and a detailed assessment of their affordability, they are likely to have the capacity to meet the criteria that the Secretary of State has asked the Committee to have regard [to] in reaching its conclusions. The Committee will take a view on what it considers is likely to provide the best overall pattern of unitary alternative proposals within any county in deciding what draft proposals to publish.
Is the status quo/existing two-tier system an option?
The existing two-tier system will only remain if we are unable to identify an alternative proposal or if the Secretary of State does not choose to implement an alternative proposal.
Could you recommend to the Secretary of State that the Exeter . and Norwich bids be accepted?
It would not be in the interests of either local government or council tax payers for the Committee to advise the Secretary of State to implement a bid that has already been demonstrated not to have met the affordability test."
There had been earlier communications and meetings at which these intentions of the Boundary Committee had been made known.
"It is common ground that, whether or not consultation of interested parties and the public is a legal requirement, if it is embarked upon it must be carried out properly. To be proper, consultation must be undertaken at a time when proposals are still at a formative stage; it must include sufficient reasons for particular proposals to allow those consulted to give intelligent consideration and an intelligent response; adequate time must be given for this purpose; and the product of consultation must be conscientiously taken into account when the ultimate decision is taken: R v Brent London Borough Council, ex parte Gunning (1985) 84 LGR 168."
Consultation in stages
Consultation in stages discussion
"Affordable, i.e. that the change itself both represents value for money and can be met from the council's existing resource envelope."
The subsequent explanation of this in paragraphs 3 to 5 of Annex A, which we have set out in paragraph 13 of this judgment, shows that the essential requirement was that the cost of the change had to be met from the councils' existing revenue or capital resources without increasing council tax and so that savings over a 5 year period were greater than the transitional costs. The requirement that the change itself had to represent "value for money" is in this context cryptic. But the use of the same phrase at the beginning of paragraph 3 appears to indicate that "value for money" was seen as an element of the considerations elaborated in paragraph 3.
More than one proposal
"Moreover, in my view, the context of the 2007 legislation points towards the singular including the plural. If the Boundary Committee's interpretation were correct it would confine it to advancing one alternative proposal when, in its expert judgment, more than one alternative proposal might have the merit of matching the five criteria, albeit in different ways. Potentially it would also mean serial consultation as each alternative proposal was advanced and, after the expense and disruption of consideration and consultation, rejected. A final factor is that in particular circumstances the Boundary Committee might decide that the calculation of the overall benefit of various alternative proposals would only be clear once possible associated arrangements have been more fully developed. Since that occurs at a later stage in the process, the sensible course in some circumstances might be to place more than one proposal before the Secretary of State so she could make a final judgment, in the light of what transpires in respect of associated arrangements. In summary the legislative purpose points in the direction of the Boundary Committee being able to advance more than one alternative proposal if, in its expert view, these meet the criteria."
It appears that this paragraph of his judgment constituted the acceptance by the judge of the substance of written submissions put before him by Mr Eadie on behalf of the Secretary of State which have been provided to this court. The judge added that the request for advice and guidance were subordinate to the statute and could not cut down powers conferred by primary legislation.
"In my judgment what must happen is that the Boundary Committee should consider with care whether it would be right to make further alternative proposals for Devon. If it were to decide that that course were appropriate, it would need to comply with the statutory requirements, including that under section 6(4) of consulting on such further proposals. However, the nature of complying with that obligation would be conditioned by what has already occurred. The Boundary Committee could decide, in its discretion, that responses already received were such that a more limited further consultation was all that was necessary." (see also the judge's paragraph 45)
It is, we understand, in part at least in the light of this that the Boundary Committee has embarked on its adapted process. The Boundary Committee's position in this court is that it would be content for the court to uphold the judge's ruling, but Mr Beloff draws attention to the legal instruments which could lead to a different conclusion.
More than one proposal discussion
Status quo discussion
Original Proposal - discussion
Delay and prematurity
"The court has jurisdiction to entertain an application by a citizen for judicial review in respect of a resolution before or after its adoption. But it is a jump in legal logic to say that he must apply for such relief in respect of the resolution on pain of losing his right to judicial review of the actual grant of planning permission which does affect his rights. Such a view would also be in tension with the established principle that judicial review is a remedy of last resort.
At this stage it is necessary to return to the point that the rule of court applies across the board to judicial review applications. If a decision-maker indicates that, subject to hearing further representations, he is provisionally minded to make a decision adverse to a citizen, is it to be said that time runs against the citizen from the moment of the provisional expression of view? That would plainly not be sensible and would involve waste of time and money. Let me give a more concrete example. A licensing authority expresses a provisional view that a licence should be cancelled but indicates a willingness to hear further argument. The citizen contends that the proposed decision would be unlawful. Surely, a court might as a matter of discretion take the view that it would be premature to apply for judicial review as soon as the provisional decision is announced. And it would certainly be contrary to principle to require the citizen to take such premature legal action."
Lord Steyn considered that the arguments in that case in favour of time running from the date of the resolution had been given undue weight. There was a number of countervailing policy considerations which he considered in paragraphs 45ff.