Commons Registration

November 17th, 2014 by James Goudie KC in Environment, Highways and Leisure

 

County Councils in England, District Councils in England for an area without a County Council, London Borough Councils and County or County Borough Councils in Wales are “commons registration authorities”.  The commons registration authority in relation to any land is the authority in whose area the land is situated.  Where any land falls within the area of two or more commons registration authorities, the authorities may by agreement provide for one of them to be the commons registration authority in relation to the whole of the land.

The Commons Registration Act 1965 (“the 1965 Act”) created a legal record of common land, town and village greens and rights over the land by requiring that all were registered by a cut-off point, failing which they lost that status. The compilation of the original registers resulted in many mistakes and anomalies, eg land was recorded as common land despite having never been part of the common. Many of these mistakes were not noticed until after the registers became conclusive on 31 July 1970 but there were insufficient powers to correct them. The 1965 Act also failed to require that registers be kept updated when events took place that affected the information in the registers. Consequently the registers currently maintained under the 1965 Act are not an accurate record of common land, town or village greens or the rights over them.

Part 1 of the Commons Act 2006 (“the 2006 Act”) 2006 Act provided for applications to amend the information in the registers to reflect contemporary events, anomalies and mistakes, and unregistered events.  It also provided that changes to the information in the registers are only considered lawful when recorded in the register.

The 2006 Act received Royal Assent on 19 July 2006.  Part 1 of the Act provides for the maintenance of, and amendment of the information in, the registers of common land and of town and village greens which were established under the 1965 Act. Section 1 provides that commons registration authorities shall continue to keep registers of common land and of town and village greens (ie those originally prepared under the 1965 Act). Sections 2 to 5 provide for the purpose of the registers, the definition of commons registration authorities and the land to which Part 1 applies, which is most of England and Wales.  Sections 6 to 17 specify the types of applications to amend the registers to reflect contemporary events which affect the information contained in the registers.  Section 18 provides for the conclusiveness of the registers, eg land (i.e. common land) is deemed to be subject to rights of common upon the registration of the right. Section 19 allows for the correction of the registers in prescribed circumstances, eg where the commons registration authority made a mistake when it made an entry in the register.   Section 20 requires that the registers must be made available for inspection by any person. Section 21 provides for official copies of the registers. Section 22 gives effect to Schedule 2.  This allows for the registration of common land and town and village greens that were not registered, and for the removal of land that was wrongly registered as common land or town or village green, under the 1965 Act. Section 23 gives effect to Schedule 3.  This provides for a transitional period during which historic events which were not recorded in the registers can now be recorded.

Section 24(1) of the 2006 Act provides the Secretary of State (“the SoS”) with powers to make Regulations that provide for the making and determination of applications to amend the registers under Part 1.  Subsection (2) lists the matters that the Regulations may in particular provide for, which includes: the form of an application, the information to be supplied with one, notice requirements, the making of objections and the persons who must be consulted, the holding of inquiries, the evidence to be taken into account. Subsection (2A) provides the SoS with powers to make Regulations for the fees payable for applications, including where the person who determines the application is different from the person to whom it was made. Subsection (3) provides that the Regulations can specify the persons entitled to make certain types of application. Subsection (6) provides the SoS with powers to make Regulations concerning the making and determination of proposals made by commons registration authorities (ie applications the authority makes to itself), and subsection (7) lists the matters that such Regulations may in particular include. Subsection (8) provides that the appropriate national authority (in England, the SoS) may make regulations to appoint persons to discharge functions of a commons registration authority in relation to applications or proposals.

The Commons Registration (England) Regulations 2008 (“the 2008 Regulations”) implemented Part 1 in the seven “pioneer” local authority areas in October 2008. Those authorities comprise: Blackburn with Darwen Borough Council, Cornwall Council, Devon County Council, County of Herefordshire District Council, Hertfordshire County Council, Kent County Council and Lancashire County Council.

The Commons Registration (England) Regulations 2014, SI 2014/3038 (“the 2014 Regulations”) provide for the maintenance of the registers of common land and town and village greens, including the procedure for applications to amend them under Part 1 of the 2006 Act. The registers can be amended to add new information or amend or remove existing information. Amendments can be made to reflect contemporary changes (Sections 6 to 15 of the 2006 Act), mistakes and anomalies (Section 19 and Schedule 2 to the 2006 Act) and historic unregistered events (Schedule 3 to the 2006 Act).

The 2014 Regulations apply in full to the areas of Cumbria and North Yorkshire (“the 2014 registration authorities”) and the pioneer areas (“the original registration authorities”, which were previously subject to the Commons Registration (England) Regulations 2008, which the 2014 Regulations now replace). Cumbria and North Yorkshire are required to review their registers to identify anomalies and to process fifteen types of applications. The 2014 Regulations partially apply elsewhere in England to allow five types of applications to correct mistakes in the registers. The five types of applications are those under: Section 19(2)(a) (correction of mistakes made by an authority when it made an entry in the register), and paragraphs 6, 7, 8 and 9 of Schedule 2, which allow for the removal of certain types of land that were wrongly registered as common land or town or village green.

The 2014 Regulations require applications to be submitted to commons registration authorities.  They have the power to charge fees, set by themselves in relation to most types of applications (certain types are specified as liable to no fee, due to a public interest). Applications must be referred to the Planning Inspectorate for determination where the authority has an interest in the outcome of an application. Applications to correct a mistake, or add land to, or remove land from, the registers must also be referred provided objections have been received from persons with a legal interest in the land.

 

Off Street Parking

November 12th, 2014 by James Goudie KC in Environment, Highways and Leisure

In Isle of Wight Council and Others v HMRC [2014] UKUT 446 (TCC) the Upper Tribunal held that the First-tier Tribunal had been entitled to find that local authorities were not entitled to recover VAT included in supplies of off-street carparking pursuant to the Road Traffic Regulation Act 1984, Sections 32, 35 and 122.  Non- taxation would lead to the risk of significant distortions of competition in the off-street car parking market and the provision of outsourcing.  Local authorities were not entitled to be treated as a non-taxable person.

Proudman J accepted (para 54) that “the RTRA as a whole is not a revenue-raising measure”; that, although the cases of Cran, Djanogly and Attfield relate to on-street parking, they were applicable in that respect to off-street parking; that it is legitimate for a local authority to structure its car parking prices so as to discourage parking in some places and encourage it in others; that it is likewise legitimate to use surplus revenue generated from some car parks to make up a  shortfall in revenue from car parks which, whether for policy reasons or otherwise, are run at a loss, or where parking is free of charge; and that there is no requirement that income and expenditure be balanced on a car park by car park basis.

Proudman J said that it must follow, if the RTRA is not a fiscal measure, that “overall, and perhaps taking one year with another”, the cost to the local authority of meeting its statutory obligation of providing sufficient off-street parking and the revenue generated from the activity must be “broadly equal”.  The “deliberate making” of a profit would take the activity into the realm of “trading”.

 

Highways

November 4th, 2014 by James Goudie KC in Environment, Highways and Leisure

The normal course with highway developments is that estate roads when constructed become public highways maintainable at the public expense.  This result is usually achieved by the mechanism of an agreement made between the developer and the local highway authority under s38 Highways Act 1980.  Such an agreement has two aspects: first, the roads are dedicated and adopted as public highways; and, second, they become highways maintainable at the public expense.

In R (Redrow Homes Ltd) v Knowsley Metropolitan Borough Council [2014] EWCA Civ 1433 both Redrow and the Council as the highway authority wished in principle that this should occur.  A part of the roads will be street lighting. The Council said that it would not enter into an agreement under s38 unless it contained a provision that Redrow pays at the date of the agreement £39,000, which is a commuted sum representing the estimated capital sum to cover the cost of future maintenance of the street lights. The Council said that such a provision in a s38 agreement is lawful by reason of the word “maintenance” in s38(6) and that maintenance refers to and includes future maintenance of the road following its adoption. Redrow said that no such provision may lawfully be included in a s38 agreement.

The case related only to street lighting and a relatively small sum. However, the issue of statutory interpretation is of wide importance.

The Court of Appeal found in favour of the Council.  Lord Dyson MR, with whom Gloster and King LJJ agreed, said:-

“ … The starting point is that s38(6) is expressed in wide and unqualified terms. On its face, it permits an agreement between a developer and a highway authority containing “such provisions as to the dedication as a highway of any road or way…, the bearing of the expenses of the construction, maintenance or improvement of any highway, road…to which the agreement relates and other relevant matters as the authority making the agreement think fit”. It could hardly be wider in its scope. In particular, there is nothing in the language of the subsection which draws a distinction between what is permitted in respect of the period before and what is permitted in respect of the period after the road or way becomes a highway maintainable at the public expense….”

“19.       … First, as a matter of ordinary language the phrase “maintainable at the public expense” connotes that the highway authority will be liable as a matter of public law to maintain the highway. But it does not indicate how the authority is required to discharge that liability. The authority may carry out the maintenance itself or make an agreement for a developer to carry out the work. It may choose to pay for the maintenance of the highway out of public funds or obtain funds for doing so from the developer or a combination of the two. Whichever course is adopted, the highway authority remains liable and the highway continues to be maintainable at the public expense. Thus, for example, if a developer agrees to maintain a dedicated highway and defaults on his obligation, the highway authority remains liable. That is because the highway is maintainable at the public expense. …

20.        Secondly, quite apart from the natural meaning of s38(6), … it is clear from other provisions of the 1980 Act that Parliament did not intend by the use of the phrase “maintainable at the public expense” in the subsection to exclude the possibility of an act of privately maintaining or of privately contributing to the cost of maintaining a highway maintainable at the public expense. It can be seen from provisions such as ss 44 and 278 that an act of private maintenance or an act of the provision of expenses is not inconsistent with the concept of a highway being maintainable at the public expense.

21.        S44 provides that a person who is liable “under a special enactment or by reason of tenure, enclosure or prescription to maintain a highway” may enter into an agreement with the highway authority “for the maintenance by him of any highway maintainable at the public expense by the highway authority”. Such a person may also enter into a s38(1) agreement. Parliament clearly envisaged in such circumstances that the highway remains maintainable at the public expense notwithstanding continuing maintenance obligations on the part of the counterparty to the agreement. S278 provides that a highway authority may enter into an agreement with any person for the execution by the authority of any works which the authority is or may be authorised to execute on terms that that person pays for the whole or part of the cost of the works. S278(3) provides that the agreement may also “provide for the making to the highway authority of payments in respect of the maintenance of the works to which the agreement relates”. There can be no doubt that an agreement made pursuant to s278 can provide for a payment in respect of maintenance of a highway, including a highway maintainable at the public expense.

22.        Thirdly, … s38(1) when read together with s53 shows that Parliament cannot have intended to preclude the possibility of an agreement for maintenance by a developer after the dedication of a highway. …”

 

Consultation

October 30th, 2014 by James Goudie KC in Decision making and Contracts

The Supreme Court has on 29 October 2014 decided R (Moseley, in substitution of Stirling deceased) v Haringey LBC [2014] UKSC 56 on appeal from [2013] EWCA Civ 116.  The subject matter is the authority’s Council Tax Reduction Scheme (“CTRS”) and the Consultation Document (“the CD”) in relation to the draft CTRS.  The CD explained the reduction in Central Government funding and stated that this means that the introduction of a local CTRS in Haringey will “directly affect the assistance provided” to everyone below pensionable age who had been receiving Council Tax Benefit.  The CD also contained a Questionnaire asking how the reduction in relief should be distributed among claimants.  Following the consultation exercise the authority decided to adopt a CTRS under which the level of council tax relief was reduced for 2013-2014 by 19.8% from 2012-2013 level for all claimants other than pensioners and the disabled.

The Supreme Court unanimously allowed the claimant’s appeal.  They declared that the consultation exercise was unlawful.  However, they declined to order the authority to undertake a fresh consultation exercise. This would have been disproportionate in the circumstances.

The Supreme Court (paragraphs 25, 35 and 44) gave its endorsement to the four Gunning/Coughlan criteria of a fair consultation.

At paragraph 26 Lord Wilson added that two further general points emerge from the authorities: (1) the degree of specificity with which, in fairness, the public authority should conduct its consultation exercise may be influenced by the identity of those whom it is consulting; and (2) the demands of fairness are likely to be somewhat higher when an authority contemplates depriving someone of an existing benefit or advantage than when the claimant is a bare applicant for a future benefit.

The critical passages are at paragraphs 27/28 and 39-41:-

“27.       Sometimes, particularly when statute does not limit the subject of the requisite consultation to the preferred option, fairness will require that interested persons be consulted not only upon the preferred option but also upon arguable yet discarded alternative options. …

28.        But, even when the subject of the requisite consultation is limited to the preferred option, fairness may nevertheless require passing reference to be made to arguable yet discarded alternative options. …”

“39.       … Meaningful public participation in this particular decision-making process, in a context with which the general public cannot be expected to be familiar, requires that the consultees should be provided not only with information about the draft scheme, but also with an outline of the realistic alternatives, and an indication of the main reasons for the authority’s adoption of the draft scheme. …

40.        That is not to say that a duty to consult invariably requires the provision of information about options which have been rejected.  The matter may be made clear, one way or the other, by the terms of the relevant statutory provisions, … To the extent that the issue is left open by the relevant statutory provisions, the question will generally be whether, in the particular context, the provision of such information is necessary in order for the consultees to express meaningful views on the proposal. …

41.        Nor does a requirement to provide information about other options mean that there must be a detailed discussion of the alternatives or of the reasons for their rejection.  The consultation required in the present context is in respect of the draft scheme, not the rejected alternatives; and it is important, not least in the context of a public consultation exercise, that the consultation documents should be clear and understandable, and therefore should not be unduly complex or lengthy.  Never-theless, enough must be said about realistic alternatives, and the reasons for the local authority’s preferred choice, to enable the consultees to make an intelligent response in respect of the scheme on which their views are sought.”

Applying the law to the facts, the Supreme Court held that fairness demanded that the Consultation Document should briefly refer to alternative methods of absorbing the shortfall in government funding and to the reasons why the authority had concluded that they were unacceptable.  The consultation was premised on the assumption that the shortfall would be met by a reduction in council tax relief.  No other option was presented.  Neither was it reasonably obvious to those consulted what other options there may have been and the reasons why such options had been discarded.  Indeed, only an infinitesimal number of responses to the consultation alluded to other ways of meeting the shortfall.  Therefore, the consultation exercise was unfair and unlawful.  (However, it was not unlawful that the authority had failed to consult on the possible adoption of a Transitional Grant Scheme announced by Central Government only 5 weeks before the completion of the Consultation.

The purpose of this particular statutory duty was to ensure public participation in the local authority’s decision-making process.  Meaningful participation in these circumstances required that those consulted be provided with an outline of the realistic alternatives.  In the absence of specific statutory provision, reference to alternative options will be required where this is necessary in order for the consultees to express meaningful views on the proposals.

In summary, the Consultation Document presented the proposed reduction in council tax support as if it were the inevitable consequence of the Government’s funding cuts, and thereby disguised the choice made by the authority itself. It misleadingly implied that there were no possible alternatives to that choice.  In reality, therefore, there was no consultation on the fundamental basis of the CTRS.

 

Non Judicial Control – Local Auditors

October 27th, 2014 by James Goudie KC in Non Judicial Control, Social Care

The Local Audit and Accountability Act 2014 (“the Act”) provides that local public bodies will need to appoint their own Auditors.  Local public bodies must also appoint Auditor Panels, with a majority of Independent Members, to advise on the selection and appointment of an Auditor.  Local Audit (Auditor Panel Independence) Regulations 2014, SI 2014/2845, amongst other things amend the definition of an Independent Member as set out in the Act.  The substituted definition, in Regulation 2(2), is as follows:-

“(2) A member of a relevant authority’s auditor panel, other than a health service body’s auditor panel, is “independent” at any given time if the following conditions are met –

(a) the panel member has not been a member or officer of the authority within the period of 5 years ending with that time (the “last 5 years”),

(b) the panel member has not, within the last 5 years, been a member or officer of another relevant authority that is (at the given time) connected with the authority or with which (at the given time) the authority is connected,

(c) the panel member has not, within the last 5 years, been an officer or employee of an entity, other than a relevant authority, that is (at the given time) connected with the authority,

(d) the panel member is not a relative or close friend of—

(i) a member or officer of the authority,

(ii) a member or officer of another relevant authority that is connected with the authority or with which the authority is connected, or

(iii) an officer or employee of an entity, other than a relevant authority, that is connected with the authority,

(e) the panel member is not the authority’s elected mayor,

(f) neither the panel member, nor any body in which the panel member has a beneficial interest, has entered into a contract with the authority—

(i) under which goods or services are to be provided or works are to be executed, and

(ii) which has not been fully discharged,

(g) the panel member is not a current or prospective auditor of the authority, and

(h) the panel member has not, within the last 5 years, been—

(i) an employee of a person who is (at the given time) a current or prospective auditor of the authority,

(ii) a partner in a firm that is (at the given time) a current or prospective auditor of the authority, or

(iii) a director of a body corporate that is (at the given time) a current or prospective auditor of the authority.”

 

Council Tax Reduction Scheme

August 5th, 2014 by James Goudie KC in Council Tax and Rates

Pursuant to the Local Government Finance Act 2012 Sandwell Council adopted a Council Tax Reduction Scheme.  For working age council taxpayers this was restricted to those who have lived in the Council’s area for over 2 years: the residence requirement.  In R (Winder) v Sandwell MBC (2014) EWHC 2617 (Admin) Hickinbottom J upheld a judicial review challenge to the residence requirement.  The principal ground on which he did so was that it was unlawful as being ultra vires.  The Judge ruled that the residence requirement went beyond the criteria, referenced on financial need, by which, pursuant to the legislation, classes for council tax reduction can be defined. He said, at para 53, that the class must be defined by reference to financial need, albeit by reference to criteria which the authority considers identify those who are, in general, in financial need.  There is considerable discretion in the authority as to the criteria adopted to identify financial need, but, said the Judge, criteria which do not identify those who are at least more likely to be in financial need fall outside the powers granted to an authority by Parliament. 

Alternatively, para 58, the residence requirement was, the Judge held, the use of the statutory power, to relieve those in financial need from the full burden of council tax, for an unauthorized purpose, which the Judge found to be, to discourage people from areas of higher housing cost from moving to Sandwell.

 

 

Appropriation of Land

August 5th, 2014 by James Goudie KC in Land, Goods and Services

R (Maries) v Merton LBC (2014) EWHC 2689 (Admin) concerned the exercise by the Council of its powers of appropriation of land under s122(a) of the Local Government Act 1972 and whether land is no longer held for the purposes for which it is currently held.  The land in question is a recreation ground acquired pursuant to s164 of the Public Health Act 1875 on trust for the enjoyment of the public.  The Council proposed to expand an adjacent primary school onto part of the recreation ground.  The Court, para 59, distilled 3 material principles: (1) whether land is still or is no longer required for a particular purpose, meaning no longer needed in the public interest of the locality for that purpose, is a question for the local authority, subject only to Wednesbury;  (2) the legislative provision is concerned with relative needs or uses for which public land has or may be put, and does not require it to fall into disuse before the authority may appropriate it for some other purpose; and (3) the authority is entitled when exercising its appropriation power to seek to strike a balance between comparative local needs and to take a broad view of local needs.

Applying those principles, the Court rejected the judicial review challenge to the appropriation of part of the recreation ground.  The correct statutory question had been addressed; the approach to considering the competing needs and to the question whether the land was no longer required for the purpose for which it was held had not been flawed; and the decision was not irrational.  In any event, paras 88-91, the Judge would have denied relief.

 

Capital Finance and Companies

July 30th, 2014 by James Goudie KC in Capital Finance and Companies

A challenge by a number of local authorities from the South Yorkshire and Merseyside Regions to the decision of the Secretary of State for Business, Innovation and Skills (“the SoS”) to change the allocation of EU Structural Funds in a manner that was disadvantageous to them, having failed at first instance, R (Rotherham BC) v SoS [2014] EWHC 232 (Admin), (2014) LGR 389, save in relation to the PSED, has now failed in the Court of Appeal, [2014] EWCA Civ 1080.  In particular, the claimant authorities sought to challenge the allocation of EU Structural Funds for the period 2014-2020 as between the four countries of the United Kingdom, and as between the English regions.  Articles 174-178 of the Treaty on the Functioning of the European Union require the EU to promote its overall harmonious development and strengthen its economic, social and territorial cohesion by reducing disparities between the levels of development of the various regions through the Structural Funds.  The allocation of the Structural Funds is determined by EU Council Regulations and the authorities of the Member States.  In March 2013 the SoS took a decision, effectively, to allocate higher funding than previously to Northern Ireland, Scotland and Wales.  In a further decision in June 2013 allocations were reduced for South Yorkshire and Merseyside.  Overall, the claimant authorities suffered a substantial fall in funding.  They alleged that the two decisions by the SoS have produced discriminatory and disproportionate funding cuts for their Regions, and breached the EU law principles of equal treatment and proportionality. 

It was common ground that, in making the first and second decisions, the SoS was acting within the scope of EU law and that accordingly the EU law principles of proportionality and equal treatment apply.  It was also common ground that the “margin of discretion” allowed by EU law may be broad or narrow according to the circumstances of the case, in particular the identity of the decision-maker, the nature of the decision, the reasons for the decision and the effect of the decision. Of these factors, the Court of Appeal said, at para 54, that “the nature of the decision is usually the most important”.  The Court of Appeal considered, at para 56, that the margin of discretion was “a wide one in the circumstances of this case”.  They stated, at para 57:-

“In our view, the first and second decisions were plainly concerned with matters of high level policy and economic, social and political judgment.  They involved the making of choices as to funding allocations between the regions. … Even if the only objective was the reduction of the disparities between levels of economic development of regions, that would involve the making of complex assessments of their respective economic circumstances.  These are not hard-edged decisions which admit of clear and straightforward answers. … In our view, this is classic territory for affording the decision-maker a wide margin of discretion.  … the Court should only interfere if satisfied that the decisions were manifestly inappropriate or manifestly wrong.”

The Court of Appeal then proceeded to consider whether the decisions were disproportionate and/or irrational.  They concluded, at para 64, that they came nowhere near to being that.

Turning to equal treatment, the Court of Appeal observed that the equal treatment principle requires that comparable situations must not be treated differently and different situations must not be treated in the same way, unless such treatment is objectively justified.  The question in the case was whether there was a failure to treat like cases alike and unlike cases differently, or rather what margin of discretion (if any) should be afforded to the SoS in deciding whether different categories are like or unlike each other (“the comparability issue”).  The Court of Appeal said:-

“70.     … We see no reason in principle why the width of the margin of discretion in relation to a decision on comparability should be approached differently from any other decision made within the scope of EU law.  In other words, it may be broad or narrow according to the circumstances of the case and in particular the nature of the decision: … In a simple case of discrimination, there may be no margin of discretion at all in deciding the comparability issue.  … But some comparisons are less straightforward and are not so clear cut.  They may involve making complex evaluative judgments as to which there is real scope for differences of opinion.  In principle, the more complex and the more judgment-based the decision, the greater the margin of discretion should be afforded to the decision-maker.”

“72. … The context in which the first and second decisions were taken is critical to the intensity of the court’s review of them. … The Secretary of State was required to have regard to a number of different overlapping considerations, and the regulation does not prescribe the weight to be given to each of them. … the reduction of regional disparities does not involve a simple comparison of the development level and economic performance of one region with another.  … It is a complex exercise. It includes not only making comparisons of the economic performance of different regions, but also inter alia of their respective employment rates for different age groups, their respective conditions for research and development and their respective  greenhouse gas emissions.  Each of these comparisons might individually involve making judgments.  Overall, the exercise of comparing one region with another is or ought to be multi-factorial.  It involves making a substantial number of value judgments of an economic and social nature.  In our view, the decision-maker is entitled to a wide margin of discretion in making such a decision.”

The Court of Appeal expressed its overall conclusion on the equal treatment issues as follows, at paragraph 86:-

“… For the reasons already given, the Secretary of State was entitled to a wide margin of discretion in deciding questions of comparability.  We agree with the judge that the court should only interfere if a high standard of unreasonableness is met.  The evidence of Dr Baxter shows that the Secretary of State approached the task of allocating the funds in a careful and systematic way and had particular regard to the relative position of the different regions.  He gave particular consideration to the position of Merseyside and South Yorkshire.  We are satisfied that the high threshold for interference by the court has not been crossed in this case.”

 

Consultation and PSED

July 30th, 2014 by James Goudie KC in Decision making and Contracts

In R (Sumpter) v Secretary of State for Work and Pensions [2014] EWHC 2434 (Admin) Hickinbottom J summarised, at para 94, the general law in relation to a consultation process as follows:-

“i) Whether required by statute or (as in this case) voluntary, if performed, consultation must be carried out properly (R v North and East Devon Health Authority ex parte Coughlan [2001] QB 213 at paragraph 108).

ii) Key features of a proper consultation process were set out in R v Brent London Borough Council ex parte Gunning (1985) 84 LGR 168 at page 189 per Hodgson J (as approved by the Court of Appeal in Coughlan at paragraph 108), namely:

(a) consultation is undertaken at a time when the relevant proposal is still at a formative stage;
(b) adequate information is provided to consultees to enable them properly to respond to the consultation exercise;
(c) consultees are afforded adequate time in which to respond; and
(d) the decision-maker gives conscientious consideration to consultees’ responses.

iii) However, fairness is the touchstone: for consultation to be lawful, it must be fair.  That is the test.  Although consideration of the particular facets of fairness identified in Coughlan may assist, whether the consultation process is fair is a fact-sensitive question that depends upon all the circumstances of the particular case looked at as a whole, and without drawing artificial distinctions between particular stages of the whole process  (R (Medway Council) v Secretary of State for Transport [2002] EWHC 2516 (Admin) at [28] per Maurice Kay J (as he then was), R (J L and A T Baird) v Environment Agency [2011] EWHC 939 (Admin) at [52] per Sullivan LJ, and R (Royal Brompton and Harefield Hospital NHS Foundation Trust) v Joint Committee of Primary Care Trusts [2012] EWCA Civ 472 at [9] per Arden LJ; see also R (Osborn) v Parole Board [2013] UKSC 61 at [64]-[71] per Lord Reed JSC).

iv) It is a matter for the court to decide whether a fair procedure was followed: its function is not merely to review the reasonableness of the decision-maker’s judgment of what fairness required (Osborn at [65] per Lord Reed).

v) If it is alleged that a consultation process is unfair, it is for the claimant to show that the unfairness was such as to render the consultation process unlawful.  Especially with the benefit of hindsight, it may well be possible to identify how a consultation process might have been improved; but, even if it was less than ideal, it will become unlawful only if what has occurred makes it unfair as a matter of law.  That is a substantial hurdle: in Baird, Sullivan LJ said that “in reality a conclusion that a consultation process has been so unfair as to be unlawful is likely to be based on a factual finding that something has gone clearly and radically wrong (Baird at [51]; see also Royal Brompton at [13] per Arden LJ).

vi) The consultation documents must be intelligibly clear to the general body of interested persons, and present the issues fairly and in a way that facilitates an intelligent and effective response (R (Breckland District Council) v The Boundary Commission [2009] EWCA Civ 239 at [46] per Sir Anthony May P, and Royal Brompton at [8]-[14] per Arden LJ).

vii) To be fair and proper, consultation must be performed by the decision-maker with an open mind.  However, an open mind is not the same thing as an empty mind (R (Royal Brompton and Harefield NHS Foundation Trust) v Joint Committee of Primary Care Trusts [2011] EWHC 2986 (Admin) at [16] per Owen J, adopting a phrase used in the course of argument by Neil Garnham QC).  Therefore, whilst a decision-maker cannot have a predetermined option, such that consultation is a sham, he may have a preferred option; but he must disclose that to potential consultees “so as to better focus their responses” (R (Sardar) v Watford Borough Council [2006] EWCA 1590 (Admin) at [29] per Wilkie J).  A consultation may properly be focused upon a limited number of options or even a single proposal.

viii) The process must be considered as a whole; and, therefore, where a decision-maker is in fact prepared to accept and consider further representations after the close of the formal consultation, then those subsequent events can be taken into account in assessing whether the process was fair; although it may be appropriate to give those subsequent events less weight, because (eg) the opportunity to make representations was not given such widespread publicity as was given during the formal process (Baird at [52]).

ix) In cases where there has been a consultation exercise, and it is decided to have a further consultation, the fairness of that further exercise must be considered in the context of the earlier and fuller consultation process.  In such cases, it may not be unfair to any interested party for the further consultation exercise to be more limited, whether as to the identity of consultees, or the content and duration of the consultation (R (Milton Keynes Council) v Secretary of State for Communities and Local Government [2011] EWCA Civ 1575, especially at [36]-[38]).

x) Proper consultation is an important part of the decision-making process.  The purposes of requiring fairness in procedural matters such as consultation include to ensure high standards of decision-making by public bodies, to enable parties interested in the subject matter to identify and draw to the attention of the decision-maker relevant factors which he may have overlooked to enable responses that will best facilitate a sound decision, and to avoid the sense of injustice which a person affected by a decision may otherwise feel if not given a proper opportunity to have their views known and taken into account (Osborn at [67]-[70]) per Lord Reed, and Baird at [41] per Sullivan LJ).  However, the obligations imposed upon a decision-maker in the course of consultation must not be unreasonably onerous, otherwise effective decision-making might be impaired and decision-makers might become reluctant to engage in voluntary consultation where (as in this case) there is no statutory duty to consult.”

At paragraph 117 the Judge added:-

“… R (Medway Council) v Secretary of State for Transport [2002] EWHC 2516 (Admin) … R (Montpeliers and Trevors Association) v City of Westminster [2005] EWHC 16 (Admin) … show that, although a decision-maker may formulate options on which to consult and restrict the consultation to that option or those options, in certain circumstances it may be unfair and unlawful to exclude an option from a consultation exercise.  They make clear that a decision-maker, as long as he keeps an open mind, might have a very much preferred option: what he cannot do is, for practical purposes, exclude a legitimate option.”

As regards the PSED, the Judge said, at para 137:-

 “The duty requires a “conscious directing of the mind to the obligations” (R (Meany) v Harlow District Council [2009] EWHC 559 (Admin) per Davis J (as he then was)), “due regard” being the appropriate regard in all the circumstances.  In R (Hurley) v Secretary of State for Business, Innovation and Skills [2012] EWHC 201 (Admin) at [78], Elias LJ illuminatingly explained:

“The concept of ‘due regard’ requires the court to ensure there has been a proper and conscientious focus on the statutory criteria, but if that is done, the court cannot interfere with the decision simply because it would have given greater weight to the equality implications of the decision than did the decision-maker.  In short, the decision-maker must be clear precisely what the equality implications are when he puts them in the balance, and he must recognise the desirability of achieving them, but ultimately it is for him to decide what weight they should be given in the light of all relevant factors.”

In R (Bailey) v London Borough of Brent Council [2011] EWCA Civ 1586 at [102], Davis LJ emphasised the importance of not interpreting the duty in such a way as to make decision-making unduly and unreasonably onerous.”

 

Predetermination

July 28th, 2014 by James Goudie KC in Decision making and Contracts

In IM Properties Development Ltd v Lichfield District Council [2014] EWHC  440 (Admin) Patterson J held that an e-mail sent by a committee chairman to members of the same political party telling them to vote in a particular manner fell within Section 25(2) of the Localism Act 2011 and was not to be taken as a predetermination.  She found, at para 86, that the tenor of the e-mail was not “so strident” as to remove the discretion on the part of the recipient as to how he or she would vote.  Patterson J added: “The debate shows a far reaching discussion between members and displays no evidence of closed minds in relation to the decisions that had to be taken”; and “A fair minded and reasonable observer in possession of all the facts would not be able to conclude on the basis of all the evidence that there was any real possibility of predetermination as a result of the e-mail …”.

 

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