Recent statutory instruments include the Combined Authorities (Finance) Order 2017, SI 2017/611, coming into force on 27 April 2017, which makes provision for various matters connected with precepting for Mayoral functions in Mayoral Combined Authorities, which are major precepting authorities for the purpose of setting council tax under the Local Government Finance Act 1992; the Transport Levying Bodies (Amendment) Regulations 2017, SI 2017/603, coming into force on 16 May 2017, amending the Transport Levying Bodies Regulations 1992 in consequence of the establishment of the Tees Valley and the West Midlands Combined Authorities, to enable the issuing of a levy by the respective Combined Authorities in order to meet the costs of carrying out their transport functions; the Greater Manchester Combined Authority (Functions and Amendment) Order 2017 (Transfer of Police and Crime Commissioner Functions to the Mayor) Order, and (Fire and Rescue Functions) Order; and Orders relating to the Liverpool City Region, Sheffield City Region, Cambridge and Peterborough, Tees Valley, West Midlands, and West of England Combined Authorities. Combined Authorities are also able to create Mayoral Development Corporations, which have similar powers to New Town Development Corporations, for the purposes of the recently enacted Neighbourhood Planning Act 2017.

It is not a failure to mitigate damages not to take advantage of the opportunity to stop the award of a contract in breach of procurement law. However, damages are recoverable only if the breach is “sufficiently serious”. These were the main holdings of the Supreme Court in NDA v ATK [2017] UKSC 34.

ATK brought a public procurement claim against NDA in connection with ATK’s unsuccessful bid for a contract. NDA failed wrongly to award the contract to the consortium to which ATK belonged, in breach of its obligations under the Public Procurement Regulations 2006 (“the 2006 Regulations”), which give effect in the UK to the Public Procurement Directive No 2004/18/EC (“the PP Directive”). Read more »

The Local Authorities (Standing Orders) (Wales) (Amendment) Regulations 2017, S.I. 2017/460 (W.98) amend the Local Authorities (Standing Orders) (Wales) Regulations 2006 (S.I. 2006/1275) (W. 121) to make provision about membership and the quorum for meetings of relevant authorities. “Relevant authorities” for the purpose of new Regulation 4A (1) of the 2006 Regulations, inserted by Regulation 3(3) include, in addition to county and county borough councils, joint planning boards and National Park authorities.

The Amendment Regulations apply to committees and sub-committees of relevant authorities by which a relevant function is discharged. A “relevant function” is a function exercisable in relation to an application under the Town and Country Planning Act 1990.

Regulation 2(3) of the 2017 Regulations inserts new Regulation 4A and new Schedule 2A in the 2006 Regulations, to require a relevant authority to include in their Standing Orders a requirement that the quorum for their meetings must include at least half of the committee’s members.

Standing orders must also restrict the appointment of substitute members to committees.

In R (Wylde) v Waverley Borough Council (2017) EWHC 466 (Admin) Dove J held that the claimants, who were not “economic operators” with an interest in securing the contract which was the subject of their claim, but who were a group of local councillors and residents who opposed a large scale development in Farnham Town Centre, lacked standing for a judicial review claim that the development contract had been varied, in order to decrease the sum payable by the developer to the Council for the land in question, contrary to the contracting authority’s procurement law duties.  Dove J applied the Court of Appeal decision in R (Chandler) v SoS for Children, Schools and Families (2010) LGR 1 and concluded that R (Gottlieb) v Winchester City Council (2015) EWHC 231 (Admin), the Winchester Silver Hill case, had been wrongly decided on the standing issue.  The claimants were unable to demonstrate any direct impact upon them from the variation not being regarded by the Council as a new contract and the Council’s decision that no competitive tendering exercise was required.  Any competition would be with respect to the same development that the claimants opposed.

The Council succeeded in Milton Keynes Borough Council v Viridor (2017) EWHC 239 (TCC) in obtaining rectification of a waste-recycling contract on the basis that payment terms offered in a tender had been unequivocally accepted but later the wrong tender document had been incorporated into the contract by common or unilateral mistake.

The Combined Authorities (Mayoral Elections) Order 2017, SI 2017/67, provides for the conduct of a Combined Authority Mayoral Election. The Order is modelled on the Local Authorities (Mayoral Elections) (England and Wales) Regulations 2007. An election is to be conducted in accordance with the Rules set out in Schedule 1 to the Order.

The Combined Authorities (Mayors) (Filling of Vacancies) Order 2017, SI 2017/69, provides (Article 3) for the filling of vacancies in the Office of Elected Mayor of a Combined Authority, (Article 4) for the date on which the vacancy occurs, (Article 5) for giving public notice of a vacancy, (Article 6) for by-elections, and (Article 7) for the term of office of the person filling the vacancy.

The Combined Authorities (Overview and Scrutiny Committees, Access to Information and Audit Committees) Order 2017 (SI 2017/68) makes provision for the membership and proceedings of Overview and Scrutiny Committees, and Audit Committees, of Combined Authorities. Part 1 makes general provision for overview and scrutiny provisions of a Combined Authority.  Article 3 makes provision for the membership of the Overview and Scrutiny Committee.  Article 4 makes provision for the appointment of members to an Overview and Scrutiny Committee and to a sub-committee of such a committee. Article 5 makes provision for the persons who may be Chair of an Overview and Scrutiny Committee.

R (Shasha) v Westminster City Council (2016) EWHC 3283 (Admin) concerned a grant of planning permission under delegated powers.  An issue was as to the giving of reasons. It was submitted that there was an obligation to provide reasons by virtue of Regulation 7 of the Openness of Local Government Bodies Regulations 2014 (“the 2014 Regulations”).

Part 3 of the 2014 Regulations (which contains Regulation 7) was made under Section 40(3) of the Local Audit and Accountability Act 2014. For the purposes of that Part a “relevant local government body” includes bodies which are local planning authorities.  Regulation 7(1) provides that a decision-making officer must produce a written record of any decision which falls within paragraph (2).  A “decision-making officer” is “an officer of a relevant local government body who makes a decision which falls within Regulation 7(2)”. As soon as reasonably practicable after the required record is made it must be made available to the public, together with any background papers, in accordance with the provisions of Regulation 8.  Read more »

The legislation on Combined Authorities (the Local Democracy, Economic Development and Construction Act 2009, as significantly amended by the Cities and Local Government Devolution Act 2016, requires that (1) there be “public” consultation and (2) that consultation be “in connection with the proposals” in a scheme, the consultation being a combined operation by the Combined Authority and the Secretary of State.

In R (Derbyshire County Council) v Barnsley, Doncaster, Rotherham and Sheffield Combined Authority (2016) EWHC 3355  (Admin), Ouseley J said, as regards the consultation being “public” (emphasis added):-

“38.    What the Act requires in my judgment is consultation, not with public authorities or bodies, but with the general public. The consultation must be with those who are judged to be affected to a degree which may make their views of significance to the Secretary of State’s decision. This is not a judgment with a sharp edge but involves degrees of impact on a variety of topics.

39. The question is whether the consultation was “public” in view of the geographical limit placed in reality on the areas targeted for information and response, …
40. To the extent that the Combined Authority limited the area targeted because that was the area which would constitute the new Combined Authority, and it therefore thought that it should not target residents beyond its area as a matter of law, it was wrong to do so. There is no such geographic limit. The words “public consultation” are very wide, and deliberately so. There is no purpose behind so artificial a limit in this Act.  There is no reason why a Combined Authority should not wish to find out the views of those outside the area who might be affected, now or in the future, or why the Secretary of State should not want to find out those views. …”

“43.    I also do not think that s113 requires a consultation exercise to be undertaken throughout the whole of a county council area simply because the whole county is to become a constituent member, or one of its district council is to become one, contrary to Mr Goudie’s submissions.  No such requirement is stipulated for, and again I judge that such a specific and large requirement, if intended, would have been made express by Parliament when amending the legislation to enable this sort of change to occur.”

“45.    As I have said, the words “public consultation” express a broad requirement.  This needs a judgment from the Secretary of State as to what areas or people require to be consulted for the purposes of s113, in relation to the effect of a particular scheme. The Combined Authority consultation, if it is to satisfy the Secretary of State that he need not undertake any further public consultation, needs to be based on a judgment as to the areas or people to be consulted, which is both lawful and sufficient to satisfy the Secretary of State that he need undertake no further public consultation.”

As regards consultation being “in connection with the proposals in the scheme”, Ouseley J found the Combined Authority’s consultation to have been flawed. The views of the public were not sought on the membership of the proposed expanded Sheffield City Region Combined Authority (“SCRCA”). The views of the public were not sought on whether Chesterfield Borough Council, in Derbyshire, should be a part of the Combined Authority.  Ouseley J said (emphasis added):-

“59.    … Fundamental to a consultation which would achieve the statutory purpose of s113 is that at least the major proposals in the scheme should be identified and be made the subject of consultation, with adequate, even if simplified, material provided to explain it so as to permit of sensible response. I do not think that a consultation is “in connection with the scheme”, merely because it asked questions which were connected to the proposals, if major issues were nonetheless omitted.

60. Chesterfield BC’s new role in the SCRCA is one of the fundamental proposals or changes to be wrought by the scheme. Although various questions in the questionnaire touched on Chesterfield BC becoming a constituent member, no question actually asked whether respondents supported that or not. Respondents via the questionnaire could attach additional evidence, and so express the view that that should not happen, but their mind was not directed to that issue.”

“69.    For a consultation to be lawful, if questions are asked, they must be ones which can be properly understood by the general body of consultees and can therefore generate answers, which the consulting body can properly understand in its decision-making process. …”

“72.    … As the questionnaire was the major vehicle for public response, it ought to cover the major proposals of public controversy in the scheme. Put another way, the public were not in substance consulted about a major proposal of the scheme.”

“74.    The Secretary of State does not know the views of the public on whether Chesterfield BC should be part of the SCRCA in the same way he does of the public views given in response to the questionnaire on other topics. In my judgment something has gone seriously wrong with the consultation process in this respect because the major vehicle for public response arbitrarily omitted one of the major controversial proposals in the scheme.”

Ouseley J also considered the fairness of the consultation.  He distinguished the Supreme Court decision in R (Moseley) v Haringey LBC (2014) UKSC 56, [2014] 1 WLR 3947 (“Moseley”).  With regard to there being no reference in the consultation to the proposed North Midlands Combined Authority, Ouseley J said:-

“88.    … there was no need for the North Midlands proposal to be referred to as an alternative.  I see nothing in Moseley which, on either of the two approaches it contains, goes beyond requiring the consulting body to explain alternatives or possible alternatives which it itself has discarded. There is no suggestion of any obligation on the consulting body to put forward ways in which a different objective could be achieved by another body. The North Midlands proposal is not one which the Combined Authority could bring about.  It is not an alternative to the proposed scheme for the Combined Authority.  It is not an alternative way of achieving the same objective for the Combined Authority; it is not even a different objective for it. It would provide for participation in a different regional body for those proposed for inclusion in the Combined Authority. It is not incumbent, whether under the heading of fairness, or for specific compliance with s113, for the possibility of Chesterfield BC joining that other authority to be raised for consideration as an alternative in this consultation, or even mentioned as a basis for rejecting the proposed scheme. That possible option is one upon which an opponent can encourage opposition, but that does not make it an alternative of the sort envisaged by Moseley, which the proponent of a scheme should identify and refer to in the consultation about another proposal.”