The recent Supreme Court decision in Moseley has now for the first time been considered in the Court of Appeal. A consultation challenge failed in R (Robson) v Salford City Council [2015] EWCA Civ 6. The Court of Appeal reined Moseley in, from paragraph 22 of the Judgment of Richards LJ, with which Treacy LJ and Newey J agreed. At paragraph 22, Richards LJ said:-
“The decision of the Supreme Court in R (Moseley) v Haringey London Borough Council [2014] UKSC 56, [2014] 1 WLR 3947, has featured large in the argument concerning the consultation issue. … In fact the decision in Moseleyis largely an endorsement at Supreme Court level of principles already established at the level of the Court of Appeal, but it provides an illustration of the application of those principles …”
At paragraph 29 Richards LJ continued:-
“As to the application of the law to the facts in Moseley, the consultation in that case was found to be procedurally unfair because the consultation documentation gave a misleading impression in failing to mention other ways of absorbing the shortfall in funding which the proposed scheme was intended to meet.”
Richards LJ concluded:-
“34. In order to determine whether consultees were misled or were not consulted about the actual proposal, it is also necessary to have regard to the wider picture. …
35. In Moseley the consultation material conveyed a positively misleading impression that other options were irrelevant. …In Moseley it was wrong to place reliance on consultees’ assumed knowledge of other options for the same reason, that the message conveyed by the local authority was that other options were irrelevant. …”
“36. It may be helpful for me to indicate that if I had found that the consultation was unfair, I would have favoured limiting relief to the grant of a declaration, refusing the quashing order sought by the appellants (just as the Supreme Court in Moseley declined to grant a quashing order in the particular circumstances of that case). … In my judgment it would not be appropriate in these circumstances to require the Council to go back to square one and to conduct a fresh consultation exercise.”