Derbyshire County Council, R (on the application of) v Secretary of State for Communities and Local Government & Anor

Factual and Procedural Background

This judicial review concerns Derbyshire County Council's challenge to the lawfulness of a public consultation exercise conducted by the Barnsley, Doncaster, Rotherham and Sheffield Combined Authority ("the Combined Authority"). The consultation related to a proposed scheme to extend the Combined Authority's area to include Chesterfield Borough Council and Bassetlaw District Council, and to devolve certain powers from central government and county councils to the Combined Authority. The Combined Authority would also be renamed the Sheffield City Region Combined Authority ("SCRCA"). Chesterfield BC is not contiguous with the existing Combined Authority area but sought inclusion, while Bassetlaw DC is contiguous. The Combined Authority was established in 2014 and became a Mayoral Authority in 2016, though it had no mayor at the time of the consultation. The consultation was carried out in connection with statutory powers under the Local Democracy, Economic Development and Construction Act 2009 (as amended by the Cities and Local Government Devolution Act 2016).

The consultation process took place between 1 July and 12 August 2016. Derbyshire County Council commenced proceedings on 9 August 2016 challenging the consultation's lawfulness, particularly its public nature and connection to the scheme. The Secretary of State had not yet made a decision on further consultation or the making of the order expanding the Combined Authority. The case was heard as a rolled-up hearing with permission granted.

Legal Issues Presented

1. Whether the consultation carried out by the Combined Authority satisfied the statutory requirement under section 113(2)(b) of the 2009 Act (as amended) to be a "public consultation in connection with the proposals in the scheme".
2. Whether the consultation was fair, including whether it provided sufficient information to permit intelligent consideration and response, and whether it adequately covered major proposals and alternatives.
3. The appropriate form of relief following any finding of unlawfulness in the consultation process.

Arguments of the Parties

Appellant's (Derbyshire County Council) Arguments

• The consultation was not truly "public" as it excluded residents of district councils within Derbyshire and Nottinghamshire outside Chesterfield BC and Bassetlaw DC, despite those areas being affected by the proposals.
• The consultation was not "in connection with the proposals in the scheme" because key questions were omitted, notably whether Chesterfield BC should become a constituent council of the SCRCA.
• The questionnaire failed to ask about major issues such as membership of the Combined Authority, voting rights, specific functions of the Combined Authority and Mayor, and funding arrangements.
• The consultation did not sufficiently explain alternatives to the proposed scheme, such as the North Midlands Combined Authority proposal.
• The Combined Authority overstated Derbyshire CC’s input into the governance review, which was disputed.
• Question 4 of the questionnaire was misleading by presenting economic links as an uncontested fact, despite controversy.
• Relief sought included a quashing order or, alternatively, a robust declaration that the consultation was unlawful and further consultation was required.

Respondent's (Combined Authority and Secretary of State) Arguments

• The consultation was sufficiently public and targeted the areas most affected, which was a rational judgment by the Combined Authority.
• The questionnaire was designed on expert advice to balance technical complexity and public understanding; not all detailed questions were necessary or appropriate.
• The absence of a direct question on Chesterfield BC’s membership was not unlawful or unfair given other consultation opportunities and the availability of information on the scheme.
• The Combined Authority was not required to mention the North Midlands proposal as it was not a viable alternative.
• Derbyshire CC’s concerns about inclusion as a constituent council were technical and speculative, and did not render the consultation unfair.
• The Secretary of State accepted a declaration would be appropriate but opposed a quashing order due to practical and public interest considerations.
• The Secretary of State’s position was that if the consultation did not satisfy statutory requirements, he must undertake further consultation; he could not dispense with it.

Table of Precedents Cited

Court's Reasoning and Analysis

The court undertook a detailed statutory and factual analysis of the consultation process under section 113 of the 2009 Act (as amended). It examined whether the consultation was "public" and "in connection with the proposals in the scheme". The court found that although the consultation was geographically limited in focus, this limitation was not unlawful or irrational. The Combined Authority was entitled to target primarily the areas directly affected by the scheme, including Chesterfield BC and Bassetlaw DC, and consider other responses as supplementary.

However, the court identified a fundamental flaw: the consultation questionnaire did not include a direct question asking whether Chesterfield BC should become a constituent council of the SCRCA, a major and contentious proposal. This omission meant the consultation failed to meet the statutory purpose of enabling informed public participation on a key proposal. Despite other opportunities for public comment, the questionnaire was the principal vehicle for responses, and its failure to address this issue was serious and significant.

The court rejected arguments that the consultation needed to address certain alternatives (such as the North Midlands proposal), finding no obligation to do so. It also found that the consultation provided sufficient information for an intelligent response on other matters, although some questions were general and certain topics were omitted.

Regarding fairness, the court applied the Sedley criteria as endorsed in Moseley, concluding that the consultation was unfair in omitting the key question about Chesterfield BC's membership. The court acknowledged that the Secretary of State retains the duty to carry out or require further consultation if the Combined Authority's consultation is inadequate.

On relief, the court reasoned that a quashing order was inappropriate due to the practical consequences and the extensive consultation already undertaken. Instead, a declaratory order precisely reflecting the court’s findings was preferable, clarifying the error without invalidating the entire consultation.

In costs, the court balanced the parties' positions and found that although the claimant succeeded on the primary issue, it lost on fairness grounds. A modest deduction of 15% was appropriate, resulting in an order for 85% of costs in the claimant’s favor.

Holding and Implications

The court held that the consultation exercise conducted by the Combined Authority was unlawful for failing to include a question on whether Chesterfield Borough Council should become a constituent council of the proposed Sheffield City Region Combined Authority, a major aspect of the scheme.

The court declined to quash the consultation exercise in its entirety but granted a declaratory order identifying the consultation’s flaw.

The implication is that the Secretary of State cannot proceed with making the order expanding the Combined Authority without ensuring that the statutory consultation requirements are met, which likely entails further consultation including the omitted question. The decision does not set new precedent beyond confirming the statutory consultation standards under section 113 and the application of established principles of fairness and public participation in statutory consultation exercises.