Factual and Procedural Background
The Petitioners, trustees for a unit trust owning a shopping centre located at the east end of a major city street, challenged the validity of decisions made by the Respondent local council regarding proposals to redesign that street. The contested decisions, taken on 28 August and 14 September 2023, involved progressing a design aimed at significantly restricting vehicular traffic through the street. The Respondent's initial consultation in May 2022 concerned a design (Option A) that did not indicate intentions to restrict through private vehicle use. Subsequently, a different design (Option B), which proposed such restrictions, was introduced in November 2022 and approved for further development. The Petitioners contended that the 2023 decisions were invalid due to improper consultation, failure to consider material factors, misleading internal reports, and predetermination by the Respondent.
Legal Issues Presented
- Whether the Respondent conducted a lawful and fair consultation process regarding the redesign proposals, particularly in relation to excluding Option A from further consultation.
- Whether the Respondent failed to take into account material considerations, including economic and traffic impact assessments, before finalising its decisions.
- Whether the internal reports to the decision-making bodies materially misled them on key issues affecting their decisions.
- Whether the Respondent unlawfully predetermined the decisions by closing its mind to alternatives and pursuing an improper purpose.
Arguments of the Parties
Petitioners' Arguments
- The consultation process was unlawful because the Respondent excluded Option A, a fundamentally different proposal, from further consultation prematurely and without proper impact assessments.
- Option B, which restricted private vehicle access through the street, was substantially different from Option A and likely to have distinct economic and traffic impacts, none of which were properly assessed or communicated.
- The Respondent proceeded with Option B and the current proposal without meaningful public consultation or comparative assessments against Option A, thereby denying the public the opportunity to make informed representations.
- The Respondent failed to consider material economic and traffic impact assessments before deciding to proceed, postponing such assessments to a later Traffic Regulation Order (TRO) process that would only consider the preferred proposal.
- Reports to decision-makers misrepresented the level of public support for the current proposal by conflating consultation responses relating to different options and consultation periods.
- The Respondent predetermined the decision by closing its mind to Option A after November 2022, basing its choice on the availability of external funding, thereby acting unfairly and irrationally.
Respondent's Arguments
- The TRO statutory process requires consultation on a single draft proposal; therefore, the Respondent lawfully narrowed consultation to Option B as part of an iterative "optioneering" process leading to a final TRO proposal.
- The decision to discontinue consultation on Option A in November 2022 was lawful and communicated clearly, as Option B addressed feedback and funding eligibility issues.
- Economic and traffic impact assessments were appropriately scheduled for the formal TRO consultation stage, not the earlier optioneering phase, to avoid unnecessary delays and expense.
- The consultation process complied with procedural fairness requirements, with sufficient information and opportunity for public engagement regarding Option B and the final proposal.
- Reports to the decision-making bodies were not materially misleading; figures and information were presented fairly and members had the background knowledge to interpret them correctly.
- No evidence indicated predetermination; elected members were entitled to be predisposed but remained open to the merits of the decision.
- All grounds of challenge were unfounded, and the court should refuse relief.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| R (Moseley) v Haringey London Borough Council [2014] UKSC 56 |
Common law duty of fairness in consultation; legitimate expectations; Sedley principles for fair consultation. |
Endorsed as guiding principles for procedural fairness in consultation; court applied these to assess fairness of consultation process. |
| R v Brent London Borough Council, Ex p Gunning (1985) 84 LGR 168 |
Requirements for a fair consultation process: timing, reasons, adequate time for response, and conscientious consideration. |
Principles adopted as essential criteria for fairness; court applied these to evaluate consultation adequacy. |
| R v North and East Devon Health Authority, Ex p Coughlan [2001] QB 213 |
Consultation is not litigation; obligation to inform consultees sufficiently to enable intelligent response. |
Court relied on this to explain limits and nature of consultation obligations. |
| R (Medway Council) v Secretary of State for Transport, Local Government and the Regions [2003] JPL 583 |
Fairness may require consultation on discarded but arguable alternatives. |
Applied to hold that excluding Option A from consultation was unfair and unlawful. |
| R (Montpeliers and Trevors Association) v Westminster City Council [2006] LGR 304 |
Consultation fairness requires clarity on alternatives and opportunity to press cases. |
Supported conclusion that public should have been consulted on all relevant options. |
| Bolton Metropolitan Borough Council v SSE (1990) 61 P&CR 343 |
Material considerations must be taken into account if they might affect the decision. |
Applied to assess whether economic and traffic impacts were material considerations ignored by Respondent. |
| Edinburgh Crematorium Limited v East Lothian Council [2022] CSOH 79 |
Standard of review for planning officer reports; reports to be read with benevolence and local knowledge. |
Used to evaluate whether reports materially misled decision-makers; court found no material misleading. |
| Packard, Petitioner [2011] CSOH 93 |
Test for predetermination: appearance of closed mind to merits of decision. |
Applied to reject claim of predetermination; no positive evidence of closed mind found. |
| R (Lewis) v Redcar and Cleveland Borough Council [2008] EWCA Civ 746 |
Predetermination requires mind closed to merits; predisposition allowed. |
Supported high threshold for predetermination; court found no unlawful predetermination here. |
| Bouchti v London Borough of Enfield [2022] EWHC 2809 (Admin) |
Contextual approach to predetermination of elected councillors; predisposition not predetermination. |
Applied to conclude no unlawful predetermination by Respondent councillors. |
| R v Home Secretary, ex parte Doody [1994] 1 AC 531 |
Fairness requires opportunity to make representations and be informed of case against interests. |
Referenced to underline contextual nature of fairness in consultation. |
| R (on the application of Greenpeace Ltd) v Secretary of State for Trade and Industry [2007] EWHC 311 (Admin) |
Consultation process must not be so unfair as to be unlawful. |
Used to frame the standard for legality of consultation process. |
| Wordie Property Co Ltd v Secretary of State for Scotland 1984 SLT 345 |
Judicial review concerns legality, not merits; decision-maker's discretion respected. |
Applied to emphasize court's limited role in reviewing decision merits. |
| Moray Council v Scottish Ministers [2006] CSIH 41 |
Decision-maker's expertise and judgment on material issues respected. |
Supported deference to Respondent's decision-making process on material considerations. |
Court's Reasoning and Analysis
The court analysed the consultation process against established common law principles of procedural fairness, particularly the Sedley criteria, which require consultation at a formative stage, sufficient information for intelligent response, adequate time, and conscientious consideration of feedback. Initially, the consultation focused on Option A, which did not include restricting through traffic. The introduction of Option B in November 2022, a fundamentally different proposal restricting private vehicle access, was motivated by funding considerations and public feedback. The court found that after November 2022, the Respondent ceased to consider Option A and excluded it from further consultation, thereby denying consultees a meaningful opportunity to consider and respond to all relevant alternatives.
The court held that a fair consultation process required the public and decision-makers to be able to compare Options A and B and the current proposal concurrently, including their economic and traffic impacts. The Respondent's failure to do so breached its common law duty of fairness. The court rejected the Respondent's argument that impact assessments could be deferred to the later TRO process, noting that such delay exacerbated the unfairness by preventing informed decision-making at the stage when the proposal to proceed was made.
Regarding material considerations, the court acknowledged that economic and traffic impacts were relevant and should have been assessed and taken into account before finalising the proposal. However, the court accepted that deferring detailed assessments to the TRO stage was not, in itself, unlawful, but the failure to consider alternatives and their impacts at the time of the 2023 decisions was problematic.
The court reviewed the planning officers' reports and found no material misleading of the decision-making bodies, construing the reports with reasonable benevolence and recognizing the members’ local knowledge.
On the issue of predetermination, the court applied the high threshold requiring evidence of a closed mind. It found no positive evidence that the Respondent’s collective mind was closed to the merits of the decision, acknowledging that predisposition towards a funding-eligible proposal was lawful and rational. The court rejected the claim that the Respondent predetermined the outcome or pursued an improper purpose.
Ultimately, the court concluded that the consultation process was unfair and unlawful due to the exclusion of Option A at a formative stage and the failure to allow meaningful consideration of alternatives. The decisions taken on 28 August and 14 September 2023 were therefore predicated on an unlawful consultation and were to be set aside accordingly.
Holding and Implications
The court sustained the Petitioners' first plea-in-law, repelled their second plea and those of the Respondent, and reduced the decisions of the Respondent dated 28 August and 14 September 2023 which are complained of.
The direct effect is that the Respondent's decisions to proceed with the current proposal and consultation on the Traffic Regulation Order are quashed due to procedural unfairness in the consultation process. No new legal precedent was established; the ruling reinforces the established common law principles requiring fair consultation, including the need to consult on fundamentally different alternatives concurrently and to take material considerations into account before finalising decisions.