It’s not often we see a consultation response being challenged in Court. More usually, what we see is a challenge to the decision, on the basis of a flawed consultation, but this week we saw a challenge that did both.

The case revolved around a planning application to develop a new headquarters for “Ben Burgess & Co Ltd” just off the A140 near Norwich. The development would require access from the A140, and the applicants made two proposals, both informed by prior contact with Norwich County Council who had sent a consultation response to South Norfolk District Council detailing their thoughts on the proposed access routes.

After this, revised access proposals were sent to the District Council which again consulted the County Council which caused some discussion regarding how they should respond, in particular whether due to the potential economic benefits of the proposal there should be a different response than would usually be given. An officer’s report was prepared, and ultimately the Cabinet decided not to object to the application, setting out extensive reasons. A response was sent to the District Council conveying the decision.

Claimants alleged four grounds. The first was that Norwich County Council had acted beyond their powers by acting contrary to their constitution and the requirements of the statutory consultation. On the constitution point, it was argued that the response ought not to have been referred to the Cabinet as it did not fulfil the requisite criteria for doing so in the constitution. On the statutory consultation point, they argued that the County Council had been consulted only in its capacity as a highways authority, and should not have considered economic benefits as that was not why it had been consulted.

On the constitution point, Mrs Justice Lang found for the Council- it had met the constitutional criteria for a referral to the Cabinet from officers on the grounds of public controversy, and the referral was therefore lawful. On the statutory consultation point, she found for the Claimants. The requirements of the statutory scheme required the Council to be consulted as the highway authority in relation to specific matters set out in a schedule to the relevant order, and nothing else. By taking into account (and ultimately making its decision on the basis of economic considerations not included in that schedule, the Council had acted ultra vires. Lang J emphasised that they could have given another response to the consultation separately about the merits of the proposals, and this would have been legitimate, but in these particular circumstances, they were being consulted as the highway authority and should have responded in line with the statutory requirements. In addition to this, they had not given sufficient reasons for their response, partially because they had taken into account irrelevant considerations.

The second ground was that Norwich County Council failed to give adequate lawful reasons for the decision and the consultation response. The Judge did not consider that they had a duty to give reasons for the referral to Cabinet under the constitution, and cleared them of fault on that ground, and in determining the issue of reasons for the decision referred back to the previous point that they had not given adequate reasons for their decision because they had acted outside their powers.

The third ground alleging that the County Council took into account immaterial considerations had once again been dealt with under the first header, and the irrationality challenge that made up the fourth ground was determined to be unnecessary in light of the pre-existing findings.

In allowing this claim, Mrs Justice Lang put a great deal of weight on the need for a purposive approach to consultation responses. The lawful scope of a consultation response was, she said “context-specific”, and it was very important to confine views given in a response to the matter on which you were being consulted. In this case, Norwich County Council were being invited to give an expert response in its capacity as a highways authority, and not a general value judgment on the merits of the policy.

The case does highlight an interesting tension in the role of local authority, namely the different capacities to which they might be asked to respond to consultations in. We suspect we haven’t heard the last of this one. Although this case provides authority for now, we can imagine potential problems emerging if consultors do not specify what capacity they are expecting responses in from top-tier authorities. Although in this case it was relatively clear from the context, there are circumstances where it might be considerably less so.

In addition, it does raise questions about how clear local authorities acting as highway authorities need to be in their responses. Lang J commented that they could have responded separately to the consultation if they wanted to comment on the merits of the proposals themselves. We can’t help but wonder what form this might have to take to avoid the risk of challenge. Interesting questions. We’ll have a think about them over the long weekend and see what we can come up with.