Challenge against local government reorganisation in Dorset fails

The High Court has found that the Secretary of State for Housing had acted lawfully in passing legislation to allow local government reorganisation…

R (on the application of Christchurch Borough Council) v Secretary of State for Housing, Communities and Local Government & Others [2018] EWHC 2126 (Admin)

Executive summary

The High Court has found that the Secretary of State for Housing, Communities and Local Government had acted lawfully in passing legislation to allow local government reorganisation plans to go ahead in Dorset. The court rejected a claim for a judicial review of the legislation by one of the affected councils.

Background

The claimant, Christchurch Borough Council, challenged regulations submitted by the Secretary of State for Housing, Communities and Local Government (“the defendant”) to implement proposals for local government reorganisation in Dorset. Under the proposals, two new unitary authorities would be created across Dorset, Poole and Bournemouth to allow the area to be served by a single tier of local government. Christchurch, Bournemouth and Poole would merge to form Poole Council and Dorset County Council, East Dorset, North Dorset, Purbeck, West Dorset and Weymouth & Portland would merge to create Dorset Council. The existing councils, including the claimant, would be abolished.

The proposals were first submitted in 2017. The Dorset (Structural Changes) (Modification of the Local Government and Public Involvement in Health Act 2007) Regulations 2018 (“the 2018 Regulations”) were approved by Parliament and came into force on 25 May 2018. The accompanying order to implement the proposals came into force the following day.

Judicial review challenge

The claimant issued a judicial review challenge claiming that the defendant had acted beyond his powers in drafting the 2018 Regulations. The defendant had used Henry VIII powers (allowing primary legislation to be affected by secondary legislation) found in the Cities and Local Government Devolution Act 2016 (“the 2016 Act”) to amend the existing procedure for creating a single tier of local government. The amended procedure was introduced by the 2018 Regulations but was applied retrospectively to the proposals. The claimant argued that the defendant could not use Henry VIII powers retrospectively to treat the proposals as having complied with a legal regime which was not in force at the time they were submitted. All of the other councils involved, however, supported the proposals and wanted them to be implemented without delay.

The High Court dismissed the challenge and found that the defendant had the power to make the 2018 Regulations. There was no legal requirement for an express provision permitting retrospective regulations and there had been no unfairness to the claimant as it had been involved in discussions of the proposals since 2015. The 2016 Act was intended to provide a straightforward “fast track” procedure for structural and boundary changes to local authority areas and it was expected that it could apply to proposals which had already been worked up.

The leader of the claimant council, Councillor David Flagg, expressed his disappointment with the decision and said that the council was asking questions of the judge before considering an appeal to the Court of Appeal. A joint statement released on behalf of the other interested councils said that they were “delighted but unsurprised” by the decision and that they hoped that Christchurch Borough Council would now “accept the judgment and fully take part in planning for and making decisions about the new council”.

Comment

The challenge in this case was very technical into the specific powers of the Secretary of State to make regulations under that Cities and Local Government Devolution Act. The consequence is significant in that it will (subject to a possible appeal) enable the reorganisation of local government in Dorset to proceed.

With other proposed reorganisations in the pipeline in other parts of the country it demonstrates a renewed appetite on the part of the government to press forward with such change.

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