In East Devon District Council v Electoral Commission Boundary Committee and Secretary of State for Communities and Local Government (2009), the High Court considered the duty to consult under proposals for new unitaries under the Local Government and Public Involvement in Health Act 2007. Exeter City Council made a proposal under section 2 of the 2007 Act for a new unitary authority. The relevant grounds for new unitaries are:

  • a broad cross-section of support;
  • strategic leadership;
  • neighbourhood empowerment;
  • value-for-money services; and
  • affordability.

In this case the proposal had been rejected by the Secretary of State on grounds of affordability. The Secretary of State then requested a review of local government in Devon by the Boundary Commission.

The key issue arose from the fact that the Boundary Committee had produced a draft proposal that deferred consideration of affordability, but it later displayed detailed financial information on its website and invited observations. East Devon District Council challenged the approach taken by the Boundary Committee of the Electoral Commission on various grounds. The Boundary Committee had contended that it was only entitled to make a single proposal under the 2007 Act.

It was held that it was open to the Boundary Committee to choose to defer consideration of affordability until publication of its draft proposal and to do so was not improper since it did not wish to impose undue burdens on local authorities at an earlier stage and, further, the Boundary Commission had not failed in its duty to extend consultation to the public as a whole.

Following on from last year’s Shrewsbury and Atcham litigation, also concerning new unitaries, the case can perhaps be seen as another failed attempt to stop the wheels of change from turning.

Council tax banding challenges

In Chilton-Merryweather v Hunt & Ors, the Court of Appeal gave guidance on the circumstances in which a council tax payer may make a proposal to reduce his council tax assessment on the basis of increases in the volume of traffic, noise and pollution on roads in the area of his home. It has ruled that an increased level of traffic on a motorway is not capable of being a change in the physical state of a property’s locality causing a material reduction in the property’s value for the purposes of council tax banding.

The listing officer appealed against the valuation tribunal’s decision that the increased noise, pollution and traffic from the motorway could constitute the necessary change in the property’s locality, where a motorway ran at an elevated level higher than the property. Allowing the listing officer’s appeal, Lord Justice Rix said that a narrow construction should be given to the relevant statutory provision.

The listing officer was properly concerned only with the essential fabric and character of the house and locality, not with other matters that went to their enjoyment, use, occupation or activity, such as the particular degree of traffic to be met on a particular date.

It was contrary to the policy of the 1992 Act to permit alteration in the list for a reason that, although it manifested itself locally, was in truth part of a nationwide trend.

Lord Justice Waller and Lord Justice Dyson agreed.

The decision will disappoint homeowners hoping the earlier decision would be upheld and enable them to seek lower council tax bills based on the adverse impact of increased traffic noise on their homes.