Court of Appeal
Regina (Rotala plc) v Greater Manchester Combined Authority and another
[2022] EWCA Civ 1048
2022 July 12; 25
Andrews, William Davis, Snowden LJJ
Local governmentPowersTransportLocal authority introducing franchising system applying to local bus servicesClaimant bus company contending that further audit required following unforeseen effects of COVID 19 pandemicWhether authority acting in breach of statutory dutyWhether decisions of authority rational Transport Act 2000 (c 38), ss 123B, 123D

The claimant was a bus company operating in the Greater Manchester area. The defendants were the local authority and Mayor. The defendants came to the decision that they would introduce a scheme known as “The Greater Manchester Franchising Scheme for Buses 2021”. To introduce the scheme it was a requirement that the relevant franchising authority should comply with the provisions within section 123B to 123G of the Transport Act 2000. A franchising assessment was prepared which set out a case by reference to matters such as strategic, economic, commercial, financial and management issues. Moreover, in accordance with section 123D a statutory audit was obtained; and public consultations also took place. Following the start of the COVID-19 pandemic, reference was made to that issue both in the initial consultation report and in a subsequent update; and the local authority also obtained a “COVID Impact Report”. Following a second public consultation, the scheme was recommended and in due course adopted. The claimant sought judicial review of the relevant decisions made by the defendants; but the claim was refused. The claimant appealed, contending, inter alia: that the local authority had been bound by statutory duty to obtain a further section 123D report in the light of the contents of the COVID Impact Report; and that the local authority had not acted rationally in coming to the applicable decisions.

On the appeal—

Held, appeal dismissed. There was no statutory obligation to obtain a further audit report. The Transport Act 2000 unambiguously identified the subject-matter of the audit report under section 123D, namely, an assessment of the scheme by the franchising authority under section 123B. Section 123D did not require the auditor to produce a report on some other document. Even if it were possible to carry out something in the nature of a section 123D audit on the COVID Impact Report, it could not be an audit report under section 123D. The statute made no provision for a fresh section 123B assessment, or for the revisitation of the original section 123B assessment, in the light of the provision of further information which might have a bearing on the conclusions reached by the authority in the assessment. Likewise, the statute contained no express requirement for the revisitation of the section 123B assessment or for a fresh assessment to be carried out if information came to light in the course of the public consultation which called into question the robustness or reliability of the information relied on in the original assessment. Indeed, there was nothing on the face of the statute that expressly obliged the authority to revisit its section 123B assessment if the audit report drew its attention to flaws in it, however serious those flaws might be. The absence of any express requirement to revisit the section 123B assessment at any time after it had been audited, was a major obstacle to construing the statute as providing for a fresh section 123D audit. The primary purpose of the statutory requirement of an audit under section 123D was to provide consultees with some independent quality assurance of the underlying information and the methodology used by the authority to assess it. That purpose was fulfilled when the audit was completed and sent out with the section 123B assessment and the consultation document. A secondary purpose was to draw to the attention of the authority any problems identified with the information or the methodology used in the assessment (something which the Franchising Guidance expressly obliged the auditor to do) so that, if need be, the authority could address them. That purpose was fulfilled when the authority received the audit report. If Parliament had intended to impose an obligation on an authority to commission a further audit in certain circumstances, the statute and the statutory guidance would not be silent on that topic. It might transpire that further information which was not taken into account was of such importance as to make it irrational for the authority to seek to go ahead with the proposed scheme without first considering the fresh information and, if need be, revisiting the assessment. But then it would be for the authority to decide how to address the situation. Parliament had not prescribed by statute what should happen in those circumstances. More broadly, the local authority had not acted irrationally in failing to commission a re-audit of the section 123B assessment. A further audit was one option, but not the only one rationally open to the local authority (paras 33–36, 46–56, 57, 59, 62–65, 67, 68).

Decision of Julian Knowles J [2022] EWHC 506 (Admin) affirmed.

Andrew Singer QC and Piers Riley-Smith (instructed by Backhouse Jones Solicitors) for the claimant.

John Howell QC and Amy Rogers (instructed by Solicitor & Monitoring Officer, Greater Manchester Combined Authority, Manchester) for the defendants.

Matthew Brotherton, Barrister

We use cookies on this website, you can read our Privacy and Cookies Policy. To use website as intended please Accept Cookies