Judicial Review of Local Government Reorganisation

Our experts, Simon Kiely, Olivia Peake and Oliver Dickie go through what you need to know.

Background

In December 2024, the government published a white paper outlining plans to convert all remaining two‑tier areas in England into single‑tier authorities. This drive towards unitary local authorities continues a historical trend, with previous restructures having taken place in 1992-95, 2008-09 and 2018-21.

The process is now governed by sections 1–7 of the Local Government and Public Involvement in Health Act 2007.  The Secretary of State issues a statutory invitation to councils in two-tier areas to submit proposals for unitary local government.  The Secretary of State must undertake a consultation before any proposal is implemented but then has a broad discretion to implement a proposal, with or without modification.

In February 2025, the government issued a statutory invitation to all councils in two-tier areas (and neighbouring small councils) to develop proposals for unitary government, and just over a year later the Secretary of State outlined decisions for the first wave of reorganisation.

But what if a council is unhappy with the Secretary of State’s decision?  In the absence of a statutory right of appeal, an aggrieved council’s legal recourse would be to challenge the decision by judicial review.  So what are the prospects of success for such challenges?

How the Courts have approached previous challenges

Past case law demonstrates that, while the courts are prepared to entertain judicial reviews of local government reorganisation, they have so far been reluctant to intervene:

• In 2007, Shrewsbury and Atcham Borough Council and Congleton Borough Council were granted permission to challenge restructuring decisions based on the Secretary of State’s use of a non-statutory procedure to invite proposals before the implementation of the 2007 Act ([2008] EWCA Civ 148). Whilst the Court of Appeal expressed concern that a process had been undertaken without clear statutory authority, it held that Parliament’s subsequent enactment of the 2007 Act amounted to retrospective approval, and found no prejudice to the councils’ abilities to oppose the proposal.
• Another judicial review of the statutory framework followed in 2018, when Christchurch Borough Council challenged the use of section 15 of the Cities and Local Government Devolution Act 2016 to amend the 2007 Act, implementing a proposal to reorganise local government in Dorset ([2018] EWHC 2126 (Admin)). The High Court rejected the claim, finding that the Secretary of State had acted within his powers and no unfairness had been caused.
• More recently, in 2022, Cumbria County Council was refused permission to proceed with a judicial review of the decision to split the county into two unitary authorities rather than adopt the Council’s preferred single-authority model ([2022] EWHC 388 (Admin)). Whilst the previous two cases sought to challenge the underlying statutory framework, this claim scrutinised the decision itself.  The Court was not persuaded to intervene, though, rejecting arguments that the Secretary of State had:
  • unlawfully departed from policy on minimum population size, emphasising that the statutory guidance was clearly the governing instrument;
  • disregarded the possibility of Mayoral Combined Authorities, a factor the court held was not legally material;
  • inadequately evaluated competing proposals, noting that the weight and relevance of considerations were matters of ministerial judgement; and
  • acted inconsistently with the approach taken in North Yorkshire, finding the differing outcomes in the two areas reflected the differing circumstances.

The court’s approach to these challenges is perhaps not surprising given the 2007 Act confers a broad discretion on the Secretary of State as to whether or not to implement any proposal.

At first blush, the successful challenge in 2010 to the Secretary of State’s decisions to create unitary councils in Norfolk and Devon ([2010] EWHC 1456 (Admin)) might be characterised as an exception to this trend. The High Court determined that the decisions were unlawful because the Secretary of State’s approach to the statutory consultation was unfair. Having set out repeatedly the basis upon which he would refuse proposals, the Secretary of State adopted a wholly different approach without warning, and reached decisions which, on the original approach, he would not have reached.  The basis on which the court quashed the decisions was expressly confined to a breach of the consultation duty, though, with the Judge recognising that the question of whether the two cities should be unitary authorities “is a political one at heart and involves issues which it is not for the court to rule on”.  In that sense, the case reinforces the high threshold for judicial intervention in challenges to local government reorganisation decisions.

Recent developments

Notwithstanding this backdrop, a number of councils affected by the first wave of reorganisation – including Essex, Norfolk, Hampshire and Suffolk – are reportedly challenging the government’s plans via judicial review.  In pre-action correspondence, Essex Council’s grounds of challenge included that the statutory consultation was defective because the government had failed to disclose viability assessments beforehand. In contrast, New Forest District Council has decided against pursuing a challenge on the basis that the “prospects of a judicial review success are very limited”.

Further, on 4 June 2026, the County Councils Network wrote to the Prime Minister and Secretary of State expressing concern about the implications of the decisions on local government reorganisation.  In particular, it was said that the reorganisation proposed by the government departs from the statutory criteria and is primarily motivated by political considerations.

The government appears to intend to press on with its proposed reforms notwithstanding. On 16 July 2026, the Secretary of State announced the next phase of its local government reorganisation programme to replace two-tier local government with unitary authorities in 14 further counties. The Secretary of State also reiterated the government’s commitment to elections for the new unitary councils in May 2027 and for the new councils to become operational in April 2028. He additionally set out the funding and transition support councils undertaking reorganisation would receive.

It will be interesting to see how the recent judicial review challenges unfold, and whether any further challenges follow.

Conclusions

Past cases illustrate the high threshold for challenging restructuring decisions on public law grounds.  Judicial review remains viable where councils can identify specific flaws in the decision-making process (as opposed to simply disagreeing with the decision).  Potential avenues to be alive to include defects in the consultation process or some other form of significant procedural unfairness in the assessment of proposals.

When it comes to the substantive decision, though, ministers are expected to assess restructuring proposals “in the round” and the courts have so far deferred to those evaluative judgements.  Even if a decision is quashed due to procedural defects, it will likely be remitted back to the Secretary of State to re-take the decision.  There is no guarantee that this will result in a reorganisation decision of the nature preferred by the relevant council.

The merits of challenge need to be carefully considered on a case-by-case basis. Sharpe Pritchard is experienced at advising local authorities, including on reorganisation and judicial review, so please do not hesitate to contact us if we can be of assistance.

Simon Kiely is a Partner, Olivia Peake is a Senior Professional Support Lawyer and Oliver Dickie is a Trainee Solicitor at Sharpe Pritchard LLP.

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