Community Governance Review

April 23rd, 2019 by James Goudie KC

R (Britwell Parish Council) v Slough Borough Council (2019) EWHC 998 (Admin) is two claims for judicial review by two parish councils challenging the Slough Borough Council (Reorganisation of Community Governance) Order 2019 (“the Order”). That Order provides for the abolition of the parishes of Britwell, and Wexham Court and the winding up and dissolution of each of the two parish councils for those areas. In essence, the two claimants, Britwell Parish Council and Wexham Court Parish Council, contend that the defendant, Slough Borough Council, which made the Order failed to have regard to relevant guidance. That required that there must, amongst other things, be clear and sustained local support for abolition of a parish council. The claimants contend that all the material before the defendant, including the consultation responses, responses from the parish councils and the results of local polls, showed that the majority of electors in the two parishes wished to retain, not abolish, the parish council. In those circumstances they contend that there was not clear and sustained local support for the abolition of the parish councils as required by the Guidance. They further contend that the defendant failed to have regard to the claimants’ role as representative democratically elected bodies and that the decision was irrational.

Reviews of parishes and parish councils are governed by chapter 3 of Part 4 of the Local Government and Public Involvement in Health Act 2007 (“the Act”). Section 79 of the Act provides that a community governance review is a review of the relevant area, carried out in accordance with the provisions of Chapter 3 and the terms of reference of the review, with a view to making recommendations of the sort referred to in sections 87 to 92 of the Act. Those include creating new parishes or making recommendations in relation, as here, to existing parishes. There are certain procedural duties on a local authority undertaking a review but, subject to those duties, it is for the local authority to decide how to undertake the review, subject to its duties under Section 93 of the Act.

Section 100 of the Act is critical to these two claims. It relates to Guidance.

The Secretary of State for Communities and Local Government and the Local Government Boundary Commission for England have given guidance on community governance reviews in England (“the Guidance”). Section 3 of the Guidance deals with making and implementing recommendations in community governance reviews and notes that the “views of local communities and inhabitants are of central importance”. Paragraph 59 notes that parishes should reflect distinctive and recognisable communities of interest, with their own sense of identity, and that “the feeling of local community and the wishes of local inhabitants are the primary consideration”. Specific guidance is given at paragraphs 117 to 124 of the Guidance on (1) the abolition of parishes and (2) dissolving parish councils.

As regards the Guidance, Lewis J said:-

“33.   A local authority conducting a community governance review is required to consult local government electors for the area under review and any other person or body which appears to the local authority conducting the review to have an interest in the review: see section 93 of the Act. The local authority “must have regard” to the Guidance: see section 100 of the Act. In relation to the Guidance, the local authority must proceed on a proper understanding of the Guidance. It must take the Guidance into account and act in accordance with the Guidance unless they give clear reason for departing from it: … The defendant here did take account of the Guidance: it was drawn to their attention and material parts referred to in the reports to the defendant. The question is whether, as the defendant submits, the defendant also followed the Guidance in the sense that the decision to make the Order was consistent with the Guidance properly interpreted.

  1. 34. The starting point is to consider the relevant parts of the Guidance to determine its meaning. The Guidance should be read fairly, and as a whole, and in context. The Guidance is not to be construed as if it were a statute or a contract but its provisions are nevertheless intended to, and do, have legal meaning and are intended to guide the decision-maker as to how to exercise its statutory powers: see, by analogy, the role a development plan in the field of planning law, ….
  2. The statutory context is that the defendant is undertaking a review of community governance, and in particular, the continued existence of certain parishes and parish councils. Its duty is to have regard to the need to ensure that community governance within the area reflects the needs and interests of the community in that area and is effective and convenient: see section 93(4) of the Act. The defendant must consult local government electors and any other person or body which appears to the authority carrying out the review to have an interest in it: see section 93(3) of the Act. That is the context in which the Guidance is to be interpreted.”

“38.    I accept that a local authority carrying out a review does not have to conduct a poll and there is no requirement that a majority of local electors at a poll have voted to abolish the parish council. The local authority carrying out the review may consult electors in a variety of ways. It will also have consulted other persons and bodies appearing to it have an interest. That material may lead a local authority to conclude that there is clear and sustained local support for abolition. Even if a local authority conducts a poll, it would not necessarily be the case that the results of that vote would be definitive. The council would still have to consider all other material available to it which indicates whether there is local support for abolition. It may have to consider the extent to which that poll is a reliable indicator of local opinion (for example, given the size of the turnout) together with all the other information available to the council about the views of electors and those interested in order to decide if there was clear and sustained support for the abolition of the parish council.”

  1. In my judgment … the defendant erred in its approach to the interpretation of paragraph 120 of the Guidance. It was influenced by the erroneous view that the Guidance would be satisfied, and abolition wold be consistent with the Guidance, if abolition was justified and if there was a significant, or sizable, number of people (even if it were thought to be a minority of local government electors as a whole) who supported abolition. In those circumstances, the decision to make the Order was flawed. …
  2. The defendant submitted that it could depart from the Guidance if it had clear reasons to do so. That is correct. But in the present case, the defendant was not seeking to depart from the Guidance. It, erroneously, thought that the decision and the Order followed, in the sense that they were consistent with, the Guidance. As its decision, and therefore the Order, was flawed, the Order will need to be quashed and the defendant can, if it wishes, consider matters again. It could if, it had clear reasons for doing so, depart from the Guidance. It is, however, not appropriate to speculate as to whether it would decide to make the same Order if it appreciated that it had misinterpreted paragraph 120 of the Guidance and if it had to decide that, even if it considered that the Guidance properly interpreted was not satisfied, nevertheless the circumstances were such that it should abolish the parish council in any event.”

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