Community governance review – Local Government and Public Involvement in Health Act 2007 – Consultation – Defendants conducting review into proposed abolition of claimant parish council – Low response rate to consultation with local electorate – Majority of responses in favour of abolition – Abolition order made accordingly – Whether defendants erring in regarding response to consultation as being representative of all residents– Claim allowed
The claimants were a parish council that had been formed in 2002 for the new parish of Offerton Park, which comprised a housing estate built in the 1960s and 1970s. In March 2010, the defendant borough council received two petitions from residents proposing the abolition of the parish council. They accordingly conducted a community governance review, under the Local Government and Public Involvement in Health Act 2007. As part of the review, the defendants were required to consult with the public pursuant to section 93 and also, by section 100, to take into account guidance issued by the secretary of state, which supported parish councils.
A poll conducted in July 2011 produced a turnout of only 16.7% of the electorate, with the majority voting in favour of abolition. Subsequently, the defendants sent detailed consultation materials to all residents and local business together with a response form. Only a very small proportion of the electorate responded, with 8.5% voting in favour of abolition and 2% against. In a further round of consultation, approximately 25% of the electorate submitted responses; 17% of the electorate supported abolition while 6.8% were against.
At a meeting in October 2010, the defendants’ community governance review committee recommended that the claimants be abolished in the light of, inter alia, the consultation feedback from residents and stakeholders. The defendants took the view that the consultation results reflected the views of the majority of the local residents, who did not want either the parish or the parish council. In January 2011, they resolved to accept the committee’s recommendations and abolish the parish and parish council; the resolution was implemented by an order made in February 2011 and due to take effect from March 2011.
The claimants applied for judicial review of the order, which was suspended pending the outcome of the claim They primary argument was that the defendants had erred in viewing the consultation as showing clear support for abolition, since the views of the minority who had responded could not be assumed to be representative of all residents.
Held: The claim was allowed.
An operative reason for the defendants’ resolution of January 2011 was that the results of the consultation made it clear that the majority of residents favoured abolition. That was not a conclusion that could rationally possible be reached from the consultation exercise. It had been reached by treating the views of the majority who responded as being representative of the views of the majority of parish residents. There was no rational basis for such treatment or for the view that the public generally, as opposed to a party of it, wanted to see the parish council, or the parish, abolished. The only fair conclusion to be drawn from the consultation exercise was that the majority of the electorate did not feel sufficiently strongly either way to return the postal response.
The defendants had not been entitled to discount the views of those who did not respond. They were bound to take into account, as a material consideration, the fact that the majority of electors had not expressed themselves in favour of either the abolition or the retention of an established tier of local government, which, in accordance with the guidance, should be abolished only where that was shown to be clearly justified. Since it was not possible to be satisfied that the same decision would have been reached had a correct view been taken of the results of the consultation, the decision to abolish should be quashed.
That did not introduce an unjustified requirement, not present in in the Act or the guidance, that the vote of an absolute majority in favour of abolition had to be obtained before a parish could lawfully be abolished. Where there was, for good reason, clear and sustained local support for abolition from what was rationally considered to be a sufficient body of the electorate, if the majority was indifferent, abolition might be justifiable provided that due regard was had to the guidance. However, the decision-making process had been flawed in the instant case.
Robert Palmer (instructed by Brabners Chaffe Street LLP, of Manchester) appeared for the claimants; Andrew Arden QC and Justin Bates (instructed by the legal department of Stockport Metropolitan Borough Council) appeared for the defendants.
Sally Dobson, barrister
