Offerton Park Parish Council, R (On the Application Of) v Stockport Metropolitan Borough Council

Government and Public Involvement in Health Act 2007 (“the Act”).

by section 83 of the Act, a local authority is obliged to undertake a community governance review containing terms of reference allowing for the petition to be considered if a community governance petition under section 80 of the Act is received signed by the requisite minimum number of local government electors and the authority is not

Section 88 of the Act contains provisions applying where existing parishes are under review. Sub-section (1) to (4) provide as follows:

By virtue of section 100 of the Act, the Secretary of State may issue guidance about undertaking community governance reviews, and section 100(4) of the Act provides that a principal council “must have regard to guidance issued under this section”.

Paragraph 45 of the Guidance states that parish councils are “an established and valued form of neighbourhood democracy and management” and [the Government] proposed “to build on the existing parish structure, so as to improve its capacity to deliver better services and represent the community’s interests” (b)Paragraph 47 states:

“47.

An important aspect to approaching sustainable communities is allowing local people a say in the way their neighbourhoods are managed. One of the characteristics of a sustainable community is the desire for a community to be well run with effective and inclusive participation, representation and leadership. This means:

a)

representative, accountable governance systems which both facilitate strategic, visionary leadership and enable inclusive, active and effective participation by individuals and organisations; and

b)

effective engagement with the community at neighbourhood level including capacity building to develop the community’s skills, knowledge and confidence;”

Paragraph 50 states that parish councils continue to have two main roles: community representation and local administration, the views of local communities and inhabitants being of central importance.

Paragraphs 55 and 57 state that parish councils have an important role to play in the development of their local communities and “can perform a central role in community leadership”.

Paragraphs 136 and 137 (entitled “Other (non-parish) forms of community governance”) state as follows:

Paragraphs 117 to 124 contain guidance as regards “Abolishing parishes, and dissolving parish councils”. Paragraphs 117 to 121 state as follows:

Only 481 of a possible 2610 respondents submitted responses. Of those 123 (approximately one-quarter of the actual respondents) expressed themselves in favour of the creation of a parish, 324 (67.5% of the actual respondents) expressed opposition. Notwithstanding that result, the Secretary of State considered it right to establish the parish and parish council.

Defendant “to dissolve/abolish the Offerton Park Parish council as soon as possible, but prior to the commencement of the new Tax- Year in 2010”.

Empowerment, Stockport NHS Foundation Trust and other bodies (pp381383).

(Strategy and Democracy) summarised the responses from residents to the Stage 1 consultation as follows:

335 responses were received in total; after removing duplicate or conflicting responses, the 273 remaining responses were summarised thus:

On any view only a very small proportion of the electorate took the trouble to respond, with (as regards the third question) approximately 8.5% of the electorate voting in favour of abolition and only about 2% against.

It is pertinent to note the comment of the Assistant Chief Executive as regards this first round of consultation: “the responses to the initial consultation exercise are low and the committee may wish to consider how much weight should be given to the responses which have the potential to dissolve a layer of government with taxation powers”.

There was no legal basis for the abolition of the parish council and abolition was not supported by the majority of residents within the parish; and

The current boundaries should be retained with the exception of an extension to include a hatched area shown on a plan.

Abolish the Parish council

Keep the Parish council as it is

Change the Parish Boundary

Approximately 25% of the electorate submitted responses and eresponse forms; as appears from the table, 420 of these (approximately 17% of the electorate) supported the abolition of the parish council and 169 (approximately 6.8% of the electorate) indicated their wish to keep the council.

Although a large number of residents were the subject of door step survey, they were not specifically asked to indicate their views, which accounts for the small number of indicated preferences. To my mind it is dangerous to seek to draw conclusions from such small and random positive responses.

Similarly, those at the drop-in sessions were not asked to state a preference, but where they did that preference was recorded.

At the later Community Governance Review Committee meeting, the members were advised that it was generally considered that face-toface surveys were likely to receive positive responses from respondents who wanted to provide a response that they thought the interviewer wanted to hear, and that it was appropriate to give greater weight to response forms since they could be completed at home anonymously.

It is obvious from the table that the substantial majority of the electorate (approximately 75%) could not be bothered to return the form.

“Whilst the results of the consultation made it clear that the majority of parish residents were in favour of abolition, regard should be had to community governance reflecting the identities and interests of the community and that such governance was effective and convenient;

Although Department for Local Government &

There had not been widespread support for the establishment of a Parish council when established in 2000 and the majority of respondents to the original consultation did not support the proposal;

There was a clear message from residents through the consultation that they did not consider that the Parish council was working well for their area, nor that it provided an effective and convenient community governance opportunity;

There had been consistent opposition to the Parish council during its eight year existence demonstrated by the fact that a consistent majority of respondents remained opposed to it. The message from the majority of the community was that the Parish council did not reflect the interests of that community, provide effective community cohesion nor play a positive role in the area;

It was important to ensure that there continued to be facilities and activities provided in the area, in particular on the Offerton Estate, as these were clearly much valued by the community as borne out by the consultation feedback;

There was very little support in the responses for altering the parish boundaries, therefore this option should not be pursued further.”

the Stage 2 Consultation showed that the residents “do not want the parish and they do not want the parish council”.

Community Governance Order be made….abolishing the…..Parish and dissolving the….Council”.

Claimant’s Solicitors within 7 days of the date of the letter, the Order would be implemented and the Defendant would not set a precept for the parish council for 2011. It was stated that any application for judicial review would be robustly defended.

14 days of 31 January 2011. They sought the Defendant’s confirmation that it would not take any further action until 14 days after the response to the letter before action. The letter concluded that failing that confirmation by return the Claimant’s Solicitors might be instructed to commence proceedings for an injunction.

Claimant’s written submissions on delay.

Parish nor a Parish council”. Indeed, as previously appears, in its letter of 8 February 2011 the Defendant went further and asserted that “The results of the consultation show that the majority of the people of Offerton Park do not want the existing additional layer of governance, nor do they want to pay a precept to fund the Parish and Parish council”.

That the conclusion stated in the Defendant’s letter of 25 January 2011 was irrational.

That the only safe inference to be drawn from the consultation exercises was that the large majority of the residents (75%) had no preference either way as to whether the parish council should be abolished or retained and the Defendant wrongfully failed to have regard to that matter, which was said to be a material consideration; and

That the Defendant wrongfully failed to take account of the results of the wider Stage 2 consultation process (i.e consultation by means other than the submission of formal responses)

The minute of the meeting of 20 January 2011 specifically recorded, as quoted above, that the Defendant’s decision was made (inter alia) for the reasons identified by the Community Governance Review committee;

The minutes of the meeting of that committee on 26 October 2010 also specifically recorded that its resolution was for the minuted reasons, which included that stated in the first bullet point quoted in paragraph 25 of this judgment;

It is not in my view possible to read the reference to “majority of parish residents” in the minute of the Review Committee meeting as a reference simply to a majority of respondents. Indeed later in the minute the point is separately made that a consistent majority of respondents remained opposed to the parish council. I derive support for this interpretation of the Minute from the Defendant’s letters of 25

It is true that members of the Committee and the full Council had the

The level of support for the parish council being always low

The consultation exercise resulting in a majority in favour of abolition

The knowledge of local Councillors and

Events after these proceedings were issued.

It is true that the level of express support for the Parish council was always low, with only a small minority voting for its creation in 2000.

The consultation exercises did not result in a majority of those consulted expressing themselves in favour of abolition, although a clear majority of those who responded (being a minority of the electorate) expressed themselves in favour.

Whilst I accept, contrary to the Claimant’s submission, that the Councillors who voted on 20 January 2011 were entitled to decide which types of responses should be afforded greatest weight “and were thus entitled to place greatest reliance on formal responses as opposed to informal ones” [and indeed the reasons referred to in paragraph 24(d) above seem to me to be perfectly rational], as I have stated, I am not persuaded that there was any rational basis for the view that the results of the consultation made it clear that the majority of parish residents (as opposed to the majority who responded) favoured abolition, or any rational basis for another minuted reason for the decision to abolish, namely that “the message from the majority of the community [my emphasis] was that the Parish council did not reflect the interests of that community….nor [did it] play a positive role in the area”. The attribution of these views to the majority of the residents seems to me to ignore the fact that the clear majority of the electorate did not feel sufficiently strongly to respond to the consultation exercises. I repeat what is stated in paragraph 46 above.

Indeed I am not satisfied that there was any rational basis for the view that the public generally, as opposed to a section of it, wished to see the parish council (or the parish) abolished. True it is that that was the view held by various Councillors, but it is not suggested that that view was based on any proper consultation process (other than those carried out under the Community Governance review) such as would reasonably ground such a view; and contrary to Councillor Goddard’s assertion when proposing the resolution to abolish, the conclusion he drew from the results of the consultation process regarding the view of “the public” in favour of abolition was not one that in my judgment could properly be drawn from that process. (I refer to what I have stated in paragraph (a) above).

After the issue of proceedings a petition from over 500 residents has been obtained, making it clear that those residents welcomed the decision of the Defendant. However, that still amounts to only a small minority of the residents of the Parish (approximately 14%), or about 20% of the electorate if the petitioners were electors. It has not been demonstrated to me, nor do I think it possible rationally to conclude, that more than a minority of the electorate actually favour abolition.

which, in accordance with the Guidance, should only be abolished where shown to be clearly justified.

There was impermissible confusion between two legally separate questions, namely

There was a failure to distinguish between what might be relevant considerations as regard the above questions and irrelevant considerations. In particular, it is submitted that advice was not given, as it should have been, that the issue was not whether there was agreement with particular decisions of the parish council (since in accordance with paragraph 121 of the Guidance, “it is doubtful….that abolition of a parish and its council could ever be justified as the most appropriate action in response to a particular contentious issue…or decision of the parish council”) but whether the parish should exist at all and, if so, whether the parish council was the most appropriate form of governance;

Allied to this, there was a failure to explain the other forms of

that

although the consultation papers used the terms “Parish” and “Parish council” interchangeably, this is immaterial and there is no evidence that anyone was misled;

and (c) there was adequate information given about the role and responsibilities of a parish council and of the nature and identity of other representative bodies, there being no obligation to go further in the consultation material.

The second consultation exercise, unlike the first, sought views as to whether the parish council should be abolished or retained. (The first sought views as to whether the parish should be abolished). I do not consider that the Claimant can have any legitimate complaint about this: its own parish poll sought views on precisely the same question, it never suggested that the question in the second exercise should be framed differently and, most important, I accept the Defendant’s submission that there would be no sensible reason for retaining a parish without a council in this case, given the size of the electorate, since the only reason to keep a parish without a council would be to enable the parish to be run by a parish meeting. In the course of oral submissions, Mr Palmer, Counsel for the Claimant, accepted that this would not be appropriate in a parish of 2,500 electors.

and (c) An impressive amount of material was distributed in connection with the first stage consultation (pp 369 – 386). I find that this explained clearly and accurately the role and responsibilities of a parish council in the following terms:

“Town, Parish or Community Councils are the same in terms of their powers and abilities, but a Town Council can also elect a Town Mayor instead of a Chair. Offerton Park Parish as a Parish council. A Parish council is a democratically elected body that has the power to do a number of things, including providing allotments, but shelters, supporting local crime prevention initiatives and local highway matters such as street lighting and maintenance of roadside verges. They can also be involved in the provision of community transport schemes, sport and recreation facilities and tourism. A Parish council may perform all, some or none of the above functions depending on their population, size, facilities and budget. However, all Parish councils are charged with providing a focus for representing local issues and identity and are consulted on planning applications in their area”.

The other representative bodies were identified (pp 381-383), together with a description of their roles and how frequently they met. It seems to me that this material, taken as a whole, provided the electorate with all that they reasonably required to make an informed decision on the questions posed, and I do not consider that there was any need specifically to draw attention to what was stated in paragraph 121 of the Guidance, although this was a matter for the Defendant to consider when deciding whether to abolish.

“The Defendant has been proceeding towards making a reorganisation order since October 26, 2010, when the Community Governance Review Committee recommended that the Defendant abolish the Parish and dissolve the Parish council.

The decision to make the reorganisation order was taken on January 20, 2011.

It was an inevitable concomitant of the reorganisation order that no precept could lawfully be set for the financial year (2011-12) commencing April 1, 2011 (if only because it would be perverse for a local authority to include within its council tax a precept for a body that it had made an order should be abolished before the start of the financial year to which the precept would relate); the only way to avoid that conclusion was for the reorganisation order to have been quashed or its effect suspended before the Defendant set its council tax for that year on February 24, 2011.

The Claimant therefore needed to have issued proceedings and obtain interim relief preventing the reorganisation order being made or suspending its effect before the Defendant set the council tax (on February 24, 2011. In the alternative, it may have been sufficient for the Claimant to have issued proceedings for such

Once a council tax was issued which included no precept, there was (and is) no basis on which the Defendant could or can now collect a precept for 2011-12.

All of the foregoing was either known to or knowable by the Claimant, as a matter of law and public information, yet the proceedings themselves were not issued until March 22, 2011.

It follows either that the Claimant will now not have any funding for 2011-12, or else that if the court orders any monies to be paid in its support by the Defendant, it will be irrecoverable through a precept, i.e. the local taxpayers of Stockport would have to fund it, rather than the local taxpayers of the parish. This is directly attributable to the failure to issue and seek relief timeously.”

the Order. The claim form thus was filed 6 weeks after the date of that letter and 5 weeks after the date of the Order. The question for me is whether there was undue delay after 8 February, such that permission should not be granted or no remedy ordered.

That if the Order is quashed, the amount of the precept may only be recovered lawfully from the general body of council tax payers, and not from taxpayers of the Parish, as should properly have been the case.

It behove the Claimant, as part of its duty to act promptly, to obtain interim relief preventing the Order being made prior to the setting of council tax by the Defendant on 24 February 2011.

I have held that the resolution to abolish the Claimant and Order made ancillary thereto were made on an unlawful basis. Thus, if the Order is not quashed the electors of Offerton Park parish will have been denied continued representation by their parish council and will have had a tier of local democracy removed from them unlawfully. I agree with the submission of the Claimant that the Court should be slow to refuse a remedy in those circumstances.

To my mind the Defendant’s difficulties are, again as submitted by the

In its letter of 8 February 2011 the Defendant made it perfectly plain that it was not prepared to delay implementation of the resolution, notwithstanding the threatened proceedings, and that the Order would be made on 15 February with no precept being set for 2011-12.

The pre-action protocol letter was sent just over 3 weeks later, which period in my view was reasonable. The Defendant replied 2 ½ weeks later, and proceedings were issued immediately thereafter.

In my view it does not reasonably fall to the Defendant to criticise the Claimant for failing to take action earlier to restrain it from its unlawful act, given that it had determined, notwithstanding the threat

In any event, the extent of the financial prejudice has been overstated by the Defendant. If the Claimant is abolished, the Defendant will have to assume responsibility for the balance of an outstanding loan amounting to £9,251.54, and in addition there may be staffing costs transferred. Albeit that this is a time of financial stringency, it seems to me that the prejudice to the Claimant if relief is denied in respect of what I have held would be its unlawful abolition, outweighs the prejudice to the Council tax payers generally of Stockport if relief is granted.

In my view, it would be wrong to speculate as to whether the Defendant will proceed to the lawful abolition of the Claimant following the quashing of the order.