A recent challenge to a local authority's decision to abolish a parish and its council succeeded, where it was held to be irrational to base the decision on the views of a small minority of local residents, in circumstances where the vast majority of the electorate had chosen not to express any view at all on the proposals.

Key points

  • The decision to abolish the parish as a result of the consultation process had no rational basis, as it was clear that the majority of electors did not feel sufficiently strongly to respond and the local authority was not entitled to discount the views of those who did not respond.
  • The local authority was bound to take account of material considerations. One such consideration was the fact that whilst a clear majority of those who had responded to the consultation were in favour of the abolition of the parish, the large majority of the electors had not expressed a view either way. The local authority's failure to have proper regard to this material consideration was unlawful.

Community governance reviews

Community governance reviews are undertaken pursuant to statutory provisions contained in the Local Government and Public Involvement in Health Act 2007 (the Act). The Act provides that where an existing parish is under review, the principal council (here, the defendant) must consult the local government electors for the area under review.

Statutory guidance has been issued by the Secretary of State as to how the review process should be undertaken. The guidance is supportive of parish councils and emphasises the importance of 'allowing local people a say in the way their neighbourhoods are managed.' This is consistent with the Government's policy on localism. It states that the abolition of a parish council should not be undertaken unless clearly justified. It also provides that in order to justify the abolition of a parish council, the principal council "would need to find evidence that there was clear and local support for such action."

The Parish of Offerton Park

The parish is a housing estate with approximately 3700 residents, of whom approximately 2500 are local government electors.

In March and April 2010, the defendant received two petitions stating that the residents of the parish did not believe that it was acting in the interests or for the benefit of the wider community and petitioned for the parish to be dissolved or abolished as soon as possible. In response to those petitions, the defendant was requested to conduct a community governance review under the Act.

The Consultation

A two-stage consultation was conducted. In the first stage, the defendant asked for a "yes" or "no" response to three options – (i) keeping the parish in its current form; (ii) altering its geographical area; and (iii) abolishing it. Approximately 8% of the electorate voted in favour of the proposal to abolish the parish, while approximately 2% were against.

In light of the low response rate, a second phase of consultation was carried out. Letters were sent to all residents and the defendant took additional steps to publicise the consultation process by arranging two public forums, door knocking across the parish, street surveys, and allowing anonymous response forms. On this occasion approximately 25% of the electorate submitted responses, with 17% in support of the proposal and just under 7% against. In other words, around 75% of the electorate had failed to respond at all.

The Community Governance Review Committee considered the results of the consultation and concluded that it had given a "clear message" that the residents did not consider that the parish was working well for their area. It also found that the results of the consultation had "made it clear that the majority of parish residents were in favour of abolition." The defendant resolved to approve the Committee's recommendation to abolish the parish and its council.

The claimant challenged that decision on the basis of inadequate consultation and irrationality by virtue of the defendant's failure to take account of material considerations.

Irrationality

The claimant contended that the defendant's decision to abolish it was irrational as the only safe inference to be drawn from the consultation exercise was that a large majority of residents, namely 75%, had no preference either way as to whether the parish should be abolished or retained and that the defendant had wrongfully failed to have regard to that material matter.

The court agreed. It held that the defendant was neither entitled nor bound to discount the views of those who did not respond. There was no rational basis for treating the views of the majority of respondents as reflecting the views of the majority of the electorate.

The court could not be satisfied that the same decision would have been reached had a correct view been taken of the results of the consultation, and accordingly the decision must be quashed.

Inadequate consultation

The claimant had also alleged that the consultation process itself was inadequate, principally due to the defendant's failure to make a clear distinction between the parish and the parish council, and to provide a sufficient explanation of the other types of community governance so as to make clear that no other option would provide the level of democratic accountability offered by a parish council. These arguments were rejected by the court.

Comment

This may appear to be a surprising decision but it demonstrates the need for decision-makers to pay close attention to the rules governing their decision-making processes. In this case, it was clear that the abolition of the parish could only be justified by clear local support. Whilst the defendant may have had good reason to think that the low response rate from the electorate overall reflected general support for the proposals, it could not make its decision based on this unsupported assumption. It was also unhelpful that the minutes of the relevant meeting showed that the defendant had not made a distinction between the views of the respondents and the views of the electorate – this highlights the importance of the careful drafting of decisions, albeit that it may be unlikely to have made a difference to the outcome in this case.

R (Offerton Park Parish Council) v Stockport Metropolitan Borough Council Administrative Court Manchester, 24 August 2011