Parish councils win High Court challenge over abolition after borough misinterpreted guidance

Slough Borough Council misinterpreted government guidance and so an order providing for the abolition of two parish councils in its area must be quashed, a High Court judge has ruled.

In Britwell Parish Council, R (on the application of) v Slough Borough Council [2019] EWHC 998 (Admin) Britwell Parish Council and Wexham Court Parish Council sought to challenge the Slough Borough Council (Reorganisation of Community Governance) Order 2019 ("the Order").

The claimants argued that Slough, which made the Order, failed to have regard to relevant guidance requiring that there must, amongst other things, be clear and sustained local support for abolition of a parish council.

The claimants contended 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 contended that there was not clear and sustained local support for the abolition of the parish councils as required by the Guidance on Community Governance Reviews issued by the Secretary of State for Communities and Local Government.

They also argued that Slough failed to have regard to the claimants' role as representative democratically elected bodies and that the decision was irrational. The two claims were heard together.

Ruling in favour of the parishes Mr Justice Lewis said Slough had misinterpreted paragraph 120 of the Guidance and, as a result, erred in concluding that its decision to make the Order was consistent with the Guidance.

Paragraph 120 reads:

120 Exceptionally, there may be circumstances where abolition may be the most appropriate way forward. Under the 2007 Act provisions, the principal council would need to consider local opinion, including that of parish councillors and local electors. It would need to find evidence that the abolition of a parish council was justified, and that there was clear and sustained local support for such action. A factor taken into account by the Government in deciding abolition cases, was that local support for abolition needed to have been demonstrated over at least a period equivalent to two terms of office of the parish councillors (i.e. eight years), and that such support was sufficiently informed. This means a properly constituted parish council should have had an opportunity to exercise its functions so that local people can judge its ability to contribute to local quality of life.

In relation to Wexham Court, a poll carried out in 2013 showed (on a turnout of 27%) that 45% of those voting favoured abolition and 55% favoured retention of the parish council. On a 2018 review again all (of the small number) of representations favoured retention as did the representations from the parish council and the Berkshire Association of Local Councils. The poll (on a turnout of 26%) showed 44% supported abolition and 56% favoured retention.

Mr Justice Lewis said: “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.

“As no distinction was sought to be made between the abolition of the parish of Wexham Court and the parish council, the Order as a whole is invalid so far as Wexham Court is concerned.”

Mr Justice Lewis said Slough was correct to say that it could depart from the Guidance if it had clear reasons to do so. However, the judge added that, 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.”

The judge said the evidence in relation to Britwell Parish Council was more mixed. The 2013 poll returned a majority in favour of abolition (albeit that the boundaries of the parish were different then). There were representations in favour (including 190 standard term letters) and it would have been for Slough to assess from all that information whether there was clear and sustained local support for abolition.

However, the defendant did not abolish the parish council in 2013 but decided to test public opinion in four years' time. In 2018, of the 16 written representations received nine were in favour of abolition and seven were in favour of retention of the parish council. The parish council and BALC favoured retention. A poll showed that, on a turn out of 30%, 48% favoured abolishing and 52% favoured retaining the parish council.

Mr Justice Lewis said: “It is clear from the report that, at most, the authors considered that the poll showed that support for abolition and retention and retention was more or less equal, and that the turnout, and low level of written representations, indicated an overall general lack of interest in the future of the parish.

“The report said that ‘the poll results did not demonstrate overwhelming support for the parish council – there was still significant continuing support from the electorate for its abolition’. Contrary to the submissions of Mr Green for the claimants, I do not read this as indicating that the defendant substituted a different test from that set out in the Guidance, namely that the defendant were applying a test of whether there was overwhelming support for retention. Rather, it was saying that there was still significant and continuing support for abolition.”

The judge added: “Read fairly, that seems to be saying that a significant level of support for abolition (even if perhaps less than majority, or overall, support) was sufficient (particularly in the light of what the authors assessed as a general lack of interest in the future of the parish). That still indicates, however, that what the defendant was asking was whether there was a significant, or sizable, number of people who supported abolition.

“As indicated above, however, in my judgment, paragraph 120 of the Guidance is not seeking to establish whether a minimum threshold of support for abolition can be established. The Guidance is seeking to establish whether, over a sustained period, local opinion broadly supports the abolition of the parish council. The defendant did need to address that issue in order to determine whether the Guidance was satisfied. It did not do so and its decision to make the Order was also flawed in relation to Britwell parish council.”

The judge said that Slough would be able to reconsider the matter to determine whether, on the material before it, it could really be said that the information demonstrated clear and sustained local support or, if not whether, there were good reasons for departing from the Guidance.

Mr Justice Lewis said: “In those circumstances, as the decision to make the Order was materially influenced by that legal error, the Order must be quashed. For that reason, these two claims for judicial review succeed,” the judge said.

On the other grounds of challenge, the judge said there was no basis for concluding that Slough had failed to have regard to the claimants' role as democratically elected representative bodies.

In relation to the contention that the decision to abolish the parishes and dissolve the parish councils was irrational, he said it was “neither necessary, nor sensible, to express a view on that matter”.

A spokesperson for Slough said: "We note the judgement of the court and we will be considering it in full. In the meanwhile preparations for the parish council elections on 2 May will continue."