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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> McCann, R (On the Application Of) v Bridgend County Borough Council [2014] EWHC 4335 (Admin) (19 December 2014) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2014/4335.html Cite as: [2014] EWHC 4335 (Admin) |
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![]() |
QUEEN'S BENCH DIVISION ADMINISTRATIVE
COURT
2 Park Street Cardiff, CF10 1ET |
||
![]() |
B e f o r
e :
sitting as a Judge of the High Court
____________________
THE QUEEN on the application of CERI ![]() | Claimant |
|
- and - |
||
![]() ![]() ![]() ![]() ![]() ![]() ![]() | Defendant |
____________________
Wayne Beglan (instructed by Legal & Regulatory
Services,
Bridgend
County
Borough
Council)
for the Defendant
Hearing dates: 8 and 9 December 2014
____________________
VERSION
OF JUDGMENT
Crown Copyright ©
H.H. Judge Keyser Q.C.:
Introduction
The statutory framework
"(1) A proposer must publish proposals made under this Chapter in accordance with the Code.
(2) Before publishing proposals made under this Chapter, a proposer must consult on its proposals in accordance with the Code.
(5) The proposer must publish areport
on the consultation it has carried out in accordance with the Code."
Section 49 provides in part:
"(1) Any person may object to proposals published under section 48.
(2) Objections must be sent in writing to the proposer before the end of 28 days beginning with the day on which the proposals were published ('the objection period').
(3) The proposer must publish a summary of all objections made in accordance with subsection (2) (and not withdrawn) and itsresponse
to those objections—
(a) in the case of a local authority that isrequired
to determine its own proposals under section 53, before the end of 7 days beginning with the day of its determination under section 53(1) …"
The defendant as local authority was indeed in the position of being required
to determine its own proposals. Section 53(1) provides: "Where any proposals published under section 48 do not
require
approval under section 50 [i.e. by Welsh Ministers] or 51 [i.e. by the local authority, where it is not itself the proposer], the proposer must determine whether the proposals should be implemented."
"(1) The Welsh Ministers must issue, and may from time to timerevise,
a code on school organisation ('the Code').
(2) The Code is to contain provision about the exercise of the functions of the following persons under this Part—
…
(b) local authorities;
…
(3) The Code may imposerequirements,
and may include guidelines setting out aims, objectives and other matters.
(4) The personsreferred
to in subsection (2) must, when exercising functions under this Part—
(a) act in accordance with anyrelevant
![]()
requirements
contained in the Code, and
(b) haveregard
to any
relevant
guidelines contained in it."
"The Code contains the following elements:
1. It imposesrequirements
in accordance with which
relevant
bodies … must act. Failure by a
relevant
body to comply with the
requirements
set out in this Code may
result
in a complaint to the Welsh Ministers or to the Public Services Ombudsman for Wales. Where mandatory
requirements
are imposed by the Code or by the 2013 Act or another statute or statutory instrument, it is stated that the
relevant
bodies must comply with the particular provision. Where practices are prohibited, it is stated that the
relevant
bodies must not use this practice.
2. It includes statutory guidance to whichrelevant
bodies must have
regard
... Where guidance is given by the Code, it is stated that
relevant
bodies should follow this guidance unless they can demonstrate that they are justified in not doing so."
The emphasis is in the original. Accordingly the distinction in section 38(4) of the Act between requirements
and guidelines is
reflected
by the use in the Code of "must" (or "must not") and "should"; but it should be noted that the statute and the Code
require
that local authorities "must" have
regard
to guidelines that are not themselves mandatory.
"1.2 Factors to be taken into account in preparing, publishing, approving or determining school organisation proposals
The following paragraphs set out the factors which should be taken into account byrelevant
bodies when exercising their functions of preparing and publishing school organisation proposals, or approving/determining them. Paragraphs 1.3 to 1.6 are applicable in the case of all proposals."
"1.3 Quality and standards in education
Relevant
bodies should place the interests of learners above all others. With
reference
to the key questions of the Office of Her Majesty's Chief Inspector of Education and Training in Wales (Estyn), they should give paramount importance to the likely impact of the proposals on the quality of:
- outcomes (standards and wellbeing);
- provision (learning experiences, teaching, care support and guidance, and learning environment); and
- leadership and management (leadership, improving quality, partnership working and
resource
management)
at the school or schools which are the subject of the proposals and at any other school or educational institution which is likely to be affected. …
Where proposals involve the transfer of learners to alternative provision there should normally be evidence that the alternative would deliver outcomes and offer provision at least equivalent to that which is currently available to those learners (including learners with SEN). Proposers should ensure that the disruption to learners is minimised.
In assessing the impact of proposals on quality and standards in education and how effectively the curriculum is being delivered,relevant
bodies should consider any
relevant
advice from Estyn,
refer
to the most
recent
Estyn
reports
or other evidence derived from performance monitoring, and take into consideration any other generally available information available on a school's effectiveness."
"1.7 Specific factors in the consideration of school closures
There is no presumption in favour or against the closure of any type of school. The prime purpose of schools is the provision of education and any case for closure should berobust
and in the best interests of educational provision in the area. Nevertheless, in some areas, a school may also be the main focal point for community activity, and its closure could have implications beyond the issue of the provision of education. This may be a particular feature in
rural
areas if school buildings are used as a place to provide services to the local community.
The case prepared by those bringing forward proposals should show that the impact of closure on the community has been assessed through the production of a Community Impact Assessment, and how any community facilities currently provided by the school could be maintained.
When considering whether a closure is appropriate, special attention should be given to the following:
- whether the establishment of multi-site schools might be considered as a means of
retaining
buildings, or the
reasons
for not pursuing this option;
- whether alternatives to closure, such as clustering, collaboration or federation with other schools, might be considered (taking account of the scope for use of ICT links between school sites) or the
reasons
for not pursuing these as an alternative;
- whether the possibilities of making fuller use of the existing buildings as a community or an educational
resource
could be explored;
(Local authorities should consider whether it would be feasible and economical to co-locate local services within the school to offset the costs of maintaining the school);
- the overall effect of a closure on the local community (including the loss of school based facilities which are used by the local community), particularly in
rural
areas or those
receiving
funding as part of
regeneration
activity; and
- how parents' and pupils' engagement with the alternative school and any facilities it may offer could be supported (e.g. how pupils; particularly any less advantaged pupils) will be helped to participate in after school activities). …"
"1.14 Factors to be taken into account in approving/determining school organisation proposals
When approving or determining proposals,relevant
bodies:
- must consider whether there are any other
related
proposals;
- must ensure that the statutory consultation has been conducted in accordance with this Code …;
- must ensure that the proposal has been published in accordance with this Code and the notice contains all the
required
information;
- must consider the consultation document and consultation
report;
![]()
- must consider the objections and the objection
report
and any
responses
to the notice supporting the proposals; …"
"3.1 Principles
…
Case law has established that the consultation process should:
- be undertaken when proposals are still at a formative stage;
- include sufficient
reasons
and information for particular proposals to enable intelligent consideration and
response;
![]()
- provide adequate time for consideration and
response;
and
- ensure that the product of consultation is conscientiously taken into account when the ultimate decision is taken.
The process and guidance which follow have been developed with dueregard
to the principles listed above. Those considering bringing forward proposals will need to be fully aware of this process and guidance. However, proposers must be mindful of the four underlying principles and take any necessary additional steps to ensure that those principles are fully upheld.
From time to time proposers will have conducted 'informal' consultation with particular stakeholders at an earlier stage in the development of proposals. Such consultation must not be seen as a substitute for any part of the formal consultation processes set out below."
"3.2 Consultation document
Those bringing forward statutory proposals must publish a consultation document in hard copy and electronically on their website or that of therelevant
local authority. Hard copies must be available on
request.
Consideration should be given to publishing in other formats where accessibility might otherwise be an issue.
The following mustreceive
either a hard copy of the consultation document or be emailed a link to the
relevant
website …:
- Assembly Members (AMs) and Members of Parliament (MPs)
representing
the area served by/intended to be served by any school which is the subject of the proposals; …
In the case of all proposals, the consultation document must
contain the following information:
Description and Benefits
- a detailed description of the status quo setting out its strengths and weaknesses and the
reasons
why change is considered necessary;
- a detailed description of the proposal or proposals …;
- the expected benefits of the proposals and disadvantages when compared with the status quo;
- a description of any alternatives considered and the
reasons
why these have been discounted;
…
Where proposals involve the closure of a school the following information must be included in the consultation document:
- details of any alternatives to closure that have been considered and the
reasons
why these have not been taken forward;
- the impact of proposals on the local community …" "3.5 Consultation
reports
![]()
Within 13 weeks of the end of the period allowed forresponses
(and in any event prior to publication of the proposals), the proposer must publish a consultation
report:
- summarising each of the issues
raised
by consultees;
responding
to these by means of clarification, amendment to the proposal or
rejection
of the concerns, with supporting
reasons;
and
- setting out Estyn's
view
(as provided in its consultation
response)
of the overall merits of the proposal.
…
The following must be advised of the availability of the consultationreport:
- Pupils, parents (and where possible prospective parents) carers and guardians, and staff members of schools which are subject to the proposals …
The following mustreceive
either a hard copy of the consultation
report
or be emailed a link to the
relevant
website:
…
- Assembly Members (AMs) and Members of Parliament (MPs)
representing
the area served by/intended to be served by any school which is the subject of the proposals …"
"Once the proposer decides to proceed with a proposal they must publish the proposal by way of statutory notice. …
Furthermore, on the day that they are published, the following mustreceive
either a hard copy of the proposals or be emailed a link to the
relevant
website:
…
- Assembly Members (AMs) and Members of Parliament (MPs)
representing
the area served by/intended to be served by any school which is the subject of the proposals; …"
"5.1 Objectionreports
Under section 49 of the 2013 Act proposers must publish a summary of the statutory objections and the proposer'sresponse
to those objections ('the Objection
Report').
…
The following must be advised of the availability of the ObjectionReport:
- Parents (and where possible prospective parents) careers and guardians, and staff members of schools which are the subject of the proposals; …
The following mustreceive
either a hard copy of the objection
report
or be emailed a link to the
relevant
website:
- Assembly Members (AMs) and Members of Parliament (MPs)
representing
the area served by/intended to be served by any school which is the subject of the proposals; …"
"5.4 Determination by proposers
…
Where a local authority's proposals havereceived
objections, and
require
determination under section 53 of the 2013 Act, the local authority must not approach the determination of these proposals with a closed mind. Objections must be conscientiously considered alongside the arguments in
respect
of the proposals and in the light of the factors set out in section 1.3 – 1.14 of this Code. In these cases the objection
report
must be published at the same time as the decision is issued
rather
than within 28 days beginning with the end of the objection period."
"The Welsh Government takes theview
that the
requirement
for assessments should not be overly burdensome and does not consider that it is necessary to commission such work from external consultants. Local authorities are already under a duty to carry out equality impact assessments which could provide the basis for the impact assessments specified in this guidance.
Community Impact
Impact assessments should ideally be included in consultation documents."
Some general law
Guidelines
"It is in myview
plain that the Code does not have the binding effect which a statutory provision or a statutory instrument would have. It is what it purports to be, guidance and not instruction. But the matters
relied
on by Mr Munjaz show that the guidance should be given great weight. It is not instruction, but it is much more than mere advice which an addressee is free to follow or not as it chooses. It is guidance which any hospital should consider with great care, and from which it should depart only if it has cogent
reasons
for doing so. Where, which is not this case, the guidance addresses a matter covered by section 118(2), any departure would call for even stronger
reasons.
In
reviewing
any challenge to a departure from the Code, the court should scrutinise the
reasons
given by the hospital for departure with the intensity which the importance and sensitivity of the subject matter
requires."
At [69] Lord Hope of Craighead agreed that those to whom the Code of Practice was addressed "must give cogent reasons
if in any
respect
they decide not to follow it." He continued:
"Thesereasons
must be spelled out clearly, logically and convincingly. I would emphatically
reject
any suggestion that they have a discretion to depart from the Code as they see fit."
"Although the guidance is provided for by statute and housing authorities are obliged by s.182 of the 1996 Act to haveregard
to it, it is not a source of law. However Mr Luba cited in his skeleton (paragraph 22) the decision of Dyson J as he then was in
R
![]()
v
North Derbyshire Health Authority ex p. Fisher (1997) 10
Admin
LR 27 to support the proposition that an authority is not entitled to depart from guidance given in a circular issued by central government, to which it is obliged by statute to have
regard,
merely because it disagrees with it. But this case, I think, goes no further than to underline what is conventional law, namely that
respondents
to such a circular must (a) take it into account and (b) if they decide to depart from it, give clear
reasons
for doing so. If the decision is thought to support a proposition which would bind public bodies more tightly to a duty of obedience to guidance to which by statute they are obliged (no more, no less) to have
regard,
then I would
respectfully
question its correctness."
Consultation
"Fairness is a protean concept, not susceptible of much generalised enlargement. But itsrequirements
in this context must be linked to the purposes of consultation. … First, the
requirement
'is liable to
result
in better decisions, by ensuring that the decision-maker
receives
all
relevant
information and that it is properly tested' …. Second, it avoids 'the sense of injustice which the person who is the subject of the decision will otherwise feel' …. Such are two
valuable
practical consequences of fair consultation. But underlying it is also a third purpose,
reflective
of the democratic principle at the heart of our society. This third purpose is particularly
relevant
in a case like the present, in which the question was not 'Yes or no, should we close this particular care home, this particular school etc?' It was '
Required,
as we are, to make a taxation-
related
scheme for application to all the inhabitants of our
Borough,
should we make one in the terms which we here propose?'"
Lord Wilson's judgment also contains, at [25], endorsement at the highest level of the basic requirements
of a proper and meaningful consultation, as set out by Hodgson J in
R
v
Brent London
Borough
Council,
ex p. Gunning (1985) 84 LGR 168 at 169:
"First, that consultation must be at a time when proposals are still at a formative stage. Second, that the proposer must give sufficientreasons
for any proposal to permit of intelligent consideration and
response.
Third … that adequate time must be given for consideration and
response
and, finally, fourth, that the product of consultation must be conscientiously taken into account in finalising any statutory proposals."
"27. Sometimes, particularly when statute does not limit the subject of therequisite
consultation to the preferred option, fairness will
require
that interested persons be consulted not only upon the preferred option but also upon arguable yet discarded alternative options. …
28. But, even when the subject of therequisite
consultation is limited to the preferred option, fairness may nevertheless
require
passing
reference
to be made to arguable yet discarded alternative options. …"
"36. This case is not concerned with a situation of that kind. It is concerned with a statutory duty of consultation. Such dutiesvary
greatly depending on the particular provision in question, the particular context, and the purpose for which the consultation is to be carried out. The duty may, for example, arise before or after a proposal has been decided upon; it may be obligatory or may be at the discretion of the public authority; it may be
restricted
to particular consultees or may involve the general public; the identity of the consultees may be prescribed or may be left to the discretion of the public authority; the consultation may take the form of seeking
views
in writing, or holding public meetings; and so on and so forth. The content of a duty to consult can therefore
vary
greatly from one statutory context to another: "the nature and the object of consultation must be
related
to the circumstances which call for it" (Port Louis Corporation
v
Attorney-General of Mauritius [1965] AC 1111, 1124). A mechanistic approach to the
requirements
of consultation should therefore be avoided."
At [37] and [38] Lord Reed
noted that the consultation in that case
related
to the local authority's discharge of an important function in
relation
to local government finance, which affected its
residents
generally, and concluded that the purpose of the particular statutory duty was "to ensure public participation in the local authority's decision-making process". In that context, he considered the scope of the options that should be put before the public:
"39. In order for the consultation to achieve that objective, it must fulfil certain minimumrequirements.
Meaningful public participation in this particular decision-making process, in a context with which the general public cannot be expected to be familiar,
requires
that the consultees should be provided not only with information about the draft scheme, but also with an outline of the
realistic
alternatives, and an indication of the main
reasons
for the authority's adoption of the draft scheme. That follows, in this context, from the general obligation to let consultees know "what the proposal is and exactly why it is under positive consideration, telling them enough (which may be a good deal) to enable them to make an intelligent
response":
![]()
R
![]()
v
North and East Devon Health Authority, Ex p Coughlan [2001] QB 213, para 112, per Lord Woolf MR.
40. That is not to say that a duty to consult invariablyrequires
the provision of information about options which have been
rejected.
The matter may be made clear, one way or the other, by the terms of the
relevant
statutory provisions … To the extent that the issue is left open by the
relevant
statutory provisions, the question will generally be whether, in the particular context, the provision of such information is necessary in order for the consultees to express meaningful
views
on the proposal. The case of
Vale
of Glamorgan
Council
![]()
v
Lord Chancellor and Secretary of State for Justice [2011]
EWHC
1532 (
Admin)
is an example of a case where such information was not considered necessary, having
regard
to the nature and purpose of that particular consultation exercise, which concerned the proposed closure of a specific court. In the present case, on the other hand, it is difficult to see how ordinary members of the public could express an intelligent
view
on the proposed scheme, so as to participate in a meaningful way in the decision- making process, unless they had an idea of how the loss of income by the local authority might otherwise be
replaced
or absorbed.
41. Nor does arequirement
to provide information about other options mean that there must be a detailed discussion of the alternatives or of the
reasons
for their
rejection.
The consultation
required
in the present context is in
respect
of the draft scheme, not the
rejected
alternatives; and it is important, not least in the context of a public consultation exercise, that the consultation documents should be clear and understandable, and therefore should not be unduly complex or lengthy. Nevertheless, enough must be said about
realistic
alternatives, and the
reasons
for the local authority's preferred choice, to enable the consultees to make an intelligent
response
in
respect
of the scheme on which their
views
are sought."
1) It follows from what I have already said that, in myview,
the primary purpose of the statutory procedure set out in the 2013 Act and in the Code is the purpose identified by Lord
Reed
in the case before him, namely "to ensure public participation in the local authority's decision- making process". However, I would not for that
reason
discount the importance of the two other,
related
purposes mentioned by Lord Wilson, namely the achievement of better decisions and an avoidance of a sense of injustice on the part of those who are likely to be significantly affected by the ultimate decision.
2) The four principles approved by Lord Wilson at [25] are those identified at section 3.1 of the Code.
3) In the present case, the extent of the obligation to identify alternatives to the proposal is to be judged, in the first place, byreference
to the express provisions in that
regard
in the Code. It is not primarily a matter of assessment by
reference
to principles of fairness or the inferred purpose of the statutory procedure, although such matters may be
relevant
to the interpretation of the Code. I shall discuss these matters further when considering the grounds on which the present claim is brought.
"Probability is not enough. The defendant would have to show that the decision would inevitably have been the same and the court must not unconsciously stray from its proper province ofreviewing
the propriety of the decision-making process into the forbidden territory of evaluating the substantial merits of the decision."
Provision of information
"100B Access to agenda and connectedreports
(1) Copies of the agenda for a meeting of a principalcouncil
and … copies of any
report
for the meeting shall be open to inspection by members of the public at the offices of the
council
in accordance with subsection (3) below.
(3) Any document which isrequired
by subsection (1) above to be open to inspection shall be so open at least three clear days before the meeting …"
"100D Inspection of background papers
(1) … if and so long as copies of the whole or part of areport
for a meeting of a principal
council
are
required
by section 100B(1) … above to be open to inspection by members of the public—
(a) those copies shall each include a copy of a list, compiled by the proper officer, of the background papers for thereport
or the part of the
report,
and
(b) at least one copy of each of the documents included in that list shall also be open to inspection at the offices of thecouncil.
(3) Where a copy of any of the background papers for areport
is
required
by subsection (1) above to be open to inspection by members of the public, the copy shall be taken for the purposes of this Part to be so open if arrangements exist for its production to
members of the public as soon as isreasonably
practicable after the making of a
request
to inspect the copy.
(5) For the purposes of this section the background papers for areport
are those documents
relating
to the subject matter of the
report
which—
(a) disclose any facts or matters on which, in the opinion of the proper officer, thereport
or an important part of the
report
is based, and
(b) have, in his opinion, beenrelied
on to a material extent in preparing the
report,
but do not include any published works."
"Right
to know provisions
relevant
to the taking of a decision such as those in the 1972 Act and the
Council's
Statement of Community Involvement
require
timely publication. Information must be published by the public authority in good time for members of the public to be able to digest it and make intelligent
representations:
cf.
R
![]()
v
North and East Devon Health Authority Ex p. Coughlan [2001] QB 213, [108];
R
(on the application of Moseley) (in substitution of Stirling Deceased)
v
Haringey LBC [
2014]
UKSC 56, [25]. The
very
purpose of a legal obligation conferring a
right
to know is to put members of the public in a position where they can make sensible contributions to democratic decision-making. In practice whether the publication of the information is timely will turn on factors such as its character (easily digested/technical), the audience (sophisticated/ ordinary members of the public) and its bearing on the decision (tangential/ central)."
It is clear from these remarks
that the mere fact of a failure to disclose information strictly in accordance with the duties under sections 100B and 100D will not by itself necessarily
require
the quashing of any decision made at a
relevant
meeting. It is necessary to consider the significance of the failure, having
regard
to the purpose of the duty, namely "to put members of the public in a position where they can make sensible contributions to democratic decision-making". However, the importance of that purpose is all the more apparent when the decision was itself part of a statutory process that had the design mentioned in paragraph 16 above. Further, when considering whether that purpose has been frustrated one must apply the "inevitability" test in Smith, not some lesser test.
The background facts
"Schools with a good learning environment, including high standards of buildings, make a positive impact on learning."
Under the same heading, there were listed a number of goals or "outcomes", including this:
"All school buildings to be fit for purpose on the basis of target dates agreed with individual local authorities."
"In this type of organisation, two or more schools may be closed andreplaced
by a single larger school. This may be located on a new site, or on one of the old sites with
refurbished
buildings. Such developments
require
statutory
reorganisation
proposals."
The report
said that inspection evidence indicated that, overall, pupils in small schools achieved similar standards to pupils in other schools, with
variations
for different areas of learning, although some issues were identified in
respect
of quality of education and of leadership. Two of the
recommendations
of the
report
focused on the need to assess whether small schools were providing
value
for money. Appendix A to the
report
identified advantages and disadvantages of the
various
models of organisation. Several advantages of federated schools were identified; among the disadvantages were: "Deficiencies in the buildings
remain—no
additional investment is possible because there has been little saving." Area schools were said to have all of the benefits of federated schools; three disadvantages were mentioned, among them: "There may be opposition to the formation of the Area school from parents and the local communities." Paragraph 60 of the
report
said that, when area schools had
replaced
small
rural
schools, they had generally been successful in terms of facilities, organisation and the quality of educational provision.
"It has already beenrecognised
by the
Council
that there is an urgent need to continue to modernise our school buildings and to take some important decisions about their future and the
role
they play in our local communities. To enable this to happen, there is a need to secure the necessary funding to ensure school buildings and grounds are safe, in good condition and fit for purpose in the 21st century.
A failure to address the serious need to modernise our school buildings,remove
surplus places and improve the general level of funding of our schools has been identified as one of the five major areas of
risk
facing the
Council."
The report
proposed a three-phase modernisation programme. For present purposes, Phase 3 is the significant phase because it concerned Llangeinor and the School:
"A full and detailedreview
of the
remaining
schools and catchment areas in the
county
![]()
borough,
that have not been party to
recent
modernisation … will be
required
to complete the modernisation programme. An assessment will be carried out to establish priorities based on greatest need. This will include options for:
- addressing the
requirements
of schools where the current site and/or buildings have significant shortcomings …"
The outline timescale for Phase 3 involved determination of priorities in 2008, a detailed review
and consultation in 2009/2010, and an implementation period of 2012-20. Cabinet approved the three-phase modernisation programme.
"An initial optionsreview
has been completed on 3 – 11 provision in the Garw
Valley
with a
view
to providing all-through schools in the
valley
that are suitable for the delivery of 21st century learning. It is
recommended
that the southern part of the Garw
Valley
and Welsh medium provision be included in the authority's 21st Century School Strategic Outline Programme submission as band A projects and the northern part as Band B projects."
In December 2011 the Welsh Assembly Government gave approval in principle for 50% match-funding for the Band A projects, subject to approval of business cases, with a projected timing for the programme of 2014/2015.
"The GarwValley
was in 2006, and still is in
2014,
considered to be a priority project and a number of issues were noted in 2006 that still exist today, namely overall conditions of the schools were considered poor with major defects and a large estimated spend was and still is
required
to address suitability and 'fit for purpose' considerations. Schools in the Garw
Valley
were considered to be priority status due to their age, condition, lack of DDA compliance, access to outdoor space and community use of the buildings, and the urgent need to move forward with school modernisation proposals for the Garw
valley
was driven by the Strategy, Principles, Policy and Planning Framework, identifying these as urgent, priority projects."
1) A Building Condition Assessment carried out in 2007 identified outstanding maintenance issues with an estimated total cost of£390,635. Of those costs, £4,275related
to Priority 1 matters ("urgent to prevent immediate closure"); £242,700
related
to Priority 2 matters ("essential, i.e. within 2 years"); and £116,160
related
to Priority 3 matters ("desirable, i.e. within 3 to 5 years"). Ms McMillan states: "Further condition surveys in subsequent years place the current backlog at the
value
of £393,000 despite the
council
spending in the
region
of £71,801 on urgent
repairs
to the school."
2) A FireRisk
Assessment in 2011 noted that
risk
![]()
reduction
measures were considered essential. Ms McMillan states that a fire safety check the following year put the cost of
risk
![]()
reduction
measures at £10,834.
3) A disability access audit was carried out bycouncil
officers in 2012. It gave the School the lowest grading, Grade D, indicating that it was totally inaccessible to disabled pupils and
visitors
and could not be
rendered
compliant with the
requirements
of the Disability Discrimination Act 1996 without major expenditure, which was assessed at £54,500.
4) The evidence of Ms McMillan is that the School currently has 69 pupils as against a capacity of 73 pupils; thisrepresents
a "surplus capacity" of 5.48%. She states: "Whilst on its own this is not a significant issue, there was nevertheless a target to
reduce
surplus places across the
county
![]()
borough.
Surplus places in a school are in effect a tax on the other pupils within the education system and is (sic) not
value
for money. … [T]he Government's expectation was to
reduce
excess capacity, and address the issue of small schools, to produce educational benefits and efficiency savings." I note that the consultation document eventually published by the defendant focused on the lack of capacity of the existing site to meet the anticipated demand for places by 2021.
To put the matter very
shortly: the defendant's
view
is that the School's premises are beyond economic
repair
and that the continued independent existence of the school does not
represent
value
for money and does not provide for its students a learning environment that is suitable for educational
requirements
in the present century.
"Havingregard
to the available sites for the location of a new build primary school, a number of school sites were immediately discounted as being unsuitable due to the size of the site or significant access issues. These sites were [all of the existing schools, except for Betws Primary School]."
The report
then identified two "potentially suitable sites available for development of a new build primary school"; these were the Betws Primary School site and a site in Blaengarw,
referred
to as "the David Street site". Eight different options, involving the alternative sites and different combinations of the schools, were considered in the
report.
Option 8 was a new-build school at the Betws Primary School site, to incorporate not only Betws Primary School but the School and YGG Cwm Garw, which is a Welsh-medium school. This is the option that eventually became the defendant's proposal, giving
rise
to these proceedings.
"In July 2011, the Minister for Education and Skills announced that, as aresult
of the current economic environment and
reduction
in capital funding imposed on the Welsh Government, the decision had been taken to give local authorities the opportunity to
review
the timing and content of their planned investments.
Consequently, in October 2011, local authorities were asked toreview
those programmes/project(s) provided in the first band of investment (i.e. Band A) of their SOP against specific criteria and a Welsh Government match-funding
rate
of 50%
rather
than the previous 70%. The key criteria to be used were surplus places, building condition and
resource
efficiencies. With
regards
to the nature of the work, only new build and
remodelling
of existing buildings were to be considered.
Renovation
and
refurbishment
schemes were excluded so as to
reduce
the
risk
of a
return
to a 'patch and mend' type programme.
In addition, it was made clear that funding from Welsh Government for band A schemes will not be available until2014/15
and will
run
for 6 years,
rather
than 3 years from 2011/12 as envisaged at the time of our SOP submission in December 2010.
…
On 5th December 2011 the Minister for Education and Skills announced the programme for capital investment in school buildings across Wales andBridgend
![]()
received
approval in principle for schemes in
relation
to: … Primary provision in Garw
Valley
South …
It is important to note that these schemes are at Outline Stage, which means the detail may be subject to further change as the proposals are further developed, go through the school statutory consultation process (whererequired)
and are assessed through further business case submissions to Welsh Government.
The proposals now need to be worked up in more detail and therequired
business cases developed. This will include wide consultation, as is the practice with school modernisation projects, options appraisals and detailed feasibility studies to develop business case submissions."
"As part of Phase 3 of the programme, a high level 'options appraisal' exercise was undertaken in 2010, whichreviewed
the primary school provision in the Garw
Valley
Local Forum Area and explored options for the
rationalisation
of places.
…
The exercise, having investigated and subsequently discounted a number of unsuitable sites (due to size or significant access issues), identified two potentially suitable sites available for development of a new build primary school: land owned by [the defendant] at David Street, Blaengarw; Betws Primary School site.
The exercise also identified a number of options inrespect
of Primary provision organisation in the Garw
Valley
worthy of further detailed investigation."
Section 2.2 went on to describe the condition of each of the schools under consideration. Betws Primary School was "considered to be poor, graded C, (exhibiting major defects and/or not operating as intended), with an estimated £759k spend identified" and to have "reached
the end of its financial economic lifespan". Tyn yr Heol Primary School was also graded C, with "an estimated spend [of] £391k". Both schools were graded B for suitability. Section 2.3 considered the existing uses of the current school sites. The comment in
respect
of the School was:
"The school site is accessed out of hours only on an occasional basis, by Teachers/Parents/Friends of the school. The school provides a number of 'Out of School Hours' clubs for it's (sic) pupils such as Computer Club, Environmental club and Music club."
Section 3 contained a feasibility study in respect
of each of the favoured sites for the new-build schools.
The facts concerning the statutory procedure
"Those [principles] which are particularlyrelevant
in the context of this proposal concern the size of primary schools (to ensure that 'all
Bridgend's
primary schools are large enough to make the full
range
of necessary provision') and
value
for money, efficiency and effectiveness ('narrowing the gap between the most and the least expensive provision currently')."
(This might be thought a loaded way of putting the matter. The two principles identified were those specifically thought to justify the proposal. That does not make them any more "relevant
in the context of" the proposal than, for example, the
value
of "community focused schools"; it is simply that the latter principle did not clearly support the proposal.) Problems
regarding
the suitability, size, condition and accessibility of the School site were then summarised. The passage
relating
specifically to the School said:
"[The School] has a capacity of 74 and the number onroll
in September 2013 is 69 (4-11), which is projected to
rise
to 85 by 2021. The school cannot be expanded on the current site to meet the demand for school places in the area, as the site is not large enough. Also, the school is not suitable for delivery of today's curriculum, has no playing fields, limited outdoor space, and is totally inaccessible to disabled pupils and
visitors.
The condition of the school is graded 'Poor' (exhibiting major defects and/or not operating as intended) with an estimated £390,000 backlog of
repair
and maintenance."
The document said:
"As an alternative to the proposal, theCouncil
could elect to 'do nothing' and not amalgamate the two provisions. However, the advantages detailed in the 'What are the advantages if the proposal goes ahead?' section below would then clearly not be
realised.
Also, the issues with the current accommodation could not be addressed."
The document set out a number of perceived advantages if the proposal were to go ahead. As regards
educational standards and outcomes, it said:
"When Betws Primary School was last inspected in July 2011, standards were judged as good;relative
to other schools, standards in many areas
remain
below the average for the local authority (LA), consortium and Wales. The school predicts that outcomes for pupils will fall this year and the school describes its performance in a number of key areas as adequate. Tynyrheol Primary School was judged to be good overall in its last inspection in November 2010. Standards have improved and compare well with outcomes in similar schools. The
reliability
of performance data across a larger setting would be strengthened overall as a
result
of the new school. The key areas for improvement for both schools are similar as the socio-economic context is the same. Both schools have a similar focus on improving
various
aspects of literacy, numeracy and well-being, including attendance, which should be strengthened in a larger community setting."
As regards
finance, it was noted that the salary of one headteacher would be saved and that other savings might follow. General advantages flowing from the modernisation of the accommodation were noted. Under the heading, "What are the potential disadvantages if the proposal goes ahead?" the document said this:
"Some parents may prefer to have their children educated at the existing school sites forvarious
![]()
reasons.
Children from Llangeinor would need to travel to the Betws site using the transport provided
and this may increase their travel to school time. Children from Llangeinor would also not have the opportunity to walk or cycle to school. Some believe that a small school is better to meet the particular needs of their children and that a larger school will not offer the same level of personal attention. Parents have been used to dealing with two headteachers and this would obviously change if the proposal went ahead. A primary school is oftenviewed
as being at the heart of the local community, especially where there are no other public buildings. The change to the social side of school life in Llangeinor could be seen as being detrimental to the community."
Under the heading, "Impact Assessment: Community" the document said this:
"The school would continue to operate on its current sites until such time as the new premises becomeready
for occupation on the Betws site in September 2016, so no immediate effect on the community is anticipated. Upon occupation of the new build school on the current Betws site in September 2016, the provision of modern and accessible community facilities will enhance provision in Betws. While the
Richard
Price Centre opposite Tynyrheol Primary School provides community facilities, there may be those in Llangeinor who believe that not having a school in the
village
will be a significant loss to the community. The consultation will allow interested parties to state what they see as the likely effects on the
respective
communities."
"A critical factor in our campaign is for the discovery and publication of the facts. The consultation document presented to both Cabinet and stakeholders lacks accuracy, lacks transparency and does not provide thereader
with the information that is
required
for true and considered consultation.
… Subsequently it is impossible to understand why only the single option proposed for Tyn yr Heol Primary School (closing, merging andrelocating
in Bettws (sic)) has been presented and why
refurbishment
of the current site is not being considered.
… No information has been provided to indicate that the child's education or health will be improved. … Deliberate high cost ofrefurbishment,
making it un-competitive with cost of new build."
"Is the proposal likely to maintain or improve the standard of education provision in the area?
The standard of education in both existing schools was identified as good in their last inspections. These inspections were in 2010 and 2011. However, the proposal does not have sufficient detail about current outcomes in either school and so Estyn is unable to come to a consideredview
as to whether the proposal is likely to maintain or improve the standard of provision in the proposed new school."
"Has the proposer … Managed anyrisks
associated with the proposals?
… The proposer believes that the Price Centre opposite Tynyrheol Primary School provides appropriate community facilities. The consultation will allow interested parties to state what they see as the likely effects of the school closure on the community. There is no evidencerelating
to this aspect in the current proposal that can be commented upon."
"[Has the proposer …] Considered suitable alternatives and given goodreasons
as to why these have been discounted?
The local authority has only considered the alternative to 'do nothing'. This has been discounted …"
"Educational aspects of the proposal
… The local authority has considered the impact of the proposal on the quality of outcomes, provision and leadership and management. They have also considered the effect of the proposals on the delivery and standards of the full curriculum at the Foundation Phase and at key stage two. However, the proposal does not analyse the schools' current performance well enough. Also as there will be a substantial change to the leadership of the new school with the appointment of a new headteacher, Estyn is unable tovalidate
the judgements in the proposal. …
The local authority asserts that 'this [change of management structure and provision of improved facilities] willresult
in the good standards currently achieved being
raised
even further as it is likely that the quality of teaching will improve through the sharing of good practice'. However, it is not possible to evaluate at this stage whether a new school and its governance will deliver this."
"This proposal involves the transfer of learners to alternative provision. The local authority has provided evidence that the alternative would appear to be able to deliver outcomes and offer provision at least equivalent to those currently available to those learners (including learners with SEN)."
45.1 Under the heading "Parent consultation", it wasrecorded
that meetings with parents and others had taken place at Betws Primary School on 26 November 2013 and at Tyn yr Heol Primary School on 19 November 2013.
45.2 Inrespect
of the meeting at Betws Primary School, it was
recorded
that a
council
![]()
representative
had "explained that the authority has considered a number of options" in a "process [that] started a while ago". "The
Council
![]()
Representative
also stated that
research
evidence concerning 'larger
vs
smaller schools' is inconclusive." The minutes of the meeting at Betws Primary School contained the following passage:
"Q. This is one proposal. Are there any other options that might be considered?
A. Before wereached
this point we have considered a number of options. The process started a while ago. Betws as a primary school needs a new building as well as Tynyrheol and Cwm Garw. The work carried out shows there are only two sites in the Garw that will do the job of putting up a new primary school. One is in Blaengarw [i.e. in the north of the
valley]
and the only other site is this site and we can put two primary schools on the one site."
45.3 Inrespect
of the meeting at the School, the main concerns
recorded
in the consultation
report
were the move to a larger school, the impact of the closure of the School on the
village
community, and issues
regarding
travel and transport. The minutes of the meeting at the School contained the following passages.
"Q. If you have £6m to build a super school, surely therepairs
for the two schools would be cheaper? But Betws school caught on fire. This probably wouldn't be happening if Betws hadn't caught on fire.
A. The fire did accelerate the process."
"Q. Our children are excelling, why should they go to other schools? … There won't be anything to benefit us here. We will last until it [the school building] can last out.
A. This school building isn't going to last too much longer."
"A. What we are hearing will contribute to community impact assessment."
45.4 Appendix 7 to the consultationreport
was the minutes of the consultation meeting with staff at Betws Primary School. The minutes included the following exchange:
"Q. If decided not to close the two schools will Betws still get the new school?
A. Yes, it has to and the money is there.
Q. Would the timescale still be the same?
A. Yes.
Q. On that scenario why don't you just build a new school for Betws?
A. I didn't say when. The Strategic Outline Case has gone into Welsh Government and is based on the preferred option covering Tynyrheol catchment and YGG Cwm Garw coming on the same site."
45.5 Appendix 8 to the consultationreport
was the minutes of the consultation meeting with staff at the School. The minutes included the following exchange:
"Q. It says that the cost of the buildingrepairs
and maintenance is £390k. Where has that come from? Is there any evidence?
A. There is.Reports
are taken of school buildings."
45.6 Section 6 of the consultationreport
dealt with Estyn's
response,
which was exhibited as Appendix 10. The
Report
quoted the passage on educational standards, set out above, and provided the defendant's
response,
as follows:
"The proposal consultation document contained summaries of both schools mostrecent
Estyn
Report
with links to the full inspection
reports.
An analysis of whether the proposal is likely to maintain or improve standards of provision and outcomes was provided by the Central South
Regional
Education Consortia and included in the consultation document on page 4 ('Quality and standards in Education'). The Consortia expressed their
view
that, 'The
reliability
of performance data across a larger setting would be strengthened overall as a
result
of the new school. The key areas for improvement for both schools are similar as the socio- economic context is the same. Both schools have a similar focus on improving
various
aspects of literacy, numeracy and well-being, including attendance, which should be strengthened in a larger community setting.'"
That internal quote from Consortia wasrepeated,
though without attribution, in the consultation document; see paragraph 42 above.
45.7 Appendix 9 to the consultationreport
was a table and summary of the written
responses
![]()
received.
Two passages in that appendix may usefully be
referred
to. In each case, there is first a summary of the points
raised
by consultees; then in italics is the defendant's comment on those points.
"The option for Tynyrheol Primary has not been considered inrelation
to wider strategic planning in terms of the social, cultural, economic and environmental impact on the
village
of Llangeinor and its community. If the closure of the school goes ahead, it will leave a large hole in the community—the impact on the local community has not been addressed. Other community facilities will potentially close if the proposal goes ahead (
village
store,
Richard
Price Centre). The school is the heart of the community.
The Local Authority has looked at opportunities within the local area. However, for a number of financial and practicalreasons
it was determined the best solution would be to co-locate all the schools together in Betws in order to
realise
the associated economies of scale.
When will the Equality and Community Impact Assessments be completed and theresults
published?
This is published as part of this consultationreport."
(It may be noted that this answer was only partially correct. Appendix 11 to the consultation report
comprised the Equality Impact Assessment documentation. However, the Community Impact Assessment had not been produced by the time of the meeting on 4 February
2014.)
"Why haven't more options been given (e.g. build new school in Llangeinor orrefurbish
existing)?
The Local Authority has looked at opportunities within the local area. However, for a number of financial and practicalreasons
it was determined the best solution would be to co-locate all the schools together in Betws in order to
realise
the associated economies of scale."
45.8 The Equality Impact Assessment at Appendix 11 considered, among other things, disability.
"The existing Tynyrheol school is inaccessible to disabled pupils andvisitors
with mobility issues, as evidenced by the Authority's Access Officer's DDA audit
report.
It is anticipated that accessibility of provision will be significantly improved upon occupation of the new build school on the current Betws site (since the new build would be designed with due
regard
to Building
Regulations)."
49.1 The Governing Body of the School lodged an objection on 14 March2014.
They asked when the Equality Impact Assessment and the Community Assessment would be completed and the
results
published. And they said: "There has not been a
recent
survey in
relation
to the stated estimate of £390,000 backlog of
repair
and maintenance. We are fully aware of the issue of disabled access and until this year had a child in the school with a parent who is a full-time wheelchair user, this parent never criticised the school's access."
49.2 On 16 March2014
the Action Group lodged a lengthy objection. Some of the main points of objection appear from the following passages.
"Refurbishment
does not seem to have been given any
real
consideration even though this could be funded by Schools Buildings Improvement Grant, this would also fund the improvements to disabled access to the school, which is a possibility as outlined in the survey commissioned by the Action Group."
"BCBC state that they considered other options but that this was the only option that was financially feasible—there has been no information inrelation
to what other options were considered or the
reason
for them not being taken forward, other than financial.
• Had consideration been given to the possibility of building a school in Llangeinor on the site of the swimming pool?
…
• Hadrefurbishment
of the current building been considered?"
"Section 3.2 of the Code states the consultation document MUST contain 'a description of any alternatives considered and thereasons
why these have been discounted.'"
"The officers who attended the consultation meetings with stakeholders stated that community impact assessments would be
carried out[;] however this has not been the case. There has been no thought placed upon the devastating impact the closure of Tyn yr heol would have upon the wider community of Llangeinor, once again many of the negative effects are outlined in the HIA [Health Impact Assessment]report
(appendix D)."
"No alternatives have been considered i.e. clustering, collaboration or becoming a federation with other schools."
"The option for Tynyrheol Primary has not been considered inrelation
to wider strategic planning in terms of the social, cultural, economic and environmental impact on the
village
of Llangeinor and its community. If the closure of the school goes ahead, it will leave a large hole in the community—the impact on the local community has not been addressed. Other community facilities will potentially close if the proposal goes ahead (
village
store,
Richard
Price Centre). The school is the heart of the community.
The Local Authority has looked at opportunities within the local area. However, for a number of financial and practicalreasons
it was determined the best solution would be to co-locate all the schools together in Betws in order to
realise
the associated economies of scale. A Community Impact Assessment was completed following
receipt
of the consultation
responses
… There are no groups, agencies or clubs
regularly
operating outside of school hours at the existing Tynyrheol Primary School. Nothing within the proposal precludes the continued use of local community facilities such as the
Richard
Price Centre for school fetes, after school activities etc. … Also, the bus pick-up/drop-off point for Tynyrheol pupils would be in the general
vicinity
of the existing school (and therefore the
village
store)."
"Estyn said it is unable to give a consideredview
as to whether the proposal is likely to maintain or improve the standard of provision.
… the [2013] Act places no statutoryrequirements
on Estyn in
respect
of school organisation matters. Therefore as a body being consulted Estyn provide their opinion only on the overall merits of school organisation proposals. An analysis of whether the proposal is likely to maintain or improve standards of provision and outcomes was provided by the Central South
Regional
Education Consortia … and included in the consultation document
…"
"We have been offered two options[:] stay open as we are or close, no other avenues appear to have been explored. There is ample space in Llangeinor to build a new school for children of Tynyrheol on the site of the old swimming pool. Why haven't more options been given?
The Local Authority has looked at opportunities within the local area. However, for a number of financial and practicalreasons
it was determined the best solution would be to co-locate all the schools together in Betws in order to
realise
the associated economies of scale. Numerous options for education provision to serve the catchment of Llangeinor were explored and tested at officer level and a decision was subsequently made to consult on the option proposed."
"No alternatives have been considered i.e. clustering, collaboration or becoming a federation with other schools.
Numerous alternatives for education provision to serve the catchment of Llangeinor were explored and tested at officer level and a decision was subsequently made to consult on the option proposed. As explained in the minutes contained within the ConsultationReport
that was published to BCBC's website … a federation approach would not solve the problems with the building in Llangeinor."
"A number ofresponses
were
received
during the consultation period
raising
concerns that the proposal will leave a large 'hole' in the Tynyrheol community—other community facilities could potentially close if the proposal goes ahead (e.g.
village
store,
Richard
Price Centre).
However, there are no groups, agencies or clubsregularly
operating outside of school hours at the existing Tynyrheol Primary School. Nothing within the proposal precludes the continued use of facilities such as the
Richard
Price Centre for school fetes, after school activities etc. … Also, the bus pick- up/drop-off point for Tynyrheol pupils would be in the general
vicinity
of the existing school (and therefore the
village
store).
Consequently, it is not anticipated that the proposal would have a significant impact on the community if it were to go ahead."
The Community Impact Assessment had not been published, although it will be seen that part of its text had been repeated
verbatim
in the summary of objections and the
responses
to those objections.
The grounds of the claim
(1) Failure to state alternatives
"In the case of all proposals, the consultation document must
contain the following information:
…
- a description of any alternatives considered and the
reasons
why these have been discounted"
"Where proposals involve the closure of a school the following information must be included in the consultation document:
- details of any alternatives to closure that have been considered and the
reasons
why these have not been taken forward".
"As an alternative to the proposal, theCouncil
could elect to 'do nothing' and not amalgamate the two provisions. However, the advantages detailed in the 'What are the advantages if the proposal goes ahead?' section below would then clearly not be
realised.
Also, the issues with the current accommodation could not be addressed."
(2) Failure to give evidence of quality of outcomes and provision
"Relevant
bodies should place the interests of learners above all others. … [T]hey should give paramount importance to the likely impact of the proposals on the quality of:
- outcomes (standards and wellbeing);
- provision (learning experiences, teaching, care support and guidance, and learning environment); and
- leadership and management …
at the school or schools which are the subject of the proposals …
Where proposals involve the transfer of learners to alternative provision there should normally be evidence that the alternative would deliver outcomes and offer provision at least equivalent to that which is currently available to those learners …
In assessing the impact of proposals on quality and standards in education and how effectively the curriculum is being delivered,relevant
bodies should consider any
relevant
advice from Estyn,
refer
to the most
recent
Estyn
reports
or other evidence derived from performance monitoring, and take into consideration any other generally available information available on a school's effectiveness."
In summary, then, and to paraphrase: the defendant was expected (a) to put the interests of the pupils first, (b) to place paramount importance on the quality of the outcomes that would be delivered and the provision that would be offered to pupils by the proposal, and (c) to have evidence that the proposal would deliver outcomes and offer provision for the existing pupils that were at least as good as those they currently enjoyed. These were expectations (guidelines) not mandatory obligations; but the defendant was required
to show proper
reasons
for departing from them. Section 1.7 of the Code made clear that there was "no presumption in favour or against the closure of any type of school."
"Thereliability
of performance data across a larger setting would be strengthened overall as a
result
of the new school. The key areas for improvement for both schools are similar as the socio- economic context is the same. Both schools have a similar focus on improving
various
aspects of literacy, numeracy and well-being, including attendance, which should be strengthened in a larger community setting."
1) The first sentence is concerned not with outcomes or delivery but withreliability
of data.
2) The second and third sentences are not evidence that standards will be maintained for pupils at the School. They simply express theview
that the focus on addressing common problems should be strengthened by the proposal. That is entirely consistent with a decrease in standards on account of other factors.
3) Estyn identified this deficiency in the proposal at the consultation stage; see paragraph 44 above. The defendant's onlyresponse
to this observation was to marginalise Estyn's input and to
repeat
the statement by the Consortia, which were part of the information to which Estyn was
responding
and which did not anyway amount to evidence; see paragraphs 45.6 and 52 above.
4) As a passage in the consultation document, the claimrelied
on by the defendant is mere assertion. The underlying document from which it was taken is an unsatisfactory two-page document, bearing neither date nor attribution beyond its heading, "CSC
Report
on Proposal[:] Garw
Valley
Primary provision" and showing no indication of the person by whom it was prepared or the information that was considered. It was not made public or even provided to
councillors
until after the decision to implement the proposal had been taken; therefore it was not before the defendant and was not available as part of a fair consultation.
(3) ) Community Impact Assessment
1) There was a departure from section 1.7 of and Annex D to the Code, for which no goodreason
has been shown.
2) There was a basic failure of fairness in the statutory objections period, because those affected by the proposal were not afforded the opportunity to address thereasoning
of the CIA. This cannot be brushed aside as insignificant, because the
relevant
parts of the CIA (set out at paragraph 53 above) adopt a particular, and new, line of
reasoning—shown
by the word "Consequently"—which, whatever its merits, might be open to proper objection.
3) Similarly, the fact that the CIA was part of thecouncillors'
pack means that the failure to make it available to the public until after the meeting on 29 April
2014
was a material breach of sections 100B and 100D of the 1972 Act. The fact that members of the public had no
right
to address the meeting of cabinet is not in point, because objectors
retained
their
rights
to make contact directly with
councillors
to make their
views
known.
(4) Failure to consult AMs
"Deborah McMillan did say that a letter of objection had beenreceived
from Byron Davies AM that morning and even though it had been
received
after the end of the objection period her officers had assured her and were confident that the issues
raised
by Byron Davies had been addressed in the objection
report.
She did not
read
out the letter nor did she summarise its contents. Copies of the letter were not circulated at the meeting."
There are statements from four of the five councillors
present. Three of them state that they
read
Mr Davies's letter before the meeting (at least, that is how I interpret the statements); the fourth is less specific, but in the context of the
rest
of the evidence it seems to me to imply that he probably did
read
the letter.
Conclusions
________________________________