Campbell Park Parish Council, R (on the application of) v Milton Keynes Council [2012] EWHC 1204 (Admin)

Case No CO/1111/2012[2012] EWHC 1204 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Thursday, 26 April 2012
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE MITTING
Between
THE QUEEN ON THE APPLICATION OF CAMPBELL PARK PARISH COUNCILClaimantv
Between
MILTON KEYNES COUNCILDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
Ms S Hannett (instructed by Buckinghamshire County Council) appeared for ClaimantMr S Butler (instructed by Milton Keynes Council) appeared for Defendant
J U D G M E N T
[1]MR JUSTICE MITTING: By this claim Campbell Park Parish Council challenge the decision of Milton Keynes Council on 8 November 2011 to transfer three areas, known as Willen, Willen Lake and Newlands, within its boundary to an adjoining parish, Great Linford Parish Council. The decision was made pursuant to a detailed statutory scheme set out in the Local Government and Public Involvement in Health Act 2007. The relevant provisions are as follows: 79 Community governance reviews.(1) A community governance review is a review of the whole or part of the principal council's area for the purpose of making recommendations of the kinds set out in sections 87 to 92 (if, and so far as, those sections are applicable).(2) In undertaking a community governance review the principal council must comply with -- (a) this Chapter, and (b) the terms of reference of the review. 81 Terms of reference of review. (1) The terms of reference of a community governance review are the terms on which a review is to be undertaken. (2) The terms of reference of a community governance review must specify the area under review ... (4) ... it is for a principal council -- (a) to decide the terms of reference of any community governance review which the council is to undertake; and (b) to decide what modifications (if any) to make to terms of reference. (5) As soon as practicable after deciding terms of reference, the principal council must publish the terms. 82 Council's power to undertake review. A principal council may undertake a community governance review.[2]There then follow provisions for making and responding to petitions for a review which are irrelevant to this case. 86 Reorganisation of community governance.(1) This section applies if a community governance review is undertaken.(2) The principal council may, by order, give effect to the recommendations made in the review ... 88 Existing parishes under review. (1) A community governance review must make the following recommendations in relation to each of the existing parishes under review (if any). (2) The review must make one of the following recommendations -- (a) recommendations that the parish should not be abolished and that its area should not be altered; (b) recommendations that the area of the parish should be altered; (c) recommendations that the area of the parish should be abolished ... (6) In this section -- (a) 'existing parishes under review' means each of the parishes (if any) which are already in existence in the area under review ...[3]93 Duties when undertaking the review.(1) The principal council must comply with the duties in this section when undertaking a community governance review.(2) But, subject to those duties, it is for the principal council to decide how to undertake the review.(3) The principal council must consult the following -- (a) the local government electors for the area under review; (b) any other person or body (including a local authority) which appears to the principal council to have an interest in the review;(4) The principal council must have regard to the need to secure that community governance within the area under review -- (a) reflects the identities communities and interests of the community in that area, and (b) is effected effective and convenient ... (6) The principal council must take into account any representations received in connection with the review. (7) As soon as practicable after making any recommendations, the principal council must -- (a) publish the recommendations; (b) take such steps as it considers sufficient to secure the persons who may be interested in the review are informed of those recommendations. (8) The principal council must conclude the review within the period of 12 months starting with the day on which the council begins the review ... 96 Publicising outcome. (1) This section applies if the community governance review is undertaken. (2) As soon as practicable after a principal council has decided to what extent it will give effect to the recommendations made in a community governance review, the council must -- (a) publish -- (i) that decision, and (ii)the council's reasons for making that decision; and (b) take such steps as the council considers sufficient to secure that persons who may be interested in the review are informed of that decision. 102 Interpretation ... (2) ... 'principal counsel' means -- (a) a district council in England ... (3) A principal council 'begins' a community governance review when the council publishes the terms of reference of the review. (4) A principal council 'concludes' a community governance review when the council publishes the recommendations made in the review.(5) A principal counsel is 'in the course of undertaking' a community governance review in the period between -- (a) beginning the review, and (b) concluding the review ...[4]Save for the contents of the terms of reference and the means by which the council is to consider and make recommendations, the statutory scheme is highly prescriptive. A community governance review must start with the setting and publication of terms of reference. It must be completed in the sense described, that is to say by publication of recommendations of the principal council, within 12 months of commencement. Local electors must be consulted. Only one of three types of recommendation can be made: that the parish should not be abolished and its area not altered; that the area should be altered; or that it should be abolished. Recommendations must be published. Failure to comply with any of these steps within the statutory time limit of 12 months has the effect, it is common ground, of negating the outcome.[5]Against that statutory background I turn to what actually happened. There is no real dispute of fact between the parties. By a decision of the principal council, the defendant, on 14 December 2010 approval was given to the commencement of a community governance review encompassing the boundaries of Campbell Park, including what is described as the Willen grid square, that is to say the three areas that I identified at the beginning of this judgment and which I will refer to hereafter as Willen, and central Milton Keynes parishes, in as far as they relate to Campbell Park and Woughton Parish. The review was to be conducted by a working group:
"The council resolved that a working group be established on a 2-2-2-1 basis to monitor the progress of the review and to make recommendations to the council in due course on the outcome of the review."
[6]It is common ground that by that resolution the defendant delegated to the working group the task of conducting the review and of making the statutory recommendation. The terms of reference were published on 3 February 2011. Nothing turns on them. The working group first met on 14 April 2011. It set out in detail the questions which it proposed to ask electors and the options which it proposed to put to them. For present purposes, all that I need refer to are the proposals canvassed for Willen to remain within Campbell Park Parish Council, to join Great Linford Parish Council or to establish a new council for the Willen area only.[7]The survey was to be carried out between the middle of May and the middle of June 2011. It was in fact carried out up to and including 20 June 2011. A timetable was set out: 31 May 2011 was the deadline for consultation submissions; 17 June, the end of the individual communities survey; in the week commencing 4 July 2011 the working group would meet to consider submissions; and at the end of July it would meet for a purpose set out in the minutes "To finalise its proposals and consultation commences on working group proposals."[8]Consultation was then to follow up to and including September and in October 2011:
"Working group finalises its recommendations to council."
Those recommendations would be considered on 8 November 2011.[9]As is apparent from that summary, the working group set out a timetable for steps which were not prescribed by the statutory scheme, including, principally, the making of proposals before making the statutory recommendation to the council. Nothing in the statutory scheme prohibits the working group from undertaking that additional task but, unfortunately, it led to some confusion and, as I will indicate, a departure from the statutory scheme in due course.[10]A full consultation exercise was conducted with local electors. It demonstrated that opinion was divided. On 20 July the working group met to consider those responses. The officer recommendation was that the options for consultation, as they were described, during August and September 2011, as regards Willen, were that it should remain within the Campbell Park Parish area. The officer's recommendation was not accepted by the working group:
"The working group noted that its provisional recommendations to council would be published and sent to all interested parties and that any representations received as a result would be considered by the working group at a further meeting prior to a final recommendation being submitted to the council meeting on 8 November; resolved that the working group's provisional recommendation to council in respect of the Campbell Park grid square be as follows ... (d) that the areas to the east of the Grand Union Canal and north of H6 (Childs Way), currently within Campbell Park Parish, should be transferred from Campbell Park Parish to Great Linford Parish."
Using the shorthand that I have adopted, the provisional recommendation which they proposed to make was that Willen should be transferred to Great Linford Parish.[11]The working group met again on 12 October 2011. The agenda for that meeting showed that it was to consider responses to its draft recommendations. The agenda showed that in excess of 300 responses had been received from those who had previously expressed a view about the issue, the great majority of whom supported the proposition that Willen should remain within Campbell Park Parish. The officer's recommendation to the working group was that it should either reaffirm its provisional recommendations or amend its previous recommendations.[12]In the bundle of documents which I have, there are no minutes of the working group's meeting on 12 October. They were recorded on a disk but no-one has seen fit to transcribe it. Accordingly, I must infer what was resolved from the agenda for the meeting of the full council on 8 November 2011.[13]Item four, a report between cabinet and committees noted the following:
"(a) community governance review working group, 12 October 2011. (i) that the council be recommended to approve the following outcomes from the community governance review ... (b) that the areas of Newlands, Willen Lake and Willen remain within the existing Campbell Park Parish so as to retain community cohesion and effective and convenient governance in the parish."
[14]That proposal was moved by Councillor Gerrella, chairman of the working group. Before that proposal was put to the vote, Councillor Morris moved an amendment, the effect of which was to reverse the proposal so that it would read:
"(b) that the areas of Newlands, Willen Lake and Willen be transferred from Campbell Park Parish to Great Linford Parish so as to promote community cohesion and effective and convenient governance."
They are there set out.[15]In the event, the amendment was carried by a narrow majority. For the purposes of the statutory scheme, that was, or purported to be, the decision of the principal council. The next step was to make an order consequent upon the decision but these proceedings intervened before an order could be made. No order has in fact been made and this court has ordered that none should be made, pending determination of this claim.[16]Ms Hannett's submission for the claimant is a simple one. The power to make a statutory recommendation was delegated to the working group; it recommended no change; the full council had no power to reject the recommendation and resolve that Willen should be transferred to Great Linford Parish Council.[17]Mr Butler for the defendant submits that the full council had no power to give effect to the recommendation of the working group of 12 October 2011; that its only power was to give effect to what it described as its provisional recommendation of 20 July 2011; and that, notwithstanding that neither the working group nor the full council thought that they were giving effect to the statutory scheme in that manner, that is what in fact they did. Mr Butler points to a significant omission in fulfillment of the statutory scheme, if Ms Hanett's proposition is right. The recommendations of 12 October 2011 were not, as is required by section 93(7), published, nor were such steps taken as the council considers sufficient to secure that persons who may be interested in the review were informed of the recommendation. Ms Hannett submits that the final recommendation was published when the agenda for the council meeting of 8 November 2011 was published on the council's website, as was its invariable practice.[18]On this question, I accept Mr Butler's submission. Although publication of the agenda may have satisfied the statutory requirement for publication, there is simply no indication that the council fulfilled the second obligation of section 93(7)(b) by taking steps to secure that persons interested in the review were informed of the recommendations. What should have happened was that the working group's final recommendation should have been published as such and that the council should have decided what steps should have been required to notify interested persons of the recommendations. That was not done. Accordingly, I accept Mr Butler's submissions that it was not open to the council on 8 November 2011 to adopt the final recommendation of the working group. Before it did so, publicity had to be given to it and appropriate steps taken to inform those interested. It does not, however, follow that what the working group described as "proposals" or "provisional recommendations" amounted to the statutory recommendation described in section 88. A "proposal" is clearly not a recommendation. A "provisional recommendation" is likewise not a recommendation. What the statute envisages is that the principal council will make a recommendation of one of the steps specified in 88 to which it may then, under section 86, give effect.[19]Mr Butler's submission requires that all those who participated in this exercise did something which they did not intend to do and did not describe themselves as having done. The initial timetable and the resolution adopted by the working group on 20 July 2011 demonstrate beyond doubt what they were doing: they were making proposals following upon consultation which they proposed to put out for further debate and consultation, before finally making their recommendation.[20]In the event, they changed their mind. If their final recommendation had been published, and if appropriate steps had been taken to notify interested parties, then there can be no doubt that the full council could have adopted the final recommendation lawfully. The intervention of the proposal or provisional recommendation would not have had any statutory effect. What Mr Butler's submission really amounts to is that, because the working group did not make an effective statutory recommendation, for want of publicity and notification, so something which did not amount to a recommendation became one retrospectively.[21]I cannot twist the doings of the working group into that framework. Its well intentioned initial decision to make proposals or provisional recommendations for further consultation in the event led it and the full council not to fulfill the statutory scheme. The consequence is that no effective decision has been made by the full council which could subsequently be made the subject of an order of the full council. Accordingly, and unhappily, a well intentioned attempt to fulfill the statutory procedure for the benefit of local residents has not succeeded. If this exercise is to be undertaken, it must start again.[22]For those reasons this claim succeeds. I quash the decision of the council of 8 November 2011 to transfer Willen from Campbell Park Parish to Great Linford Parish.

MR JUSTICE MITTING: Is there any further relief required?

[24]MS HANNETT: My Lord, I am grateful. I do have an application for claimant's costs. My Lord, may I hand a schedule of costs.[25]MR JUSTICE MITTING: Yes. I have been given the council's schedule.[26]MS HANNETT: My Lord, I do not have a copy of the council's schedule. It may be helpful just to see that. (Handed)

MR JUSTICE MITTING: Thank you.

[28]MS HANNETT: My Lord will see that the total sought by the claimant is the sum of £19,413. My Lord, I ask for an order that the defendant pay the claimant's costs, summarily assessed in that amount.[29]My Lord, unless there is anything further I can add?

MR JUSTICE MITTING: Mr Butler?

[31]MR BUTLER: My Lord, I have two observations, please. If I could kindly turn you to the second page that has council's views, you will see under (I) they are actually claiming costs of having counsel attend the meetings on 12 October and 8 November 2011, which of course is not recoverable until the claim is issued. I would invite you not to award those amounts.

MR JUSTICE MITTING: Can you refer me to the item again?

[33]MR BUTLER: Sorry, yes. It is the claimant schedule. It is under counsel's fees on the second page, (I). They claim the costs of counsel actually attending the review on 12 November and the council meeting on 8 November and, of course, I do not object to the drafting of the protocol letter, if that is what counsel did, but they are not entitled to recover costs pre-action. That is the first issue I raise. I do not raise any issue in relation to the hours or the hourly rate or counsel's brief fee for the proceedings because they are very much consistent with the local authority.[34]My Lord, the second observation is this, I would invite you only to award 70 per cent of the costs for the following reasons.[35]The claimant commenced on three grounds, and that was based on the consultation issue and also the failure to give reasons. That was maintained in the skeleton arguments. Obviously considerable work has been put into that by the claimant. I know my Lord has not made an order on those two grounds, and there is no need to do so, but they should not be entitled to recover the costs on those two grounds. I am not seeking my costs for resisting those grounds, of course, but they should not be entitled to claim the costs (Inaudible).

MR JUSTICE MITTING: Ms Hannett?

[37]MS HANNETT: My Lord, in relation to the first point made by my learned friend, I am instructed that the cost of counsel attending those two meetings was £625 on each occasion and, my Lord, I accept those costs are not recoverable.[38]As to the second matter, my Lord, I resist my learned friend's submission. As I indicated at the outset, the case was put in the alternative and I accepted that, if my Lord was to find on my first point in my favour, that the other two points fell away. Nevertheless, had my Lord been against me on the first point, I would have sought to put those two points before you, my Lord, and we would have had to have argument upon them. My Lord, in any event, the time of the court this morning has not been taken up with those two arguments and, on any analysis of the documentation and the skeleton argument, both for my learned friend and for myself, the lion's share of the submissions has always gone to ground one, which I think both of us have always accepted as being the principal point. So, my Lord, I would resist my learned friend's application for that reason and invite my Lord to award the claimant's full costs.[39]MR JUSTICE MITTING: Right. Anything on the figure?[40]MR BUTLER: I make it £1,250 plus £250 VAT off the bill.[41]MS HANNETT: That sounds about right.[42]MR BUTLER: I order the defendant to pay the claimant's costs in the sum that is claimed, subject to two provisions: first, the deduction of £1,500 from the gross sum, £19,413; secondly, the deduction of 10 per cent from the net sum. I make that deduction because the claimants did advance two arguments which were not pursued in the hearing. One of them, in my view, could not have succeeded -- that in relation to the research conducted by Councillor Morris -- and the other one could not have obtained the outcome which the claimants seek.[43]Ms Hannett is quite right, no court time has been wasted by pursuing those arguments but a certain amount of preparation has gone in and, doing the best I can, I reflect the fact that she has not succeeded on those grounds or advanced them by deducting the amount of 10 per cent. I hope someone can do the arithmetic.[44]MS HANNETT: My Lord, I will draft that order and seek to agree that with my learned friend today.

MR JUSTICE MITTING: Thank you, and thank you both for your help in unfamiliar territory.