Petition Of Robert Bowie For Judicial Review
| CSOH 6
|Court of Session
|20 January 2010
|20 January 2010
OUTER HOUSE, COURT OF SESSION
 CSOH 6
OPINION OF LORD UIST
in the petition of
ROBERT BOWIE on his own behalf and as legal representative of his daughter BLAIRE BOWIE
Judicial Review of a decision of East Renfrewshire Council purporting to restrict the delineated area for St Ninian’s
Roman Catholic High School
Petitioner: Sir Crispin Agnew of Lochnaw QC; Campbell Smith WS LLP
Respondents: Miss Christine O’Neill, Solicitor; Brodies LLP
20 January 2010
 St Ninian’s High School, Giffnock is the best performing State Roman Catholic Secondary School in Scotland. It was opened to pupils in August 1984, when the education authority was Strathclyde Regional Council (SRC). On local government reorganisation on 1 April 1996 the newly established East Renfrewshire Council (ERC), the respondent to this petition, became the education authority responsible for St Ninian’s.
 In a report dated 22 November 1991 the then Director of Education of SRC recommended that the education committee of SRC agree to adopt the proposal that
“i a delineated area be created for St Ninian’s High School and that it be formed by the aggregation of the delineated areas of the existing associated primary schools;
ii priority for admission to St Ninian’s High School should be given, in the order shown, to:
i children who live in the delineated area.”
 One of the associated primary schools referred to was St Angela’s Primary School, Glasgow. The delineated area for St Angela’s and all other associated primary schools is shown in Appendix 2a to the report and Appendix 2b shows an enlarged map of the delineated area for St Angela’s, part of which consists of two separate hatched areas, one being larger than the other. The following docket appears beside the map in appendix 2b:
“Children living in the larger hatched area will retain the option of attending either St Bernard’s or St Angela’s Primary Schools and may transfer at the secondary stage to either Bellarmine SS or St Ninian’s HS.”
These two appendices are attached to this opinion. The report also contained in Appendix 1 a list of the streets within the delineated area for each school, including St Angela’s.
 Following upon the statutory consultation process the education sub‑committee of SRC decided on 28 November 1991 to approve that recommendation for implementation from 18 March 1992 after, and subject to, approval by the education committee at its meeting that day. Such approval was duly given by the education committee.
 The petitioner lives at 6 Parkholm Gardens, Parklands Meadow, Glasgow, within the boundary of Glasgow City Council (GCC). His house was built after local government reorganisation in 1996. He has a daughter, Blaire Bowie, who was born on 17 March 1998 and who is at present a pupil at St Angela’s Primary School. She is due to move to secondary school in August of this year. The petitioner maintains that, at present, she resides within the delineated area for St Ninian’s and has a priority right to attend that school. ERC, on the other hand, maintain that she has no such priority right. In a letter to the petitioner dated 11 February 2009 it quoted the following extract from a letter to another parent setting out its position:
“The creation of a catchment area for a particular school is a matter for the administering local authority to determine in terms of arrangements made under the auspices of the Education (Scotland) Act 1980. In the vast majority of cases pupils will typically transfer from primary to secondary schools, both of which are administered by the same local authority. As you are aware, this is not the case with St Angela’s / St Ninian’s, the former lying within the administrative control of Glasgow City Council. As a result, the determination of respective catchments for the two schools is unconnected with East Renfrewshire Council having no control of, nor influence over, decisions Glasgow City Council takes in respect of St Angela’s in this regard (sic). Equally, East Renfrewshire Council’s identification of St Ninian’s catchment area is independent of and distinct from any such decisions made by Glasgow.
These circumstances arose as a result of local government reorganisation in 1996 and the break-up of Strathclyde Regional Council which, until that point in time, had been the relevant education authority for both schools. From that juncture administration fell to the new unitary authorities referred to above. Negotiations between the new unitary councils at reorganisation resulted in an agreement that pupils from the then catchment area of St Angela’s Primary School would transfer to St Ninian’s Secondary despite the fact that it lay in another administrative area. In terms of that agreement East Renfrewshire Council was careful to identify the geographical limits of that catchment and did so by explicit reference to specific street names which reflected residential developments in existence at that time. This arrangement continues to this day and has not been the subject of any alteration. Whilst it is therefore correct to say that there has been a long-standing arrangement that children from St Angela’s move to St Ninian’s, it should be clarified that this arrangement relates only to those children attending St Angela’s who reside in the specified streets which form part of the agreement. It does not include children attending St Angela’s whose residential address lies in any more recent residential development within Glasgow’s boundaries.”
The letter added the following:
“Since the catchment area of St Ninian’s High School is delineated and has been since 1992, attendance at any associated primary school does not imply an automatic right to a place in St Ninian’s. Pupils not resident within the catchment area as defined by houses and streets must make a placing request to be considered for a place in St Ninian’s High School.”
 In a further letter dated 4 March 2009 to the petitioner the Director of Education of ERC stated:
“The delineated part of the St Ninian’s catchment area which lies within Glasgow City Council (sic) has not been changed since 1996, when East Renfrewshire Council came into existence. Glasgow City Council cannot add further streets, including those in the Parklands Meadows area, to the St Ninian’s delineated area.
Your house may well lie within the new catchment of St Angela’s Primary School – that is a matter for Glasgow City Council to decide. However, your house is not in the catchment for St Ninian’s High School, which was determined at local government reorganisation in 1996. Glasgow City Council have made no request of this council to adjust the catchment of St Ninian’s High School.”
 On 1 October 2009 the education committee of ERC approved a proposal that the Director of Education proceed with a consultation exercise on the future admissions arrangements to St Ninian’s High School to take effect from school session 2010-2011, the proposed change to those arrangements being the removal of that part of the delineated area that is associated with St Angela’s Primary School from having a priority right of admission to St Ninian’s for secondary education and requested that the Director report the results of the consultation exercise to the education committee on 21 January 2010. A formal consultative document was issued by the Director of Education in October 2009.
 In these proceedings the petitioner seeks judicial review of the decision of ERC to treat his house as outwith the delineated area for St Ninian’s and consequently to hold that his daughter does not have a priority right to attend St Ninian’s. He seeks reduction of that decision and of the decision of 1 October 2009 to carry out the above consultation exercise.
The relevant statutory provision
 Section 1(1) of the 1980 Act, so far as relevant, provides:
“… it shall be the duty of every education authority to secure that there is made for their area adequate and efficient provision of school education …”
 Section 28B(1)(a)(i) of the 1980 Act provides:
“(1) Every education authority shall –
(a) publish or otherwise make available information as to –
(i) their arrangements for the placing of children in schools under their management.”
 Section 28A of the 1980 Act deals with placing requests. Subsections (3A) and (3C) refer to “the catchment area” of a school. Subsection (3D) provides as follows:
“In subsections (3A) and (3C) above, ‘catchment area’ means the area from which pupils resident therein will be admitted to the school in terms of any priority based on residence in accordance with the guidelines formulated by the authority under section 28B(1)(c) of this Act.”
 Section 23(1C) of the 1980 Act, which deals with local government reorganisation, provides as follows:
“Where the arrangements for the placing of children in schools subsisting before the establishment of new local government areas under Part I of the Local Government etc (Scotland) Act 1994 lead, as a consequence of such establishment, to school education for pupils belonging to the area of one education authority being provided at schools or educational establishments under the management of another education authority, nothing in this Act shall prevent such arrangements from continuing until they are changed by an education authority in accordance with this Act.”
 Section 22A of the 1980 Act deals with consultation on certain changes in educational matters. It provides as follows:
“(1) Where an education authority make a proposal of a prescribed kind, they shall, in such manner as may be prescribed, publish it or otherwise make it available and consult such persons as may be...
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