R Shane Williams v Caerphilly County Borough Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Swift |
| Judgment Date | 24 June 2019 |
| Neutral Citation | [2019] EWHC 1618 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 24 June 2019 |
| Docket Number | Case No: CO/599/2019 |
[2019] EWHC 1618 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Swift
Case No: CO/599/2019
Christian Howells (instructed by Watkins & Gunn) for the Claimant
Matthew Paul (instructed by Caerphilly County Borough Council) for the Defendant
Hearing date: 19 June 2019
Approved Judgment
A. Introduction
In these proceedings the Claimant, Shane Williams, challenges two decisions taken by the Defendant Caerphilly County Borough Council (“the Council”); first, a decision taken by the Council's Cabinet on 14 November 2018 to adopt a Sport and Active Recreation Strategy for 2019 – 2029 (“the Sports Strategy” and “the Strategy Decision”, respectively); and second, a further decision by the Council's Cabinet taken on 10 April 2019 to close the Pontllanfraith Leisure Centre with effect from 30 June 2019 (“the Closure Decision”).
By an Order made by Spencer J on 17 May 2019 the matter comes before me as a rolled-up hearing. Having heard full argument on the Claimant's grounds of challenge I am satisfied that each of the grounds of challenge is properly arguable and I grant permission to apply for judicial review on all grounds. I will now set out my determination and reasons on the merits of the five grounds of challenge. The first three grounds are aimed at the Strategy Decision; grounds four and five are directed to the Closure Decision.
B. Decision
(1) Ground 1. The Strategy Decision was not within the authority of the Council's Cabinet to take .
This ground is to the effect that the Strategy Decision was unlawful because it was a decision taken by the Cabinet when, by reason of the provisions of the Local Authorities (Executive Arrangements) (Functions and Responsibilities) (Wales) Regulations 2007 (“the 2007 Regulations”) it was a decision that should have been taken by the full Council.
By section 13 of the Local Government Act 2000 (“the 2000 Act”), where a local authority operates under executive arrangements (as the Council does), any function not specified in regulations made under regulation 13(3) is the responsibility of the Council's executive. Where Leader and Cabinet executive arrangements are in place, executive arrangements made by the local authority under section 15 of the 2000 Act make further provision for the specific allocation of decision-making responsibility. By section 13(3) of the 2000 Act, Welsh Ministers have power to make regulations including to the effect that a function that would by virtue of section 13(1) fall as the responsibility of an authority's executive, should instead be the responsibility of the authority itself.
Regulation 6(1) of the 2007 Regulations provides as follows.
“6.—Discharge of specified functions by authorities
(1) Subject to paragraph (2), a function of any of the descriptions specified in column (1) of Schedule 4 (which, but for this paragraph, might be the responsibility of an executive of the authority), is not the responsibility of an executive in the circumstances specified in column (2) in relation to that function.”
None of the provisos contained in regulation 6(2) is material for present purposes. Paragraph 2 of Schedule 4 is the material provision. That provides,
(by Column 1)
“The determination of any matter in the discharge of a function which (a) is the responsibility of the executive; and (b) is concerned with the authority's budget, or their borrowing or capital expenditure”
is not to be the responsibility of the executive where the person with authority under the arrangements made under section 15 of the 2000 Act to make the determination,
(by Column 2)
“… (a) is minded to determine the matter contrary to, or not wholly in accordance with (i) the authority's budget, or (ii) the plan or strategy for the time being approved or adopted by the authority in relation to their borrowing or capital expenditure; and (b) is not authorised by the authority's executive arrangements, financial regulations, standing orders or other rules or proceedings to make a determination in those terms.”
For the purposes of my decision in this case I will assume that the proviso at (b) above (relevant authorisation under the Council's executive arrangements) does not apply. The Council has not put the material part of its executive arrangements in evidence, and has not otherwise contended that the proviso does apply.
That being so, paragraph 2 of Schedule 4 to the 2007 Regulations gives rise to four questions: (1) what is the function that is being discharged when the Strategy Decision was being taken; (2) was the discharge of that function concerned with any of the Council's budget, its borrowing or its capital expenditure; (3) if the answer to (2) is yes, what part or parts of the budget are material; and (4) was the Strategy Decision contrary to or not wholly in accordance with the Council's budget or any approved plan or strategy for borrowing or capital expenditure.
For the Claimant, Mr Christian Howells contended that the first two of these questions ought to be formulated differently so that the focus of attention was not the function being exercised, but rather the matter being determined. This may not be a distinction that – at least on the facts of this case – results in any material difference. Nevertheless, I consider that the formulation in terms of functions is correct, both as a matter of ordinary language given the way in which paragraph 2, column 1 is phrased, and also as a matter of construction if the paragraph is read together with section 13 of the 2000 Act. That section is concerned with the allocation of responsibility for functions (i.e. responsibility for the exercise of relevant powers and duties of a local authority). This is clear both from section 13(1) and (2) of the 2000 Act. Paragraph 2 of Schedule 4 to the 2007 Regulations should be read in the same way since it is by way of derogation from the default position stated in section 13(2).
The Officer's Report provided to the Cabinet for the purpose of its decision whether or not to adopt the Sports Strategy does not identify the statutory power/powers relevant to the proposed decision, nor was this a point addressed in the course of either the meeting of the Council's Regeneration and Environment Scrutiny Committee (“the Scrutiny Committee”) on 8 November 2018, or the Cabinet meeting itself on 14 November 2018 – at least not so far as is apparent from the minutes of either meeting. Mr Matthew Paul who appeared for the Council submitted that the relevant function exercised by the Council was the power under section 19 of the Local Government (Miscellaneous Provisions) Act 1976 (“the 1976 Act”) – the power for a local authority to provide “… such recreational facilities as it thinks fit …” either inside or outside its area. In my view the section 19 power is not the one most naturally framed as a fit for the Strategy Decision. A better fit is the subsidiary power at section 111 of the Local Government Act 1972 “… to do any thing … which is calculated to facilitate, or is conducive or incidental to, the discharge of any of their functions”. I reach this conclusion having regard to the substance of the Sports Strategy. In my view, appreciation of the substance of the Strategy and hence appreciation of what the Strategy Decision did, and what it did not do, is central to the determination of all the grounds of challenge directed to the Strategy Decision.
The Council's description of the Sports Strategy is that it sets out the future purpose and direction for the provision of sport and active recreation in the County Borough, and establishes “… the key principles and vision over the next 10 years”. This description is accurate. On consideration of the document, it is clear that it is genuinely a strategy document. It identifies the Council's “vision” to “encourage healthy lifestyles and support … residents to be more active more often”. It identifies the role of the Council's Community and Leisure Service as being to lead “the promotion of sport and active recreation” and to co-ordinate the delivery of the Strategy. In this way the Sports Strategy signals the Council's intention to move from an approach which assumed that the Council would be the main provider of leisure facilities, and towards one resting on a mix of Council-provided facilities and facilities provided by others. The Sports Strategy next sets out how the Council's approach will fit with the “7 Wellbeing Goals” listed in the Wellbeing of Future Generations (Wales) Act 2015, and the Wellbeing Objectives in the Council's own corporate plan. While it would be wrong to describe these parts of the Sports Strategy as purely aspirational, it is certainly the case that the Strategy is not written in hard-edged or prescriptive language. Rather, the document describes a collection of ideas, principles and objectives. It is not a set of marching orders. In this same vein, the Sports Strategy states that the Council will, in respect of facilities, adopt the approach advocated by the Welsh Government and Sport Wales in their March 2016 document “Facilities for Future Generations”, including what is referred to as the “Decision-Making Matrix” contained in that document to determine which leisure facilities are to be considered “strategic leisure facilities” and are to be directly managed by the Council. Under the heading “What Needs to be Done”, the Sports Strategy sets out the Council's Corporate Policy; states that the facilities it will provide are to comprise four “strategic, high quality, multi-service leisure centres” in Risca, Caerphilly, Newbridge and either the Bargoed area or the Aberbargoed area;...
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