The Highland Council Against The School Closure Review Panel
| Jurisdiction | Scotland |
| Judge | Sheriff J Tierney |
| Neutral Citation | [2016] SC POR 12 |
| Court | Sheriff Court |
| Date | 17 February 2016 |
| Docket Number | B27/15 |
| Published date | 23 February 2016 |
SHERIFFDOM OF GRAMPIAN HIGHLANDS AND ISLANDS
[2016] SC POR 12
B27/15
JUDGMENT OF SHERIFF J TIERNEY
In the case of
THE HIGHLAND COUNCIL
Pursuer and Appellant;
Against
THE SCHOOL CLOSURE REVIEW PANEL
Defenders and Respondent:
Act: J Scott, QC;
Alt: Blair, Advocate
Portree, 17 February 2016
The Sheriff having resumed consideration of the cause sustains the Defender’s first plea in law, dismisses the appeal and confirms the decision of the Defender. Appoints parties to be heard on all questions of expenses on a date to be fixed by the Sheriff Clerk.
|
Table of Contents |
Paragraph(s) |
| Formal Interlocutor, Introduction & Preliminaries | 1-9 |
| The Statutory Framework | 10-38 |
| The procedures followed by the Council | 39-53 |
| The CalEc Report | 54-77 |
| Statutory Consultation | 78-90 |
| The Committee’s Decision | 91 |
| Highland Council’s Decision | 92-93 |
| Call-in Procedures | 94-99 |
| Decision and Reasons of the Panel | 100- 108 |
| The Appeal | 109 |
| Summary of the Council’s written pleadings | 110 |
| Summary of the Panels written pleadings | 111-113 |
| Oral submissions for the Council | 114(a)-(l) |
| Oral submissions for the Panel | 115(a)-(r) |
| Decision of the Sheriff | 116-118 |
| 119-122 | |
| The Role of the Panel Eilean Siar No2 | 123-127 |
| Submissions made after the Consultation Period | 128-134 |
| Alternatives to Closure-Options List - Legal issue | 135-145 |
| Alternatives to Closure-Options List - The Merits | 146-155 |
| The Likely Effect on Local Communities | 156-164 |
| The Panels Conclusions at Decision paras 32 and 39 | 165- 167 |
| Nursery Closures | 168-171 |
| Travelling Times | 172 |
| The Panels Conclusion at Decision para 51 | 173-181 |
| Disposal of the Appeal and Expenses | 182-183 |
NOTE
Introduction and Preliminaries
[1] The Highland Council (hereinafter “the Council”) is the education authority for its area which includes the Isle of Skye. In March 2015 it decided to close four primary schools in North West Skye, namely the schools at Edinbane, Knockbreck, Struan and the existing school at Dunvegan (“the 4 schools”) and to replace them with a single purpose built new school at Dunvegan. The closure of schools in Scotland is subject to the statutory controls contained in the Schools (Consultation)(Scotland) Act, 2010 (hereinafter “the 2010 Act”) as amended by Part 15 of the Children and Young People (Scotland) Act 2014 (“the 2014 Act”).
[2] In 2013 the Council embarked on a Sustainable Schools’ Estate Review (“SSER”) and instructed a consultant company to prepare a report. On 12th May 2014 the report was received. It recommended that consideration be given to the building of a new school in NW Skye which, although the formal recommendations of the report did not explicitly state this, would effectively replace the 4 schools. On 21st May 2014 the Council’s Education, Children and Adult Services Committee (“the Committee”) agreed to undertake a statutory consultation on a proposal to build a new community school in Dunvegan to replace the 4 schools. A closure proposal to that effect was made under section 2 of the 2010 Act. This was followed by statutory consultation procedures including a public meeting, and on 8th December 2014 the Council’s Director of Care and Learning (“the Director”) made a recommendation to proceed in terms of the proposal. On 13th January 2015 the Council received a proposal from Edinbane Community Company (“ECC”) to take over the ownership of the Edinbane school and grounds and to be responsible for its maintenance and ultimate refurbishment, with the Council continuing to provide educational services. The Director’s recommendation was agreed by the Committee at a meeting on 14th January 2015, with an additional proposal of dual zoning, and a recommendation to that effect was made by the Committee to the full Council, which was agreed at a meeting of the Council on 12th March 2015. The ECC proposal was rejected at the meeting of 14th January.
[3] On 13th March 2015 the Council intimated its proposals to the Scottish Ministers as required by the 2010 Act. On 1st May 2015 the Scottish Ministers called in the proposal and referred it to the Convenor of the School Closure Review Panels, (“the Convenor”) who constituted a panel (“the Panel”) to consider the closure proposal. School Closure Review Panels were created by the 2014 Act for the specific purpose of reviewing proposals by education authorities to close schools. No such proposal, if called in by the Scottish Ministers, can be implemented by the education authority unless and until (subject to a time limit) it has been confirmed by a review panel. The decision of a review panel may be appealed to the sheriff on a point of law only, and the sheriff’s decision is final.
[4] The closure proposal in this case is the first to be referred to and decided by a review panel, and the decision of the Panel in this case is the first to be appealed to the sheriff.
[5] At the hearing of the appeal before me the Council was represented by senior counsel, Mrs Janys Scott QC, and the Panel was represented by counsel, Mr Scott Blair, Advocate.
[6] At an early procedural hearing of the case the Parent Councils of the 4 schools had been allowed to lodge submissions, and two of them, Edinbane and Knockbreck, did so. Each of them indicated that their submissions would be the extent of their involvement in the appeal, and that they would not appear or be represented at the hearing of the appeal, as they, understandably, did not wish to undertake the financial risks of litigation. Counsel were agreed that I should read their submissions and take them into account to the extent I considered appropriate.
[7] Having read the submissions, I consider that they deal mainly but not exclusively with matters of fact, and disputed facts at that, relating to the process followed by the Council prior to the decision of the Panel. Although these submissions are clearly supportive of the Panel’s decision they do not raise points of law arising out of it and are therefore not matters I can take into account.
[8] That does not mean that the points raised by the two Parent Councils are unimportant, just that they are not matters for this appeal. In my view the appropriate stage for representations to be made in respect of a closure proposal is during the period after the decision to implement the proposal is taken. During this period any person may, in terms of section 15(4) of the 2010 Act, make relevant representations to the Scottish Ministers. Matters of law as well as fact can be raised in these representations. The Ministers must, in terms of the Act, take these representations into account for the purposes of deciding whether to issue a call-in notice in respect of the proposal if they are relevant. The representations in this case would have been available to the Review Panel, who have a limited jurisdiction to enquire into the facts that a sheriff does not have. Both Edinbane and Knockbreck Parent Councils made powerful submissions to Ministers in this period.
[9] At the outset of the hearing of the appeal, and although section 4(3) of the 2010 Act permits more than one proposal to be included in a proposal paper, I raised with counsel the fact that although the Council proposed to close four rural schools serving four separate and distinct communities, and build one new one to replace them, there was only one process, and the issues relating to the four closures the Council proposed were being dealt with collectively. I indicated that this was of concern to me as it could be that different considerations were relevant to different schools, and that it may turn out that I considered that the appeal should be allowed in respect of one or more of the schools but refused in respect of the remainder. Counsel were agreed that the matter should be dealt with as a package, and the hearing of the appeal proceeded on that basis. This is the basis on which the matter had been dealt with from the pre-consultation stage through the consultation, the formal proposal to and decision by the Council, the calling in by the Scottish Ministers, and the procedures before the Panel.
The Statutory Framework
[10] The Education (Scotland) Act 1980 (“the 1980 Act”) by section 1(1) imposes a duty on every education authority to ensure that adequate and efficient provision of school education is made for its area.
[11] The Standards in Scotland’s Schools etc. Act 2000 (“the 2000 Act”)
a. by section 2(1) imposes a duty on every education authority which provides school education to a child …. to direct that the education is directed to the development of the personality, talents and mental and physical abilities of the child…. to their fullest potential
b. by section 3(2) requires every education authority to secure improvement in the quality of school education and
c. by section 3(3) requires every education authority to exercise its functions in providing such education, with a view to raising standards in education.
[12] The Local Government in Scotland Act 2003 by section 1 requires a local authority in all its areas of operation to secure best value by continuous improvement in the provision of its functions while maintaining an appropriate balance between
a. quality of performance,
b. cost of performance and
c. [to do so] having regard to efficiency, effectiveness, economy and the need to meet the equal opportunities requirements.
Clearly all of those general provisions have an important role to play when an education authority comes to consider the possible closure of a school or schools, or the building of a new one.
The 2010 Act so far as relevant to the appeal.
[13] The 2010 Act as amended by the 2014 Act sets out a number of requirements with which an education authority must comply when it proposes one of a range of actions including closing a school or...
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