The Queen (on the Application of Shane Williams) v Caerphilly County Borough Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Males,Lord Justice Haddon-Cave,Lord Justice Flaux |
| Judgment Date | 03 March 2020 |
| Neutral Citation | [2020] EWCA Civ 296 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C1/2019/1922 |
| Date | 03 March 2020 |
[2020] EWCA Civ 296
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT IN WALES
(Mr Justice Swift)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Flaux
Lord Justice Haddon-Cave
and
Lord Justice Males
Case No: C1/2019/1922
Philip Havers QC and Christian Howells (instructed by Watkins & Gunn) for the Appellant
James Goudie QC and Ronnie Dennis (instructed by Caerphilly County Borough Council Legal Services) for the Respondent
Hearing date: 20 th February 2020
Approved Judgment
Introduction
This is an appeal against the decision of Swift J by which he dismissed a challenge to the lawfulness of the decision of the respondent local authority, acting by its cabinet, to adopt a Strategy for the provision of Sports and Recreation facilities covering the ten year period from 2019 to 2029.
The Strategy, adopted at a cabinet meeting on 14 th November 2018, was described as setting out “a future purpose and direction for the provision of sport and active recreation in Caerphilly County Borough” which would establish “the key principles and vision which will inform future decisions and actions”. It stated that:
“Where necessary, as and when required, the strategy implementation will be supported by more detailed communications, consultation, and business cases for action to support reports to the relevant Scrutiny Committee, Cabinet and/or Full Council.”
The Strategy pointed out that the provision of sport and recreation facilities was not a statutory responsibility of the local authority and that the facilities which it provided were, therefore, a part of its discretionary provision, which needed “to be measured against their positive impact on [the council's] priorities of health, regeneration, education, and future affordability”. It noted that, at present, the council provided ten leisure centres, which was more than any other Welsh local authority, and which took up over 70% of the council's sport and leisure budget. However, these centres varied in quality, and many of them were old and in need of high levels of maintenance. The Strategy noted also that the budget for community and leisure services needed to achieve reductions over the course of the ten year period which it covered, and that the provision of leisure centres needed to be “rationalised”. It stated that:
“A rationalisation of facilities will result in 4 strategic, high quality, multi service leisure centres that are managed by the authority's Sport and Leisure Service. The 4 strategic centres will be located in Risca, Caerphilly, and Newbridge, and one in Bargoed/Aberbargoed areas to serve the north of the county borough. It is therefore anticipated that the other leisure centres would either transfer to school management (if they are joint use facilities located on a school site, subject to governing body approval) or could close completely. Careful consideration will be given to opportunities for alternative provision before any facilities are withdrawn.”
One of the existing leisure centres was at Pontllanfraith. This was not to be one of the four strategic centres and was not a joint use facility located on a school site. One of the issues arising on this appeal is whether adoption of the Strategy amounted in effect to a firm decision to close the Pontllanfraith centre. In fact the council had already deferred a decision on its future pending the adoption of the Strategy. Once the Strategy had been adopted, the council commissioned a report on the centre which recommended closure. At a meeting on 10th April 2019 the council, once again acting by its cabinet, resolved that the centre should be closed. The cabinet member for Neighbourhood Services whose responsibility this was referred to the Strategy and to the fact that the council “cannot continue to spread its resources so thinly across ageing buildings and facilities” and stated that “to keep this leisure centre open would undermine the vision for future delivery set out in the Strategy”.
In a claim for judicial review the appellant, a regular user of the centre who has campaigned against its closure, contended that both decisions, to adopt the Strategy and to close the Pontllanfraith centre, were unlawful. Swift J dismissed the claim so far as the decision to adopt the Strategy was concerned, but held that the decision to close the centre was unlawful for failure to comply with the public sector equality duty. In this appeal the appellant contends that the decision to adopt the Strategy was unlawful. There is no cross-appeal by the council so far as the decision to close the Pontllanfraith centre is concerned.
We are not concerned with the merits or otherwise of the Strategy, let alone with whether the Pontllanfraith centre should be closed. We are concerned only with whether the decision to adopt the Strategy was unlawful, which depends on whether the correct process was followed.
There are three issues, reflected in the grounds of appeal. The appellant contends that:
(1) the decision to adopt the Strategy was a decision which could only be made by the full council;
(2) the cabinet failed to have regard to the cost of implementing the Strategy which was a material consideration; and
(3) the Strategy was an “arrangement to secure continuous improvement in the exercise” of the council's functions within the meaning of section 2 of the Local Government (Wales) Measure 2009 (“the 2009 Measure”) which required the council to have regard to the efficiency (and thus the cost) of its proposals and to undertake a consultation pursuant to section 5 of the Measure.
The facts
I can take the facts from the appellant's skeleton argument.
The appellant is a Blackwood resident and user of the Pontllanfraith leisure centre. He is a long-time campaigner against its closure.
On 20 th September 2017 the cabinet resolved to consult on the closure of the centre. The officer's report to cabinet for that meeting noted that the centre was not identified as a strategic leisure centre in the emerging sport and leisure services strategy. The purpose of the report was to seek approval for closure and sale of the land.
Following consultation, the cabinet resolved on 13 th December 2017 to close the leisure centre. The appellant challenged that decision by way of letter before claim dated 14 th February 2018. On 20 th February 2018 the council responded stating that the decision to close the leisure centre had been deferred until the issues were looked at by the cabinet in the context of the Strategy. That was followed by a resolution of the cabinet on 28 th March 2018 that the decision to close the leisure centre be deferred and reconsidered once the Strategy had been adopted.
On 27 th June 2018 the cabinet was presented with the draft Strategy and resolved to put it out to consultation.
On 30 th October 2018 the Scrutiny Committee passed a motion calling for the cabinet to refer the adoption of the Strategy to the full Council, given the consultation results and a petition against the closure of Cefn Fforest and Pontllanfraith leisure centres signed by 5343 residents. The Scrutiny Committee considered the Strategy again on 8 th November 2018 and was informed that Heolddu Leisure Centre would be the fourth strategic site.
The cabinet met on 14 th November 2018. It declined to refer the matter to the full council and resolved to adopt the Strategy (as amended following consultation).
On 26 th March 2019 the Scrutiny Committee considered again the proposal to close the Pontllanfraith leisure centre. The officer's report for the meeting recommended closure. The Scrutiny Committee did not support the proposal. However, on 10 th April 2019 the cabinet resolved to close the leisure centre by 30 th June.
The claim for judicial review was originally issued in February 2019 against the decision to adopt the Strategy. By order of Spencer J dated 17 th May 2019 the claim was amended to include a challenge to the closure decision. An interim injunction was granted preventing the council from taking any irreversible steps to close the leisure centre.
There was a rolled up hearing of the claim before Swift J on 19 th June 2019. He handed down judgment at a hearing on 24 th June.
The Strategy Decision
The judge's view was that appreciation of the substance of the Strategy and hence of what it did and did not do was central to the determination of all the grounds of challenge directed to the decision to adopt it. He described the Strategy as follows:
“9. 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...
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