Draft Judgment INDEX

EX PARTE MARTIN JOHN BAXTER AND THREE OTHERS

Constitution: Lord Justice GlidewellMr Justice Schiemann
R - v - WALTHAM FOREST LONDON BOROUGH COUNCILEX PARTE MARTIN JOHN BAXTER AND THREE OTHERS(on their own behalf and on behalf of theWALTHAM FOREST RATEPAYERS ACTION GROUP)
Draft Judgment

LORD JUSTICE GLIDEWELL: In these proceedings Mr Wadsworthapplies for an order of certiorari to quash a resolutionof the Council of the London Borough of Waltham Forest("the Council") dated 10 March 1987 making the generalrate for the borough for the rating year 1987/88. The Noticeof Motion also seeks an order quashing a further resolutionof the Council dated 9 April 1987 not to call a specialmeeting for the purpose of considering making a substituterate', and a declaration as to the council's duty when makinga budget for the year, but both of these forms of reliefare subsidiary to the first order sought. A further claimfor a declaration relating to the financing of revenue andcapital expenditure by a scheme of deferred purchase and parallel loan is not now pursued by the Applicants.

Of the four Applicants, Mrs Martin and Mrs Williamsare both residents and domestic ratepayers in the Boroughof Waltham Forest, Mr Baxter is a Director of a company whichis a commercial ratepayer in the borough, and Mr Hughes,who is a Solicitor, both lives and works in Chingford, inthe borough, and thus is a ratepayer in both capacities.

They bring these proceedings on behalf of the Waltham ForestRatepayers Action Group, a body which at the date of theapplication for leave to move for Judicial Review ( 4 June1987) had some 9000 individual members and 200 businessmembers. Mr Goudie, for the Council, accepts that the Applicants(whom I shall call collectively "the Ratepayers") are entitledto apply for the relief sought.

I should also note that Mr Goudie does not argue thatthis court should refuse the relief sought because anotherremedy is available to the Applicants viz an appeal to theCrown Court under section 7 of the General Rate Act 1967.Since the point was neither raised nor argued before us,despite the observations of the Court of Appeal inR v Chief Constable of Merseyside Ex Parte Calveley (1986)QB 424, 1 AER 257, it would not be right for this courtto refuse relief on this ground.

The Council's resolution of 10 March 1987 aside a rateof 302.5 pence in the pound for domestic hereditaments and321 pence for non-domestic, which represented increasesof 62% and 56.6% respectively on the rates for 198&A&7.Not surprisingly, the Council's decision to raise the rateby such substantial percentages resulted in a good deal ofconcern and opposition. This application is the legal expressionof that opposition.

The legal framework

The Council is a rating authority. Its duty to makea rate is imposed by section 2(1) of the General Rate Act1967, which provides:

2(1) "Every rating authority shall from time to time inexercise of their powers under s 1 (2) of this Actmake such rates as will be sufficient to p defor such part of the total estimated expenditure tobe incurred by the authority during the period inrespect of which the rate is made as is not to be metby other means or by means of excepted rates, includingin that expenditure any sums payable to any otherauthority under precepts issued by that other authority,together with such additional amount as is in theopinion of the rating authority required to coverexpenditure previously incurred, or to meet contingencies,or to defray any expenditure which may fall to bedefrayed before the date on which the moneys to bereceived in respect of the next subsequent ratemade under this subsection will become available."


For convenience, I repeat parts of my judgment in Smithv Skinner (1986) RVR



"A local authority's revenue expenditure is financedby income from three sources - (a) rates paid by theratepayers; (b) grants of various kinds made bycentral government and (c) rents — houses andother property leased by the authority, and chargesfor the supply of goods and services.

Grants paid by central government fall broadlyinto two categories, namely, grants for specificpurposes and the rate support grant (RSG). Thisin turn contains two elements, namely, a "domesticrate relief grant" and "block grant",which is thebalance of the grant paid to an authority which isnot allocated to any specific purpose and thus maybe used by the authority in carrying out any of itsfunctions."


As is well known, it has been a major concern of thepresent government since it was first elected in 1979 toattempt to control the level of local authorities expenditure.This concern has resulted in three statutes, namely, part6 of the Local Government Planning and Land Act 1980 ("the1980 Act"), the Local Government Finance Act 1982 ("the1982 Act") which introduced substantial amendments to the1980 Act, and the Rates Act 1984 ("the 1984 Act"), Threeof the mechanisms by which this control is exercised arerelevant in the present case.

Firstly:"The Secretary of State for the Environmentdetermines each year a national total sum to bepaid by Government by way of rate support grant.After deducting the amount required for domesticrate relief,.the balance is available for distributionas block grant. In order to make this distribution,the Secretary of State assesses for each councilfigure which is intended to represent the costswhich the council should incur in providing normalaverage standards of services, having regard toits functions (1980 Act, s 56(8)). This is calledgrant related expenditure (GRE). Put shortly,the amount of block grant which the council receivesdepends on the relationship between its actualtotal expenditure from the rate fund (which includesboth rate income and RSG) and its grant relatedexpenditure."Secondly: "The 1982 Act gave the Secretary of Statea further and more sweeping power to limit the amountof block grant paid to an individual local authority.,This was achieved by amendments to the 1980 Act,in particular of s 59. Under that section as soamended, the Secretary of State may issue to anauthority "guidance" as to its total expenditurefor the forthcoming year, which is "designedto achieve" a reduction in the level of thatexpenditure. This "guidance" figure has cometo be known as the "target". If, thereafter,the authority spends in excess of its target, theSecretary of State may reduce the block grantfor the authority by an amount greater than theexcess. The reduction of block grant is calledthe "penalty". The higher an authority's expenditure rises above target, the higher becomes the ratioof the penalty to the excess, so that an authoritycan lose the whole of its block grant. Thus, forevery £1,000 of expenditure above target, anauthority loses grant, and in order to finance theexpenditure has to find over £1,000 from othersources."


The third mechanism is the power given to the Secretaryof State by the 1984 Act to limit the rate in the £ whichan individual local authority can resolve to levy. Thisis the process which has come to be known as "rate capping".

"Under the Act, the Secretary of State may designatein a report laid before the House of Commons thoseauthorities whose maximum rates are to be prescribed,Thereafter, as part of the process of determiningthe maximum rate, the Secretary of State shalldetermine a level for the authority's totalexpenditure in the relevant year, and give noticeof the proposed level to the authority. Theauthority may apply to the Secretary of State toredetermine the maximum expenditure level byincreasing it, but if such an application ismade, the Secretary of State may reduce the levelor, if he increases it, impose on the authority"such requirements relating to its expenditureor financial management as he thinks appropriate",and the authority must comply with such requirements.It goes without saying that few, if any, localauthorities, would welcome the exercise by theSecretary of State of such additional powers ofcontrol of its finances.

Once the maximum expenditure level is determinedor redetermined, the Secretary of State, as soonas possible after the RSG report for the yearhas been laid before the House of Commons serveon a designated authority a notice stating themaximum rate in the pound it may levy in theforthcoming financial year. If the authoritydo not agree the maximum rate figure, theSecretary of State may prescribe it by an orderto be laid before the House of Commons. There-after, the authority may not lawfully make a rateabove this maximum figure".


By section 99 and paragraph 39(1) of Schedule 12 ofthe Local Government Act 1972, "all questions coming or arisingbefore a local authority shall be decided by a majorityof the members of the authority present and voting thereonat a meeting of the authority". The same rule applies tocommittees of the authority. It follows that a resolutionof a local authority is in practice the resolution of those,in the majority, who voted for it.

A further provision, which is relevant to one of MrWadsworth's arguments, is contained in section 13 of theRates Act 1984. This provides:

13."(1) Every authority shall in each financial yearconsult persons or bodies appearing to it to berepresentative of industrial and commercial rate-payers in its area about its proposals for expenditure and the financing of expenditure in the nextfinancial year.

(2) The duty under subsection (1) above shallbe performed by an authority in each financialyear before it determines for the purposes ofsection 2 or 11 of the General Rate Act 1967the amount of its total estimated expenditurefor the next financial year.

(3) In performing that duty an authority shallhave regard to any guidance issued by the Secretaryof State concerning-(a) persons or bodies to be regarded for thepurposes of this section as representativeof industrial and commercial ratepayers; and(b) the timing and manner of consultation underthis section.

(4) An authority shall make available to therepresentatives whom it proposes to consult underthis section such information concerning its pastand proposed expenditure and financing of expenditure as may be prescribed by regulations made bythe Secretary of State."


History of the Rate Resolution

Before May 1986 the Labour Party did not have controlof the council. The budget for 1986/87 was prepared bythe previous administration, and a rate was made in thesum of 20.5 pence in the pound. However, after the makingof that rate but before 8 Mar, 1986 the previous council hadpassed resolutions for increased expenditure the effect ofwhich was to add for the year 1987/88 to the expenditurealready committed by the 1986/87 budget, items totallingsome £2.6 million.

The elections for the Borough Council took place on8 May 1986. The Labour Party issued a manifesto duringthe election which contained the following paragraph:

"A Labour Council will be committed to thepreservation of council services and willnot make redundancies from the councilsworkforce. We recognise that manyservices are inadequate and that theirdevelopment requires substantial additionalfinance. Ultimately this will depend uponthe election of a Labour Government andthe provision of increased rates supportgrant, we are conscious of the, economicburden that rates place on many peopleand of the inequality of the presentrating system. In the short term,however, until there is a change ofgovernment, we recognise that areasonable level of rate increase maybe necessary for the maintenance andexpansion of services".


At the election the Labour Party gained an absolutemajority on the council. The numbers of councillorsthereafter were Labour 31, Conservative 16, andAlliance 10, thus giving Labour an overall majority of 5.

Early in June 1986 the new council made a number ofdecisions which made further substantial additions toexpenditure in 1987/88. Taking account of the loss ofgrant, to which I shall refer later, the eventual costof these decisions was some £3.5 million. Approximatelyhalf of this increase related to additional expenditureon education.

On 23 June 1986 there was a meeting of the PolicyCo-ordinating Committee. Officers presented a reporton prospects for expenditure 1987/88. This report containedthe following passages :

"Resources to develop the council's services areconstrained by the extent to which members feelthe ratepayers are able to bear an increasein their rate bills. This is affected by localpressures as well as central government influence.

The government is able to exert pressure torestrain spending through the block grant system,by shifting the burden of the additional expenditure,together with the resultant loss of grant, to theratepayers. Members are asked to decide on theapproach of the Policy Review bearing in mindthe balance between the benefits of developingservices for the community and the additionalcost falling to be met by the ratepayers".


In a section headed "Rate Capping" the officers advisedthe Committee that unless the government criteria for thechoice of authorities to be rate capped were drawn moretightly than they had been in the past, it would appearthat the council might avoid rate capping in 1987/88.This forecast has in the event proved to be accurate.

The Committee also had before it a Draft CorporatePlan, which was described as "a first attempt to definepriorities between council services and to link thesepriorities to the resources available". At that stage thepriorities were divided into two categories, namely agreedpriorities, being those to which the council was committedand for which resources had been provided, and prioritiesfor review being those which the council wished to pursuebut in respect of which no decisions had yet been taken.

The Committee agreed that the key issues identifiedin the draft Corporate Plan should be agreed and used asa basis for preparing proposals for the Policy Review andfor the assessment of budgetary priorities. The Committeerecommended also that the officers be asked to identifygenuine efficiency savings. The committee noted that onthe best assumption on existing council policies an increasein the rates of 35 pence (17%) seemed probable. The resolutionof the committee was approved by the council on 7 August1986.

On 25 September 1986 there was a meeting of the labourgroup. Since some of the submissions made by Mr Wadsworth,for the Applicants, are based upon the relationship betweenthe labour group, another body called the local governmentcommittee, and individual councillors in the majority partyI must start by describing these two bodies. The labourgroup consists of all the councillors who are members ofthe Labour Party and have accepted the Labour Whip. Counciland council committee meetings in Waltham Forest are normallyon a six week cycle i.e. there is approximately six weeksbetween each council meeting and the regular meetings ofeach committee. The labour group meets twice during eachcycle, once a day or two before the council meeting, andone once approximately half way through the cycle. Itsmeetings are attended not merely by its members but byapproximately ten other members of the Labour Party, whoare entitled to speak at the meeting but do not have a vote.The Local Government Committee is a joint committee consistingof representatives of the Labour Parties of the three parliamentary constituencies which make up the Borough of Waltham Forest.

Councillors are only members of the LGC if they are appointedas such by their respective constituency parties. However,from time to time councillors, particularly the leader ofthe council, are invited to attend meetings of the LGCand to address it. Councillors who are not in their ownright members of the LGC have no right to vote at itsmeetings.

At the meeting of the Labour Group on 25 September 1986,the group was addressed by the leader of the council, CouncillorGerrard, speaking from a prepared text of which copies areincluded in the documents before us. The document is entitled"Policy Review". In it, Councillor Gerrard made the followingpoints,

(i) It was clearly not going to be possible toimplement everything in the labour manifestoin the first year's Policy Review, and it wastherefore essential to establish prioritiesclearly.

(ii) At that stage it was not possible to makeany accurate forecast of rate levels for1987/88. On the one hand it would be damagingto put too much into the Policy Review and haveto delete items hurriedly at the time of makingthe rate, while on the other hand a failure toset "major service developments in motion nowwould be impossible to recover from in the lifetime of this council".

(iii) "It must be assumed that we will be rate cappedafter our first rate making. Even the do nothingoption in the table would take us well above thelevel at which rate capping happened this year."


Councillor Gerrard concluded by describing three keydecisions. They were

a. Was it possible to decide at that stage on amaximum level of rate increase acceptable fornext year? He recommended that it was not.

b. How should priorities be set for next year?He recommended that development of servicesshould be divided between three categories,which he described as "committed, essential,and desirable".

c. He recommended that " we use this policy reviewto introduce major new initiatives" even thoughrate capping next year "is inevitable unless ageneral election in the meantime has returned alabour government".


The table which accompanied this document had columns showingthe makeup of the rate for 1986/87, with estimates of thelikely additions which would result from the three categoriesof development. The estimate at that time was that the "committed"items would result in a 32% increase in the rate, the "essential"items to a 40% increase and the remainder to a 59% increase.As will be seen this proved to be slightly optimistic butnot far short of the mark.

On 30 September 1986 there was a meeting of the LocalGovernment Committee. Councillor Gerrard addressed thecommittee in almost identical terms to those he had usedwhen addressing the labour group. The committee agreedthat it should "monitor the policy review and be consultedon priorities", and that there should be a special conferenceon the 15 November 1986 at which the chairman of committeesshould present papers outlining the work and priorities oftheir committees.

Officers then prepared a policy review paper, whichwas circulated to all members of committees together withthe draft Corporate Plan. By this time it was known thatthe council would not be rate capped for 1987/88, thoughthe paper made it clear that it had "only escaped the ratecapping criteria by the use of the special funds." Thepaper also forecast that on present levels of spending ifthe criteria remained unchanged, the council would berate capped in 1988/89. The paper identified the increasesin the rate which would result from the adoption of thedevelopments in the various categories of priority, as setout in the table to Council Gerrard's paper. The prioritieswere, however, redefined. Commitments became category A .

Category B, the former "essential" category was now describedas "major corporate priorities. Other proposals were classedas category C. At that stage it was estimated that for afull year category A would require an addition of 40% tothe rate, categories A and B together 49% and all threecategories 70%. In round figures, every additional £1 millionexpenditure was equivalent to an increase of approximately5 pence in the rate or 2.2%.

Towards the end of the paper the officers advised membersof the considerations they should bear in mind. They said:

"In coming to their decisions in relation to the policyreview and the 1987/88 rate levy, members will,need toact reasonably, taking into account only relevantconsiderations. They must take account of theirfiduciary - i.e. trustee responsibilities to theratepayer and they must ensure that a balance isachieved between the needs of the consumers ofthe councils services on the one hand', and thefinancial burden on the ratepayer on the other.

In accordance with the consultation procedures,members are required to discuss their budgetproposals with representatives of commerce andindustry. Those representatives will no doubtwish to comment upon any difficulties they foreseefor their businesses if rates are increasedsubstantially above the rate of inflation".


The recommendations at the end of the paper were that

"in the light of the considerations set out inthis part of the policy review, committees areasked to :a. consider whether the items included in CategoryA should continue to be treated as commitments.

b. Consider the items included in Category B andadvise capitals resources strategy committeewhether these proposals have a high priorityfor implementation in next financial year.

c. Identify projects included in Category Cwhich the committee would wish to seeprogressed to implementation in 1987/88if the resources can be made available."


Armed with these documents the various committees thenconsidered the categorisation of items which came withintheir spheres. It was decided that the C category shouldbe sub-divided into C1, amounting to approximately 25% byvalue of the items, and C2, the remainder.

There was a joint meeting of the labour group and theLocal Government Committee on 11 November 1986. At thatmeeting recommendations were made that committees shouldmove a variety of items from the C category into the Bcategory. A subsequent meeting of the labour group acceptedthis recommendation, as it was described, and indeed addeda further four items which were to be,moved from the C tothe B category. These recommendations were acceptedin their entirety by the respective committees, and on the20 November 1986 the council at its meeting adopted committeeby committee these recommendations for categorisation.

Meanwhile the process of consultation with commercialand industrial ratepayers, required by the Act no doubt becauseas such ratepayers they are not local government electors,had started. Whether it was either in time or sufficientis another subject upon which Mr Wadsworth bases submissions.

On 11 November 1986 the Chief Executive wrote toapproximately 100 local companies, businesses and organisationsrepresenting commercial concerns to tell them that therewould be a meeting on 11 December 1986 to which they wereinvited, at which the council would outline its future plansand the ratepayers present would be invited to comment orto ask questions. On the same day there was a notice inthe local paper to the same effect. Two weeks later on25 November the Chief Executive wrote again to the samecompanies and businesses enclosing an agenda for the meetingtogether with the supporting papers. This included a memorandum on council spending and proposals for 1987/88,which described the three categories of developments, sothat final decisions had not been made on which of the itemswould be included in next year's budget and asked for commentsat the meeting of the 11 November. The memorandum was accompaniedby some 47 pages of detailed figures which would have enabledanybody who had time to consider the information about thecouncils proposals and the likely effect of various levelsof increased expenditure on the rates.

The meeting itself was duly held on 11 December 1986.I will refer later to the evidence contained in affidavitsas to what was said both at and after the meeting, and asto its effect.

On 10 January 1987 there was a further joint meetingof the labour group and the LGC, though only members of thecommittee voted at the conclusion of the meeting. CouncillorGerrard reported to the meeting, again from a written textof which we have copies. He made it clear that before anyof the expenditure was incurred for developments in categoriesA, B or C the cost of simply continuing services at theirexisting level (which he described as "our base positionfor next year") was some £4 million higher than had previouslybeen estimated. More than half of this figure was occasionedby the teachers pay award which would take effect from Januaryof 1987. In his comment at the end of the paper he saidamongst other things

"It is futile to think in terms of avoiding ratecapping next year if there is still a Tory government.Even standing still we are certain to be rate capped."
In his last paragraph he said:

"I believe that we should be aiming to go ahead withcategories A, B and C1 at least plus the items suchas rent freezes yet to be formally agreed. I donot believe there is any magic figure at which alarge rate rise becomes acceptable. If a rise of60% is seen as horrendous, then so will be a riseof 50% and in making that change of 10% we willhave cut out a number of very important developments,and certainly made the full implementation of ourmanifesto over the four year period a virtualimpossibility."


The report was accompanied by a table, similar to that whichhe had previously presented but with larger figures containedin it. The meeting resolved in the following terms "thisspecial LGC calls on the labour group to implement thosedevelopments present in categories A,B and C1", and tointroduce a freeze on council rents. The labour grouplater accepted these recommendations.

On 14 January 1987 there was a meeting of the ResourcesStrategy Committee. This meeting received the minute ofthe Industrial Consultation Meeting on 11 December, andresolved that copies of it should be sent to those who hadattended the meeting and invited to submit written comments.These were to be submitted to a meeting of the committeeon the 25 February. Six companies and businesses in facttook the opportunity to comment.

As usual, the officers put a report before the committee,and the conclusions of the report are so important that Iset them out in full

"The council's financial position has deteriorated asa consequence of the latest Rates Support Grant SettlementIt has failed to reflect the increases in costsexperienced by local authorities; the reduction inthe safety net has adversely affected this authority;and the abolition of grant re-cycling means thatless grant will be paid. This deterioration ofthe authority's Block Grant entitlement, togetherwith the need to restore reserves after their usein the current year, means that even with a stand 60/ v .§still at the 1986/87 original estimate level ofservice provision, the General Rate would needto increase by 64 pence in the pound (plus 31%).

During the current year the council has approveda range of new policy initiatives which commitsa further £5.5 million in 1987/88. After takingaccount of the loss of Block Grant at the rateof 62% this would increase the General Ratenext year by a further 29 pence - a total increaseof 93 pence (plus 45%) over the current year.This level of spending would represent a cashincrease of £17 million (13%) over the 1986/87budget .

Spending at the base position in 1987/88 wouldalmost certainly lead to the authority being ratecapped in the following year. This would haveserious implications for the council. Totalexpenditure would be determined by the Secretaryof State for the Environment below the committedlevel and the council's plans would need to beseriously curtailed. Reductions in budgets andservice levels would then be necessary."


The Officers recommended that dwelling house rent levelsshould be considered by the council, that the committee shouldagree to limit increase in services to category A i.e. thecommitted items, and that service committees should be askedto identify savings in preparing their budgets of at least3% of their allocations. I understand this last recommendationto be a request that they should consider saving expenditurefor any given level of services the saving to be at the rateof at least 3%.

The committee at its meeting noted the report of andthe comments made at the Industrial Consultation Meeting on 11 December. It also noted the impact of rate cappingon those authorities which had recently been rate capped

It recognised that spending even at the base positionin 1987/88 would almost certainly lead to the authoritybeing rate capped in the following year which would haveserious implications for the council. It recordedthe officers recommendations to which I have referred above,

It then recommended in accordance with the former decisionof the labour group that the budget allocations tocommittees should include items in categories A,B andC1 from the Policy Review, and that committees shouldexamine whether they could reduce their provisionalbudgets by

"Ensuring that realistic costings and phasingare included for projected new developmentsin 1987/88 and savings identified which aregenuine efficiency savings and not proposals toreduce the level or quality of services".


This recommendation related to a total reduction of 3%.It was also recorded that the officers had been asked toobtain legal advice relating to the above recommendationson both the projected general rate increase and the levelof housing rents.

On 15 January 1987 there was a meeting of the councilat which the recommendations of the Resources StrategyCommittee were approved and adopted, after ,a proposedamendment to them had been defeated.

On 22 January officers of the council and CouncillorGerrard attended a consultation with Mr Goudie, theirleading counsel, to seek his views in accordance with theresolution of the council. Without repeating in full

/Mr Goudie's views

(which slightly to my surprise have been put before usin the form of a note of the consultation) he did advisethat if the rents of council houses were not increasedat all, the rate increase might be open to challenge.

First the LGC executive on the 27 January, then theLabour group executive on the 24 February, and finallythe special Resources Strategy Committee and the counciladopted Mr Goudie's advice and accordingly it was resolvedthat rents should be raised by 65 pence per week.

The meeting of the labour group on the 24 Februarywas of course concerned with the major question of theamount of the rate to be set. It is clear from the recordwe have of this meeting that the members of the group werenot at one, and that some six or seven members both arguedand voted against so large an increase.

The final meeting of the Resources Strategy Committeebefore the making of the rate was on 25 February. Theeffect of the resolutions of the labour group was putfully and fairly before the committee in the Officersreport. In a paragraph headed "Fiduciary Responsibilities"the officers said

"In considering the budget and the level of rate increaseto be applied next year , members will need to haveregard to their fiduciary responsibilities.


At the Special Meeting on 14 January 1987 the officers wereasked to seek legal opinion, regarding the council's rentand rate proposals. Reference has already been made tothe Housing Committees decision to increase rents fromApril 1987 in the light of the legal advice . "This legal advice was then summarised

In a passage dealing with rate capping, the officerssaid

"The consequences of becoming rate capped are severe".


They gave an example of a neighbouring authority whichhad been rate capped and said that if the same criteriawere applied to Waltham Forest, the council would haveto reduce its spending by some £25 million, an 18% cashreduction on the present budgeted spending level. The committeewas recommended to consider the legal advice, and to makedecisions about the estimates and the rate, with the figuresresulting from the resolution of the labour group being setout in detail.

The committee adopted that resolution, and on the10 March 1987 as I have already said the council, aftera debate and the moving of two amendments which were lost,resolved that a rate should be made at 321 pence in thepound for hereditaments other than domestic, and 302.5pence in the pound for domestic hereditaments . Atthat meeting the receipt of a petition from the Chamberof Commerce said to contain 23,500 signatures, together withanother petition of protest against the increase in therate containing 52 signatures, were reported.

At the meeting of the Resources Strategy Committee onthe 30 March 1987 the details of these petitions were noted.

On the 9 April 1987 a motion to make a substituted ratei.e. a rate at a lower level was defeated.

Submissions

Mr Wadsworth advances the Ratepayers reasons why theCouncil's resolution to make the rate should be quashedunder the following heads;

1. The resolution resulting in so large an increasein the rate was irrational
a) in relation to the year 1987/88 and
b) because of the necessary implications for1988/89 and future years.

2. Councillors who voted for the resolution wronglyhad regard to a collateral matter, namely what theyregarded as commitments contained in the LabourManifesto. Alternatively, they were thus in breachof their fiduciary duty to their ratepayers.

3. Councillors who voted for the resolution wronglyhad regard to collateral matters, and/or improperlyfiltered the exercise of their discretion:
c) by acceptance of the Labour Whip, with theconsequent prospect of penalties if theydisregarded the whip; and/or
d) by wrongly accepting instructions from theLGC.

4. The council failed to consult industrial andcommercial ratepayers in the manner required bylaw.

I will consider these submissions under these four headings,although as Mr Wadsworth accurately says the first threeoverlap each other. Although Mr Wadsworth put his argumentsin the order in which I have set them out, it's convenientto consider first whether the Councillors who voted for therate resolution took into account collateral matters or hadimproperly fettered the exercise of their discretion. Ifwe find neither of these assertions to be made out, thenMr Wadsworth argues that the decision can only be consideredirrational. I shall therefore consider the issues in thatorder.

Before I do so, however, I remind myself of what itis we are considering. In the origin of this jurisprudence,the judgment of Lord Greene M.R,in Associated ProvincialPicture House v Wednesbury Corporation (1948) 1KB 223 CA.

he said at page 229;

It is true the discretion must be exercised reasonably.Now what does that mean ? Lawyers familiar with thephraseology commonly used in relation to exercise of statutorydiscretions often use the word "unreasonable " in a rathercomprehensive sense. It has frequently been used and isfrequently used as a general description of the things that mustnot be done. For instance, a person entrusted with a discretion must, so to speak, direct himself properly in law.He must call his own attention to the matters which he isbound to consider. He must exclude from his considerationmatters which are irrelevant to what he has to consider.If he does not obey those rules, he may truly be said, and oftenis said, to be acting "unreasonably." Similarly, there may besomething so absurd that no sensible person could ever dreamthat it lay within the powers of the authority. Warrington L.J.in Short v. Poole Corporation (i) gave the example of the red haired teacher, dismissed because she had red hair. That isunreasonable in one sense. In another sense it is taking intoconsideration extraneous matters. It is so unreasonable thatit might almost be described as being done in bad faith ;and, in fact, all these things run into one another.


At page 230 he said:

It is clear that the local authority are entrustedby Parliament with the decision on a matter which the knowledge and experience of that authority can best be trusted todeal with. The subject-matter with which the condition dealsis one relevant for its consideration. They have considered itand come to a decision upon it. It is true to say that, if adecision on a competent matter is so unreasonable that noreasonable authority could ever have come to it. then thecourts can interfere. That, I think, is quite right ; but toprove a case of that kind would require something overwhelming. and. in this case. the facts do not come anywherenear anything of that kind. I think Mr. Gallop in the endAgreed that his proposition that the decision of the localauthority can be upset if it is proved to be unreasonable, reallymeant that it must be proved to be unreasonable in the sensethat the court considers it to be a decision that no reasonablebody could have come to. It is not what the court considersunreasonable, a different thing altogether.


In the last paragraph of his judgment he summarised theprinciples as follows:

I do not wishto repeat myself but I will summarise once again the principleapplicable. The court is entitled to investigate the action of thelocal authority with a view to seeing whether they have taken intoaccount matters which they ought not to take into account, or,conversely, have refused to take into account or neglected to takeinto account matters which they ought to take into account.Once that question is answered in favour of the local authority,it may be still possible to say that, although the local authorityhave kept within the four corners of the matters which they oughtto consider, they have nevertheless come to a conclusion sounreasonable that no reasonable authority could ever havecome to it. In such a case, again, I think the courtcan interfere. The power of the court to interfere in each caseis not as an appellate authority to override a decision of thelocal authority, but as a judicial authority which is concerned.and concerned only, to see whether the local authority havecontravened the law by acting in excess of the powers whichParliament has confided in them.


In Council of Civil Service Unions v Minister for the Civil Service (1985) AC374 Lord Diplock defined"irrationality" thus at page 410 F - G:

By "irrationality" I mean what can by now be succinctly referred toas "Wednesbury unreasonableness" (Associated Provincial Picture HousesLtd, v. Wednesbury Corporation [1948] 1 K,B. 223). It applies to adecision which is so outrageous in its defiance of logic or of acceptedmoral standards that no sensible person who had applied his mind to thequestion to be decided could have arrived at it. Whether a decision fallswithin this category is a question that judges by their training andexperience should be well equipped to answer, or else there would besomething badly wrong with our judicial system. To justify the court'sexercise of this role, resort I think is today no longer needed to Viscount Radcliffe's ingenious explanation in Edwards r. Bairstow [1956]A.C. 14 of irrationality as a ground for a court's reversal of a decisionby ascribing it to an inferred though unidentifiable mistake of law by the (sic. JB)


As to fiduciary duty of Councillors to the ratepayers in their area, and the effect of a party manifesto,the speech of Lord Diplock in Bromley LBC v GLC (1983) 1AC768 conveniently summarises the law at page 829 B:

I have left out electors as such, as constituting a separate category. Acouncil member once elected is not the delegate of those who voted in hisfavour only; he is the representative of all the electors (i.e. adult residents)in his ward. If he fought the election on the basis of policies for the futureput forward in the election manifesto of a particular political party, hepresumably himself considered that in the circumstances contemplated inthe manifesto those policies were in the best interest of the electors in hisward, and, if the democratic system as at present practised in local government is to survive, the fact that he received a majority of votes of thoseelectors who took enough interest in the future policies to be adopted bythe G.L.C. to cause them to cast their votes, is a factor to which considerable weight ought to be given by him when participating in thecollective duty of the G.L.C. to decide whether to implement those policiesin the circumstances that exist at the time that the decision falls to bemade. That this may properly be regarded as a weighty factor is implicitin the speeches in this House in Secretary of State for Education andScience v. Tameside Metropolitan Borough Council [1977] A.C. 1014;although the issues dealt with in that case were very different from thosearising in the present appeals. In this respect I see no difference betweenthose members of the G.L.C. who are members of what as a result of theelection becomes the majority party and those who are members of aminority party. In neither case when the time comes to play their part inperforming the collective duty of the G.L.C to make choices of policy oraction on particular matters, must members treat themselves as irrevocablybound to carry out pre-announced policies contained in election manifestoseven though, by that time, changes of circumstances have occurred that were unforeseen when those policies were announced and would addsignificantly to the disadvantages that would result from carrying them out.

My Lords, the conflicting interests which the G.L.C. had to balance indeciding whether or not to go ahead with the 25 per cent reduction infares, notwithstanding the loss of grant from central government fundsthat this would entail, were those of passengers and the ratepayers. It iswell established by the authorities to which my noble and learned friend,Lord Wilberforce. has already referred, that a local authority owes a fiduciary duty to the ratepayers from whom it obtains moneys needed tocarry out its statutory functions, and that this includes a duty not to expendthose moneys thriftlessly but to deploy the full financial resources availableto it to the best advantage; the financial resources of the G.L.C. that arerelevant to the present appeals being the rate fund obtained by issuingprecept and the grants from central government respectively.


I now turn to consider the arguments.

The Manifesto, and Councillors' fiduciary duty: It isclear from the passage I have quoted from the speech of LordDiplock in the Bromley LBC case that councillors who havebefore election issued a manifesto describing what policiesthey intend to pursue if they are in the majority after theelection are entitled to regard the carrying out of thosepolicies as a most important factor in their decision -making process. What they may not lawfully do is to regardthe manifesto as a commitment, and to seek to carry outthe policies in it regardless of any other considerations.Is it shown that this is what the Labour Councillors inWaltham Forest did?

I have already quoted passages from the address ofCouncillor Gerrard to the Labour Group Meeting of 25 September1986 setting out the necessity for categorising projectsin order of priority. The reports of the officers to thecommittees conducting the Policy Review in October/November1986 and to the Resources Strategy Committee on 25February 1987, which was before the council when it madethe rate on 10 March 1987, set out correctly and clearlythe matters Councillors were to take into account in reachingtheir decision, and advised them as to their fiduciaryduty .

We have evidence that the Labour Councillors did regardthe implementation of the policy in their manifesto as veryimportant. Councillor Gerrard made this clear in his papersaddressed to the Labour Group, and according to him Knight's affidavit, the Councillors present at the IndustrialConsultation Meeting on 11 December 1986 said as muchIn his first affidavit, Councillor Knight refers to themanifesto in the following words:

7, In May 1986, the Labour Party were successful in the Borough elections.We had fought the election campaign on an extensive manifesto which pledged,inter alia, to increase services for the Borough, The relevant passage is setout in the section under Political Aims in the "Economy and Employment"section. We recognised that many services were inadequate and theirdevelopment required additional finance. We also recognised that in the shorttern at least, a reasonable level of rate increase might be necessary for themaintenance and expansion of services. I have at all times had regard to theterms of our manifesto in carrying out my duty as a Councillor but I am wellaware of my duty to consider each Issue on Its merits and not simply slavishlyto implement the manifesto. I verily believe that each of the MajorityCouncillors Is equally aware of his or her duty In this regard. I believethat the Councillors at all times felt that they would want to implement thepolicy set out In their manifesto without thereby breaching the law In anyway.


In the light of that evidence, I do not find Itpossible to infer that, despite what Councillor Gerrarddeposes, he and his colleagues had no proper regard totheir duties to the ratepayers. Indeed, so to find wouldinvolve not only disbelieving Councillor Gerrard (and therewas no application to cross-examine him on his affidavits),but would also mean that we concluded that the entire exerciseof categorising projects by order of priority was a sham.I cannot so find. Accordingly in my judgment the Ratepayerschallenge on this ground falls.

The Labour Whip and the Local Government Committee.The "fetter" issue

The law on this subject can be shortly stated. InBirkdale Electric Supply Co. v Southport Corporation (1926)AL 355 Lord Birkenhead referred at page 364 to

"a well established principle of law that if a personor public body is entrusted by the legislature withcertain powers and duties expressly or impliedly forpublic purposes, those persons or bodies cannotdivest themselves of these powers and duties. Theycannot enter into any contract or take any actionincompatible with the due exercise of their powersor the discharge of their duties."


We were referred to a number of more recent decisionsof the courts in which this principle was in issue, namely,the judgments of Willis J in Lavender v MHLG (1970) 1 WLR1231, of Cooke J in Stringer v MHLG (1970) 1 WLR 1281 andof Woolf J (as he then was) in R v Amber Valley DC ex p.Jackson (1984) 3AER 501. I do not find it necessary to citefrom them, because they are all illustrations of the generalprinciple. Another authority to which Mr Wadsworth referred,the decision of this court in R v Hendon R.D.C. ex p. Chorley(1933) 2 KB 696, was on a different point, namely, theinvalidity of a decision of a council when a Councillor whovoted for the resolution had a financial interest whichdisqualified him by law and was otherwise biased. Sucha situation is not suggested here.

The evidence relating to the relationship between theLocal Government Committee and the Labour Group on theCouncil, and thus the council itself, can be: summarised shortly.The allegation is that, as in Lavender's case, the council,the elected decision - making body, has in practice givenits decision-making powers to an outside body, the L.G.C.,and has thus abnegated its statutory responsibility. Ifthat were proved to have happened, there is no doubt thatit would invalidate the purported decision of the Council.

The foundation of the Ratepayers' case on this issueis a short passage in a memorandum written by CouncillorSlack, dated 20 February 1987. This was submitted to themeeting of the Labour Group on 24 February 1987, at whichCouncillor Slack was one of six or seven councillors whovoted against the proposal to increase the rate by so largea proportion as 56.5% and 62%. Councillor Slack arguedin his memorandum that the task of ordering priorities betweencommittees had not been tackled at all, and continued:

"At the end of policy review, following instructionsfrom the LGC, the bulk of C1 items were moved upto B.........."


In his first affidavit, Councillor Gerrard says that CouncillorSlack's reference to "instructions from the LGC" is inaccurate,and in his affidavit Cllr. Slack agrees that the phrase isan inaccuracy.

Mr Goudie, for the Council, points out that the minutesof the LGC and the Group normally speak of "recommendations"
(Page 30 missing from my copy.)


on 10 March 1987 the six or seven opponents all voted withtheir colleagues in the Labour Group to make the rate.If they had not done so - if. indeed, they had all abstained- the remainder of the Labour Group would have been in aminority, by one or two votes, and the resolution would nothave been approved. Thus, submits Mr Wadsworth. if thevotes of the six or seven Labour opponents in favour of therate were cast only because they were fettered by the LabourWhip, or by fear of expulsion from the Labour Group, thepassing of the resolution is itself invalidated.

The Labour Group has adopted the form of Model StandingOrders recommended by the Labour Party's NationalExecutive. These include the following provisions:

5 (b) "It shall be the responsibility of theLabour Group on the council to takedecisions on matters coming before thecouncil....."




7 (c) Members of the Labour Group are expected not to speak or vote at meetings of thecouncil in opposition to the decisions of the Labour Group, unless the group has decided toleave the matter in question to a free vote. Where matters of conscience arise (e.g.. religion.temperance, etc..) individual members of the Labour Group may abstain from voting, providedthey first raise the matter at the group meeting in order to ascertain the feeling of the group. Inmatters where the council or its committees or sub-committees are acting in a quasi judicialcapacity (e.g. licensing of theatres and cinemas etc.), each member shall form his or her ownjudgment according to the evidence.






9. Breach of standing orders,It is hereby declared that acceptance of these standing orders (as amended from time to timewith the approval of the National Executive Committee of the labour Party) is a condition ofmembership of the Labour Group on the council. It shall he competent for the group whip to hewithdrawn from any member who violates these standing orders, such action to he initiated bythe group whip reporting to the group and party officers98


The question is, why did the six or seven Councillorsvote with the majority at the Council Meeting on 10 March?

In his affidavit Cllr. Slack says :

7. Despite my opposition to the extent of the rate increase,I felt that I ought not to carry my disagreement with the groupdecision into the Council Chamber and that I should vote forthe rate increase proposed. This I did. I felt that I oughtto defer to the wishes of the majority and support the rise.. (indecipherable) had decided to vote against the group policy in CouncilI would personally have felt obliged to resign from the Labour Group and thereby deprive myself of the opportunity to continue to try and Influence ay colleagues.

8. I would like to stress that my opposition to therate increase was not based on any belief that the rate proposedwas unlawful. If that had been the case, I would not have voted for it in any circumstances. Nor is it true that Groupmembers, as far as I know, including myself, voted for theproposal concerned under instructions from any other body includingthe Labour Party.

11. During the month before the Council meeting on 18thJune 1987, I came increasingly to believe that my decisionto support the financial policy of the Group, in spite of myown disagreement with if, was mistaken. This was for politicalas opposed to legal reasons. However, I also felt that, asleave for Judicial Review had been granted that it was notin the Council's interest to continue those proceedings. Itherefore decided that I would no longer publicly support Groupfinancial policy and on 15th June 1987 wrote to the LabourChief Whip informing him of my decision and resigning the Labourwhip. At the Council meeting on 18th June 1987 I voted againstLabour Group policy in supporting amendments to Minute 4 ofthe General Purposes Sub-Committee moved by opposition members,In doing this I have not changed my view that the originaldecision was a lawful one.


Councillor Brind affirmed that:

"what led me to vote as I did was my view that theright course was to support the proposal which I knewcommended itself to the majority of my colleagues inthe Labour Group."


Councillors Mrs Smith and Miles expressly agreed.

We granted an application by Mr Wadsworth for leaveto cross-examine Cllrs. Mrs Smith, Brind and Miles.Surprisingly, the application did not include Cllr. Slack.The reasons which the three Councillors gave in their oralevidence for voting with the majority at the council meetingon 10 March were:

Cllr, Mrs Smith - I voted as I did for the sake ofunity, which I regard as very important. When theGroup is working towards certain ends, it is importantto preserve the unity of the Group so as to giveconfidence to those who will receive the services.

Cllr. Brind If I decided not to vote with themajority I would feel obliged to resign from thecouncil. I was elected, not because of anyvirtues I might have personally, but as a LabourCandidate. Also, it was a bit melodramatic fora newly elected Councillor to take such drasticaction.

Cllr. Miles - After a fair and thorough debateat the group meeting, I felt bound by the normalprocedure of every political group of every councilin the country.

In his third affidavit, Councillor Gerrard explainsthe sanction which can be applied as follows:

Group members who vote against the whip are subject to disciplinary action underthe Standing Orders of the Group. THe normal practice for many years has been toissue a warning as to their future conduct to any member who has voted againstthe whip for the first time. More stringent action, such as removal from positionsof responsibility such as Committee Chairs, has only been taken when the breachof Standing Orders has been repeated.


We thus have evidence that the way in which the WalthamForest Labour Group operates is in accordance with theStanding Orders recommended by the Labour Party NationalExecutive, and is common to political groups of all politicalpersuasions in local authorities throughout the country.Indeed, if we did not have evidence to this effect, it wouldrequire a good deal of judicial self deception to pretendthat we did not already know it. I therefore agree withMr Goudie that if we are to quash the Council's resolutionon this ground, we should be casting doubt on the legalityof many procedures adopted by political groups of LocalCouncillors throughout the country.

If that were the correct decision, I should not hesitateto reach it however far-reaching the effect. But in myjudgment Mr Wadsworth's submissions on this issue are notwell bounded. If a Councillor genuinely believes that itis desirable that the party of which he or she is a membershould remain in power in a local authority district, andshould thus be able to pursue policies which he or she considersdesirable, these are not irrelevant considerations for theCouncillor to take into account when deciding which way tovote on a particular proposal which has the support of themajority of the party, but to which he is opposed. If heor she considers that the alternative to voting with themajority at the council meeting is to resign from the group,or from the council, that it is not an improper fetteron his decision. It may be that there are area of councildecision-making to which this general principle does notapply. Thus when a council is considering whether to grantplanning permission, a "party line" on the decision maywell be inappropriate. But as a general principle I believeit to be sound.

It follows, therefore, that even if I were to acceptMr Wadsworth's submission that, because six councillors votedcontrary to their own views, the resolution of the councilis thus rendered invalid and should be quashed (a propositionabout which I have considerable doubts), I do not accepthis submissions that their votes were fettered or took intoaccount irrelevant considerations I would thus reject hissubmissions under this head also.

This brings me to:

Irrationality

In addition to the documentary evidence, Mr Wadsworthrelies on certain oral evidence which is disputed. Accordingto Mr Innes, one of the deponents for the Ratepayers, ata meeting on 15 May 1987 a Cllr. Jacobs, one of the LabourGroup, when asked whether he considered a rise of 62%reasonable, answered that he recommended a rise of 30%.In his affidavit Cllr. Jacobs denies that he did sorecommend and denies that he said he did. I must acceptthis denial. Cllr. Jacobs concludes.

9. In paragraph 8 of his Affidavit. Mr Innes states that he understoodfrom the conversation that I and my colleagues considered that a62% rate increase was not a reasonable one but that we felt ourselves bound to implement our manifesto expenditure commitment rather thanto limit our expenditure plans to what could be financedby suchrate increase as we considered reasonable. I deny I ever made sucha statement or gave such an impression. Such a statement or impressionwould be untrue. I have on many occasions since the rate was fixedtried to explain my position on the level of the rate rise and Ican recollect doing so on this occasion. I stated that. on the faceof it, a 62X rate rise might seem unreasonable but» consideredin its context of the amount needed not only to maintain existingservices but to have a modest expansion, then such a rise was, andis, a reasonable one.

Councillor Gerrard says much the same. He deposes that hisexpressed view is that

"stated as a bald figure a percentage of 62% didseem unreasonable, but that if we wanted necessarydevelopments we must increase the rates".


I accept that Cllrs. Jacobs and Gerrard have accuratelyset out the views they expressed.

The officers' Report to the Resources Strategy Committeeon 14 January 1987 informed the Committee that a budget forexpenditure at base level (i.e. with no improvement inservices compared with the 1986/87 budget) would requirea rate 31.2% higher for non-domestic properties, and 34.3%for domestic. For base plus Category A development, thepercentages are 45.3 and 49.8. Councillors were alsoadvised that every additional £1 of expenditure would resultin a loss of grant of 62 pence. Thus to achieve £1 of extraexpenditure, a rate rise of £1.62 was needed. Altogether,at the rate of expenditure approved by the council, some£10 million of Rate Support Grant was withheld.

As to the future, Councillors were warned that, unlessthere were a General Election at which a Labour Governmentwere elected, or at least the Conservatives failed to gainan overall majority, they could confidently expect that thecouncil would be rate capped in 1986/89. This would inevitablymean a very considerable reduction in expenditure, and createenormous difficulties. Cllr. Slacks memorandum of February1987 describes what is then likely to happen as "crisismanagement".

Councillor Gerrard, in his second affidavit says:

The relationship between local and central government on the question of finance is in a continualstate of flux, and no one could predict with confidence precisely whatrate capping policy the Government would adopt for 1988/89. Coupled with thiswas the fact that it was generally considered that a General Election wouldtake place sometime in the summer of 1987, and there was always a realisticpossibility (or so it seemed to the Majority Members) that the ConservativeGovernment would lose office, or alternatively be a partner in some form ofcoalition government. In either case it is clear that stringent controls onlocal authority expenditure would have been relaxed.


In any event I took the view that even if in the relatively near futurethe level of services would again have to be pruned, nevertheless, the Councilwas still justified in taking the decision it did. It enabled the Council totake steps towards achieving the objectives which it considered to be in the..Interests of the community: even short-term improvements were better than noimprovements at all. I do of course agree that other Councillors could take aDifferent view and consider that the benefits would be of too short a durationto warrant the rate increase. This, however, was essentially a politicaldecision and the Majority Members finally rejected this argument.

6. In paragraph 11 of his first Affidavit Mr Grant argues that afterrate capping the reduction in expenditure levels would be in excess of 20%.This analysis does, of course, rely on certain crucial assumptions about theGovernment's policies which may indeed be wrong. But even assuming them to be correct, in my opinion a reduction of 20% could be achieved if it had to be.(Manifestly this would not be desirable, but staffing costs could besignificantly reduced if there was no other option. Moreover there may bemore scope than Mr Grant allows for for special financing measures to beadopted.

7. Accordingly I reject the view that the Councillors were not fully awareof the implication of rate capping. We knew very clearly what might result ifand when rate capping occurred. Indeed, we were also aware of the potentiallydamaging political repercussions of increasing services and later having tocut them back. As Councillor Slack indicated, this could prove politicallyunpopular with the electorate. However, we considered that a serious attemptshould be made to effect much needed improvements particularly in the areas ofeducation, housing and social services. In many of these areas even shortterm improvements could have a significantly beneficial effect upon therecipients of the Council's services for example housing repairs and schoolmaintenance. whilst we live in the shadow of rate capping, we had not beencapped and we did not consider that we ought to act as though we had.

Mr Wadsworth's submission, put shortly is that if theCouncil took into account all relevant and no irrelevantconsiderations, and was not fettered by the LGC or thestructure of the Labour Group, it made a decision so patentlywrong that no reasonable council could have made it. Itwas perverse and irrational.

There was some discussion during the course of argumentabout the principle of proportionality. By this I understandis meant an approach adopted in the Court of the EuropeanCommunities and in the Conseils d/Etat of France and someother civil law countries. The Court considers whether theadverse effects which the decision under challenge may haveon the rights, liberties or interests of persons affectedby it are wholly disproportionate to the purpose for whichthe decision was allegedly taken. So far this principlehas not, as so expressed, been adopted by the Courts of thiscountry. In his speech in the CCSU case, Lord Diplock referredto the possible adoption in future of this principle. Inthe present case, counsel relied upon traditional Wednesburygrounds, and did not seek to rely on any more extensiveprinciple.

The question we therefore have to answer is: was thedecision of the council so absurd, so unreasonable, that nosensible, reasonable person could have come to it? I acknowledgethe strength of the arguments that the the increase in therate is massive, that it will impose great burdens upondomestic and business ratepayers alike, and that if the council israte capped as seems very likely there will be great problemsin reducing expenditure again. Nevertheless I can onlyanswer the question I have posed, "No". I cannot say thatthe- Councils decision was irrational.

Consultation

The complaint here is that though the council went throughthe ritual of consulting the representatives of commerceand industry, the ritual was a mere charade. The LabourGroup, it is alleged, had already decided what course itwould pursue, and nothing which was said at the meeting on11 December 1986 made the slightest impact on the minds ofLabour Councillors.

In Agricultural Board v Aylesbury Mushrooms (1972)1 WLR 190 Donaldson J as he then was, quoting a dictumof Morris J in 1948, said

"The essence of consultation is the communication ofa genuine invitation, extended with a receptive mind,to give advice".


I gratefully accept this definition.

The Secretary of State has issued a Code of Guidanceto Rating Authorities on this particular area of consultation.

On the face of it, the council complied with the advicegiven in that code. They supplied ample information tothose invited to the meeting. At the meeting itself it isclear that there was a full and forthright discussion, whichcan have left Councillors in no doubt about the views ofmost of those present. The minutes of the meeting werereported to the committee, and sent to those who attended.

Further representations were sought and received.

The real complaint is that the views expressed by ratepayersdid not result in a reduction in the rate the subject ofthe resolution. Unless it is to be said that no consultationprocess can be effective unless it results in some alterationto the terms of a proposal before it becomes a decision,I do not see how it can be said that this consultation wasa charade. Accordingly I would hold that this ground ofchallenge also fails.

For the reasons I have sought to give, I fear at toogreat length, I would refuse the application.

It is therefore unnecessary to consider the subjectof delay urged by Mr Goudie as a ground for refusing relief.I will comment only, without formally deciding, that in acase in which the application was made within the periodof 3 months referred to in R.S.C. 0.53 R.4, ifI had found that any of Mr Wadsworth's first three grounds(i.e. other than that based on consultation) were made out,I should have been loath to refuse him a remedy solely onthe basis of delay.