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R (McCann) v Bridgend CBC
[2014] EWHC 4335 (Admin)
 
3.38R (McCann) v Bridgend CBC [2014] EWHC 4335 (Admin)
In this context, a duty to consult on alternatives to the decision proposed was imposed by the statutory code, rather than the common lawWednesbury unreasonableness:schools, closure ofWednesbury unreasonableness:statutory code, duty to consider alternatives under
Facts: Ms McCann sought judicial review of Bridgend’s decision to close a school without consulting adequately, including on all the alternatives to closure.
Judgment: Deputy High Court Judge Keyser allowed the application on the basis that there was a duty to consult over alternatives, but that this arose from the statutory code, rather than as a result of the fairness principle:
80. In my judgment, it is now clear that the defendant failed to set out in the consultation document the alternatives that had been considered and the reasons why they had been discounted. The defendant’s argument at the hearing of this claim boiled down to saying that the alternatives had not been realistic or viable and therefore did not have to be identified in the consultation. In my judgment, whether or not that would be a sufficient answer in respect of consultations carried out pursuant to a common law duty or some other statutory procedure, it is not a sufficient answer under the 2013 Act and the Code. The simple requirement is to give details of ‘any alternatives’ that have been considered. The defendant’s approach to this question seems to me to be fundamentally flawed. As I have said, apart from the ‘do nothing’ option, the most obvious alternative to closing schools and opening new ones is to spend money in improving the existing schools. The documentation disclosed in the course of these proceedings shows that the defendant clearly did give consideration, albeit at a high level of generality, to this possibility; indeed, it would have been irrational not to consider it. The defendant has formed the view that refurbishment is not a sensible option. That view may be correct, but it is not axiomatic that it is correct. The reasons why the alternative was rejected should have been stated in the consultation document. Another possible option would be to make provision on alternative sites. The defendant did not provide particulars of the alternatives it had considered; it did not even state in terms that it had considered alternative sites, and even now it is a matter of inference only that all sites considered have been identified in the course of these proceedings. Nor did the defendant even claim in the course of the statutory process that there were no other feasible or realistic options; it simply claimed that its proposal was the best option–apparently because its officers had reached that conclusion. That is not what the statutory process requires, and it undermines the clear purposes inherent in that process, because it removes from the wider public sphere the opportunity for constructive engagement with alternatives that have not been included in the proposal, and because the failure of the defendant to comply with the required discipline of clear explanation and reasoned justification of its process of reasoning is liable to compromise the intended benefits of the Code in respect of improved quality of decision-making.
R (McCann) v Bridgend CBC
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