Hoylake Golf Resort Consultation


Wirral Council's Obligations


Wirral Council must operate according to its Constitution [1].

Article 13 of its Constitution specifies how decisions should be made.

The section on the principles of decision making (article 13.2) is as follows.
13.2 Principles of decision making
All decisions of the Council will be made in accordance with the following principles:
(a) proportionality (i.e. the action must be proportionate to the desired outcome);
(b) due consultation and the consideration of professional advice from officers;
(c) respect for human rights;
(d) a presumption in favour of openness;
(e) clarity of aims and desired outcomes; and
(f) Wednesbury reasonableness (i.e. the decision must not be so unreasonable that no reasonable Council could have reached it, having taken into account all relevant considerations, and having ignored irrelevant considerations).

Some key points are that there must be due consultation and a presumption in favour of openness.

What Constitutes Proper Consultation


In proper consultation, the decision-makers recognise that they are fallible, and so explain what they have done and what they are planning to do in enough detail for people to check that there are no errors.

The UK Government has issued guidance on consultation that Government departments and other public bodies should follow [2].

This includes
Engagement should begin early in policy development when the policy is still under consideration and views can genuinely be taken into account.
and
Every effort should be made to make available the evidence base at an early stage to enable contestability and challenge.

There are also legal requirements for proper consultation from the Court of Appeal [3] [4]. The nature of consultation was defined by Lord Woolf MR in R v North and East Devon HA ex p Coughlan [1999] EWCA Civ 1871, where four essential features were set out:
108. It is common ground that, whether or not consultation of interested parties and the public is a legal requirement, if it is embarked upon it must be carried out properly. To be proper,
  • consultation must be undertaken at a time when proposals are still at a formative stage;
  • it must include sufficient reasons for particular proposals to allow those consulted to give intelligent consideration and an intelligent response;
  • adequate time must be given for this purpose;
  • and the product of consultation must be conscientiously taken into account when the ultimate decision is taken ( R v Brent LBC ex parte Gunning [1986] 84 LGR 168).

Clive Sheldon QC has provided a detailed account of the law [5].

Poor Consultation by Wirral Council


On the above basis, Wirral Council's consultation on the Hoylake Golf Resort has so far been inadeqaute, since minimal information has been provided.

With regard to Tip Lane, the plan to stop cycling on Tip Lane has not been publicised, and people asking about it have been told that rights of way would be preserved without being told that Tip Lane has not been formally adopted as a right of way.


References


[1] Metropolitan Borough of Wirral (updated 2014) Constitution of the Council http://democracy.wirral.gov.uk/documents/s50022281/CONSTITUTIONOFTHECOUNCIL2014amendmentsfromCouncilOctober2014.docx.pdf - or download from here

[2] Consultation Principles: Guidance (2013) Cabinet Office https://www.gov.uk/government/publications/consultation-principles-guidance - or download from here

[3] R. v. North and East Devon Health Authority, ex parte Coughlan (1999) http://www.bailii.org/ew/cases/EWCA/Civ/1999/1871.html

[4] The keys to consultation (2011) http://www.localgovernmentlawyer.co.uk/index.php?option=com_content&view=article&id=7887%3Athe-keys-to-consultation&catid=59%3Agovernance-a-risk-articles&Itemid=27

[5] Consultation and Legitimate Expectations (2012) Clive Sheldon QC http://www.adminlaw.org.uk/docs/18%20January%202012%20Sheldon.pdf