Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2010] CSOH 6
P1264/09	OPINION OF LORD UIST in the petition of ROBERT BOWIE on his own behalf and as legal representative of his daughter BLAIRE BOWIE for Judicial Review of a decision of East Renfrewshire Council purporting to restrict the delineated area for St Ninian's Roman Catholic High School ­­­­­­­­­­­­­­­­­________________

Petitioner: Sir Crispin Agnew of Lochnaw QC; Campbell Smith WS LLP

Respondents: Miss Christine O'Neill, Solicitor; Brodies LLP

20 January 2010

Introduction

[1] St Ninian's High School, Giffnock is the best performing State Roman Catholic Secondary School in Scotland. It was opened to pupils in August 1984, when the education authority was Strathclyde Regional Council (SRC). On local government reorganisation on 1 April 1996 the newly established East Renfrewshire Council (ERC), the respondent to this petition, became the education authority responsible for St Ninian's.

[2] In a report dated 22 November 1991 the then Director of Education of SRC recommended that the education committee of SRC agree to adopt the proposal that

"i a delineated area be created for St Ninian's High School and that it be formed by the aggregation of the delineated areas of the existing associated primary schools;

ii priority for admission to St Ninian's High School should be given, in the order shown, to:

i children who live in the delineated area."

[3] One of the associated primary schools referred to was St Angela's Primary School, Glasgow. The delineated area for St Angela's and all other associated primary schools is shown in Appendix 2a to the report and Appendix 2b shows an enlarged map of the delineated area for St Angela's, part of which consists of two separate hatched areas, one being larger than the other. The following docket appears beside the map in appendix 2b:

"Children living in the larger hatched area will retain the option of attending either St Bernard's or St Angela's Primary Schools and may transfer at the secondary stage to either Bellarmine SS or St Ninian's HS."

These two appendices are attached to this opinion. The report also contained in Appendix 1 a list of the streets within the delineated area for each school, including St Angela's.

[4] Following upon the statutory consultation process the education sub‑committee of SRC decided on 28 November 1991 to approve that recommendation for implementation from 18 March 1992 after, and subject to, approval by the education committee at its meeting that day. Such approval was duly given by the education committee.

[5] The petitioner lives at 6 Parkholm Gardens, Parklands Meadow, Glasgow, within the boundary of Glasgow City Council (GCC). His house was built after local government reorganisation in 1996. He has a daughter, Blaire Bowie, who was born on 17 March 1998 and who is at present a pupil at St Angela's Primary School. She is due to move to secondary school in August of this year. The petitioner maintains that, at present, she resides within the delineated area for St Ninian's and has a priority right to attend that school. ERC, on the other hand, maintain that she has no such priority right. In a letter to the petitioner dated 11 February 2009 it quoted the following extract from a letter to another parent setting out its position:

"The creation of a catchment area for a particular school is a matter for the administering local authority to determine in terms of arrangements made under the auspices of the Education (Scotland) Act 1980. In the vast majority of cases pupils will typically transfer from primary to secondary schools, both of which are administered by the same local authority. As you are aware, this is not the case with St Angela's / St Ninian's, the former lying within the administrative control of Glasgow City Council. As a result, the determination of respective catchments for the two schools is unconnected with East Renfrewshire Council having no control of, nor influence over, decisions Glasgow City Council takes in respect of St Angela's in this regard (sic). Equally, East Renfrewshire Council's identification of St Ninian's catchment area is independent of and distinct from any such decisions made by Glasgow.

These circumstances arose as a result of local government reorganisation in 1996 and the break-up of Strathclyde Regional Council which, until that point in time, had been the relevant education authority for both schools. From that juncture administration fell to the new unitary authorities referred to above. Negotiations between the new unitary councils at reorganisation resulted in an agreement that pupils from the then catchment area of St Angela's Primary School would transfer to St Ninian's Secondary despite the fact that it lay in another administrative area. In terms of that agreement East Renfrewshire Council was careful to identify the geographical limits of that catchment and did so by explicit reference to specific street names which reflected residential developments in existence at that time. This arrangement continues to this day and has not been the subject of any alteration. Whilst it is therefore correct to say that there has been a long-standing arrangement that children from St Angela's move to St Ninian's, it should be clarified that this arrangement relates only to those children attending St Angela's who reside in the specified streets which form part of the agreement. It does not include children attending St Angela's whose residential address lies in any more recent residential development within Glasgow's boundaries."

The letter added the following:

"Since the catchment area of St Ninian's High School is delineated and has been since 1992, attendance at any associated primary school does not imply an automatic right to a place in St Ninian's. Pupils not resident within the catchment area as defined by houses and streets must make a placing request to be considered for a place in St Ninian's High School."

[6] In a further letter dated 4 March 2009 to the petitioner the Director of Education of ERC stated:

"The delineated part of the St Ninian's catchment area which lies within Glasgow City Council (sic) has not been changed since 1996, when East Renfrewshire Council came into existence. Glasgow City Council cannot add further streets, including those in the Parklands Meadows area, to the St Ninian's delineated area.

Your house may well lie within the new catchment of St Angela's Primary School - that is a matter for Glasgow City Council to decide. However, your house is not in the catchment for St Ninian's High School, which was determined at local government reorganisation in 1996. Glasgow City Council have made no request of this council to adjust the catchment of St Ninian's High School."

[7] On 1 October 2009 the education committee of ERC approved a proposal that the Director of Education proceed with a consultation exercise on the future admissions arrangements to St Ninian's High School to take effect from school session 2010-2011, the proposed change to those arrangements being the removal of that part of the delineated area that is associated with St Angela's Primary School from having a priority right of admission to St Ninian's for secondary education and requested that the Director report the results of the consultation exercise to the education committee on 21 January 2010. A formal consultative document was issued by the Director of Education in October 2009.

[8] In these proceedings the petitioner seeks judicial review of the decision of ERC to treat his house as outwith the delineated area for St Ninian's and consequently to hold that his daughter does not have a priority right to attend St Ninian's. He seeks reduction of that decision and of the decision of 1 October 2009 to carry out the above consultation exercise.

The relevant statutory provision

[9] It is appropriate at this point to set out the relevant statutory provisions. The governing statute is the Education (Scotland) Act 1980 (the 1980 Act) as amended.

[10] Section 1(1) of the 1980 Act, so far as relevant, provides:

"... it shall be the duty of every education authority to secure that there is made for their area adequate and efficient provision of school education ..."

[11] Section 28B(1)(a)(i) of the 1980 Act provides:

"(1) Every education authority shall -

(a)   publish or otherwise make available information as to -

(i)                 their arrangements for the placing of children in schools under their management."

[12] Section 28A of the 1980 Act deals with placing requests. Subsections (3A) and (3C) refer to "the catchment area" of a school. Subsection (3D) provides as follows:

"In subsections (3A) and (3C) above, 'catchment area' means the area from which pupils resident therein will be admitted to the school in terms of any priority based on residence in accordance with the guidelines formulated by the authority under section 28B(1)(c) of this Act."

[13] Section 23(1C) of the 1980 Act, which deals with local government reorganisation, provides as follows:

"Where the arrangements for the placing of children in schools subsisting before the establishment of new local government areas under Part I of the Local Government etc (Scotland) Act 1994 lead, as a consequence of such establishment, to school education for pupils belonging to the area of one education authority being provided at schools or educational establishments under the management of another education authority, nothing in this Act shall prevent such arrangements from continuing until they are changed by an education authority in accordance with this Act."

[14] Section 22A of the 1980 Act deals with consultation on certain changes in educational matters. It provides as follows:

"(1) Where an education authority make a proposal of a prescribed kind, they shall, in such manner as may be prescribed, publish it or otherwise make it available and consult such persons as may be prescribed and shall not reach a decision on it without having regard to any representations made to them on it by those persons."

[15] The Education (Publication and Consultation Etc.) (Scotland) Regulations 1981 (SI 1981/1558) prescribe proposals for the purpose of section 22A of the 1980 Act. Regulation 3 provides:

"The kinds of proposal hereby prescribed for the purposes of section 22A of the Act (which an education authority are required to publish or otherwise make available and on which they are required to consult in accordance with subsection (1) of that section and in accordance with these regulations) shall be the kinds of proposals specified in Column 1 of Schedule1."

Paragraph (f) of Column1 specifies

"Proposal to vary any delineated area in relation to any school"

and the persons to be consulted in respect of such a proposal are those as for the proposal in paragraph (c) of Column 1. Among the persons to be consulted are those specified under (ii) on the list, namely

"the parent of every child in attendance at a primary school who is expected to transfer to secondary education within 2 years of the date of the proposal and who would, in the event of the proposal being implemented, be expected to transfer to a secondary school, other than that to which he would otherwise have been expected to transfer."

[16] Regulation 2(1) provides:

"'delineated area' in relation to a school means that part of the area of an education authority from which pupils resident therein will be admitted to the school in terms of any priority based on residence in accordance with the guidelines formulated by the authority under section 28B(1)(c) of the Act".

The delineated area of St Angela's Primary School

[17] The major issue between the petitioner and ERC is whether the delineated area for St Angela's Primary School (which is contained within the delineated area for St Ninian's) is (a) a geographical area shown on a map, or (b) a list of streets within that area, so that any new builds within the geographical area but not on the list of streets are not within the delineated area.

Submission for the petitioner

[18] The broad submission on behalf of the petitioner on this point was as follows:

(i)                 An education authority has to make "arrangements" for the placing of children.

(ii)               These arrangements include designating "delineated areas" (or "catchment areas" as described in the 1980 Act) for schools, and children living in those areas have a priority right of admission to the particular school as determined by the local authority as part of the arrangement.

(iii)              Once an area has become a "delineated area" (or a "catchment area") it can be altered only after consultation, including consultation with parents of children residing in the delineated area.

(iv)             A "delineated area" is a geographical area delineated on a map.

(v)               Blaire Bowie lives within the delineated area for St Angela's Primary School, and consequently within the delineated area for St Ninian's, and therefore has a priority right to be admitted as a pupil in St Ninian's by ERC in August 2010, unless the arrangements are lawfully changed.

[19] It was submitted for the petitioner that the use of the words "delineated" and "area" made clear that the statutory instrument envisaged a geographical area delineated by lines drawn on a map. The meaning of the word "delineate" given in the Shorter Oxford English Dictionary was "show by drawing or description, portray". A number of cases had construed the word "delineated" in its context. In Dowling v Pontypool, Caerleon and Newport Railway Co (1872) LR Eq 714 a Railway Act empowered the company to take lands delineated on the deposited plans and described in the book of reference. It was held that the word "delineated" could not be limited to mean surrounded on every side by lines, but that it meant sketched, or represented, or so shown that landowners would have notice that the land might be taken (per Sir Charles Hall, Vice-Chancellor, at p 740). In Protheroe v Tottenham and Forest Gate Railway Co [1891] P 278, another railway case, Kekewich J followed the Vice-Chancellor in Dowling and held that land not enclosed on every side by lines had been "delineated", but his decision was reversed in the Court of Appeal. Lindley LJ at p 288 stated that he did not think that the piece of land was delineated at all. At p 290 Fry LJ said:

"I cannot help thinking that Vice-Chancellor Hall in Dowling's Case put as wide an interpretation upon the word 'delineated' as it could possibly bear. Whether it is not rather wider than I should put upon it is a point upon which I need express no opinion; but if I took the vice-Chancellor's definition I should come to the conclusion that neither the whole of this land nor the part up to the southern boundary line in the notice to treat is sketched, or represented, or so shewn that the landowner would have notice that the land would be taken. If I had gone on the land as the landowner , with the deposited plan and the book of reference, I should certainly never, so far as I can picture the state of things to myself, have come to the conclusion that the railway company intended to take this land. I think, therefore, that it is not delineated ..."

[20] In Coats v Caledonian Railway Co (1904) 6F 1042 it was held by Lord Low in the Outer House and subsequently by the Second Division that a notice by a railway company to take land was invalid because one of the lots of ground which it was proposed to take was not delineated on the deposited plan, no boundary line on one of the four sides of the lot being shown on the plan. At pps 1046-8 the Lord Justice Clerk stated:

"The plan shows nothing of the nature of enclosure or delineation. There are no lines which can in any reasonable sense be said to delineate a piece of ground ... The side lines, consisting of a line marking a road, and the lines marking an existing siding, are nearly parallel. Whether if prolonged mathematically as they exist on the ground they would ever meet may be a question. Certainly there is nothing corresponding to what in ordinary language would be called a delineation of a certain piece of ground. It is suggested that the reclaimers are entitled to have the matter considered as if a line were drawn across from the outermost point of the marking of the line of road on the plan to the outermost point of the marking of the siding, and that they are entitled to take that ground under the notice. I cannot assent to that. In my opinion there is no delineation, and the drawing of such a line would be practically the supplying of a defect in delineation which cannot be supplied now. The reclaimers founded strongly on the case of Dowling v The Pontypool Railway Company LR 18 Eq 714. I confess that looking at the plan shewn in the report in that case I should have felt great difficulty, had the case come before me, in holding that the ground there claimed as under notice was delineated on the plan. But certainly even if that decision could be held to be a binding authority I do not think it would rule the present case. In Dowling the lines shewn, although they did not meet, were converging, so that if extended they would meet in a very short distance, and all that was held there was that the owner had 'sufficient notice', although the whole boundaries were not shewn. Here I do not think it can reasonably be held that the boundary on one side is indicated at all, and therefore no question of sufficiency of delineation can arise. The case of Protheroe [1891] 3 Ch 278, cited by the Lord Ordinary, is much more like the present case, and completely takes away the possibility of dealing with the present case upon the footing that the decision in Dowling can be held to establish any general rule. The most that can be said, on the assumption that Dowling was well decided, is that it is not always necessary that boundaries should be completely drawn in delineation. But if something less may be held sufficient it must be because there can be no doubt of what the limits are, from a reasonable point of view. I find it impossible to say that that is so in this case."

[21] The Australian case of Southern Centre of Theosophy Inc v State of South Australia (1979) 21 SASR 399 dealt with a lease in which a section of land was described as being a specified section "as the same is delineated in the public maps in the Land Office in the City of Adelaide". The public map delineated the eastern boundary of the section by a line which had originally corresponded with the high water mark of a tidal navigable lake as it existed and had been surveyed in 1888. A fresh survey made in 1977 showed that there had been a gradual accretion of land to the east of the original boundary by reason of a change in the level of the lake or sand drift. The lessee applied for a declaration that the eastern boundary of the land comprised in the lease was the high water mark of the lake as it existed from time to time. Walters J at first instance granted the declaration, holding that it was the intention of the parties that the land should be bounded by the high water mark of the lake as it varied from time to time, and alternatively that the lessee was entitled to the additional land under the doctrine of accretion. It was held on appeal by the Full Court of the Supreme Court of South Australia, reversing Walters J, that the eastern boundary of the land was that delineated by the line on the public maps and that the doctrine of accretion did not apply. That decision was itself later reversed by the Privy Council at [1982] AC 706, which held that where land was conveyed with a water boundary, including the boundary of an inland lake, the title of the grantee extended to land added to it by accretion unless the doctrine of accretion was plainly excluded, and that it was not excluded merely because the original boundary could be identified. In the Supreme Court of South Australia Wells J made certain observations on the meaning of the word "delineated" which were not disapproved by the Privy Council. At p 413 he said:

"For the purposes of this case, the crucial word in the description to be assigned its meaning is the word 'delineated'. The core of the meaning of that word is, to my mind, to trace the outline of something as on a map or a plan. To say that a parcel of land has been delineated on a map or a plan signifies that its limits are shown thereon by a line or lines; but it does not necessarily imply that those limits are drawn with the utmost degree of precision of which the professional surveyor is capable. The line or lines may be drawn well or ill according to the circumstances. Sometimes the representation under examination is executed so badly that it cannot be called a delineation at all. Whether it is a delineation is a question of fact: see Protheroe v Tottenham and Forest Gate Railway Company [1891] 3 Ch 278. But given that there is a delineation, certain inferences may, I believe, be safely drawn: that the purpose of the instrument ... is, inter alia, to fix the boundaries of the land demised by representation and not by verbal description; that wherever the traced outline of the land appears on the map or plan the intention - by which I mean the expressed intention gathered from the instrument as a whole - of the parties is that the limits of the demised land are to be determined from the outline with as great a degree of accuracy as circumstances permit; and that, in particular, wherever delineation occurs, it imparts its character to the boundary it represents, disengaged from any natural features of the land by reference to which that boundary was, or may have been, settled."

[22] The view of ERC that the delineated area consisted of a list of streets was not supported by GCC. In the latter's response to the proposed changes to the delineated area of St Ninian's, under reference to ERC's understanding that the present delineation is based on a list of thoroughfares, it stated:

"It is the position of this Council that at no place within the 1992 Committee paper is any reference made that would support the position that the thoroughfares listed in that paper and only those listed therein should comprise the delineated area of St Ninian's High School. It is accepted practice, and would have been necessary at the time of the 1992 arrangement, to clarify what thoroughfares were involved. Such an approach would be, and remains, a necessary aid to parents and those administering the schools and has always been subject to updating to take cogniscience (sic) of housing developments in an area."

Submission for ERC

[23] The submission for ERC began by pointing out that the verb "delineate" was not restricted to graphic representation but could include verbal representation. The meaning of the word given in the Oxford English Reference Dictionary was "portray by drawing etc or in words". Chambers English Dictionary gave the meaning as "to mark out with lines; to represent by a sketch or picture; to draw; to describe." It was submitted that, notwithstanding these definitions, "delineated" as used in the 1981 Regulations was not to be taken as the past tense of "to delineate" but, rather, that "delineated area" was a compound noun, simply a term of art to be construed in the context of the legislative scheme in which it appeared. There was no reference in either the 1980 Act or the 1981 Regulations to delineation on a plan or map (as there was in the cases referred to by the petitioner). "Delineated area" was defined in the 1981 Regulations. The use of the term "delineated area" for the purpose of the 1981 Regulations was simply to assist in identifying those individuals who required to be consulted on any proposals. It did not require any act of delineation. There was no suggestion that a delineated area (or, to use the term in section 28A of the 1980 Act, a catchment area) had to be defined by reference to a plan or map. It was not contended that a delineated area had to comprise a list of thoroughfares, but rather that there was no reason why a delineated area could not comprise a list of thoroughfares. The map at Appendix 2b was inadequate as a vehicle for identifying the delineated area for St Angela's Primary School. The boundaries were not clear because the areas outside the boundaries were not drawn. The built environment shown on map 2b did not appear to have been an accurate reflection of the actual or anticipated environment in November 1991 as a number of streets listed in appendix 1 did not appear on the map. Map 2b conflicted with map 2a and with the map created by GCC and provided to the petitioner by the head teacher of St Angela's Primary School. Map 2a was inadequate as a vehicle for identifying the remainder of the delineated area for St Ninian's, which consisted of the aggregation of delineated areas for primary schools which were themselves defined by reference to streets. In Appendix 1 the delineated areas of primary schools other than St Angela's were given by reference to streets. The comprehensive listing of streets, sides of streets and parts of streets would have no purpose if maps were definitive of the delineated area. As the delineated area for St Ninian's was an aggregation of the various feeder primary schools then logic dictated that it be an aggregate list of streets.

[24] It was further submitted that the 1992 Report was drawn up in the context of great pressure on space at St Ninian's High School: its aim was to manage the number of pupils falling within the delineated area. It was improbable that SRC would have proposed that the delineated area should encompass all housing that might come to be built in the future on areas that were at the time undeveloped greenbelt. The exclusion of new builds would not have led to the consequence that a consultation exercise would have been required every time new houses were built. In the 1992 document Appendix 2 showed the location of the schools and Appendix 1 listed the streets in the delineated areas. ERC believed that all streets existing in 1992 in the areas shown on the map were listed in Appendix 1, which also had further detail, namely: (a) specification of certain house numbers; (b) specification that only odd or even numbers in the street were included; and (c) specification that only the west or east side of the street was included. Map 2b could not show these details. If the details mattered at all then they indicated that the map was intended to be no more than indicative and that it was the list of streets which determined whether or not a particular house was within a particular delineated area. In the Report by the Director of Education dated February 1992 the views expressed by the School Board of St Ninian's High School were set out as follows at para 3.2:

"The board expressed general agreement with the recommendations of the document however (sic) they wish clarification as to whether the delineated areas for the associated primary schools will include all future developments within the area designated for these primary schools or only for those streets listed on the Appendix A (sic) of the consultative document. The board restated its commitment to retain the status quo in respect of the present catchment area and would not be in agreement with any rezoning."

The above passage should be read as an acknowledgement that future housing developments would not automatically fall within the delineated area. The former headmaster of St Ninian's, Mr James McVittie, stated in an affidavit dated 14 October 2009 that it was his very clear recollection that the admissions policy for St Ninian's introduced by Strathclyde Regional Council in 1992 was based on a published list of designated streets which identified a number of houses from which admission to St Ninian's was guaranteed and that this policy was followed each year by council officers responsible for determining the annual intake of the school.

[25] There were implications if the delineated area was, as contended for by the petitioner, map-based. The precise boundaries (by reference presumably to both maps 2a and 2b) of the delineated area would require to be established. It was conceivable that families living in some named streets would be excluded (Holehouse road and Humbie Road on map 2a). In relation to those parts of the delineated area lying outside ERC boundaries, ERC would have no control over future housing development which could lead to increased demand for places at St Ninian's. The practical consequence would be that ERC would have to review the position and engage in a consultation exercise of precisely the sort now under way.

Discussion and conclusion

[26] The question which I have to resolve is the meaning of the term "delineated area". That term is defined in the Regulations. It seems to me that ERC have sought to give a far-fetched and strained meaning to that term by contending that it denotes a list of streets. The existing streets within a delineated area at a certain point in time may certainly be specified (as they have been in this case) in order to elucidate or clarify the streets then existing in the area, but that does not convert the list of streets into the delineated area itself. I refer in this connection to the statement made by GCC in response to the recent consultation process on St Ninian's. I would have thought that the meaning of "delineated area" was self-evident. A delineated area is one thing: a list of streets is quite another thing. The correct connotation of the word "delineated" was, I think, well expressed by Wells J in the Southern Centre of Theosophy case when he said that the core of the meaning of the word was to trace the outline of something on a map or plan. That being so, it must be the outline that rules in defining the area, not a list of existing streets within that area at a certain time. Moreover, in my opinion the use of the word "area" connotes an expanse of ground, not a list of streets. The term used in the 1980 Act is "catchment area", which I consider means the same thing as "delineated area", and connotes a geographical area encompassed within certain boundaries. If, at the time the delineated area for St Angela's Primary School was drawn up in 1992, the education authority had wished to exclude the large area to the west which had no buildings on it, that could easily have been done by the lines being drawn differently so as to exclude the area in question.

[27] I am therefore of the view that the submission for the petitioner on the meaning of the term "delineated area" is correct and the submission for ERC is wrong. I am satisfied that the representation on map 2b sufficiently amounts to a delineation. Although questions may arise about houses on the boundaries of that area, that is not the case with the petitioner's house, which is clearly within the delineated area. As Wells J pointed out in the Southern Centre of Theosophy case, the limits need not be drawn with the utmost degree of precision of which the professional surveyor is capable, The petitioner's daughter resides within the delineated area for St Angela's Primary School, and consequently for St Ninian's High School, and therefore has a priority right to attend St Ninian's.

The lawfulness of the present consultation procedure

Submission for the petitioner

[28] The submission for the petitioner was that, for there to be a valid consultation procedure, ERC had to provide accurate information upon which the consultation could take place. If (as I have held) the petitioner were correct that the delineated area was shown on map 2b then ERC had issued wrong information about the area and the number of pupils entitled to priority admission. The law was that sufficient and accurate information had to be provided so that intelligent consideration and an intelligent response could be given to the consultation: R v Secretary of State for Social Services ex p Association of Metropolitan Authorities [1986] 1 WLR 1 per Webster J at p 4; R v North and East Devon Health Authority ex parte Coughlan [2001] QB 213 at paras 108 and 112; and R v Brent London Borough Council ex parte Gunning [1985] 84 LGR 168. In Gunning it was made clear at p 191 that the giving of misleading information in the consultation document was sufficient to vitiate it.

[29] The consultation exercise presently being undertaken by ERC proceeded on the delineated or catchment area for St Angela's Primary School and therefore St Ninian's being limited to the list of streets in Appendix 1. The consultation exercise therefore proceeded on a factually wrong basis. The whole consultation process was fundamentally flawed as it proceeded on an incorrect material fact and the decision to approve the consultation process was similarly flawed. It was necessary to have a common starting point for the consultation process and that did not exist while there was a dispute about the delineated area.

Submission for ERC

[30] It was submitted in response for ERC that the consultation document clearly let the petitioner know what the proposal was and why it was under positive consideration. It clearly provided sufficient information to enable the petitioner to respond to the education authority as to the form or substance of the proposals and their implications for him. It was evident that the petitioner knew and understood the proposal and what its implications were for him. It was conceded that the consultation document openly acknowledged that it was based on ERC's own interpretation of the delineated area, but that was an interpretation that they were entitled to advance in this way. There was nothing misleading about the manner in which the issue had been dealt with in the consultation document. It was not accepted that the consultation process was proceeding on the basis of an incorrect material fact: it proceeded on the basis that the delineated area was as contended for by ERC. The consultation was on a proposal to vary a delineated area within GCC's boundary and the streets within ERC's boundaries were not relevant to the positive proposals in question. The decision to consult and the consultation exercise had been carried out in the context of a number of specific families having raised concerns about ERC's interpretation of the delineated area but without that area having been determined by a court. If the petitioner's contention were correct ERC could never have embarked on a consultation process about proposals for change unless and until there had been a judicial determination of that area. If the delineated area were as contended for by him, that would not render the current consultation exercise unlawful. ERC would accept any determination that the delineated area was as contended for by the petitioner and that determination would inform any further steps which it would take in relation to its proposals for the delineated area.

[31] A judicial determination of the delineated area was not required in order to ensure that the consultation process, and any decisions that followed thereon, were properly informed. ERC had consulted widely on the new proposals for admission to St Ninian's. It had consulted all those whom, on the petitioner's hypothesis of the delineated area, it required to consult. Those consulted included not only the petitioner but also the parents of all children attending St Angela's Primary School. ERC were not required, when formulating a proposal for admission to a school under the 1980 Act, to give particular weight to any existing delineated area, and there was no presumption in favour of maintaining the status quo. In making a decision about future arrangements for admissions to St Ninian's ERC was, of course, obliged to have regard to all relevant matters. It was clearly understood by ERC that the definition of the existing delineated area was contested. It was, at least in part, because of that dispute that the consultation process had been undertaken, it being acknowledged by ERC that the system for admissions to St Ninian's required to be addressed in a structured fashion. The petition added nothing of significance to what was already known about concerns over the boundaries of the delineated area and the need for clarity.

Discussion and conclusion

[32] If the decision to undertake a consultation process, and the process itself, proceed on the basis of an incorrect material fact they are liable to challenge. In this case both proceed on the basis that the petitioner's daughter is not resident within the delineated area for St Ninian's. I have held that to be wrong. The question then arises whether the decision and the consultation process should be reduced. In answering that question I think it is necessary to consider whether the petitioner is in any way prejudiced by the decision and process proceeding upon this incorrect factual basis. The consultation has proceeded on the basis that the petitioner's house is not within the delineated area and proposes that all houses within what ERC consider to be the delineated area for St Angela's Primary School be removed. If that were correct then the position would be that the petitioner was outwith the delineated area before the consultation and would remain outwith it if the proposal is implemented after consultation, and he would have no statutory right to be consulted. In other words, the proposal which is being consulted upon would, if implemented, have no effect on his position. If, on the other hand, he is at present within the delineated area, the implementation of the proposal would result in his being taken out of it and he has a statutory right to be consulted. A consultation process in which the proposal, if implemented, would have no effect on the petitioner's daughter's priority right to attend St Ninian's is quite different from a consultation process in which the proposal, if implemented, would take away that right. By wrongly proceeding on the basis that the petitioner (along with others in a similar position) is outside the delineated area ERC have deprived the petitioner of his statutory right to be consulted under the Regulations and all that that consequently entails. There has to be an objectively correct starting point for the consultation process. In my opinion ERC have decided upon, and embarked on, a consultation process based on an incorrect material fact which is to the prejudice of the petitioner. Accordingly, in my opinion both the decision to consult and the consultation process are unlawful.

Remedy

[33] Having heard submissions on the question of remedy, I shall make the following orders, which I consider are sufficient and appropriate to meet the present situation.

[34] I shall

(i)                 Find and declare that the present delineated area for admission to St Ninian's High School includes the delineated area shown on the map at Appendix 2b attached to the "Proposed Delineation of St Ninian's" Report by the Director dated 22 November 1991 and includes new build houses within that delineated area.

(ii)               Reduce the decision of East Renfrewshire Council to treat the delineated area for St Ninian's as restricted to the list of streets within the Glasgow City Council area in Appendix 1 to the said report dated 22 November 1991.

(iii)              Ordain East Renfrewshire Council to treat Blaire Bowie as presently having the first priority right for admission to St Ninian's as a child resident within the delineated area for St Ninian's until such time as there is a lawful change either to the delineated area or the present admission arrangements.

(iv)             Reduce the decision of East Renfrewshire Council dated 1 October 2009 to consult in terms of the Report from the Director of Education dated 1 October 2009 and any consultation following upon that decision.