Jones, R (On the Application Of) v Denbighshire County Council

A decision-maker may consult and decide on an interim phase of a wider proposal, but cannot treat that phase as self-contained where the later phase is an intended and material part of the preferred option. The likely language and community effects of the later phase must be assessed and taken into account. Consultation must identify the proposal clearly and provide sufficient information and reasons for an intelligent response. A consultation form must also give consultees a proper opportunity to suggest alternatives. A claimant with a genuine local connection and personal interest has sufficient standing, and a challenge brought within three months of the substantive decision will not ordinarily be refused for delay absent relevant prejudice.

The claimant sought judicial review of the defendant local authority’s decision to close two primary schools and establish a new dual-stream Category 2 Church in Wales school initially operating on the existing two sites. The Council intended that the new school would subsequently move to a single site, but its impact assessment excluded that second phase. The claimant challenged the decision on grounds including failure to consider the later phase’s language and community impact, inadequate identification of the proposal, inadequate explanation of dual-stream provision, and failure to provide an opportunity to suggest alternatives.

1. Ground 1 allowed. The Council was entitled to focus procedurally on Phase 1, but it could not ignore Phase 2, which was an intended and temporary step towards its preferred single-site school. The School Organisation Code required a detailed description of the proposal, its implementation timetable and interim arrangements. Independently of the Code, the language and community impact of Phase 2 was a material consideration in deciding whether to implement Phase 1. The Council’s failure to assess and take those effects into account was unlawful. The absence of a final site did not make assessment impracticable, because the general area and likely effects could be evaluated.
2. The error was not immaterial. The Council’s assertion that the decision would have been the same could not replace the formal assessment required by the Code. The evidence disclosed a real risk that moving to a single-site Category 2 school would adversely affect community cohesion and the use of Welsh outside the classroom.
3. Ground 2 allowed. Read as a whole, the Consultation Document was hopelessly confused about whether consultation concerned Phase 1 alone or both phases. Consultees could not respond intelligently to a Phase 1 proposal which related to Phase 2 without information about Phase 2’s effects. The differences between the English and Welsh versions were regrettable and added to the uncertainty, although they did not materially alter the conclusion.
4. Ground 3 not determined in the claimant’s favour. The criticism concerning the explanation of dual-stream Category 2 provision added nothing substantial, because the necessary Phase 2 impact assessment would have to address the likely classroom and language arrangements.
5. Ground 4 allowed. The response form did not provide an appropriate opportunity to suggest alternatives, particularly because it was unclear whether alternatives were sought to Phase 1 or to the combined proposal.
6. The claimant had sufficient interest under section 31(3) of the Senior Courts Act 1981. The claim was not abusive. It was properly brought after the substantive decision of 27 October 2015 and relief was not refused for delay under CPR rule 54.5.
7. The judicial review was allowed and the Council’s decision was quashed. The judgment concerned procedure, not the merits. The Council remained free to reconsider the proposal lawfully.

Not an appeal. The claim was a first-instance judicial review of the Council Cabinet’s decision of 27 October 2015.