Page, R. (on the application of) v Darlington Borough Council

Judicial review permission may be refused where a ground has no realistic prospect of success. Under section 81 of the Localism Act, an expression of interest must concern providing or assisting in providing a relevant service on behalf of the authority. A proposal merely to run the building in which a library service may be provided does not satisfy that requirement. A consultation ground may nevertheless be arguable where the authority arguably failed to address alternative proposals or assist in their development. Permission may be granted conditionally on amended grounds clarifying the case to be met.

The claimant sought permission for judicial review of decisions concerning the future of a library building and service in Darlington. The pleaded grounds included alleged breaches of the Localism Act, consultation duties and other grounds. The authority argued that the claim was out of time and that the consultation case was inadequately pleaded.

The court declined to determine whether there had been undue delay under section 31(6) of the Senior Courts Act. It considered whether the claim had been brought promptly under CPR 54.5, whether the localism ground was arguable, and whether the consultation grounds disclosed an arguable case.

1. Promptness. The claim was brought within the default three-month period, albeit one day before its expiry. The court therefore did not rule it out for lack of promptness under CPR 54.5. The separate question of undue delay under section 31(6) of the Senior Courts Act remained open for determination at trial.
2. Localism ground. Section 81(4) of the Localism Act concerns an expression of interest in providing or assisting in providing a relevant service on behalf of the authority. The proposal was, at most, to run the Crown Street building. It was not arguably a proposal to provide or assist in providing the library service. The localism ground therefore had no realistic prospect of success. The related complaint that the authority failed to assist the proponents with the statutory process also failed.
3. Consultation. The claimant’s allegations that the authority failed to refer to alternative proposals and failed to assist in their development were just sufficiently arguable to justify permission. The court did not determine their merits.
4. Order. Permission was refused on ground 4 and on the localism ground. Permission was granted solely on the consultation grounds, conditional on the claimant filing amended grounds within seven days setting out every alleged breach of fairness or other applicable consultation principle, and clarifying the identity of the body making the proposals and the case to be met.

Not an appeal. The judgment records no earlier appellate decision.