Magness, R (On the Application Of) v Powys County Council

The claimant sought judicial review of a delegated decision of Powys County Council (13 February 2019) to co-locate Welshpool Library into Powysland Museum. The challenges alleged (1) failure to comply with the public sector equality duty under section 149 of the Equality Act 2010 in respect of children and parents with pushchairs, and (2) unlawfulness of the public consultation on the basis that the authority had a closed mind.

The court applied established section 149 principles (as summarised from Bracking and Hurley) and the Gunning consultation principles (as summarised in WX). The decision-makers had before them an impact assessment addressing age and pregnancy/maternity, evidence of consultation responses and plans to engage experts on layout and partnerships to mitigate space issues. Although the claimant adduced evidence suggesting a substantial reduction in children’s floor space, the judge concluded on the material before him that it was not reasonably arguable that the decision-makers failed to have due regard to the public sector equality duty. The judge also held that the consultation was not so unfair as to be unlawful: the consultation materials allowed intelligent response, schools and other stakeholders were targeted, and there was no evidence that the decision‑makers had a closed mind.

The renewed application for permission to apply for judicial review was dismissed.

Background and parties: The claimant, a child (by her mother and litigation friend), challenged Powys County Council's decision to co-locate Welshpool Library into Powysland Museum. The decision was taken by delegated portfolio holders on 13 February 2019 after staff and public consultations in October–November 2018. The council's report to the decision-makers included a detailed impact assessment.

Relief sought: Permission to apply for judicial review seeking quashing of the decision on two primary grounds: (i) breach of the public sector equality duty under section 149 Equality Act 2010 (with focus on under‑18s and issues such as loss of floor space, removal of children's computers and pushchair access); and (ii) unlawfulness of the public consultation because the authority had, it was alleged, already determined to proceed (closed mind).

Issues before the court:

• Whether, on the available material, it was reasonably arguable that the decision‑makers failed to have due regard to the duties under section 149 of the Equality Act 2010 (in particular as to children and pregnancy/maternity).
• Whether the public consultation was unlawful because the proposals were not at a formative stage or consultees were not given sufficient information, or relevant consultees were omitted.

Court's reasoning: The court applied the test for section 149 compliance derived from Bracking and the approach in Hurley: the requirement is a proper and conscientious focus on the statutory criteria and clarity as to the equality implications. The council's report and impact assessment recorded the proportion of members under 18, addressed pregnancy/maternity, noted consultation responses, and set out measures to engage experts on layout and to pursue partnerships with schools and leisure facilities to mitigate space constraints. The absence of witness evidence from the decision‑makers meant the court relied on the documentation provided to them. The judge found that, on the whole of the available evidence, it was not arguable that the decision‑makers failed to have due regard to the public sector equality duty.

On consultation, the court applied Gunning principles (as summarised in WX and Moseley): consultation must be at a formative stage, give sufficient reasons, allow adequate time, and the consultation product must be conscientiously considered. The survey materials presented alternatives and did not indicate a closed mind; schools were targeted; consultation results and main issues were before the decision‑makers. The judge rejected late, newly raised points in a skeleton argument and concluded the consultation process was not so unfair as to be unlawful.

Subsidiary findings: The judge noted the claimant's evidence alleging a major reduction in designated children's space but considered the council's proposed mitigation measures and the content of the impact assessment sufficient to make the claim not reasonably arguable. The court also noted there were no witness statements from the decision‑makers.

Disposition: The renewed application for permission to apply for judicial review was dismissed.

The renewed application for permission to apply for judicial review is dismissed. The judge held that it was not reasonably arguable that the decision-makers failed to have due regard to the public sector equality duty under section 149 of the Equality Act 2010, and that the public consultation was not so unfair as to be unlawful under established consultation principles.