Williams, R (On the Application Of) v Caerphilly County Borough Council

The Court of Appeal dismissed the challenge to the cabinet's adoption of a ten year Sports and Recreation Strategy. The court held that the adoption of a high-level strategy was an executive function under the Local Government Act 2000 and the 2007 Regulations because it did not itself commit the authority to specific budgetary, capital or borrowing decisions reserved to full council under Schedule 4. The court also held that the absence of detailed financial costings did not render the adoption Wednesbury unreasonable, given the Strategy's long time horizon and the need for separate future implementation decisions. Finally, the court held that the duty in section 2 of the Local Government (Wales) Measure 2009 did not apply to the Strategy adoption because that duty targets discrete arrangements to secure continuous improvement in the exercise of functions rather than every strategic policy decision; consequently the section 5 consultation duty was not engaged.

This appeal arose from a judicial review of a local authority cabinet decision to adopt a Sports and Recreation Strategy for 2019–2029 and related decisions about closure of leisure centres. The appellant, a user and campaigner for Pontllanfraith leisure centre, challenged both the adoption of the Strategy (14 November 2018) and a later cabinet decision to close that centre (10 April 2019). Swift J in the Administrative Court dismissed the challenge to adoption but held the closure decision unlawful for breach of the public sector equality duty; the appellant appealed only the adoption decision to the Court of Appeal.

The court set out the factual and procedural background: the draft Strategy was consulted upon; Scrutiny asked that adoption be referred to full council; the cabinet nevertheless adopted the Strategy and recorded that specific implementation decisions would follow and be the subject of separate reports. The claim for judicial review raised three principal grounds:

• Whether adoption of the Strategy was a matter reserved to full council under the Local Government Act 2000 read with the Local Authorities (Executive Arrangements) (Functions and Responsibilities) (Wales) Regulations 2007 (Schedule 4);
• Whether the cabinet was irrational for adopting the Strategy without detailed information about the likely cost of implementing it (a Wednesbury challenge);
• Whether the Strategy constituted an "arrangement to secure continuous improvement" within the meaning of section 2 of the Local Government (Wales) Measure 2009 so as to engage a duty to have regard to efficiency and to consult under section 5.

The court's reasoning was as follows: adoption of the Strategy was a high-level policy decision which did not itself commit the council to defined expenditure, borrowing or capital plans and therefore was an executive function; the phrase "concerned with" budget in Schedule 4 must be given a narrow focus on direct legal commitment to expenditure and not any indirect or contingent future financial consequence. Given the Strategy's ten-year horizon and its expression of objectives rather than firm commitments, the absence of detailed aggregate costings did not make adoption irrational. On the 2009 Measure, the court concluded section 2 targets arrangements to secure improvements in the exercise of functions (for example structural or contracting arrangements) rather than every strategic policy decision; extending the duty that far would impose a statutory consultation obligation on a wide range of strategic choices which the Measure does not plainly require. The appeal was dismissed and the Court of Appeal refused permission to appeal to the Supreme Court.

Appeal dismissed. The Court held that the cabinet lawfully adopted the Strategy because it was a high-level policy document that did not itself commit the authority to specific budgetary, capital or borrowing decisions reserved to full council; the lack of detailed costings did not make adoption irrational given the Strategy's ten-year scope and requirement for separate implementation reports; and the Local Government (Wales) Measure 2009 s.2 did not apply to require a section 5 consultation in respect of adopting the Strategy.

On appeal from the High Court of Justice Queen's Bench Division, Administrative Court in Wales (Mr Justice Swift) [2019] EWHC 1618 (Admin); judgment of the Court of Appeal given at [2020] EWCA Civ 296.