61. It is necessary in this context to add a specific observation about banding. I have found that the modification regarding banding was significant. It was also made after the statutory period of consultation leading to the publication of the closure notice had ended. The question is whether the modification vitiated the consultation procedure. Silber J was faced with a similar question in R (Smith) v East Kent National Health Service Trust [2002] EWHC 2640 (Admin) and, after deliberate consideration of the authorities, he concluded at paragraph 45 that the test was whether a later change in the proposal was fundamental. If it was, the consultation was flawed and there would need to be further consultation before a lawful decision could be taken.

62. Given the context, and the underlying principle of fairness that governs the case-law on consultation, it seems to me that a fundamental change is a change of such a kind that it would be conspicuously unfair for the decision-maker to proceed without having given consultees a further opportunity to make representations about the proposal as so changed. In this case, the change was not fundamental in the relevant sense. First, banding is permissible under the Code and is there endorsed as promoting in an oversubscribed situation the key objective of securing a balanced intake of pupils of all abilities. That is the centre piece of the School’s current admissions policy and would remain the centre piece following the draft MOU [memorandum of understanding], which otherwise comprehensively adopts the school’s current admissions criteria. Secondly, there is no suggestion in the draft MOU that banding would occur in the near future. On the contrary, according to the MOU, the admission criteria for September 2008 and for subsequent years would remain as they currently are unless the Council, amongst others, agreed to any modification. Thirdly, banding was not to depend on Future’s unilateral choice. Finally, for the reasons given earlier, this was a particular modification that was not definitively ruled out by the expression of interest, taking account of the background and context, and was not one that was wholly unforeseeable in all the circumstances.

63. In my judgment, the consultees had a fair opportunity to comment on the admission criteria, even if at the relevant time they did not know that Future would in fact modify those criteria to allow for the possibility of banding, but would modify them only as part of the proposed central objective of securing a balanced intake of pupils of all abilities, without contemplating immediate or unilateral introduction.