Town and country planning – Planning permission – Public sector equality duty (PSED) – Appellant appealing against decision of respondent local authority to grant planning permission for new primary school – Whether respondent failing to have regard to PSED under section 149 of Equality Act 2010 – Whether planning decision highly likely to be different with due regard to PSED – Appeal dismissed
The respondent, as the local authority, applied to itself as the relevant planning authority for planning permission for a new primary school and pre-school at Lakenheath in Suffolk. The proposed site was next to a military airfield. There was an overwhelming need for a new school in the area because of new housing likely to be built in the village in the next few years.
The planning application was supported by a detailed environmental statement which gave reasons why seven potential alternative sites were not suitable. The environmental statement also addressed noise and vibration and made detailed proposals for enhanced sound insulation to protect against aircraft noise. There was a section concerned with provision for pupils with special needs, including those with permanent hearing impairment. There was an express reference to the Equality Act 2010 and the public sector equality duty (PSED). The respondent granted planning permission, subject to mitigation measures for the outdoor areas.
The parish council opposed the application on the basis that it was not the best site for the school. Experts carried out noise tests at the site and it was agreed that overflying aircraft would cause a lot of noise at the new school; although inside the school the noise level would meet the relevant guidance, the exterior areas would suffer noise above recommended levels. The respondent’s planning committee accepted the report of its planning officer that adverse impacts were decisively outweighed by the benefits of a new village school.
The High Court dismissed the parish council’s application for permission to bring judicial review proceedings: [2019] EWHC 978 (Admin). The parish council decided not to appeal further. However, the appellant, who said that he had worked alongside members of the parish council during the planning process, was substituted as the appellant.
Held: The appeal was dismissed.
(1) The respondent had failed to have due regard to the PSED in respect of the effect of aircraft noise in the outdoor areas on children with protected characteristics. The promotors of the proposal had been well aware of the PSED. The relevant section of the environmental statement expressly referred to the PSED accompanied by the clear statement that the design did not take into account the needs of students with protected characteristics. That was not picked up anywhere in the officer’s report, as it should have been, and there was nothing in the report or the subsequent decision to show that regard was had to the PSED: Buckley v Bath and North East Somerset Council [2018] EWHC 1551; [2018] PLSCS 111 considered.
Although the mitigation measures for the outdoor areas identified in the environmental statement would disproportionately help those who were sensitive to noise, that approach ran the risk of treating the PSED as a duty to achieve a result, rather than a duty to have regard to the needs of those with protected characteristics. The mitigation measures were directly relevant to the second part of the judicial review exercise concerned with whether or not the decision should be quashed on the basis of a failure to have due regard to the PSED. But the court was not persuaded that the existence of the mitigation measures alone could mean that the respondent somehow had due regard to the PSED, when the officer’s report made no mention of it, and the mitigation measures were generic, and not targeted at children with protected characteristics.
(2) It was important that a court faced with an application for judicial review did not shirk the obligation imposed by section 31(2A) of the Senior Courts Act 1981. The present case was a good example of a situation for which section 31(2A) was designed. If the officer’s report had explained that the use of the outdoor areas was subject to all possible noise mitigation measures but that there was a potential residual issue for children with protected characteristics, it would have made no difference to the planning decision that was taken. The court had to undertake its own objective assessment of the decision-making process which focussed on the officer’s report. Viewed objectively, that was a clear and thorough report leading to the planning decision. There was no basis for suggesting that, if due regard had been had to the PSED, the result would or could have been different. The officer’s report pointed unequivocally to the conclusion that there was no site which would not be subject to noise from aircraft: the only thing that could be done was to locate and design the school in a way that ensured that the effect of such noise was mitigated as much as possible; that was what happened here. As a result, it was highly likely that the missing paragraph in the officer’s report addressing the PSED and noise, would not have made any difference to the decision: R (on the application of Goring on Thames Parish Council) v South Oxfordshire District Council [2018] EWCA Civ 860; [2018] 1 WLR 5161; [2018] PLSCS 76 followed.
(3) The court rejected the appellant’s argument that the environmental statement did not assess the environmental effects of the alternative sites properly, so that the decision to grant planning permission in reliance upon it was irrational. Applying ordinary public law principles, the judge was right to conclude that such a ground of challenge was unsustainable: R (on the application of Blewett) v Derbyshire County Council [2003] EWHC 2775 (Admin); [2004] ENV LR 29 applied.
Moreover, it was not arguable that the information in respect of the alternative sites was insufficiently detailed. Pursuant to article 5(3)(d) of the EIA Directive, a developer was required to include in environmental information an outline of the main alternatives studied by a developer and the main reasons for his choice. However, there was no requirement for a detailed environmental assessment of each main alternative: Holohan v An Bord Pleanala (Case C-461/17) [2019] PTSR 1054 considered.
The question of sufficiency of information was for the decision-maker, not for the court on judicial review. It could not be said that the decision to choose the proposed site instead of any of the alternatives was irrational. In any event, had the environmental statement been inadequate, it would not have had any substantive effect on the planning decision.
Charles Streeten (instructed by Richard Buxton Solicitors, of Cambridge) appeared for the appellant; Richard Ground QC and Jack Parker (instructed by Suffolk Legal Services) appeared for the respondent.
Eileen O’Grady, barrister
Click here to read a transcript of Gathercole v Suffolk County Council
