David Gathercole v Suffolk County Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Floyd,Lord Justice Coulson,Lady Justice Asplin |
| Judgment Date | 09 September 2020 |
| Neutral Citation | [2020] EWCA Civ 1179 |
| Date | 09 September 2020 |
| Docket Number | Case No: C1/2019/0891 |
| Court | Court of Appeal (Civil Division) |
[2020] EWCA Civ 1179
Lord Justice Floyd
Lady Justice Asplin
and
Lord Justice Coulson
Case No: C1/2019/0891
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
His Honour Judge Allan Gore QC
Royal Courts of Justice
Strand, London, WC2A 2LL
Charles Streeten (instructed by Richard Buxton Solicitors) for the Appellant
Richard Ground QC and Jack Parker (instructed by Suffolk Legal Services) for the Respondent
Hearing date: 23 rd July 2020
Approved Judgment
INTRODUCTION
The right of an aggrieved party to seek judicial review of a planning decision is an important safeguard to prevent capricious or irrational decision-making. Too often, however, such challenges can depart radically from the original planning objections, and focus instead on what might be called generic failures to comply with statutory obligations which have never before been raised. Two regular candidates for such after-the-event challenges are the planning authority's alleged failure to have regard to the Public Sector Equality Duty (“PSED”) and the failure to require a proper Environmental Statement (“ES”). Sometimes, these kinds of challenge can take on an arid quality, raising matters of form rather than substance. This appeal involves challenges on both these grounds, based on complaints which had not been raised by the appellant (or his predecessor, the relevant Parish Council) during the lengthy planning process. The respondent submits that this is an academic challenge because, even if the breaches are made out, the court can be confident that the same planning decision would have been taken.
In a decision notice dated 23 October 2018, the respondent granted planning permission for a new primary school and pre-school at Lakenheath in Suffolk. On 4 December 2018, Lakenheath Parish Council (“the PC”) applied for permission to bring judicial review proceedings of that decision. Although there were originally three grounds on which that application was made, permission was granted for ground 3 only, in respect of the adequacy of the ES. On 5 April 2019, at the hearing before Judge Allan Gore QC, sitting as a judge of the High Court (“the judge”), the PC renewed their application for permission in respect of ground 1 (Article 8) and ground 2 (PSED), at the same time as the judge heard the challenge on ground 3. In an ex tempore judgment ( [2019] EWHC 978 (Admin)), the judge refused permission to apply for judicial review on grounds 1 and 2 and rejected the claim for judicial review in respect of ground 3.
The PC decided not to appeal further. However, the appellant, who said that he had worked alongside members of the PC during the planning process, was substituted for the PC in this appeal. He sought to appeal on all three grounds, although the skeleton argument produced on his behalf was limited to a third attempt to obtain permission to argue the PSED ground, and the ES appeal. Although Mr Streeten's skeleton argument was silent as to why the appellant wished to prevent the building of a new school to meet the proposed expansion of Lakenheath, it emerged towards the end of the hearing that he favours an alternative site for the school, which was considered by the respondent but rejected for various reasons.
In Section 2 of this judgment, I set out the factual background, and in Section 3 I identify the salient parts of the decision of the judge. Thereafter, in Section 4, I set out the factual context in which this appeal falls to be considered. Thereafter, I deal with the PSED ground in Section 5, and the ES ground in Section 6. There is a short summary of my conclusions at Section 7.
THE FACTUAL BACKGROUND
Since 1941, Lakenheath has been the home of a United States Air Force base operating from a site belonging to the RAF. In recent years, planning permission has been granted in full or in outline for 663 new homes in or near Lakenheath, comprising:
(a) 81 dwellings at Rabbit Hill Covert;
(b) 140 dwellings west of Eriswell Road;
(c) 67 dwellings at Briscoe Way; and
(d) 375 dwellings at Station Road.
Many of these proposed developments are at the north end of Lakenheath village, which is also the location of the proposed new school on Station Road.
The respondent, as the local authority, applied to itself as the relevant planning authority for planning permission for a new primary school for up to 420 pupils, and a further 60 pre-school places. The principal problem to be addressed in the planning application was the issue of excessive noise, particularly in outdoor areas, generated by the aircraft using the airbase.
There were three years of consultation and discussion about the proposals before the planning application for the new school on Station Road was made on 2 March 2018. The application was supported by a detailed ES. This was a lengthy document which dealt in detail with (amongst other things) two factors relevant to the present appeal. Chapter 2 was concerned with the “Need for the Development and Alternatives”; Chapter 7 dealt with noise.
Chapter 2 of the ES identified the clear need for a new primary school in Lakenheath given that the existing school was assessed as being at capacity. Paragraph 2.1.2 noted that Forest Heath District Council were preparing their new Local Plan which identified the need for a new primary school. An area was identified in that draft Local Plan for the new school, and the proposed site on Station Road fell within that proposed area. The Local Plan has since been completed with no material change.
The ES addressed various alternative sites. It said that all these “were discussed at stakeholder meetings which included representatives from the Parish Council, District and County Councils along with the head teacher and governors from the existing school.” That was a reference to the discussions that had taken place over the preceding three years.
The alternative sites were as follows:
(a) Site 1: Lakenheath North: This was the most northerly of all the sites considered. It was even further north than the proposed site, but it was not accessible from Station Road. In relation to this alternative, the ES said at paragraph 2.2.9:
“There was concern that this site was to some extent isolated and a better option would be to relocate the school to the southern part of the site closer to the highway and Lakenheath (as shown in this planning application) to address the accessibility issues.”
In other words, the proposed site for the school was a little to the south of Site 1, with direct access onto Station Road.
(b) Site 2: Middle Covert: At paragraph 2.2.10, the ES said:
“2.2.10 The site is currently woodland and to develop this site would have an ecological and visual impact having to cut down a considerable number of trees. A number of trees are subject to TPOs and the site is considered to be a wildlife corridor. There would be no additional land if the school had to expand in the future to accommodate more than 420 places.”
(c) Site 3: Maids Cross Way: The ES noted at paragraph 2.2.13 that acquisition of this site “would be a cost to the applicant”. It went on:
“2.2.14 Access into the site is constrained due to potential access roads coming through residential estates. It is located close to the existing primary school (as marked on the plan) and potential highway congestion which could be caused on the local highway network. There would be no additional land if the school had to expand in the future to accommodate more than 420 places.”
In addition, in respect of site 3, paragraph 2.2.15 of the ES noted that “noise levels here would likely be similar to those at the existing primary school which would be in excess of the application site's noise levels”. In other words, Maids Cross Way would be noisier than the proposed site for the school. It is the Maids Cross Way site that is favoured by the appellant.
(d) Site 4: Maids Cross Hill: It was noted that this site was currently a field and not subject to any planning applications or adjacent to any sites that were the subject of planning applications. It was also outside the development boundary of Lakenheath. Paragraph 2.2.18 went on:
“It was considered by the applicant that as the site is isolated and there was no reasonable prospect of a planning application coming forward it was to be discounted.”
(e) Site 5: Eriswell Road: This was towards the south of the village, away from most of the proposed new homes. The ES noted that the land costs for this alternative site would be at full residential value. Paragraph 2.2.20 went on:
“The location of the site for a school is not ideal in respect of planned growth of the village.”
(f) Site 6: Sparks Farm: This alternative site was noted as being subjected to considerable noise because it was “very close to the end of the runway and almost directly beneath the take-off path so short-term noise from aircraft taking off is likely to be very high”. It also noted that the site, which was a long way south of the village, was detached from the Lakenheath settlement “and would have the potential of causing highway issues if there was not also a school developed for Lakenheath. Paragraph 2.2.24 added:
“Given the noise, location and potential traffic constraints the site was discounted.”
(g) Site 7: Current school site: Paragraph 2.2.25 of the ES noted that “there is insufficient land available to extend the school to accommodate the required...
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