R Lakenheath Parish Council v Suffolk County Council
| Jurisdiction | England & Wales |
| Judge | Allan Gore |
| Judgment Date | 05 April 2019 |
| Neutral Citation | [2019] EWHC 978 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | No. CO/4850/2018 |
| Date | 05 April 2019 |
[2019] EWHC 978 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
HIS HONOUR JUDGE Allan Gore QC
(Sitting as a Judge of the High Court)
No. CO/4850/2018
Ms I. Tafur (instructed by Richard Buxton) appeared on behalf of the Claimant.
Mr R. Ground QC (instructed by David Hole) appeared on behalf of the Defendant.
THE JUDGE:
Lakenheath is the well-known home of a major United States Air Force base operated from premises belonging to the RAF. Local government for the area is provided both by the claimant, the local Parish council, and the defendant, the county council, and, so far as is relevant to this case, the planning authority.
Although there remains some dispute as to the stage that proposals have reached, so far as is relevant to this case, planning permission has been granted for about 220 new homes near Lakenheath and several hundred other homes are subject at least to a resolution. Mindful of a perceived substantial increase in demand for school places, the defendant as local authority applied to itself as planning authority for planning permission for a new primary school for up to 420 pupils and a further 60 preschool places in Lakenheath. There is no dispute that during the school day in the outdoor areas around the new school there will be what I neutrally at this stage call “excessive noise levels”, although it is controversial as to how excessive those noise levels will be and whether, and if so, in what respects and to what extent they will be injurious.
The planning application was made on 2 March 2018, attracted as is the usual case an officer's report, the date of which is not clear but is not material, and came before the defendant planning authority's planning committee for consideration on 16 October 2018. In a decision notice dated 23 October 2018, the planning authority granted planning permission for the new school.
By Claim Form filed on 4 December 2018 the claimant applied for permission to apply to quash this decision. As drafted, three grounds were relied upon. Although in the claimant's reply to the summary grounds of resistance adopting the euphemism “limb”, it is asserted that ground one comprises two freestanding grounds of challenge.
Those grounds are that the decision to grant planning permission, firstly, failed to have proper regard to the best interests of the child under Art.3 of the United Nations Convention on the Rights of the Child, (hereafter UNCRC), or to treat that as a primary consideration. Secondly, it failed to have regard to or interfered disproportionately with the rights of future pupils of the school under Art.8 of the European Convention on Human Rights (hereafter ECHR). Thirdly, it failed to have proper regard to the public sector equality duty under s.149 of the Equalities Act 2010. Fourthly, it breached regulation 3 of the Town and Country Planning (Environmental Impact Assessment) Regulations 2011 by virtue of the failure to properly assess the environmental impacts of alternatives in breach of Art.5(3)(a) of the Environmental Impact Assessment Directive 201192EU enacted into UK law by sch.4 Part 1 para.2 of the 2013 Regulations (hereafter described as the failure to provide an EIA).
As is usual, the application for permission was first considered without a hearing by Mr John Howell QC, sitting as a Deputy High Court Judge, on 28 January 2019 and he refused permission on all but the last ground. By a Notice of Renewal dated 4 February 2019, the claimant applied for the oral reconsideration of all the grounds for which permission had been refused. Mr Neil Cameron QC, sitting as a Deputy High Court Judge, on 11 February 2019 without a hearing directed that the oral renewal hearing be listed to be heard immediately before the substantive hearing, thereby providing for what is colloquially called ‘a rolled-up hearing’. So it is that the matter came before me in the form of the substantive hearing on the ground for which permission was granted and the rolled-up hearing for permission and, if granted, substantive relief in the respect of the other grounds of challenge.
Before I turn to consider the detail of the matters before me, there is an unfortunate feature of this litigation that I wish to deprecate. Underlying the dispute in this case are a serious series of factual disputes about a variety of matters including, but not limited to, the extent of the excessive noise, the injurious nature or potential injurious nature of it, the circumstances and performance of the existing school, the assets and resources of the claimant and various other less important matters. This has attracted a deplorable ping pong of supplementary witness statements, attempts to deploy expert evidence without permission and applications for permission to rely on further evidence. Some of this has been, to say the very least, very late.
Not only is that, in my judgment, a wholly improper way to conduct litigation of this type, but the truth of the matter is that much of this material, at least as regards the issues concerning noise and schools, could and should have been deployed by all concerned before the planning permission decision was even taken. That way what are in effect objections to the grant of planning permission on the merits and purported rebuttals thereof and answers thereto could and should have been considered by the planning authority before the planning decision was taken in the first place. Review proceedings in the Administrative Court are not the appropriate vehicle by which to seek to resolve such potentially central disputes.
Prior to either the preparation of the officer's report or the consideration by the planning committee, the usual lengthy consultation took place. During that process, the claimant made the following contributions.
Firstly, on 2 February 2018 by email, pre-application comments were made.
Secondly, further representations were made, again by email, on 2 October 2018 in which the claimant recorded:
“Lakenheath Parish Council strongly believe that this is this is not the best suited site for a school to serve their village. For these main reasons, they object strongly to the proposed school site, especially when there are better sites within the village boundary available.”
Thirdly, a verbal presentation was made by the chair of the claimant's planning subcommittee to the meeting of the planning committee making the relevant decision.
It is material to note and observe that in none of those contributions made by the claimant was any point taken recognisably identifying as issues for consideration the points of criticism now raised as grounds for challenge. Mr Streeten, counsel who appeared for the claimant, in oral submissions said that this was because the Claimant did not have the benefit of legal advice at any of these points in time.
Mr Ground QC, leading counsel for the Defendant, both in his skeleton argument and in his oral submissions replies by asking, not rhetorically, why should the planning decision maker have to deal with points that no one has raised during the consultation process? In support of that proposition, he prays in aid the observations of Judge Cooke, sitting as a High Court Judge in Stroud v North West Leicestershire District Council [2018] EWHC 2886 who said at para.40:
“It is important, in my view, that the courts in interpreting and applying this duty should not do so in a way that introduces unnecessary and cumbersome formality and box ticking. A duty to have ‘due regard’ to matters does not require the decision taker in all cases to go looking for possible implications for any or all of the protected characteristics, but only to consider them properly where they are substantively raised on the facts.”
Although those observations were made specifically in the context of the so-called public sector equality duty they have merit generally in supporting Mr Ground's submission. Moreover, in a case not included in the over 50 authorities cited to me in the course of argument, but familiar to junior counsel for the defendant because it was cited against him before me in a case two days earlier, David Elvin QC, as a Deputy High Court Judge, in Wynn-Williams v Secretary of State for Communities and Local Government [2014] EWHC 3374 at para.33 said:
“It is necessary in my view to exercise due caution with new material and new points taken, especially with respect to written representations appeals which are intended to be short and for straightforward cases. It is not to be expected as a general rule that inspectors should seek to find new points though there are bound, from time to time, to be some cases where there may be obvious errors or omissions, for example, the failure to consider a plainly applicable policy.”
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