R (on the application of “G”) v Thanet District Council
| Jurisdiction | England & Wales |
| Judge | Timothy Corner |
| Judgment Date | 19 July 2021 |
| Neutral Citation | [2021] EWHC 2026 (Admin) |
| Docket Number | CO/4184/2020 |
| Court | Queen's Bench Division (Administrative Court) |
[2021] EWHC 2026 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Timothy Corner, QC
Sitting as a Deputy High Court Judge
CO/4184/2020
and
Richard Honey, QC and Jonathan Welch (instructed by Kent Law Clinic) for the Claimant
Giles Atkinson (instructed by Director of Law and Democracy, Thanet District Council) for the Defendant
Hearing dates: 7 th and 8 th July 2021
Approved Judgment
Timothy Corner, QC:
INTRODUCTION
This claim for judicial review is brought by the parent of a child at a Special Educational Needs school directly adjacent to land on the north side of Stirling Way, Ramsgate, Kent (“the site”) which is owned by East Kent Opportunities LLP (“EKO”) and for which the Defendant Council (“the Council”) granted planning permission (“the planning permission”) on 2 nd October 2020 for a development of a three-storey block of 15 flats and 23 houses. The planning application was made pursuant to a contract between the landowners and the developer. The Claimant has brought this claim with pro bono representation to protect the interests of the school and its pupils, who are particularly sensitive and vulnerable children.
I thank all three counsel for their help. For the Claimant, although the pleaded case carries the signature of both counsel Mr Welch presented cogent oral submissions on ground 2, with Mr Honey dealing with the other grounds. For brevity, where I refer to submissions for the Claimant on ground 2, I refer to Mr Welch only, and for the other grounds, to Mr Honey only.
The Claimant contends that despite representations made, including by the school's headteacher, the Council's officer did not grapple with the impact of the development on the children of the school, especially in terms of construction noise, highway safety and air quality. The decision was procedurally flawed and infected by apparent bias. Overall, it is said to be apparent that the application was not properly scrutinised and was given an unduly easy ride. In summary, the Claimant advances the following grounds:
(1) The application was “on behalf of” the Council and, under the scheme of delegation, had to be determined by the planning committee. The decision by an officer was unlawful.
(2) The appropriate assessment undertaken by the Council failed to comply with the strict requirements of the Habitats Regulations, such that no lawful appropriate assessment of the impact of the development on the Special Protection Area was conducted.
(3) The Council failed to assess construction noise impacts on the school and the efficacy of potential noise mitigation was simply assumed and not actually considered.
(4) The Council failed to consider and grapple with highway safety risks in relation to children and parents at the school and failed to require a transport assessment, which would have included systematic consideration of highway safety, contrary to the policy requiring one.
(5) The Council failed to consider the issue of air quality and failed to require an air quality assessment, again contrary to the policy requiring one.
(6) The decision is tainted by apparent bias.
FACTUAL BACKGROUND
The Council granted planning permission on 2 nd October 2020. Laleham Gap School is immediately north-west of the site. The development will be accessed along the same cul-de-sac as the school, with all traffic accessing the site passing the school entrance.
The school is a SEN school for pupils aged from 4 to 17 years of age, most of whom have a diagnosis of autism. The pupils are particularly sensitive to the surrounding environment, especially noise, air pollution and other disturbances. The sensitivities of the pupils are explained in the witness statements of the school's headteacher, Mr Les Milton, and the Claimant. These sensitivities are not disputed by the Council.
The site is a small part of the land allocated by policy SP09 of the Thanet Local Plan as a mixed-use area of development for residential and business purposes. It is a short distance from the Thanet Coast and Sandwich Bay Special Protection Area (SPA), Ramsar site and Site of Special Scientific Interest, and well within the zone of influence of that internationally important site.
EKO owns the site. EKO is a partnership of the Council and Kent County Council (“the County Council”). EKO has no employees and is steered by a management team of six persons, including one elected councillor and two senior officers of the Council. The obligations of EKO are performed by and through councillors and officers of the two councils, including the Council. EKO only acts with the authority of the Council.
The relationship between the Council-as one of two partner members of EKO- and developer Kentish Projects Limited (KPL) was raised in the Claimant's pre-action letter. The Council responded contending that “there is no contract between the Council and the developer in this case”. The Claimant asked the Council to clarify the relationship between itself and KPL. In its Summary Grounds of Defence (SGD), the Council at paragraphs 13–15 acknowledged there was a contract but did not disclose it. A counterpart copy of the contract for the sale of land dated 11 February 2019 (“the Contract”) was disclosed in redacted form by the Council after permission was granted for the claim. The Claimant asked for a copy of the Contract executed on behalf of EKO and a copy of that was provided. Despite the Council initially claiming that “the Council itself is not a signatory” to the Contract, the second copy of the Contract showed a representative of the Council did sign it. The Contract contains the following provisions:
i) In clause 5.1, EKO obliges KPL to submit a planning application to the Council and to “use best endeavours to obtain the grant of a Satisfactory Planning Permission as soon as reasonably possible”.
ii) In clause 5.3, EKO agrees not to “do anything which may prejudice or obstruct the progress of any Planning Application or Planning Appeal made pursuant to this contract”.
iii) By clause 9, EKO is obliged “to co-operate with [KPL] and use all reasonable endeavours to assist [KPL] in obtaining a Satisfactory Planning Permission.”
iv) Where a Planning Agreement is required, KPL “shall (in consultation with [EKO] (who shall act reasonably and promptly)) use best endeavours to negotiate and agree the terms of the Planning Agreement free from any Buyer's Unacceptable Conditions as quickly as reasonably possible” (clause 12.1).
The form of transfer in Schedule 1 to the Contract is required to be signed by an authorised representative of EKO. It is to be signed by a “Thanet District Council Representative”. Clause 12 of Schedule 1, “Execution”, states that the sale has been agreed by the EKO management committee and provides space for signature by authorised representatives.
The Council accepted in its Detailed Grounds of Defence (DGD) that the “transfer of land that results from the agreement can be said to be undertaken on behalf of the Defendant Council, as joint land owner” and that “if permission is not granted there is no sale”. The s106 agreement is signed twice by the Council, including in its capacity as landowner.
Objections to the planning application were made in relation to issues including overlooking of the school, noise and disturbance for children during construction, increased traffic, lack of parking, air quality concerns for children at school with anxieties, and highway safety for children and parents during school drop off/collection.
The County Council biodiversity officer advised that, due to the proximity of the site to the SPA, the development must fully adhere to the Strategic Access Management and Monitoring Strategy (SAMMS) to mitigate for additional recreational impacts on the SPA. He advised that appropriate assessment (“AA”) should be carried out. An AA was carried out, which the Claimant criticises.
The Council's own Environmental Health Officer (EHO) advised that “given the site adjoins a school for children with special educational needs who are extremely sensitive to noise, the construction impacts must be effectively controlled”, and concluded: “It is therefore imperative that construction impacts are assessed and noise mitigation put in place” (emphasis added).
The Council's scheme of delegation provides that the Planning Committee will determine a planning application where:
“ 2.2.1.
(c) The application has been submitted by or on behalf of a Member or an Officer of the Council;
(d) It is an application by or on behalf of Thanet District Council.”
The school's headteacher, Mr Milton, was told that the planning application would be determined by the Council's planning committee. The application was originally scheduled to be heard at a committee meeting.
The Council's planning officer Ms Fibbens prepared a delegated report setting out her consideration of the application. That report was checked by a senior officer before being finalised. The delegated report recorded the fact that objections had been made about noise during construction, highway safety for children and parents, and air quality.
The delegated report describes a potential construction management plan involving consultation with the school. Condition 25 requires a scheme for mitigating construction noise impact to be submitted to and approved by the Council. The delegated report does not assess construction noise impacts on the school. The conditions do not require any such assessment either. The delegated report concluded that highway safety impacts were considered to be acceptable, although the Claimant says this was without...
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