Lakenheath Parish Council, R (On the Application Of) v Suffolk County Council

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

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:

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:

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:

This of course is not a written representations appeal, but the point remains generally a good one.

On a similar point, Mr Ground submits that there is no evidence to refute that neither has the claimant identified any person actually or potentially adversely affected either at the existing school or at the proposed school by outdoor levels of noise, nor is there any evidence of specific cases of detriment or harm caused by such noise. He also draws attention to the fact that such expert evidence as the claimant was deploying in the period up to the making of the planning decision did not mention anything to do with the public sector equality duty or the effect of noise or any likely child with a disability who might attend the proposed school.

I turn then to the officer's report. The material passages are as follows:

Table 1 is entitled "Alternative sites. To be read in conjunction with planned potential sites for new Lakenheath primary school. 8 December 2017." There follows an identification by number of seven sites and reasons for unacceptability are expressed in the following terms. In respect of site 1:

Site 6:

Site 7:

I digress to make the observation, which is not superficially apparent, that the measure of noise levels by reference to the scale DBA is not a linear scale, but a logarithmic scale, with the result that 70 DBA is very significantly indeed noisier than 60 DBA or 55 DBA. Returning to the officer's report:

Some pages further on the officer's report under the heading "Site-specific issues. Conformity with the NPPF and Local Plan Policy and specifically in relation to noise" contains the following paragraphs:

The final extract I draw attention to starts at para.162 in the following terms:

It is right to note and observe, as is the principal thrust of Mr Streeten's submissions, that there is not a single reference in the 30 pages and 165-paragraphs of the officer's report to the UNCRC Art.3, the ECHR Art.8, the Equality Act 2010 or any EIA. Mr Streeten submits of the officer's report that provided the evidential basis upon which the planning committee came to its decision, that the failure to mention or evaluate the potential harm of excessive noise to the physical or psychological wellbeing of children generally or to their education and educational attainment, constitutes actionable interference with their ECHR Art.8 and UNCRC Art.3 rights generally.

In addition, he submits that failure to mention or evaluate the potential harm of excessive noise to the physical or psychological wellbeing of children with protected characteristics or to their education and educational attainment constitutes breach of the public sector equality duty. Specifically, he submits that nowhere does the officer's report state that children with protected characteristics will not be able to attend the new school or may suffer impacts on their health or development, as is now conceded by the Defendant, as Mr Ground agreed when that submission was made. So it is that Mr Streeten submits that both limbs of ground 1 and ground 2 of the challenge are made out and the decision of the planning authority was unlawful and should be quashed. He makes a similar criticism under ground 3 in relation to the absence of any specific EIA.

Mr Ground, on the other hand, submits, firstly, that there is and can be no breach of

As regards the allegation of breach of the public sector equality duty, he submits that on the evidence steps were taken to minimise disadvantages or meet the needs of or to encourage participation of persons with protected characteristics, each within the meaning of s.149(3) of the 2010 Act, even if the Act was not specifically mentioned in the officer's report. Finally, he submits that there was consideration of environmental impact at the site and its alternatives and that assessment was sufficient.

An issue that arose for the first time in Mr Streeten's reply is whether the officer's report fairly reflected the evidence submitted during the consultation process or, alternatively, as he submits to be the case, in not doing so it caused the planning committee to be misled materially as regards application of the public sector equality duty or as to the other aspects of objection generally now pursued. This arises because both the acoustic report commissioned from experts and relied upon in the preparation of the officer's report, undated, but the final approval signatory approved it on 9 February 2018, and the environmental statement, simply dated February 2018, each specifically addressed the impact of noise in schools on pupils with special needs (see section 3.4 on internal p.8 to 9 of the former document to be found at trial bundle p.392 to 393 and section 7.5 between internal p.46 to 48 of the latter document to be found at trial bundle p.356 to 358).

Accordingly, Mr Streeten submits that this material, relevant to discharge of the public sector equality duty, resulted in the decision maker being materially misled in the decision making process. He draws attention to the fact that both of these documents, not referred to specifically in the officer's report, specifically draw attention to the Equality Act 2010 obligations. Relevant to that submission are points based upon the evidence previously made by Mr Streeten in the course of oral argument before me as follows.

Firstly, the relevant and applicable performance standard issued by the Department of Education relating to school design prevailing at the time relevant to this case is the Acoustic Design of Schools Performance Standards Bulletin 93, dated February 2015. In the summary at section 0.4 under the heading "Provision for children having special hearing or communication needs", it is specifically provided that various groups of children, having needs including those arising from communication difficulties, hearing loss, attention deficit hyperactive disorders, auditory processing disorder or difficulty or being on the autistic spectrum, benefit from duties owed under the Equality Act 2010, which require the preparation and implementation of accessibility strategies and plans to increase

A little later still it continues:

Secondly, Mr Streeten relies upon the second witness statement of Mr Adrian James filed on behalf of the defendant dated 21 March 2019, para.34 of which contains the assertions that:

Mr Clarke is the expert from whom the claimant sought advice for the purpose of this litigation. The point which Mr Streeten makes is that in this passage the defendant admits that the new school for which planning permission was being considered:

This is an admission that the needs of persons who possess protected characteristics within the meaning of the 2010 Act have not been considered, which by definition, he submits, constitutes a breach of the public sector employment duty. He seeks to make good that submission by relying upon the equally lately produced Accessibility Strategy of the Children and Young People's Services Department of the defendant which acknowledges that:

That is at internal p.4. Note that it follows from this statement that students with disabilities falling short of requiring specialist facilities and resources are to be integrated in mainstream schools. The same document at internal p.6 announces that “our strategy places equality principles at the heart of service delivery”. At internal p.7 it announces that:

In doing so, the declared strategy is to provide in mainstream schools outreach support and training for categories of children that possess precisely the sort of characteristics and needs referred to by Mr James in his second statement. Accordingly, Mr Streeten submits that insofar as the decision of the planning authority was made with an officer's report that simply did not address the needs of this cohort of children at all, not only was the decision maker seriously misled, but also it failed to have regard to a relevant and important consideration that, on either ground, the decision is liable to be quashed pursuant to public law principles.

Mr Ground's submissions in response are multi-layered. A central thread is that a public authority decision maker does not need to go looking for and then to address potential grounds that might be deployed in response to the application under consideration. Instead, he submits that, in the aftermath of lengthy and detailed evidence gathering, consultation and reporting, the authority is entitled to expect, particularly of another body exercising public law functions like the claimant Parish council, that all significant or major issues be identified before the relevant decision is made. It cannot simply or credibly, after the event of the decision, challenge its legality by reference to grounds of challenge or complaints that it has never had drawn to its attention before the event.

At the meeting of the relevant planning committee on 16 October the defendant granted planning permission to the proposal, subject to 39 conditions, and it is material to note and observe two of the conditions which imposed the following requirements:

With due respect to the industry of counsel on both sides, the extensive written and oral advocacy and the citation of two lever-arch file volumes of authorities, in my judgment, the issue for the court to decide is whether, as Mr Streeten submits, the absence of specific reference to the four considerations now relied upon by the claimant, or each or any of them, fatally undermines the legality of the planning authority's decision making or whether, as Mr Ground submits, despite the absence of specific reference to those consideration, the substance of them was fully or sufficiently dealt with in the officer's report and, therefore, by the planning authority so as to justify its decision being sustained.

Moreover, with due respect to the industry and effort of counsel on both sides, the legal principles to apply to make that determination do not require the citation of over 50 authorities and can be stated quite shortly. As Lindblom LJ said in Mansell v Tonbridge and Malling Borough Council [2017] EWCA Civ 1317:

(3) within that citation continues and, again, I emphasise this passage from his judgment:

And so he asked at para.43, as indeed it seems to me that I must ask in this case: Was the officer's advice to the members in this case flawed in that way?

Context for this purpose is both legal and factual. Both require consideration and evaluation.

In my judgment, deciding that the needs of children to have access to an education in a new school when the facts are that the provision of new homes will increase demand for places significantly, and the existing school is nearly full, and has no space or resources to meet this increased demand, on any view, amounts to treating the interests of the child as a primary consideration under Art.3 of the UNCRC. I do not understand how it can possibly be said to be arguable that the failure to mention this important requirement constituted misleading the members on a matter bearing upon their decision, either materially or otherwise.

Reviewing the question in relation to Art.8 of the ECHR is not so straightforward. Mr Ground is correct in identifying that under Art.8, two questions arise. The first is to consider whether the grant of planning permission constituted, or arguably constituted, an interference with Art.8 rights within the meaning of Art.8(1). If it did not or could not, that is an end of the matter. If, however, it is arguable that it did, the second question is to consider whether the silence of the officer's report on Art.8 rights materially misled the planning committee or whether, given the evidence, facts and matters evaluated in the report, the officer has advised and the planning authority decided in accordance with the proportionate needs in a democratic society, thereby, producing a balanced judgment under Art.8(2).

Both Mr Streeten and Mr Ground in this regard took me to the legal principles summarised by Higginbottom J (as he then was) in Stevens v Secretary of State for Communities and Local Government [2013] EWHC 792 at para.69.

Applying that guidance to the facts in this case, drives me to the following conclusions. Whether or not to grant planning permission in this case did engage Art.8. However, in my judgment, both the reporting officer and the planning authority had and kept at the forefront of their minds the best interests of children. Indeed, the decision making in this case concerned, and only concerned, the best interests of children and I cannot see any evidence of any countervailing or conflicting interest playing any part in the decision making process.

I entirely accept the proposition that what is protected by Art.8 is not merely the physical and psychological integrity and wellbeing of citizens, but extends to the physical and psychological space necessary for personal development and the development of social relationships, social identity and the development of "the self". Educational space and its appropriateness are important to this. However, to constitute breach of Art.8(1) the interference must be sufficiently adverse to constitute interference and must not be based on hypothetical factors which are not substantiated. Frankly, I do not need the citation of authority to support these generally propositions, but, for the record, citations to this effect before me included Baroness Howell in R (On the application of the Countryside Alliance) v Attorney General [2007] UKHL 52 at para.116; MacDonald J in London Borough of Sutton v MH [2016] EWHC 1371 para.93, and the decisions in Hatton v United Kingdom [2003] Volume 37 EHRR 28 at para.93, and Bensaid v United Kingdom [2001] volume 33 EHRR 25 at para.46.

I confess to having been concerned about the lack of reference in the officer's report to the environmental statement section 5. I was also concerned about the lack of any reference in this regard to the needs, within the cohort of children generally, of those with relevant protected characteristics. It is also troubling to read what Mr James set out in para.34 of his witness statement, because I ask, not rhetorically, how will the needs of children with hearing impairment, ASD and ADHD, who live in the new homes which the new school is to serve and who otherwise would be educated in mainstream schools pursuant to the accessibility strategy, be catered for if it is conceded and accepted that, for reasons related to noise, the new school will not be suitable for them, unless all of their schooling is undertaken inside and within the confines of noise protected new school building?

However, a proper evaluation, not only of all of the evidence available to the reporting officer and the planning authority, but also of the further evidence emerging since that time, does not establish either the fact or the risk of either physical or psychological harm or educational impairment attributable to excessive noise in this location. The evidence in this regard, at its highest, establishes only hypothetical risk. It is material in this regard that no other objections have been raised during the planning process in relation to this issue. Accordingly, in my judgment, it is not reasonably arguable that Art.8(1) interference is established in this case.

Further, in my judgment, even accepting that no explicit mention was made of Art.8(2) in the officer's report, I am satisfied that it is not reasonably arguable that the planning authority were materially mislead by this omission. They undertook precisely the balancing exercise required to consider whether potential infringement was proportionate when they took into account that the decision which would provide a new school, meeting what would otherwise be unmet need, in close proximity to new housing, thereby avoiding imposing on those children longer journeys to other alternatives and all of that in the context where the existing alternative school was filled close to capacity, suffered an indoor environment that was noisier than will be the case in the new school, when the creation of the new school created the availability of a choice of school for parents and satisfied both national policy in the NPPF (see para.92 to which the planning authority were required to give substantial weight), and also local planning policies. The only potential relevant factor ignored in that

I turn then to ground 2 invoking the public sector equality duty. True it is that guidance in binding authority (McCombe LJ in Bracking v Secretary of State for Work and Pensions [2013] EWCA Civ 1345 at para.26) establishes that it is an important evidential element in the demonstration of discharge of this duty to record the steps taken by the decision maker in seeking to meet the statutory requirements and that the relevant duty is on the decision maker, personally, as distinct, for example, from those giving evidence to the decision maker. Moreover, what needs to be demonstrated is that proper appreciation was given to the potential impact of the decision on equality objectives, properly and conscientiously focusing on statutory criteria.

Both parties also drew my attention to the decision in Buckley v Bath and North-East Somerset Council [2018] EWHC 1551 per Lewis J at para.36 to the effect that the duty is one of substance not form, but, in my judgment, it is telling and relevant to draw attention to his observation that the duty is "to have due regard" as opposed to "a duty to achieve a specific result." Can it be said that these requirements are satisfied when the officer's report makes no mention of this duty and there is no extraneous evidence demonstrate that the decision maker had it in mind? Mr Streeten's submission is straightforward no.

Mr Ground in para.44 to 57 of his skeleton argument, amplified in oral submissions, seeks to explain why that submission is wrong. In the alternative, in para.58 to 61 of his skeleton argument, amplified by oral submissions, he seeks to submit that even if there was a failure to have regard to the public sector equality duty, it made no difference to the outcome in this case. With respect to Mr Ground, I have come to the conclusion that the approach adopted in this case as a matter of form was not on its face adequate. Not to mention the existence or applicability of the duty makes it difficult to say that the evidential element of demonstration of regard to it has been discharged. If the officer's report had properly and carefully set out and analysed the relevant evidence and made recommendation which the planning authority then accepted and acted upon, the Defendant's position would be unassailable.

The question for me to ask in assessing whether the planning authority were materially misled by the failure to do so, is whether due regard was had the duty. In answering that question, I attach particular weight to s.149(3) of the 2010 Act. This provision requires "due regard" for the benefit of persons who shared protected characteristics (that is the group of children who collectively have special needs to be met in their educational provision within mainstream schools) to mean "to remove or minimise disadvantages" (s.149(3)(a)), and "take steps to meet needs" (s.149(3)(b)) and "encourage persons to participate in activity", (which I take for present purposes to mean mainstream education - s.149(3)(c)).

In my judgment, the officer's report and, therefore, the planning authority's decision in reliance upon it, can be demonstrated evidentially to have satisfied this requirement, despite the absence of explicit reference to it in literal terms. All concerned identified and reflected upon the excessive levels of noise that would exist in the outdoor areas surrounding the new school. Steps were taken either to remove the disadvantages for those with protected characteristics, in the conditions attached to the planning permission, by the requirements that would achieve quieter indoor sound levels in the new school than would be provided to those groups in the existing school or to minimise them by the provision in the outdoor areas

Therefore, it seems to me, and I find, that due regard within the meaning of s.149(3) was had in this occasion. Accordingly, I have come delusion that the modest, but nonetheless minimum, threshold to attract the grant of permission is not satisfied and I maintain the refusal of Mr Howell QC under ground 2.

Permission was given by Mr Howell QC for ground 3. It is for me to decide on the evidence, and in all of the circumstances, whether what is agreed to have been the absence of a formal and compliant EIA undermined the legality of the defendant's decision. Mr Streeten relies upon the judgment of the Court of Justice of the European Union in Hollohan v Ad Bord Pleanala [2018] 7 November not formally reported as yet, but a full transcript of which was made available to me. Paragraph 69 is cited by him as support for the submission that what is required by the prospective developer is a study of all the main alternatives, taking into account the environmental effects of each of them.

Mr Ground disputes that proposition and in my judgment the language of para.69 is plain and unequivocal. The question which he poses, in the alternative, is whether that was done adequately in this case on the evidence. In this regard, he relies on the specific guidance about environmental statements given by Sullivan J (as he then was) in R (On the application of Blewitt v Derbyshire County Council [2003] EWHC 2775 para.40 to 42 which I can summarise by posing as the relevant question whether this environmental statement "is so deficient that it could not reasonably be described as an environmental statement as defined by the regulations?"

Table 1 in para.48 of the officer's report identifies that seven alternatives were considered. It is correct that environmental effects were only considered specifically in relation to three of them; namely, sites two and three, and six. As regards site two, attention was drawn to the adverse ecological and visual impacts effects of tree loss and identified the noise impact would be similar to the proposed site. Site three was identified as being noisier than the site proposed. Site six was described as a very noisy location.

In my judgment, bearing in mind, to remind myself, that "the function of planning decision making has been assigned by Parliament not to judges but at local level to elected councillors with the benefit of advice given to them by planning officers, most of whom are professional planners" and that that planning decision making is undertaken by "councillors with local knowledge" (all per Lindblom LJ in Mansell cited earlier), the only proper inference to draw from the silence in all other environmental respects is that no adverse environmental impacts existed in relation to any of the alternatives than those specifically identified in respect of the three I have referred to.

The question for the planning authority, therefore, was to decide whether the adverse environmental impact of excessive noise at the proposed site weighed in the scale of planning decision making so heavily as to require refusal of permission. That is to conduct an EIA, at least in substance, which is what the authorities require this court to evaluate. Moreover, it is material that at no stage has the claimant, or anyone else, identified yet further alternatives to be considered. The planning decision in this case proceeded upon the conclusion that even the adverse impact of excessive outdoor noise at the proposed site, balanced against the needs and benefits identified, justified the grant of planning permission, even though the environmental impact at alternatives sites considered was either no worse or in many, if not most cases, less severe or even absent. That is a matter for the planning judgement of the officers and the authority. I do not consider that the officer's report materially misled the planning authority in this respect. Accordingly, ground 3 of the challenge fails.

So, in conclusion, the application for permission on rounds 1 and 2 of the original grounds refused by Mr Howell is maintained and the challenge under ground 3, for which he gave permission, is dismissed.