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

In planning judicial review, an officer’s report is read fairly and benevolently. The question is whether it materially misled the committee on an issue bearing on the decision, so that the decision might have been different. A planning authority need not use a particular label where the substance of a relevant consideration has been addressed. The best interests of children may be a primary consideration through the substance of providing necessary school places. Article 8 is engaged only where the alleged effect is sufficiently adverse and substantiated, rather than hypothetical. The public sector equality duty is substantive, although its discharge may be demonstrated without literal reference to the statute. An environmental assessment may be adequate in substance where the report identifies the relevant alternatives and enables the authority to balance their environmental effects against planning benefits.

Suffolk County Council, acting both as education authority and planning authority, granted permission for a new primary school and pre-school provision near Lakenheath. The claimant parish council sought judicial review, alleging failures concerning the best interests of children under article 3 of the UNCRC, article 8 ECHR, the public sector equality duty, and environmental impact assessment of alternative sites.

Permission had been refused on the first two grounds, renewed as a rolled-up hearing, while permission was granted on the environmental assessment ground. The central issue was whether the absence of express references in the officer’s report materially undermined the legality of the planning committee’s decision.

1. Outcome. Permission on the renewed first and second grounds was refused. The challenge on the environmental assessment ground was dismissed. The defendant obtained its costs, subject to the £15,000 cap, payable within 21 days.
2. Officer’s report. Applying Mansell v Tonbridge and Malling Borough Council [2017] EWCA Civ 1317, the report had to be read with reasonable benevolence. The question was whether it materially misled the committee on a matter bearing on its decision, such that the decision might have been different. The court should avoid excessive legalism and a hypercritical review of planning advice.
3. Children and article 8. Providing school places to meet increased demand, where the existing school was nearly full, treated children’s interests as a primary consideration under article 3 UNCRC. Article 8 was engaged, but the evidence established no actual or sufficiently substantiated risk of physical or psychological harm or educational impairment from the noise; the alleged interference was therefore not reasonably arguable. In any event, the authority had carried out the required proportionality balance by weighing the noise against the educational and planning benefits.
4. Equality duty. The absence of express reference to the duty was formally inadequate, since recording the steps taken is an important evidential means of demonstrating compliance. Nevertheless, the report addressed the noise problem, and the planning conditions provided quieter internal accommodation and attenuation shelters. Those steps removed or minimised disadvantages, met relevant needs and encouraged participation in mainstream education within Equality Act 2010 s 149(3).
5. Environmental assessment. Hollohan v An Bord Pleanála [2018] 7 November required consideration of the main alternatives and their environmental effects. The report identified seven sites and recorded the relevant adverse effects for the three alternatives where specific environmental effects arose. In context, its silence about other effects supported the inference that none existed. The authority had therefore assessed the alternatives sufficiently in substance and was entitled to decide that the proposed site’s noise impact was outweighed by the need and benefits of the school.

This was a first-instance judicial review in the Administrative Court. Permission was initially refused on grounds 1 and 2 by Mr John Howell QC, sitting as a Deputy High Court Judge, and granted on ground 3. Mr Neil Cameron QC directed that the renewed permission hearing be heard immediately before the substantive hearing. The claim then came before His Honour Judge Allan Gore QC.