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

The claimant sought judicial review of the defendant planning authority's grant of planning permission for a new primary school on grounds that the decision failed to have proper regard to: (i) the best interests of the child under Art.3 of the United Nations Convention on the Rights of the Child; (ii) Article 8 of the European Convention on Human Rights; (iii) the public sector equality duty under s.149 of the Equality Act 2010; and (iv) the Environmental Impact Assessment obligations under the Town and Country Planning (Environmental Impact Assessment) Regulations 2011 (breach of Directive Art.5(3)(a)).

The court held that the officer's report and the committee had treated the interests of children as a primary consideration in the planning balance and that Art.8 interference was not reasonably arguable on the evidence. Although the officer's report did not explicitly cite Art.3, Art.8, the Equality Act s.149 or the EIA Regulations, the substance of those matters (notably the noise evidence, consideration of alternatives and planning conditions to mitigate disadvantage) had been considered sufficiently so as not to materially mislead the committee. Permission to challenge grounds 1 and 2 was refused; the claim on the EIA ground was dismissed on the merits.

This was a first-instance judicial review challenge to the grant of planning permission for a new primary school near RAF Lakenheath. The claimant parish council alleged that the planning decision was unlawful because it did not properly consider children’s rights (UNCRC Art.3), potential interferences with Article 8 ECHR, the public sector equality duty under s.149 Equality Act 2010 and that no proper environmental impact assessment of alternatives had been carried out under the EIA Regulations (reflecting Directive Art.5(3)(a)).

Procedural posture: The claimant applied for permission to quash the decision. A Deputy High Court Judge (Mr John Howell QC) initially refused permission on all but the EIA ground. A renewal and a rolled-up hearing were directed and the substantive hearing took place before His Honour Judge Allan Gore QC sitting as a High Court judge.

Facts and evidence: Planning permission had been granted for c.220 houses nearby and the county council, acting as applicant and planning authority, proposed a new primary school for up to 420 pupils. Noise surveys showed high, intermittent aircraft noise (typical LAeq values substantially above desirable outdoor teaching thresholds and short peaks to around 80–85 dBA). The officer's report acknowledged the noise, surveyed seven alternative sites (with reasons for rejection), and recommended conditions (including noise attenuation shelters and BB93 testing) if permission were granted. The officer's report did not explicitly mention UNCRC Art.3, ECHR Art.8, s.149 Equality Act 2010 or the EIA Regulations, and some material (noise and environmental statements) that discussed impacts on pupils with special needs was not explicitly cited in the report.

Issues framed by the court: (i) whether omission to refer explicitly to UNCRC Art.3, ECHR Art.8 or s.149 amounted to material misdirection or unlawful decision-making; (ii) whether Art.8 was engaged and, if so, whether any interference was proportionate; (iii) whether the public sector equality duty had been discharged; and (iv) whether the environmental statement/assessment of alternatives was so deficient as to breach the EIA Regulations/Directive.

Reasoning and conclusions: The judge applied established principles on review of planning officer reports: read with reasonable benevolence and asking whether an officer materially misled members. On Art.3 UNCRC, providing the school to meet increased demand treated the interests of the child as a primary consideration. On Art.8, the court concluded an arguable interference was not established on the evidence (risk of harm was hypothetical and not substantiated); even if engaged, the planning authority had properly balanced competing considerations and offered proportionate mitigation. On the equality duty, although the report did not literally record the statutory duty, the substance of s.149(3) (remove or minimise disadvantage; take steps to meet needs; encourage participation) was shown to have been addressed by mitigation measures and conditions, so the duty had been given due regard. On the EIA point, alternatives had been considered in the environmental statement and officer's table of sites; the judge concluded the environmental statement was not so deficient as to vitiate the decision. The judge therefore maintained refusal of permission on grounds 1 and 2 and dismissed the EIA challenge on the merits.

Practical note: the judgment emphasised that review is not a vehicle to resolve primary factual disputes which ought to have been addressed in the planning process and reiterated the courts' caution against excessive legalism in reviewing planning decisions.

The claim is dismissed. The court concluded that (i) the decision-maker treated the best interests of the child as a primary consideration in providing new school places and therefore there was no sustainable UNCRC Art.3 challenge; (ii) Article 8 interference was not reasonably arguable on the evidence and, in any event, the planning balance and mitigation made the decision proportionate; (iii) despite the absence of literal references to s.149 Equality Act 2010 in the officer's report, the substance of the public sector equality duty had been addressed by mitigation and conditions so due regard was shown; and (iv) the environmental statement and consideration of alternatives were not so deficient as to breach the EIA Regulations. Accordingly permission to challenge grounds 1 and 2 was refused and the EIA ground dismissed on the merits.

The application for permission to apply for judicial review was first considered without a hearing by Mr John Howell QC on 28 January 2019 who refused permission on all but the EIA ground. A Notice of Renewal was filed on 4 February 2019 and Mr Neil Cameron QC ordered a rolled-up renewal and substantive hearing. The substantive hearing was before HHJ Allan Gore QC on 5 April 2019, who maintained the refusal of permission in respect of grounds 1 and 2 and dismissed the EIA ground on the merits.