Gathercole v Suffolk County Council

A public authority must have due regard to the needs identified by the public sector equality duty. Generic mitigation measures do not themselves demonstrate compliance where the decision-making material fails to address the relevant protected group. The duty is fact-sensitive and is not a duty to achieve a particular result.

Nevertheless, under section 31(2A) of the Senior Courts Act 1981, relief must be refused where it is highly likely that the outcome would not have been substantially different. An environmental statement need provide only an outline of the main alternatives studied and the reasons for the choice, taking environmental effects into account. The adequacy and detail of that information are ordinarily matters for the planning authority, subject to conventional public-law review.

Suffolk County Council granted itself planning permission for a new primary school and pre-school at Lakenheath. The proposal responded to planned housing growth but required mitigation of aircraft noise from the nearby airbase. The environmental statement considered alternative sites and addressed noise mitigation.

Lakenheath Parish Council sought judicial review. The High Court refused permission on an Article 8 ground and on the public sector equality duty ground, and dismissed the challenge to the adequacy of the environmental statement: [2019] EWHC 978 (Admin). The Parish Council did not appeal, but David Gathercole was substituted as appellant.

The appeal concerned whether the planning authority had due regard to the effect of outdoor aircraft noise on children with protected characteristics, and whether the environmental statement gave legally adequate information about alternative sites.

1. Appeal dismissed unanimously. The court held that the planning authority had failed to have due regard to the public sector equality duty under section 149 of the Equality Act 2010. The environmental statement expressly acknowledged the duty but stated that its acoustic criteria did not address pupils with relevant protected characteristics. The officer's report did not address that point. Generic noise-mitigation measures did not establish that the authority had had due regard to those pupils' needs.

2. The breach did not justify relief. Applying R (Goring-on-Thames Parish Council) v South Oxfordshire District Council [2018] EWCA Civ 860, the court had to make an objective assessment under section 31(2A) of the Senior Courts Act 1981, without usurping planning judgment. It was highly likely that the committee would have made the same decision if the report had expressly identified the residual issue for children with protected characteristics. Every potential school site was exposed to aircraft noise, and the chosen site and building specification offered substantial mitigation and a better internal noise environment than the existing school.

3. Article 5(3)(d) of the EIA Directive and paragraph 4 of Part 2 of Schedule 4 to the Town and Country Planning (Environmental Impact Assessment) Regulations 2011 required only an outline of the main alternatives studied and the reasons for the developer's choice, taking environmental effects into account. Holohan v AN Bord Pleanala did not require a comparative, detailed environmental assessment of every main alternative.

4. The environmental statement and officer's report addressed environmental considerations for each alternative site. Any complaint was therefore about the degree of detail, which was for the planning authority's evaluative judgment, subject to ordinary Wednesbury review. The selection of the proposed site was not irrational. The court added that breach and causation should be addressed separately; even if further environmental information had been required, it would not have changed the decision, public participation had not been impaired, and quashing permission would cause serious prejudice.

• Court of Appeal (Civil Division): dismissed the appeal: [2020] EWCA Civ 1179.

• High Court (Administrative Court): refused permission to seek judicial review on the Article 8 and public sector equality duty grounds, and dismissed the environmental-statement challenge: [2019] EWHC 978 (Admin).