R (Gathercole) v Suffolk County Council

The Court of Appeal considered challenges to the grant of planning permission for a new primary school at Lakenheath based on (i) an alleged breach of the Public Sector Equality Duty (PSED) under s.149 Equality Act 2010 and (ii) an alleged inadequacy of the Environmental Statement (ES) under the EIA regime, in particular the assessment of alternatives (Article 5(3)(d) of the EIA Directive and Part 2 of Schedule 4 to the Town and Country Planning (EIA) Regulations 2011).

The court accepted that the planning authority had not adequately demonstrated, in its officer's report and decision, that it had had due regard to the PSED in respect of the impact of aircraft noise in outdoor areas on children with protected characteristics (for example, hearing impairment and neurodiversity). However, applying s.31(2A) Senior Courts Act 1981 and the authorities on causation, the court concluded it was highly likely the planning decision would have been the same even if the PSED issue had been expressly addressed in the report.

On the ES point the court applied the conventional public law/Wednesbury standard (following Blewett and later authorities) and Holohan on the scope of the obligation to outline main alternatives. It held that the ES and the officer's report had given appropriate, proportionate consideration to the main alternatives (including noise, access and ecological factors) and that any alleged deficiency was either unfounded or a matter for planning judgment rather than lawful intervention by the court. The appeal was dismissed.

Background and parties: Suffolk County Council granted planning permission on 23 October 2018 for a new primary school and pre-school at Station Road, Lakenheath. Lakenheath Parish Council initially sought judicial review and permission was granted only on the adequacy of the ES; subsequently the High Court (Allan Gore QC) refused permission on two renewed grounds (Article 8 and PSED) and rejected the ES challenge ([2019] EWHC 978 (Admin)). The Parish Council did not pursue an appeal, but Mr Gathercole (substituted appellant) appealed to the Court of Appeal seeking to challenge all three grounds; the appellant favoured an alternative site (Maids Cross Way) which was considered and rejected in the planning process.

Nature of the claim / relief sought: judicial review of the local planning authority's decision to grant planning permission. Alleged grounds: (1) breach of Article 8 ECHR (not pursued on appeal), (2) breach of the PSED (s.149 Equality Act 2010) for failure to have due regard to the needs of children with protected characteristics with respect to outdoor noise, and (3) inadequacy of the Environmental Statement under the EIA Regulations, particularly the assessment and reasons for rejecting alternative sites (Article 5(3)(d) EIA Directive / Part 2 of Schedule 4 to the 2011 Regulations).

Issues for the court:

• Whether the authority had "due regard" under s.149 to the needs of children with protected characteristics in relation to aircraft noise in outdoor areas.
• Whether the ES complied with the EIA requirements as to outlining the main alternatives and reasons for the choice, and whether any deficiency rendered the planning decision unlawful (and if so whether quashing would be appropriate).
• Whether, if legal error was established, the outcome would nevertheless have been the same (including the application of s.31(2A) Senior Courts Act 1981 or the equivalent EU-derived test).

Court’s reasoning and findings:

• PSED: the ES expressly referred to the PSED and stated the design had not taken into account the needs of students with protected characteristics for outdoor areas. That omission was not picked up or analysed in the officer's report. The Court concluded there had been a failure to have due regard, in the narrow sense advanced, to the impact of outdoor aircraft noise on children with relevant protected characteristics. The court accepted the judge had so found.
• Causation and remedy (PSED): applying s.31(2A) and the guidance in Goring, the court undertook an objective assessment of whether it was highly likely the planning decision would have been the same if the PSED issue had been expressly addressed in the officer’s report. Given the clear and detailed treatment of noise and mitigation in the ES and officer’s report, the overwhelming need for a new school, the allocation in the emerging Local Plan, and the fact that no realistic alternative site avoided aircraft noise problems, the court concluded it was highly likely (indeed inevitable) the decision would have been the same. The PSED failure did not justify quashing.
• Environmental Statement / alternatives: the court reviewed the applicable law (Article 5(3)(d), Holohan, Blewett and later authorities) and held that Holohan does not require a near-full environmental impact assessment of each main alternative. The court applied the Wednesbury standard of review to the sufficiency of information concerning alternatives. The ES and the officer’s report had provided proportionate consideration of alternative sites (noise, ecological, access and highway issues were addressed). The alleged deficiencies either did not exist or were matters of planning judgment for the authority. Even assuming any procedural defect, the court held (following Walton/Champion and considering Altrip) that annulment would be disproportionate because it would cause serious prejudice and would not have affected the decision: the planning judgment in favour of the proposed site was rational and inevitable in context.

Conclusion and wider context: the court dismissed the appeal. The case illustrates the interaction between equality duties, environmental assessment obligations and the remedial constraints on judicial review where the court concludes an error would not have changed the decision.

Appeal dismissed. The court held that although the authority had failed to demonstrate, in its officer's report, that it had had due regard to the PSED in respect of aircraft noise in outdoor areas for children with protected characteristics, it was highly likely the planning decision would have been the same if the omission had been remedied (s.31(2A) Senior Courts Act 1981). The challenge to the adequacy of the ES failed on conventional public law review (Wednesbury); the ES and officer's report gave proportionate consideration to the main alternatives and did not render the grant of permission irrational or unlawful.

The High Court (Administrative Court, His Honour Judge Allan Gore QC) refused permission on Article 8 and PSED grounds and rejected the ES challenge ([2019] EWHC 978 (Admin)). The Parish Council did not pursue an appeal; the appellant, substituted for the Parish Council, appealed to the Court of Appeal which dismissed the appeal ([2020] EWCA Civ 1179).