ELY & Anor, R (on the application of) v Secretary of State for Housing, Communities and Local Government

On a permission application, the threshold is arguability. Qualified Convention rights, including education, religion and private and family life, require a proportionality balance. A right to education does not automatically override neighbouring residents’ rights or the planning merits. In a planning appeal, substantial weight is ordinarily given to the inspector’s expert assessment of the evidence, including site observations and residential amenity. An inspector need not determine whether an education authority has breached a separate statutory target duty where that issue lies outside the inquiry and the unmet need has already been taken into account. An inspector may depart from expert noise evidence where the decision demonstrates a rational evaluation of that evidence alongside relevant subjective and contextual factors.

The claimants challenged an inspector’s decision dismissing an appeal against an enforcement notice concerning the use of premises as a Charedi Jewish primary school. They sought judicial review and permission to appeal under section 289 of the Town and Country Planning Act 1990.

The grounds alleged disproportionate interference with Convention rights, failure to consider the local authority’s education duties and unmet need, inadequate consideration of the children’s rights, and unlawful departure from expert noise evidence. The court considered whether any ground was arguable.

1. Permission refused. The statutory appeal and judicial review grounds were unarguable.
2. The rights under Articles 8, 9 and 14 and Article 2 of the First Protocol were qualified rights. The inspector had to balance the children’s educational and religious interests against the neighbouring residents’ Article 8 rights and other planning interests. The inspector had recognised the serious shortage of Charedi school places and the consequences for the children, but was entitled to give substantial weight to the severe and persistent noise and disturbance affecting residents. The education right did not trump those competing rights.
3. The inspector was entitled to attach special weight to her own expert assessment, site visit and evaluation of the residents’ evidence. The weight given to competing planning considerations was for the inspector. The court would not revisit the planning merits.
4. The inspector was not required to decide whether Hackney had breached sections 13 and 14 of the Education Act 1996. That was a public-law issue for the Administrative Court, not a matter within the planning inspector’s statutory role. In any event, the inspector had taken the unmet need into account, and a finding of breach would not have altered the planning balance.
5. The inspector was entitled to assess the noise evidence independently. She was not bound by the Environmental Noise Impact Assessment’s LAeq16-hour methodology. She could weigh it against the school’s operating hours, Sunday and Bank Holiday use, the fire escape, whistles, loudspeakers, shouting and the residents’ direct evidence. No procedural unfairness or irrationality was arguable.

Not stated in the judgment.