Court of Appeal upholds planning permission despite breach of equality duty and gives important guidance on approach to ES alternatives.
The Court of Appeal has dismissed an objector’s challenge to the grant of planning permission by Suffolk County Council for a school in Lakenheath in Gathercole v Suffolk County Council  EWCA Civ 1179. Development in Lakenheath faces particular challenges due to the presence of a US Air Force base which generates a significant amount of aircraft noise.
The grant of planning permission was challenged on two grounds: (1) breach of the public sector equality duty; and (2) the Environmental Statement was deficient because it did not include sufficient information about the “main alternatives” to the development studied by the developer.
The decision is useful in a number of respects:
(1) It provides useful guidance as to when a Court should uphold decision despite a breach of the PSED and makes clear that “It is important that a court faced with an application for judicial review does not shirk the obligation imposed by Section 31 (2A)”)
(2) It confirms that any challenge to a decision by reference to the sufficiency of the information in an ES can only be maintained on public law grounds;
(3) It provides useful guidance as to the extent of the required information about the “main alternatives” studied by the developer for the purpose of the EIA Regulations 2011 (although the wording of the relevant EIA Regulations has been amended since the decision under challenge);
(4) It confirms that the extent of any prejudice suffered as a result of a breach of EU law is relevant to whether a decision should be quashed (applying the principle in R(Champion) v North Norfolk DC  UKSC 52)
Public Sector Equality Duty
The issue arose because overflying aircraft would impose limitations on the use of external areas for teaching due to short periods of loud noise.
The Court accepted the Claimant’s submission that there was a breach of the PSED because the decision (by reference to the officer’s report) did not have due regard to the needs of children with protected characteristics (in particular those with hearing impairment, ASD, and ADHD) when considering the effect of noise in those outdoor areas, which were accepted as being an important element of children’s learning experience.
The fact that the Claimant had not raised the issue of the PSED in its objections was of no consequence because the issue had been flagged up in the ES). Equally, that the noise mitigation measures proposed could not be improved upon and would disproportionately benefit those sensitive to noise did not mean that the Council had discharged the PSED. Such an approach ran the risk of treating the PSED as a duty to achieve a result, rather than a duty to have regard to the needs of those with protected characteristics.
However, despite the breach of the PSED, the Court dismissed the challenge on the basis that (pursuant to s.31(2A) of the Senior Courts Act 1981) it was highly likely that planning permission would have been granted even if the officer’s report had considered the issue by explaining that despite the use of all possible noise mitigation measures in the outdoor areas, there was a potential residual issue for children with protected characteristics.
The Court stated that “It is important that a court faced with an application for judicial review does not shirk the obligation imposed by Section 31 (2A)” and that the case was a “good example of the type of situation for which Section 31(2A) was designed.” In particular, undertaking an objective assessment of the decision-making process, there was nothing in the officer’s “clear and thorough” report which suggested that, if due regard had been had to the PSED in the report in the limited way explained above, the result would or could have been different. Second, the report made clear that there was no site in Lakenheath which would not be subject to noise from aircraft. Given the need for a new school in the village, the relatively favourable noise environment of the proposed development and the proposals for noise mitigation (which would be superior to the existing school in Lakenheath) it was highly likely that the missing sentence addressing the PSED would not have made any difference. The Court accepted that for any children with protected characteristics who can be accommodated in mainstream education, the disadvantages that they may suffer will be minimised at the new school.
Article 5(3)(d) of the EIA Directive (and the 2011 EIA Regulations) requires an ES to include “an outline of the main alternatives studied by the developer and the main reasons for his choice, taking into account the environmental effects”
In C-461/17 Holohan v AN Bord Pleanala  PTSR 1054, the ECJ had held that the requirement imposed by Article 5(3)(d) meant that “the developer must supply information in relation to the environmental impact of both the chosen option and of all the main alternatives studied by the developer, together with the reasons for his choice, taking into account at least the environmental effects, even if such an alternative was rejected at an early stage.”
The Court of Appeal rejected the Claimant’s submission that this meant that an ES was required to provide sufficient information to enable a comparative assessment of the relative environmental effects of the proposed development and each of the main alternatives studied.
The Court reaffirmed (following a number of earlier authorities) that “decisions on the inclusion or non-inclusion in the Environmental Report of information on a particular subject, or the nature or level of detail of that information, or the nature of extent of the analysis carried out, are matters of judgment for the plan-making authority.” Thus, a challenge to the sufficiency of the information contained in an ES can only be maintained on public law grounds. The fact that the ES was required to include “at least” the information in Part 2 of Schedule 4 of the EIA Regulations made no difference to that approach.
The Court held that, although the treatment of alternatives in the ES was brief, that was a matter for the decision-maker and was not irrational.
Even if the Court had found a breach, it would nonetheless have dismissed the claim by reference to the principle in R(Champion) v North Norfolk DC  UKSC 52 on the basis that any breach of the EIA Directive made no difference to the outcome of the decision. The Court held that, notwithstanding the decision of the ECJ in Altrip, the extent of any prejudice suffered as a result of a breach of the Directive was relevant in the assessment as a result of Walton v Scottish Ministers  UKSC 44.
The Court did not need to address whether s.31(2A) of the Senior Courts Act 1981 needed to be disapplied in respect of breaches of European law.
The requirement in relation to the assessment of alternatives in an ES has since been amended (and the 2017 Regulations now require “a description of the reasonable alternatives (for example in terms of development design, technology, location, size and scale) studied by the developer, which are relevant to the proposed project and its specific characteristics, and an indication of the main reasons for selecting the chosen option, including a comparison of the environmental effects”). Practitioners will need to keep a keen eye out for new developments on this issue.
A copy of the decision can be found HERE.