English Court of Appeal refuses appeal of decision to build school near airbase

David Gathercole, who was substituted for the original petitioner Lakenheath Parish Council, sought a judicial review of the decision by Suffolk County Council to build a new school and pre-school in an area that would experience high levels of noise from the airbase.

The appeal was heard in the Court of Appeal (Civil Division) by Lord Justice Floyd, Lady Justice Asplin, and Lord Justice Coulson.

Noise issues

The respondent applied to itself as the relevant planning authority for permission for a new primary school for up to 420 pupils. Following three years of consultation, a planning application was made supported by a detailed Environmental Statement (ES) which dealt with, among other things, the issue of noise from the airbase and the clear need for a new school in the area.

The advice of the planning officer was that the proposals were considered to constitute sustainable development, and any adverse impacts from noise and other factors were decisively outweighed by the benefit of the new school and pre-school. Several alternative sites were also listed in the proposal, all of which would also have experienced noise problems.

Planning permission was granted in October 2018. In December of that year, Lakenheath Parish Council (LPC) sought to bring judicial review proceedings of that decision. Permission was originally granted in respect of the ground that the ES was inadequate.

At the hearing, LPC renewed their application for permission for additional grounds of appeal under article 8 of the ECHR and the respondent’s Public Sector Equality Duty under the Equality Act 2010. The judge refused permission to apply under these grounds. LPC decided not to appeal further, however the petitioner, who had worked alongside the parish council during the planning process, sought to appeal.

The appellant submitted that the decision to grant permission did not have due regard to the needs of children with protected characteristics, in particular those with hearing impediments, ASD, and ADHD, when considering the effect of noise in the outdoor sections of the new school. The judge was wrong to rely on the planning conditions in this respect, because those related to the use of outdoor areas by all children, not simply those with protected characteristics.

It was also submitted for the appellant that the ES did not assess the environmental effects of the alternative sites properly, so the decision grant permission in reliance on the report was irrational. In response, the respondent submitted that the challenge was academic. Even if the breaches could be made out, the court could be confident that the same planning decision would have been taken.

Cannot be wished away

In his opinion, with which Asplin LJ and Floyd LJ agreed, Coulson LJ found that there was a failure in respect of PSED, saying: “The promotors of the proposal were well aware of the PSED. I have already set out […] the relevant section of the ES which expressly referred to the PSED. That was accompanied by the clear statement that the design did not take into account the needs of students with protected characteristics. That was not picked up anywhere in the officer’s report, as it should have been, and there is nothing in the report or the subsequent decision to show that any regard was had to the PSED.”

However, on whether this would have affected the outcome of the proposal, he said: “The officer’s report points unequivocally to the conclusion there is no site for a school in Lakenheath which would not be subject to noise from aircraft. The problem of noise for all children, including those with protected characteristics, cannot therefore be wished away: the only thing that can be done is to locate and design the school in a way that ensures that the effect of such noise is mitigated as well as it can be. The documents show that that is what has happened here.”

On the challenge to the ES, he said: “I consider that the absence of any contemporaneous complaint about the adequacy of the ES in relation to the alternative sites is an indication of the unrealistic and unpersuasive nature of this challenge.”

He continued: “On analysis, the appellant’s real criticism in respect of Sites 1, 4 and 5, must be that the information provided in relation to these three sites was not extensive enough. I reject that criticism because the sufficiency of information in relation to alternative sites was a matter of judgment for the planning committee.”

On whether any environmental breach would have made a difference had it been established, he said: “The real issue is whether the appellant, or any other member of the public, had been deprived of access to information and participation in the decision-making process that led to the choice of the site for the new school on Station Road. The answer is plainly in the negative. The appellant was involved throughout the planning process. He, along with the PC, had numerous opportunities to make representations as to why the noisier site at Maids Cross Way was the best.”

He concluded: “The defect would have made no difference: the planning decision would have been the same, even if the error had not been made. The appellant and the public always received full information and participated in the process for more than three years. Moreover, the prejudice if the decision was now quashed would be serious and significant, because it would mean that there was no school, and no proposal for a school, to accommodate the children of those moving into the 663 new homes in Lakenheath.”

For these reasons, the appeal was dismissed.