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Successful Pro Bono Judicial Review to Protect SEN School

Richard Honey QC
Jonathan Welch

The High Court has today handed down judgment in R (G) v Thanet District Council & Anor [2021] EWHC 2026 (Admin), a judicial review brought to protect the interests of pupils at a Special Educational Needs school in Kent on grounds including apparent bias, unlawful delegation and inadequate assessment.  

Mr Tim Corner QC (sitting as a Deputy High Court Judge) allowed the claim on all six grounds and quashed the planning permission.

The development site, immediately adjacent to the SEN school, is owned by an LLP joint venture in which the Council is one of two partner members. The developer had made an application for planning permission for a three storey block of 15 flats and 23 houses pursuant to a contract between the LLP JV and the developer which required the submission of a planning application.

Owing to the Council’s interest in the site for which it was considering the planning application, the Judge held that it was under an enhanced duty to engage with objections thoroughly, conscientiously and fairly [24]. 

The first ground was that the Council should have taken the application to its planning committee, as required under the scheme of delegation where an application was “by or on behalf of” the Council.

It was accepted by the Council that “on behalf of” meant “in the interest of or for the benefit of” [73]. The Judge agreed with the Claimant’s submission that, as one of two partners in the LLP JV which had by contract obliged the developer to submit the planning application, the application was clearly in the interest of the Council [74]. It was also to the Council’s benefit as a public authority promoting regeneration through development, and also strongly in its financial interest, having regard to the potential for dividend payments by the LLP JV to the Council as a result of the development [81].

The second ground concerned the Habitats Regulations and the inadequacy of the appropriate assessment (AA) prepared and relied upon by the Council.

The AA was not comprehensive [84], information was not up-to-date [85], and it had not grappled with the effectiveness of the proposed mitigation strategy [88]. It was therefore not sufficient to dispel all reasonable scientific doubt about adverse effects on the integrity of the site. Reliance on advice of Natural England was permissible, but this did not avoid the need for the Council itself to conduct a compliant AA [86]-[88].

In respect of the third ground, the Council’s Environmental Health Officer (EHO) had sought an assessment of noise impacts on the school and a construction noise management plan to mitigate any impacts. Pupils at the school are extremely sensitive to noise. No such assessment had been undertaken and no reference was made to the development plan policy dealing with this issue.  However, reliance was placed by the Council on a condition seeking a mitigation scheme post-consent. The Judge held the Council had not grappled with the EHO consultation response or the relevant development plan policy, and as a consequence the decision was unlawful [97]-[99].

The fourth ground of challenge concerned highway safety implications of the development for the school, which were “obviously material considerations” given the proximity of the school and the sensitivity of the pupils and their vulnerability in highway safety terms [104], and also given that the school encourages its older pupils to travel independently. These considerations had been specifically identified in the headteacher’s representation to the Council [104], yet the Council’s consideration was inadequate and incomplete on the issue, such that the decision was unlawful [107]. The Judge did not accept the Council’s argument that an absence of consultee objection on this point meant that the issue had been dealt with satisfactorily [106].

The fifth ground of challenge was that no air quality assessment had been undertaken, despite the site’s location within an Air Quality Management Area and development plan policy requiring an assessment [113]. Again, the Judge refused to accept the Council’s argument that an absence of consultee objection on the point meant the issue had been properly grappled with [114]-[115]. The issue had not been sufficiently addressed and as a consequence the decision was unlawful [115].

The sixth ground of challenge concerned apparent bias. The judge also allowed the claim on this ground, holding the circumstances which gave rise to an appearance of bias as including: the circumstances of the contract between the LLP JV and the developer [119]-[121], the fact that the application ought to have been determined by planning committee, the lack of explanation for why it had initially been scheduled for committee and then withdrawn, and the matters subject of grounds 2-5 of the claim [122]. The Judge therefore concluded that a fair-minded observer would have thought there was a real possibility that the decision-maker was biased [123].

The Judge was not persuaded to exercise his discretion not to quash in respect of any of the grounds. The Judge therefore allowed the claim and quashed the planning permission.

The Judge also granted a pro bono costs order in the Claimant’s favour for £35,000 (the amount of the Aarhus costs cap) which will be paid to the Access to Justice Foundation pursuant to CPR 46.7.

Richard Honey QC and Jonathan Welch acted pro bono for the successful Claimant, instructed by Elaine Sherratt of Kent Law Clinic.