LGSS Law

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Local resident loses Court of Appeal challenge over planning permission for school near US air force base

The Court of Appeal has rejected a bid to seek judicial review of Suffolk County Council’s decision to give itself planning consent for a new primary school in Lakenheath.

Local resident David Gathercole argued a different site should have been chosen because of noise nuisance from the nearby RAF Lakenheath, which is used by the American airforce.

In Gathercole v Suffolk County Council [2020] Lord Justice Coulson said in his judgment: “The right of an aggrieved party to seek judicial review of a planning decision is an important safeguard to prevent capricious or irrational decision-making.

“Too often, however, such challenges can depart radically from the original planning objections, and focus instead on what might be called generic failures to comply with statutory obligations which have never before been raised.”

He said two “regular candidates for such after-the-event challenges” were alleged failures to have regard to the Public Sector Equality Duty and to require a proper Environmental Statement.

Both were involved in this case which involved “complaints which had not been raised by the appellant (or his predecessor, the relevant parish council) during the lengthy planning process”, the judge said.

Suffolk argued the case was academic because, even if the breaches were made out, the same planning decision would have been taken.

Planning permission has been granted in full or in outline for 663 new homes in Lakenheath.

The new school needed as a result would accommodate 420 pupils, and 60 pre-school places on a site chosen in accordance with the local plan with extensive noise insulation and mitigation measures.

Coulson LJ said there was a failure to have due regard to the PSED in respect of the outdoor areas, but it was “highly likely – if not inevitable – that if due regard had been had to the PSED, precisely the same decision would have been taken”.

He said the complaint that the environmental statement was insufficiently detailed was “unsustainable [as] the law makes plain that the environmental assessment for potential sites is not intended to be detailed”.

Nor was anything wrong in Suffolk’s assessment of three alternative sites, two of which were too isolated and one too far from the proposed new homes.

Coulson LJ concluded: “I consider that the challenge to the decision on public law principles, based on an allegedly inadequate environmental statement, must fail.

“But if the challenge was sustainable, on the basis that there should have been more environmental information about the main alternatives, that was a procedural defect only and did not have any substantive effect on the decision.”

Mark Smulian

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