Planning, the PSED and EIA alternatives

The Court of Appeal has handed down an important planning judgment on the Public Sector Equality and EIA alternatives, writes Charles Streeten.

The Court of Appeal has handed down judgment in Gathercole v Suffolk CC [2020] EWCA Civ 1179

Mr Gathercole's case concerned a challenge to the grant of planning permission for a new school beneath the flight path of military jets, operating from RAF Lakenheath which, since 1941, has been the home of a United States Air Force base.

The county council had recognised that the noise levels at the proposed school would far exceed those desirable in external areas but nevertheless resolved to grant permission. In doing so, it made no mention of the potential impact of outdoor noise on children with relevant protected characteristics, such as those with hearing impairment, ADHD, and ASD. The Environmental Statement submitted together with the application referred to the relevance of the noise environment at the proposed school to children with protected characteristics, but made clear that its assessment had applied only the standards applicable to mainstream teaching, and not those designed specifically for students with special hearing or communication needs. The officer's report to committee did not refer to this or to the Public Sector Equality Duty (PSED) under section 149 of the Equality Act 2010.

The parish council challenged the decision by judicial review, inter alia on the grounds that, following the decision of the CJEU in C-461/17 Holohan, the council had failed to comply with the PSED and had failed adequately to consider alternatives as required by Article 5(3) of Directive 2011/98/EU (the EIA Directive). 

In the High Court HHJ Gore QC (sitting as a deputy) found that the council had unarguably complied with the PSED, and dismissed the substantive challenge regarding EIA stating, notwithstanding "what is agreed to have been the absence of a formal and compliant EIA".

The parish council did not appeal, but David Gathercole, a local resident, himself pursued the appeal in the public interest. Lewison LJ substituted Mr Gathercole as a party and granted him permission to appeal against the High Court's decision.

Following a full hearing, the Court of Appeal disagreed with the High Court's reasoning, but ultimately reached the same conclusion. 

Giving the leading judgment, Coulson LJ (with whom Asplin and Floyd LJJ agreed) held that the council had not complied with the PSED. However, he also held that it was highly likely that the council would have taken the same decision had it complied with that duty.

As regards alternatives under the EIA Directive, the court rejected the approach taken by the first instance judge. On the contrary, it held that the information regarding alternatives in the Environmental Statement had been sufficient to satisfy the requirements of the Directive, notwithstanding the judgement in C-461/17 Holohan. In addition, the court also noted, but did not resolve, the potential incompatibility of section 31(2A) of the Senior Courts Act with the EU law principle of effectiveness, holding that even if that test did not apply, the court should refuse relief as a matter of discretion. In doing so the Court of Appeal held that, even after the decision of the CJEU in C-72/17 Altrip, prejudice to third parties is a relevant consideration when considering whether to grant relief in EU law cases.

The judgment therefore raises a number of important issues:

First, it is a salutary reminder of the importance of complying in substance with the PSED. Although the court refused relief, it is notable that the Court of Appeal found that the approach taken by the council had not been sufficient to discharge the requirements of the duty, and in doing so disagreed with the first instance judgements refusing permission both on the papers and orally. 

Second, the judgment highlights the draconian effect of section 31(2A). Even where there has been a substantive failure to have regard to an important statutory duty, the court may nevertheless refuse relief. 

Third, the case highlights the latitude the court gives to first instance decision makers when considering the sufficiency of the information contained in an ES. The bare statement that a site was "to some degree isolated" was regarded as providing sufficient information to satisfy the requirements for an assessment of the environmental effects of alternatives. 

Finally, it clarifies (albeit obiter) the approach to the exercise of the court's discretion in EU cases, holding that the prejudice arising from a decision to quash can be taken into account, notwithstanding the judgment of the CJEU in C-72/17 Altrip and the judgment of the Supreme Court in R (Champion) v North Norfolk DC. [2015] UKSC 52, where Lord Carnwath (having considered both Walton v Scottish Ministers and C-72/17 Altrip) indicated that the test was whether the decision "would not have been different without the procedural defect invoked by the applicant".

Charles Streeten is a barrister at Francis Taylor Building. He acted for the Appellant instructed by Richard Buxton Environmental & Public Law.