Judge allows challenge over screening but refuses to quash permission for school

A High Court judge has declined to grant relief against the grant of conditional planning permission by Hertfordshire County Council to itself for the construction of a new secondary school, despite allowing a ground of challenge that a screening opinion was incomplete.

The case of Cairns, R (On the Application Of) v Hertfordshire County Council [2018] EWHC 2050 (Admin) concerned a decision taken by the local authority in March this year to grant permission for a school on a site north of Lower Luton Road in Harpenden, which is in the Green Belt.

The site is an open area, about 17.20 hectares in size, comprising grassland used for agricultural purposes (grazing cattle).

The claimant's overarching challenge was to the manner in which Hertfordshire concluded that the proposed development, which would harm the Green Belt, was nonetheless justified by very special circumstances, and so ought to be approved under the development plan (Policy 1 Metropolitan Green Belt) and the National Planning Policy Framework.

The claimant was a local resident who objected to the development in his own right and as chair of a campaign group called Right School Right Place.

The claim was listed for an expedited rolled-up hearing, as the applicants hoped to commence construction soon to enable the school to open in September 2019.

Three grounds of challenge were advanced by the claimant:

1. The defendant's decisions in both screening opinions were irrational. They failed to make any, or any legally adequate, assessment of the likely effects of the development, particularly on the openness of the Green Belt and on the archaeological significance of the site; and/or failed adequately to assess the significance of those effects. In consequence, planning permission was considered and granted without legally adequate consideration as to whether the development constituted an EIA development.

2. In considering whether very special circumstances outweighed the harm to the Green Belt and other harm:

(i) the defendant failed to take adequate account of the possibility of meeting the need for the development at alternative site D (albeit at higher cost and with potential delay); and

(ii) by prioritising as a material consideration the low acquisition cost of the development site (which correlated to the important role the site played in preservation of the purposes of the Green Belt and its consequent unsuitability for development) the defendant's decision-making thwarted the objects of the statute; the development plan and national policy on protection of the Green Belt.

3. In making its judgments as to the scale and duration of need, and in assessing to be given to that need as part of the "very special circumstances" justifying inappropriate development in the Green Belt, the defendant erred in taking account of irrelevant considerations and in failing to take account of relevant considerations, thus reaching irrational judgments.

Mrs Justice Lang granted permission to apply for judicial review on all grounds. In respect of grounds 2 and 3, she granted permission “in recognition of the fact that careful scrutiny of the evidence was required before it became apparent that the points raised by the claimant lacked any merit, and that grounds 2 and 3 had to be dismissed”.

The judge said: “Ground 1 is allowed in respect of the second screening opinion which appeared to have overlooked the effect of the proposal on the archaeological remains. In consequence, the screening opinion was incomplete and failed to meet the statutory requirements under regulation 5(4) of the EIA Regulations 2017.

“If screening had been properly carried out, it would probably have led to the conclusion that the proposal was likely to have significant effects on the archaeological remains. If, on the other hand, the defendant did consider the archaeological remains, but decided that they did not need to be addressed in the screening opinion, then its assessment was inadequate, and it failed to state the main reasons for its conclusions in respect of it, contrary to regulation 5(5) of the EIA Regulations 2017.”

However, Mrs Justice Lang went on to decline to grant relief, in the exercise of her inherent discretion, and applying section 31(2A) of the Senior Courts Act 1981, as even if the proposal had been treated as EIA development, the outcome would have been the same.

“Planning permission would still have been granted, because the proposal did not include any construction near the site of the remains,” she said. “The defendant would have imposed conditions on the grant of planning permission, to ensure that the site of the remains was appropriately protected. Depending on the outcome of the investigations, and consultation with the archaeological experts, the remains would either be left in situ or excavated, whichever the experts advised was the more appropriate course to take.

“For these reasons, I do not consider that there would be any purpose in quashing the grant of planning permission in order that the EIA process could be properly followed. It would merely result in further delay in constructing the new school. I have taken into account that there is no other basis upon which to quash the grant of planning permission as neither ground 2 nor ground 3 has been successful. Therefore, the claim is allowed on ground 1, but relief is refused.”

In a statement Right School Right Place said: “David Cairns [the claimant], Right School Right Place and many thousands of residents are understandably deeply disappointed in this result, but are awaiting the full ruling in order to assess implications contained within the detail.

“In particular this transcript will determine what further steps are appropriate, necessary or available. This could include formal challenges and RSRP will consider the position within the time specified by the Court where this is appropriate.”