Judge refuses permission for legal challenge to decision by inspector to reject planning application by faith school

Those conclusions came from Mrs Justice Lieven, who heard a High Court application for judicial review on behalf of  two children and an appeal under s.289 Town and Country Planning Act 1990 from the Talmud Torah London School.

The school objected to the inspector upholding an enforcement notice issued against it.

It argued the inspector acted contrary to section 6(1) of the Human Rights Act 1998, as the decision disproportionately infringed the claimants' rights under the European Convention on Human Rights, and that the inspector failed to have regard to an obviously material consideration, failed to give adequate reasons or reached irrational conclusions.

Talmud Torah also argued the inspector erred in law by excluding from her assessment the council's duties to provide sufficient school places, and by departing from the expert evidence on noise without compelling reasons.

Lieven J said there was no dispute that there is a significant shortage of local school places for Charedi sect children but there had been a change of use of the site to the school use without planning permission and Hackney refused retrospective consent.

The inspector concluded the lack of school places meant the development was acceptable in principle, but then turned to the impact on living conditions of local residents.

Evidence from neighbours said that the noise and disturbance had become intolerable since the site had operated as a school and a fire escape was used for circulation by the school, which being in an elevated position causes further noise and disturbance.

Lieven J said: “In my view the Human Rights Act grounds here are clearly unarguable. All the articles relied upon are qualified rights subject to proportionality.”

She explained: “The inspector is an expert tribunal, she went to the site and she heard the evidence, including having heard the evidence of the local residents who had experienced the noise and disturbance.

“Even taking the claimants' case at its highest on the scope and effect of Article 2 Protocol 1, it remains a qualified right that has to be balanced against other rights and interests. On no possible argument can the right under A2 P1 simply trump the local residents' rights under Article 8.

“The inspector had to undertake a balancing exercise between competing rights and interests, which she did. There was nothing even arguably wrong in her analysis of that proportionality balance.”

Lieven J said the inspector had been entitled to take into account the level of the noise and the use of the school on Sundays and Bank Holidays and that the school authorities “had apparently taken few steps to control the disturbance”.

The school said the inspector should have determined whether Hackney was in breach of its statutory duty under s.13 and 14 of the Education Act 1996 by failing to make provision for sufficient school places for Charedi children.

Lieven J said: “In my view this ground is unarguable. Firstly, it is not for the inspector to make legal rulings on whether the local education authority is in breach of a duty to provide sufficient school places. That would be a matter for the Administrative Court of the High Court in a judicial review.

“Inspectors do sometimes have to make legal determinations, but that would generally be in relation to land related issues, not in respect of a public law duty not directly related to the use of the land. The duty here was upon the education authority, not the planning authority, and raises issues well outside the scope of the inquiry or the inspector's powers. This is the case although, of course, the two authorities are corporately the same organisation.”

The judge said the inspector did take into account the unmet need for school places, but even had she considered Hackney in breach of a statutory duty “it is very difficult to see how such a finding could have made any difference to the planning balance.

“She took into account the unmet need, but had to weigh that against the harm to local residents. A finding of breach would not alter that balance.”

The ground concerning noise was also deemed unarguable as Lieven J said: “This ground is a challenge to the inspector's conclusions on the planning merits, here the noise impact.

“There is no arguable error of law. She was not bound by the expert report. She was fully entitled to place great weight on the evidence of the residents, and to reach the conclusion that in the light of that evidence the impact would be intolerable.”

Mark Smulian