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Parent succeeds on all six grounds in judicial review challenge over grant of planning permission for site next to school for special educational needs

The parent of a child who attends a Special Educational Needs school has won a judicial review challenge over Thanet Council’s grant of planning permission for an adjacent site.

The site at Stirling Way, Ramsgate, Kent is owned by East Kent Opportunities LLP ("EKO"), a partnership between Thanet and Kent County Council. It is near Laleham Gap School, which is for pupils aged from 4 to 17 years of age.

Thanet District Council granted planning permission on 2nd October 2020 for a development of a three-storey block of 15 flats and 23 houses. The planning application had been made pursuant to a contract between the landowners and the developer.

The claimant brought the claim in G, R (On the Application Of) v Thanet District Council [2021] EWHC 2026 (Admin) with pro bono representation to protect the interests of the school and its pupils, who are particularly sensitive and vulnerable children.

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She contended that despite representations made, including by the school's headteacher, the council's officer did not grapple with the impact of the development on the children of the school, especially in terms of construction noise, highway safety and air quality. It was claimed that the decision was procedurally flawed and infected by apparent bias.

Overall, it was said to be apparent that the application was not properly scrutinised and was given "an unduly easy ride".

The claimant advanced the following grounds:

(1) The application was "on behalf of" the council and, under the scheme of delegation, had to be determined by the planning committee. The decision by an officer was unlawful.

(2) The appropriate assessment undertaken by the council failed to comply with the strict requirements of the Habitats Regulations, such that no lawful appropriate assessment of the impact of the development on the Special Protection Area was conducted.

(3) The council failed to assess construction noise impacts on the school and the efficacy of potential noise mitigation was simply assumed and not actually considered.

(4) The council failed to consider and grapple with highway safety risks in relation to children and parents at the school and failed to require a transport assessment, which would have included systematic consideration of highway safety, contrary to the policy requiring one.

(5) The council failed to consider the issue of air quality and failed to require an air quality assessment, again contrary to the policy requiring one.

(6) The decision was tainted by apparent bias.

Tim Corner QC, sitting as a Deputy High Court judge, concluded that all the grounds of challenge should succeed.

He said: “This application should have been determined by the planning committee. Further, because it had an interest in the site this was a case in which the Council had a particular duty to weigh the issues, engage with objections, set and closely observe procedural requirements (see Stirk v Bridgenorth Borough Council and R v Lambeth Borough Council v Sharp). I think that duty was not complied with. Finally, I think a fair-minded observer would conclude there was real possibility of bias.”

The judge said ground 6 went “to the very heart of the decision-making process”, and as to ground 1, it could not be said that the outcome was highly likely to be the same had the right body (the planning committee) determined the application.

He therefore declined to exercise his discretion to refuse relief and quashed the planning permission.

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