A Judicial Review brought by a parent with a youngster at Special Educational Needs school Laleham Gap in Ramsgate has resulted in an order for Thanet council to quash planning permission for homes at Stirling Way, overlooking the school playground, with the decision branded as unlawful and having the appearance of bias.
The development by Kentish Projects was for 23 houses,15 flats and parking for 59 cars.
More than 30 objections were made by parents and head teacher Les Milton but the application did not go to committee and was instead granted by officers.
In response a parent, supported by Parents at Laleham Gap School (PALS) launched the Judicial Review bid.
A parent backing the case said: “32 letters of objection were ignored and a council planning officer approved this without going to planning committee, 15 flats and 27 houses, some with a view of playground, right up against the school boundary and on top of biodiverse green wedge. The nature garden was snatched from the school for the access road and sold by Thanet District council officials with an interest in awarding planning permission with a bias.”
In a judgement published on Monday (July 19) Mr Tim Corner QC (sitting as a Deputy High Court Judge) allowed the claim on all six grounds in the parent’s claim and quashed the planning permission.
The Judge agreed that: the circumstances of the contract, which was for an application inclusive of land owned by Thanet council and Kent County Council under EKO LLP; the fact that it did not go to planning committee; the lack of explanation for why it had initially been scheduled for committee and then withdrawn, and other grounds in the legal claim, did mean that a fair-minded observer would have thought there was a real possibility the decision-maker was biased.
The Judge also granted a pro bono costs order in the claimant’s favour for £35,000.
The development site, immediately adjacent to the school, is owned by an LLP joint venture in which Thanet council and Kent County Council are partners.
Owing to the council’s interest in the site for which it was considering the planning application, the Judge held that it was under an enhanced duty to engage with objections thoroughly, conscientiously and fairly.
The first ground was that Thanet council should have taken the application to its planning committee, as required under the scheme of delegation where an application was “by or on behalf of” the council.
The Judge agreed with the parent’s submission that, as one of two partners in the LLP venture which had by contract obliged the developer to submit the planning application, the application was clearly in the interest of the council.
He agreed it was also to the council’s benefit as a public authority promoting regeneration through development, and also strongly in its financial interest, due to potential for dividend payments by the LLP to the council as a result of the development.
The second ground concerned the Habitats Regulations and the inadequacy of the appropriate assessment prepared and relied upon by the council.
The Judge found this was not comprehensive, had out of date information and was not sufficient to dispel all reasonable scientific doubt about adverse effects on the integrity of the site.
On the third ground, the council’s Environmental Health Officer (EHO) had sought an assessment of noise impacts on the school and a construction noise management plan to mitigate any impacts. Pupils at the school are extremely sensitive to noise. No such assessment had been undertaken and no reference was made to the development plan policy dealing with this issue. The Judge held that Thanet council had not grappled with the EHO consultation response or the relevant development plan policy, and as a consequence the decision was unlawful.
The fourth ground of challenge concerned highway safety implications of the development for the school, which were “obviously material considerations” given the proximity of the school and the sensitivity of the pupils and their vulnerability in highway safety term. These considerations had been specifically identified in the headteacher’s representation to Thanet council but the court found the council’s consideration was inadequate and incomplete on the issue, such that the decision was unlawful.
The fifth ground of challenge was that no air quality assessment had been undertaken, despite the site’s location within an Air Quality Management Area and development plan policy requiring an assessment [113]. Again, the Judge refused to accept the council’s argument that an absence of consultee objection on the point meant the issue had been properly grappled with and it was ruled unlawful.
The sixth ground of challenge concerned apparent bias. The judge also allowed the claim on this ground, holding the circumstances which gave rise to an appearance of bias as including: the circumstances of the contract between the LLP JV and the developer, the fact that the application ought to have been determined by planning committee, the lack of explanation for why it had initially been scheduled for committee and then withdrawn, and grounds 2-5 of the claim. The Judge concluded that a fair-minded observer would have thought there was a real possibility that the decision-maker was biased.
The Judge allowed the claim and quashed the planning permission. He granted the pro bono costs order in the claimant’s favour for £35,000 which will be paid to the Access to Justice Foundation.
Richard Honey QC and Jonathan Welch acted pro bono for the successful claimant, instructed by Elaine Sherratt of Kent Law Clinic.
Following the Judgement a spokesperson for Parents at Laleham Gap School said: “It is a major breakthrough for democracy. I feel the council felt they could do an easy mugging of the school, taking land, but fortunately the lawyers stepped in.
“The consequence for this are national showing councils can’t just rubberstamp planning applications when there are objections.”
The spokesperson added that the costs being used to help other people access legal help and justice was a good use of taxpayers’ money.
A Thanet council spokesperson said: “We will be reassessing the application in respect of the issues raised and reporting the application to the Planning Committee for a decision in due course.”
Details with thanks to Francis Taylor Building, Inner Temple, London
No, no, surely no Thanet Council, they wouldn’t do a thing like that.
Where would someone get the idea that Thanet Council is biased and corrupt?
Oh hang on…
Cyril Hoser,
Jonathan Aitken,
Sandy Ezekiel
(and the rest, can’t remember the names).
Planning committee has this eve rejected the Shottendene development for the third time…. Against TDC wishes. Medals all round
Jonathan Aitken has never been elected to TDC…he is however the Godfather to MP Diane Abbot’s Son.
Well done to everyone involved in challenging this. TDC have ridden over the needs of local residents for too long and it’s about time their arrogant decision making and blatant disregard for local residents is overruled.
A good decision except for the £35,000 costs which we will be paying through our Council tax and which is being donated to a charity.
TDC has incurred tremendous costs that we have paid through our Council Tax that it has incurred through its own stupidity. Pro Bono does not mean any costs weren’t actually incurred and whilst a charity may benefit I hope it is the Laleham Gap School as without its parents TDC would get away again without accepting responsibility and duty of care to its people and the environment.
Does Councillor Helen Whitehead have anything to say on this issue since she was portfolio holder at the time?
Helen whitehead will probably be relieved that legal action was’nt raised over the shenanigans relating to the old british legion, there would no doubt have been questions raised regarding the council aiding and abetting a commercial partner in ignoring planning and listed building law. Plus in that case around 50 objections were ignored and matter wasn’t taken to committee.
No doubt there are other similarly odd decisions made that have never come to light.
A very good question, the previous housing portfolio holder rarely senda out any public Comms without highlighing the difficulties faced by those who are neurodiverse.
In the interest of transparency and democracy it would be enlightening to know if the labour member supported these parents? As portfolio holder for housing, a neurodiverse person, ex assistant headteacher they couldn’t be better placed to understand the significant negative impact this development would have on the children at Laleham Gap.
TDC will see this as a criminal sees getting nicked as a hiccup in their career.
They’re not fit for purpose.
The quietness is deafening from certain persons within TDC and especially the head of planning and the head of the planning committee. Potentially however another application could be submitted.
Brilliant news for the parents and children of Laleham Gap. But what a mess our council is! How much of this failing top team do we have to put up with? The costs to the local tax payer will continue to mount, and services will continue to nosedive whilst we have a lack lustre CEO in place. Time to go surely?
I don’t disagree with you but I think the local residents could legitimately be asking what did Labour do about the top managers in the 2 years they had control of the Council. I saw the same failed services throughout the 2 years but the same people still at the top. Labour did nothing to sort it out.
Cllr Constantine. Well you were a member of it from January 2016 until February 2020 and your beloved Labour Party is as responsible as previous Conservative and UKIP administrations for the poor performance of this Authority. No wait a minute all Councillors should take some responsibility or what are they there for? Still I suppose it’s a bit of publicity for you and your snide attack on a Council Officer who has no right of reply.
I sort of agree with you. Urging that people should be given the sack doesn’t fit too well with someone claiming a “Labour and Trade Union Activist background”!
Points to note, actual Councillors were not involved in the Decision…
It was the “professional “ Officers in the Planning Department who didn’t refer the Application to the elected Committee members….
The Officers are not noted for allowing the Councillors to do their jobs properly…
They believe, wrongly most often, that they know better…
I’ve been led to understand that it needs a councillor to get a planning application before committee. Plus whilst it may be the officer that makes the decision there is no accounting fro pressure from councillors and cabinet members.
I think they often do know better than the councillors what is supposed to be done. There are several instances of Ramsgate councillors overriding the officers’ advice and having to pay damages to companies.
Can they take the cost from the Planning Officers wages as they are the ones who ride roughshod over the regulations with their stupid acceptances of applications. Why should the residents have to pay for their mistakes?
Now can the Westwood Lodge consent be overruled by a court as that too has been unlawfully passed without any environmental, habitat study. There is also the mystery of a plague pit in there that needs investigating. There are so many illegal consents being given out by Planning it must be the most corrupt council in the land. The mature trees that are protected by preservation orders still being being chopped down for poxy housing developments causing overcrowding situations and traffic problems! Who is the planning applications manager? They need the boot quickly as they don’t know what they are doing to our detriment!
TDC Councillors need to bring this to the standards committee, if TDC has one.
Kent Resident couldn’t have put it better myself when I aired my views and concerns about the Westwood Lodge plans I was told by my councillor they had been passed to one Iain Livingstone one of the top bods in planning needless to say I received no answer from him such is his arrogance
That’s a name that we’ve been seeing more and more in recent weeks. There would appear to be, as ever, serious issues within the Thanet planning system.
Well done to the parents for taking this action. Quite right too. TDC and bias are words commonly associated, just look at the spin and fudge reply to the latest Manston saga by the newly installed pro aviation latest leader. Fudging the unemployment numbers and selective editing from the original inspection report will fool nobody Cllr Asby in your latest official TDC response as a statutory consultee. If you think Laleham Gap reeks of bias, have a look at the monstrous Manston fudge effect on the local plan and the consultation process.
Genuine typo. Cllr Ashby.
Amazing news. 👊👊
Only way to get rid of all this councilors is for all people of Thanet to not vote, make a stand for what we believe is right for Thanet. Maybe all these houses that they want is for the increasing number of migrants coming across as there rights seam to be above us locals. Climate change is happening and yet this country thinks it’s ok to distory more land. There all money grabbing idiots only thinking of themselves
I think you will find this all went behind Cllrs backs.
The local councillors denied all knowledge when lobbied, you maybe right only the councillors know but the contract was sighed by Bob Bayford
This is high density high profit. This is not social or affordable housing for locals the council exempted the developer from the usual financial contributions to local infrastructure like nearest school. The council contract of sale offered to facilitate easy planning permission and huge compensation payment (many times the land value or total cost of planning application) to this buyer if planning permission was refused, the buyer could not lose any money. Fields and meadows and woods were not usually more than £10 k per acre at time of sale. Why were the council so determined to help the land speculator at the cost to the rate payers and school for special needs children? Why did the local councillors deny any knowledge despite being on the planning committee. Why was it passed back to the planning officer Emma Fibbens and by her boss Mr Livingstone? The council needs to stop the closed door meetings and open the doors to citizens allow filming and recording of meetings and what your councillor voted like national parliaments. Even better for democracy and local accountability to go back to before 1972 before TDC we had 3 councils with their own town halls in Margate, Broadstairs Ramsgate and democracy on your door step and a better chance of council being part of a local accountable democracy.