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not go to planning committee; the lack of explanation for why it had initially been scheduled for committee and then withdrawn, and other grounds in the legal claim, did mean that a fair-minded observer would have thought there was a real possibility the decision-maker was biased.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 . 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