In English judicial reviews, the courts must refuse applications where the authority under challenge has breached a statutory obligation, but the substantive outcome would not have been different even if there hadn't been a breach. This will often occur when the breach is of a procedural or minor nature, or has been balanced out by other measures the authority has taken, and is exactly what happened in the case of Gathercole v Suffolk County Council  EWCA Civ 1179.
Gathercole was an appeal to the Court of Appeal against a decision of the High Court in a planning judicial review. The judicial review was raised by Lakenheath Parish Council against a decision by a planning authority, Suffolk County Council, to grant planning permission for a new primary school and pre-school near a US Air Force base at Lakenheath.
Lakenheath Parish Council raised an action for judicial review on three grounds that:
- the decision to grant planning permission contravened Article 8 of the ECHR (the right to respect for private and family life);
- in taking their decision the local authority failed to have due regard to the needs of children with particular characteristics (in particular, those with hearing impairment, ASD, and ADHD) when considering the effect of noise in the outdoor areas of the new school, and that as a result the authority failed to have due regard to the public sector equality duty under section 149 of the Equality Act 2010; and
- the environmental statement produced in relation to the application for planning permission was insufficient and failed to comply with the Town and Country Planning (Environmental Impact Assessment) Regulations 2011, and so the authority acted irrationally in relying upon the environmental statement in its decision.
In the High Court, the judge refused the application for judicial review. At this point, the parish council did not proceed further, but Mr Gathercole stepped into the shoes of the parish council and appealed the decision of the High Court to the Court of Appeal. His appeal was limited to the public sector equality duty and environmental statement grounds of challenge.
Public sector equality duty
Public authorities are required under the Equality Act 2010 to have "due regard" in the exercise of their functions to:
- the need to eliminate discrimination, harassment, victimisation and any other prohibited conduct;
- advance equality of opportunity between those who share a relevant protected characteristic (such as race, religion, disability or sexual orientation) and those who do not;
- foster good relations between those who share a relevant protected characteristic and those who do not.
This duty is known as the "public sector equality duty", or PSED.
The Court of Appeal found that the authority had failed to have due regard to the PSED in respect of the effect of noise in outdoor areas on children with protected characteristics. The failure was that the environmental statement specifically stated that it had not had regard to the needs of those children with special hearing or communication needs, in relation to noise and vibration.
However, at the same time the court considered that although there had been an apparent breach of the PSED, it made no difference to the planning authority's decision. This was because the authority, in its plans for the new schools, was proposing to undertake noise mitigation measures meaning that the noise environment will be superior to that existing in the present school and would minimise the disadvantages faced by pupils with protected characteristics.
The court considered that mitigation measures may not necessarily show compliance with the PSED – because the PSED is a duty to have due regard to the needs of those with protected characteristics rather than a duty to achieve a result. However, mitigation measures would be relevant to the second part of the judicial review exercise, which is whether the decision under challenge should be quashed. In this case the court decided that the mitigation measures were sufficiently robust and that they balanced out the authority's apparent failure to comply with the PSED.
Mr Gathercole's complaint was that the environmental statement did not assess the environmental effects of alternative sites on which to place the schools properly, or in some cases at all. As a result he argued that the authority acted irrationally in granting planning permission in reliance on the environmental statement.
The court rejected Mr Gathercole's argument. It did not consider that there was a basis for considering that the authority's decision was irrational by virtue of reliance on the environmental statement. Assessments of each alternative site had been provided. Although those assessments were brief, there was no rule of law that there required to be a detailed assessment of each alternative site – that was a matter for the decision-maker.
Even had there been a breach of the relevant regulations, the court did not consider any breach to be sufficiently substantive or to cause such prejudice to any other party as to justify quashing the decision on that basis.
This decision is a useful reminder that in English judicial reviews (including planning judicial reviews) it is not enough to identify a breach of an authority's statutory obligations (including procedural requirements) to persuade the court to quash the resulting decision. The applicant must go onto persuade the court that the breach was sufficiently substantive or relevant that it had an effect on the outcome of the decision-making process.
The requirement on the English courts to refuse judicial reviews in this way comes from section 31(2A) of the Senior Courts Act 1981. That is not a statute that applies in Scotland, and so there is no statutory obligation on the Court of Session to similarly refuse judicial reviews where it is likely the outcome would not have been different had the conduct complained of not occurred. However, under common law the Court of Session has a wide discretion when it comes to disposal of petitions for judicial review. That includes not quashing a decision even if it is demonstrated to the court's satisfaction that some procedural irregularity has occurred. In practice it is therefore open to the Court of Session to act in a similar manner to the English courts in relation to judicial reviews based on breaches or irregularities arising from matters of form rather than substance.