R v Warwick District Council, Court of Appeal - Administrative Court, November 16, 2018, [2018] EWHC 3123 (Admin)

Resolution Date:November 16, 2018
Issuing Organization:Administrative Court
Actores:R v Warwick District Council
 
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Neutral Citation Number: [2018] EWHC 3123 (Admin)

Case No: CO/1279/2018

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Birmingham Civil Justice Centre

Priory Courts

33 Bull Street

Birmingham B4 6DS

Date: 16/11/2018

Before:

MR JUSTICE JAY

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Between:

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Paul Cairnes QC and Ms Nina Pindham (instructed by Lanyon Bowdler Solicitors) for the Claimant

David Forsdick QC (instructed by Warwickshire County Council, Legal Services) for the Defendant

The Interested Party did not appear

Hearing date: 8 November 2018

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MR JUSTICE JAY:

Introduction and Factual Synopsis

  1. This is an application for judicial review brought by Mr David Smith-Ryland (``the claimant''), with the permission of HHJ David Cooke, against the decision of the Warwick District Council (``the defendant'') given on 14 February 2018 to discharge condition 3 imposed on a planning permission granted on 26 April 2016 (ref. W/14/0944) (``the planning permission'').

  2. The claimant owns Plestowes farm in Barford, Warwick. As he explains in his witness statement, it is a mixed organic farm involving cattle and grain. A plan prepared by Sheldon Bosley, chartered surveyors, shows - insofar as is material - a cattle shed for 120 head of cattle, a grain store and a fan shed. Contiguous with the claimant's land is property owned by Mr Alan Murdoch (``the interested party'') which includes - again insofar as is material for present purposes - buildings known as Barn one and Barn two. The Long Barn, also shown on the plan is no longer germane to these proceedings because planning permission has been refused in relation to it on the basis that noise levels from the claimant's farm would be unacceptable for any residential development.

  3. Barn two is directly on the boundary line marked in red on the plan, and given its location and size provides some measure of cloaking and shielding from noisy activities carried out on the farm. Barn one is less than 30 m away from the boundary line. Previously, Barn one was used as offices. It is now apparently vacant, but - in circumstances which I am about to explain - the interested party has planning permission to develop Barn one for residential use, subject to condition 3 the discharge of which is the subject matter of this challenge.

  4. Barn two is just over 30 m away from the claimant's cattle shed and slightly further away from the grain store. The claimant's farm operates two dryers, one externally, the other internally, for the drying of grain. The internal grain dryer, on occasion described as an ``electric blower'', operates within the fan shed close to the southern edge of barn two. The external dryer, which is obviously noisier, is driven by a diesel-powered tractor and is located between the cattle shed and the grain store, approximately 40 metres from the boundary. It is marked on the plan as ``Static Optic Grain Dryer''.

  5. The evidence is not altogether clear as to the frequency of use of these dryers. The interested party's expert, Mr Mike Brownstone of Resound Acoustics Ltd, states his understanding that the dryers operate seasonally, typically for a period of two weeks a year, during the daytime only. The claimant's expert, Mr K. J. Gayler formerly of Sharps Redmore Partnerships Ltd but now of Sharps Acoustics LLP, presumably working on the basis of information provided by his client, states that in a typical summer the dryers would be operated for between two and six weeks during the daytime. In the springtime, the dryers could be operated for up to 6 weeks to reduce moisture content to acceptable levels for sale. According to the defendant's environmental health officer (``EHO''), the internal dryer operates all year round. It is disappointing that there should be this lack of consensus in the expert evidence, but the outcome of this application for judicial review cannot turn on an issue of this sort.

  6. The claimant's concern, in a nutshell, is that any residential occupiers of Barn one could bring noise nuisance claims in relation to the use of these dryers, and that the local planning authority could serve noise abatement notices. Unusually in a case of this sort, therefore, the generator of the noise is not seeking to downplay its level.

  7. The claimant's consideration of noise-related issues goes beyond these dryers, and his expert draws attention to other sources of noise, including the organic cattle herd which must be allowed external space. The interested party's expert has only considered the issue of dryer noise. I note that the EHO, rightly in my view, takes the broader approach. Although the fine detail does not matter for the purposes of this application for judicial review, I have considered the evidence from the acoustic experts with some care; and have raised certain matters of clarification with counsel.

  8. It has been the interested party's ambition for some time now to develop Barn one and convert it from office space into residential units. In August 2014 he was granted planning permission for this, but on 22 May 2015 the permission was quashed because the defendant agreed that it had failed to consider relevant considerations as per the perfected grounds.

  9. Just before then, on 24 March 2015 Sharps Redmore had provided its first report. At the facade to Barn one the background noise level as evaluated in June 2014 was 41 dB on the relevant scale. The rating level, which included the noise generated by the dryers as well as an upward correction for the type of noise, was 63 dB, which was 22 dB over the background level. These findings were broadly in keeping with those ascertained by Resound Acoustics as set forth in its report dated January 2016. Mr Brownstone concluded on the basis of a number of contextual factors that an appropriate standard of residential amenity could be achieved. In reaching that conclusion he took into account the level of use of the dryers, the possibility that a noise barrier could be constructed, the fact that windows could be closed at relevant times, and the fact that nearby occupiers had made no complaints.

  10. An addendum report from Sharps Acoustics LLP dated 29 February 2016 is critical of a number of aspects of the report given by Resound Acoustics in January 2016, but the minutiae matter not. I note that both experts were of the opinion that the noise generated by these dryers significantly exceeded the threshold of 10 dB over the background noise level. The relevance of this will be explained in due course.

  11. On 17 March 2016 the defendant's EHO visited the site, but the dryers were not running on this occasion. I was told by Mr Paul Cairnes QC for the Claimant that when the EHO visited in 2011 only one dryer was operational. Following this visit, on 31 March 2016 various changes to the proposals were made by the interested party, including replacing the existing timber fence to the south of Barn two with a 3.3 m high timber acoustic fence. Planning permission was required for this because it was outside GPDO rights.

  12. In early April 2016 the EHO reported to the defendant's planning committee. The EHO raised no objections to the conversion of Barn one to residential use ``subject to conditions to protect the amenity of future residents against noise and odour''. This latter consideration is not relevant for present purposes. Specifically, the EHO said this:

    ``There are two grain dryers within the objector's farm and close to the application site. One is internally situated within a shed and operates all year round. The second grain dryer is external. There is currently a line of sight from the front door of Barn one to the shed housing the internal grain dryer. The EHO considers that the noise from either grain dryer as experienced at Barn one would not amount to a statutory nuisance, although the external grain dryer is more noisy and could have the potential to adversely affect the amenity of residents of Barn one if not mitigated. Furthermore if the cattle shed and yard were used for cattle there is the potential for the amenity of Barn one to be affected by cattle noise without mitigation measures being implemented.

    The EHO therefore recommends a condition to require the applicant to retain Barn two to provide a noise screen and a condition to provide acoustic fencing. The condition proposed will ensure that Barn two is not removed, should this ever become necessary in the future, without consultation with the LPA to ensure a suitable replacement noise screen can be secured. Given the large bulk and massing of existing and former farm buildings it is considered that an appropriate acoustic fence solution can be achieved that will not affect the visual amenity of the locality of the amenities of the adjoining farm.''

  13. My reading of this report is that the EHO was recognising in terms that the noise generated by the external dryer was unacceptable, unless it was mitigated, and he was also of the view that an appropriate acoustic fence solution could be achieved.

  14. In mid-April 2016 the claimant submitted further objections in the light of the EHO's report, stating that in the absence of an updated noise survey it could not be demonstrated that the proposed mitigation measures would work. On 25 April 2016 the EHO addressed this point by...

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