The Shore Ltd v Secretary of State for Communities and Local Government & Anor, Court of Appeal - Administrative Court, February 21, 2018, [2018] EWHC 288 (Admin)

Resolution Date:February 21, 2018
Issuing Organization:Administrative Court
Actores:The Shore Ltd v Secretary of State for Communities and Local Government & Anor
 
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CO/4058/2017

Neutral Citation Number: [2018] EWHC 288 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

PLANNING COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Date:21st February 2018

Before:

MR JOHN HOWELL QC

Sitting as a Deputy High Court Judge

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Between:

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Mr Gregory Jones QC (instructed by Allen & Overy LLP) for the Applicant

Mr Guy Williams (instructed by the Government Legal Department) for the Defendant

The Interested Party did not appear and was not represented.

Hearing date: 7th February 2018

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JudgmentMr John Howell QC:

1. This is an application under section 288 of the Town and Country Planning Act 1990 (``the 1990 Act'') by The Shore Limited to quash the decision of an Inspector, Mr Grahame Gould, who dismissed its two appeals against decisions of the local planning authority, Southend-on-Sea Borough Council, refusing to grant planning permission for the development of land to the rear of The Shore, 22-23 The Leas, Westcliffe-on-Sea.

INTRODUCTION

2. The Shore is a recently constructed, multi-storey block, containing 46 flats, with its own basement car parking for 51 vehicles. The land to which the applications for planning permissions related is an outdoor communal space for use by the occupiers of The Shore at the rear of the site. The applicant sought planning permission for the provision on that land of 16 surface level car parking spaces with replacement car park entrance gates. The second application also proposed the erection of some acoustic fencing. Access to the proposed car park was to be obtained from a quiet side street, Grosvenor Mews, a no-through road serving 14 dwellings, via a narrow access track between two residential properties, 3 Grosvenor Mews (``No 3") and Elm Cottage. The Inspector decided to dismiss the applicant's appeals against the decisions of the Borough Council to refuse permission in the light of his views on the effect that noise from movements of cars, to and from the proposed car park would have on the occupiers of those two properties.

3. The grounds on which, on an application under section 288 of the 1990 Act, this court may quash a decision, given on a planning appeal by the Secretary of State or one of his inspectors, were summarised by Lindblom J in Bloor Homes East Midlands Limited v Secretary of State for Communities and Local Government [2014] EWHC 754 (Admin), [2017] PTSR 1283, at [19].

4. In this case the application was brought under section 288 on four grounds, namely: (i) that the Inspector failed to have regard to the Secretary of State's policy and guidance on the approach to potential noise in the exercise of development control (which was a material consideration); (ii) that the Inspector misinterpreted or misapplied that policy and guidance; (iii) that the Inspector failed to acknowledge that he was departing from that policy and guidance or to give reasons for so doing; and (iv) that his decision was unfair or in breach of the applicant's legitimate expectations.

5. I granted permission to make this application on part of one of the grounds on which it was made. I refused permission on the other grounds on which it was sought. The point on which I granted permission to make this application was one of the arguments put forward in support of the second ground. In one paragraph of his decision letter, paragraph [11], it was arguable that the Inspector had fallen into a logical error or applied the wrong test, when he apparently inferred that there would be a harmful impact on the amenity of the two residential properties concerned (or an unacceptably harmful one) from the fact that, in his view, it had not been demonstrated that there would be no such harmful impact.

6. The applicant renewed its application for permission on the other grounds and the parties have agreed that its application for reconsideration should be heard and, if granted, those grounds considered, at this hearing of this substantive application. In the event I heard full argument on all the applicant's grounds.

THE CONTEXT FOR THE INSPECTOR'S DECISION

7. In considering whether the applicant's complaints have any merit, it is necessary to understand what the Secretary of State's policy and guidance is on how potential noise from proposed developments should be treated in development control, and what the arguments advanced on the appeals were, that the Inspector had to consider. These matters, together with the applicable development plan policies, formed the context within which the Inspector's decision has to be read and understood.

i. relevant development plan policies

8. As is well known, the determination of any application for planning permission must be made in accordance with the development plan unless material considerations indicate otherwise: see section 70 of the 1990 Act and section 38(6) of the Planning and Compulsory Purchase Act 2004. The provisions of the development plan so far as material, therefore, are the starting point when making any such determination. In this case the development plan included both the Council's Core Strategy Development Plan Document and their Development Management Document.

9. Policy CP4 of that Core Strategy provides that ``development proposals will be expected to contribute to the creation of a high quality, sustainable urban environment which enhances and complements the natural and built assets of Southend. This will be achieved by...maintaining and enhancing the amenities, appeal and character of residential areas, [and] securing good relationships with existing development.''

10. Policy DM1 of the Council's Development Management Document provides that ``all development should...protect the amenity of the site, immediate neighbours, and surrounding area, having regard to.... noise and disturbance''. Policy DM15 provides that ``access to the proposed development and any traffic generated must not unreasonably harm the surroundings, including the amenity of neighbouring properties...''.

ii. the Secretary of State's policy and guidance on noise

11. The Secretary of State's planning policies are set out in the National Planning Policy Framework (``the NPPF''). The policies that it contains may provide material considerations to be taken into account when planning applications are determined.

12. The part of the NPPF, that is concerned with noise, uses terms, in particular the ``lowest observed adverse effect level'' (``LOAEL'') and the ``significant observed adverse effect level'' (``SOAEL''), that are derived from, and explained in, the Explanatory Memorandum in the Noise Policy Statement for England (``the NPSE''), issued in March 2010. That statement covers all types of noise, apart from noise in the workplace.

13. The Explanatory Memorandum to the NPSE states:

``2.20 There are two established concepts from toxicology that are currently being applied to noise impacts, for example, by the World Health Organisation. They are:

NOEL - No Observed Effect Level

This is the level below which no effect can be detected. In simple terms, below this level, there is no detectable effect on health and quality of life due to the noise.

LOAEL - Lowest Observed Adverse Effect Level

This is the level above which adverse effects on health and quality of life can be detected.

2.21 Extending these concepts for the purpose of this NPSE leads to the concept of a significant observed adverse effect level.

SOAEL - Significant Observed Adverse Effect Level

This is the level above which significant adverse effects on health and quality of life occur.

2.22 It is not possible to have a single objective noise-based measure that defines SOAEL that is applicable to all sources of noise in all situations. Consequently, the SOAEL is likely to be different for different noise sources, for different receptors and at different times. It is acknowledged that further research is required to increase our understanding of what may constitute a significant adverse impact on health and quality of life from noise. However, not having specific SOAEL values in the NPSE provides the necessary policy flexibility until further evidence and suitable guidance is available.''

14. The NPPF states inter alia that:

``109. The planning system should contribute to and enhance the natural and local environment by:

* ....

* preventing both new and existing development from contributing to or being put at unacceptable risk from, or being adversely affected by unacceptable levels of..... noise pollution;....

123. Planning policies and decisions should aim to:

* avoid noise from giving rise to significant adverse impacts** on health and quality of life as a result of new development;

* mitigate and reduce to a minimum other adverse impacts** on health and quality of life arising from noise from new development, including through the use of conditions;

* recognise that development will often create some noise and existing businesses wanting to develop in continuance of their business should not have unreasonable restrictions put on them because of changes in nearby land uses since they were established; and

* identify and protect areas of tranquillity which have remained relatively undisturbed by noise and are prized for their recreational and amenity value for this reason.''

The ``**'' that I have inserted in text are references that appear in the text to footnotes that refer to the Explanatory Note to the NPSE.

15. The Secretary of State has also subsequently issued Planning Practice Guidance (``PPG'') to assist in the application of the NPPF. It deals inter alia with the treatment of potential noise in development control. The PPG includes the following I have inserted in the text the paragraph numbers in the relevant section of the PPG for ease of reference.:

``[002] Can noise override other planning concerns?

It can, but...

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