Superstore — Traffic noise — Condition imposed in interests of amenity — Condition requiring closure of store at certain times–Inspector allowing appeal against condition–Acoustic fencing to be built to offset noise — Whether inspector making fundamental error — Local authority’s application to quash inspector’s decision refused
The applicant local planning authority granted an application for a district shopping centre subject to a condition that trading should not take place on Sundays or bank holidays. The condition had been imposed in the interest of the amenity of the area. Much of the appeal site, which lay in the London Borough of Hillingdon, was taken up by a car park, abutted on the west side by a terrace of houses known as Clayton Terrace. Glencoe Road approached the western side of the site. The junction between Glencoe Road and a road known as Jolly Lane, was located at the western side of Clayton Terrace. At the public inquiry the council argued that an increase in Sunday and bank holiday traffic would have its most significant impact on the houses in Clayton Terrace. There was no dispute that noise levels would increase, but there was disagreement over its effect.
The inspector allowed the appeal with a condition that, before the superstore first opened for trading on Sundays and bank holidays, “acoustic fencing shall be erected between Clayton Terrace and Glencoe Road in accordance with a scheme to be approved by the local planning authority …”. He said that the provision of acoustic fencing “will be required to protect the houses in Clayton Terrace from traffic noise from Glencoe Road”. Inter alia, the applicant authority challenged the decision that: the inspector had no evidence that the noise from Glencoe Road would be attenuated by the fence which, the council maintained, was intended to alleviate noise from the superstore car park; he misunderstood the methodology involved in the applicant’s assessment of the harm; and he failed to give clear intelligible reasons for his decision.
Held The application to quash the inspector’s decision was refused.
1. The public inquiry had last some four days and much of the evidence had concerned noise. If the inspector had made the mistake contended for with regard to the noise attenuation role of the fence referred to in the condition, ie between protection from traffic noise on the public roads and protection from car park noise, it would have been a fundamental error.
2. It would be very surprising if such an error had been made and the court would require very clear evidence before accepting such a claim. In fact the court was satisfied that the inspector was not confused as to the role of the fence.
3. Moreover, from the analysis of the decision letter there could be no doubt of the inspector’s intent to impose the condition relating to acoustic fencing in order to protect the Clayton Terrace houses from the noise on Glencoe Road.
4. With regard to the issue of methodology, the inspector had not been perverse in rejecting the applicant’s approach, which had focused on 22 houses with particular sensitivity to noise from the road. That was a concentration on the worst properties. The inspector was entitled to regard the issue in the context of all properties within hearing of the traffic.
Robert Fookes (instructed by the solicitor to Hillingdon London Borough Council) appeared for the local planning authority; Nathalie Lieven (instructed by the Treasury Solicitor) appeared for the Secretary of State for the Environment; Christopher Katkowski (instructed by Berwin Leighton) appeared for Tesco Stores Ltd.
