A Ticehurst woman dismayed that a Multi-use Games Area (MUGA) near her home can now be used round the clock has failed in a challenge to the decision at the Court of Appeal.
Lewison LJ upheld an earlier High Court decision that Rother district council had been entitled to remove a condition limiting use of the MUGA, which includes a basketball court, goal posts and a “youth shelter”, to daylight hours.
Though he said that Susan may, of nearby Orchard Cottage, Ticehurst, had been “understandably disappointed”, he dismissed her case, upholding the council’s decision that noise from the MUGA was not a substantial problem and the condition no longer served a useful purpose.
The MUGA was previously subject to a planning condition limiting its hours of operation to between 0900 hours and the earlier of sunset and 2030 hours. This condition was removed by the council contrary to the advice of its environmental health officer and planning officer.
May claimed that, in reaching its decision, the council failed to have regard to a material consideration, namely parts of paragraph 123 of the National Planning Policy Framework (“NPPF”) dealing with noise caused by new development.
Lewison LJ said: “It is true that that paragraph of the NPPF was not referred to in the officer’s report placed before the planning committee, nor in the council’s reasons for their decision. It is common ground that in itself that does not matter, provided that the council took into account the substance of what NPPF provides.”
In this case, he said the court was dealing with the imposition or removal of a planning condition and that paragraph 206 of the NPPF restates the position that a planning condition should only be imposed where is it “necessary, relevant to planning, enforceable, precise and reasonable in all other respects.”
He continued: The essence of the planning committee’s reasoning was that the condition did not ‘solve the problem’ and that the noise itself was neither unreasonable nor substantial. In short the committee concluded that the condition ‘no longer served a useful purpose’. Once the committee had reached that conclusion I find it difficult to see how they could have justified retaining the condition.
“If it serves no useful purpose, how can it be “necessary”? Whether or not it did in fact serve a useful purpose might well have been highly controversial; but the answer to that question is one of fact or planning judgment. It reveals no error of law.
The Queen on the application of May v Rother District Council & Ors Court of Appeal (The Master of the Rolls, Lewison and Sales LJJ) 22 June 2015
Rebecca Clutten (instructed by Richard Buxton Environmental And Public Law) for the appellant
Charles Banner (instructed by Rother District Council) for the respondent
