In R (on the application of Dudfield) v Forest of Dean District Council [2016] EWHC 291 (Admin); [2016] PLSCS 61 the grant of permission for acoustic barriers and use of land for storage of shooting huts was upheld following a claim by neighbouring residents on several grounds, including that the authority had failed to properly consider effects in light of related permitted development rights and failed to use conditions to reflect assumptions about how the noise level from related shooting activity would be kept to an acceptable level.
Planning permission was granted for various works, but the actual use of the site for clay pigeon shooting would rely on the ability to use land for 28 days each year without permission under the Town and Country Planning (General Permitted Development) (England) Order 2015. The authority did not consider as part of the application for the operational development itself. The claimant considered that the use of inert waste to construct noise bunds and other landscaping works would, regardless of the shooting activity under PD rights, lead to a material change in the use of the land (such that it would have become a permanent shooting use, relying on Ramsey v Secretary of State for the Environment, Transport and the Regions [2002] EWCA Civ 118).
Patterson J rejected the claimant’s approach on the basis that, unlike Ramsey, this was not a case where the temporary nature of the 28 days was in question (and being gauged by reference to the extent to which the physical work would prevent the underlying agricultural use resuming outside those periods). While the likely noise effects of the PD use were relevant to the consideration of the overall effect of the works, the extent to which the PD rights could be relied on was not. Patterson J, also held obiter that even if there had been a failure to properly consider the effect of the works on the ability to rely on PD rights, the discretion not to quash would have been exercised under Section 31(2A) of the Senior Courts Act 1981 on the basis that the authority was highly unlikely to have refused permission.
In considering whether a condition should have been imposed to address assumptions made about noise mitigation measures, she held that the issue had been fully ventilated at the planning committee and members had chosen not to impose a condition (and were not under any statutory obligation to explain their choice not to). As such, failing to include a condition in the circumstances was not irrational. The case illustrates the importance for defendant authorities and interested parties in relying on the S.31(2A) discretion where appropriate.
Roy Pinnock is a partner in the planning and public law team at Dentons
