Planning appeal – Reasons for inspector’s decision – Claimant appealing against non-determination of planning application – Inspector dismissing appeal after taking noise levels into account – Whether decision irrational – Whether inspector correctly applying policy in development plan – Section 54A of Town and Country Planning Act 1990
The second defendant local planning authority failed to determine the claimant’s application for a new school building within the prescribed period, and the claimant appealed to the first defendant Secretary of State.
Policy ENV 7.1 of the local authority’s adopted unitary development plan for the area provided that planning permission should not be granted for proposals that would create unacceptable levels of noise and nuisance to adjoining occupiers. PPG 24 set out the maximum acceptable levels of ambient noise.
A government inspector dismissed the appeal on the grounds, inter alia, that the proposed school would have a significant adverse effect upon the character of the site and surrounding area, and that the noise and disturbance it would cause would have a detrimental effect upon the living conditions of adjoining occupiers. She further found that a proposed 2m acoustic barrier would reduce noise to a level below that set out in PPG 24, and below the current level of ambient noise from traffic.
However, the inspector also took account of evidence that the character, frequency and regularity of noise were factors that could have an aggravating effect. She found that the proposed school would produce peaks of noise at playtimes, and at morning and evening drop-off and collection times. She considered that although those noise levels would not cross the threshold of unacceptable noise for the purposes of policy ENV 7.1, serious noise and disturbance would still be caused, due to the greater variety, higher frequency and irregularity of the noise, compared with the constant ambient traffic noise.
The claimant brought proceedings, under section 288 of the Town and Country Planning Act 1990, to quash the inspector’s decision on the ground of irrationality. It contended, inter alia, that: (i) the inspector’s approach to noise levels was unjustified; (ii) her decision contained an inconsistency, in that she had dismissed the appeal because of anticipated noise levels, despite finding that they would not be unacceptable within the meaning of planning policy ENV 7.1; and (iii) the decision was contrary to section 54A of the 1990 Act, which stated that she was required to make her determination in accordance with the relevant development plan.
Held: The claim was dismissed.
The inspector’s approach, having regard not simply to the volume of noise but also to the exacerbating effects of noise of a certain character, frequency and irregularity, was one that she had been entitled to take in the light of the evidence before her. She had not, therefore, been irrational in concluding that the noise would have serious effects, despite the fact that it would fall below the volume limit set out in PPG 24. There was no inconsistency in taking serious noise disturbance into account in dismissing the appeal, despite finding that it did not cross the threshold of unacceptability laid down by policy ENV 7.1, and that approach did not contravene section 54A of the Town and Country Planning Act 1990.
A consideration of the desirability of the proposed school went beyond the application of policy ENV 7.1. Although the policy made unacceptable levels of noise a sufficient reason for refusing planning permission, lesser levels of noise were still a relevant factor to take into account when assessing the overall effect of the proposed development. The inspector had found that the cumulative effect of such noise, combined with the detrimental effects on the appearance and character of the area, outweighed the possible advantages of the proposed school. She had been entitled to dismiss the appeal on that basis.
Peter Village (instructed by Metcalfe Copeman & Pettefar, of Peterborough) appeared for the claimant; Tim Ward (instructed by the Treasury Solicitor) appeared for the first defendant; the second defendants did not appear and were not represented.
Sally Dobson, barrister
