R (on the application of Davies) v Royal Borough of Kensington and Chelsea

Town and country planning – Planning permission – Local plan policy – Claimant applying for judicial review of decision to grant planning permission for development of basement in dwelling – Whether respondent local authority failing to have regard to planning policy guidance on noise – Whether respondent correctly assessing noise impact on neighbours acceptable – Whether respondent failing properly to apply local plan basement policy – Application dismissed The defendant local planning authority granted planning permission and listed building consent for the development of a basement in a dwelling in Holland Park, London. Each of the dwellings concerned was a five-storey detached Grade II listed dwelling with a large garden backing onto Holland Park. The proposed development comprised the construction of a basement under the rear garden to house a swimming pool, lounge, lobby, changing areas, gym, plant room and wine store, and would amount to 271 square metres. The main part, including the pool, would be about seven metres below ground level. Construction would involve demolition, ground breaking using percussive equipment, soil removal and sheet piling over a 63-week period. The claimant lived next door and applied for judicial review contending that the defendant failed properly to take into account the impact of construction noise on neighbours by failing to have regard to planning policy guidance (PPG) on the need to consider whether the noise exposure of neighbouring residents would be above or below the significant observed adverse effect level; alternatively, it acted irrationally in deciding that the noise impact on neighbours over the construction period would be acceptable; and erred in law as to the effect of (perceived) compliance with planning policy CL7 which was not supportive of basement development in principle but simply listed the requirements to be complied with in addition to other relevant policy requirements in the development plan. Held: The application was dismissed. (1) On a challenge to reports of planning officers, the question was whether, on a fair reading of the whole report, the officer’s advice was seriously misleading on a matter bearing upon the decision which was not corrected before the decision was made. Where a committee accepted the recommendation of officers, the reasons for its decision were taken to be those set out in the officer’s report: Mansell v Tonbridge and Malling Borough Council [2017] EWCA Civ 1314; [2017] PLSCS 174; [2019] PTSR 1452 considered. It was for the officer to assess how much information should be included in the report. Overburdening the report with information or materials might impact upon the effectiveness of committee members to deal with them. The lack of reference to an issue did not mean it was not taken into account. A contrary conclusion would only be appropriate where all other known facts and circumstances pointed overwhelmingly to that conclusion. (2) Decision makers might give material considerations whatever weight they thought fit, or no weight at all, provided they did so rationally. A charge of Wednesbury unreasonableness in a planning case faced a steep uphill struggle: R (Newsmith Stainless Ltd) v Secretary of State [2001] EWHC 74 (Admin); [2001] PLSCS 30; [2017] PTSR 1126 considered. There was normally no duty to give reasons for granting planning permission, but where reasons were given they might be stated briefly and need only refer to the main issues in dispute. Only where the party aggrieved could show that they had genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision would a challenge on that basis succeed. Local authority planners had expertise and could be taken to have understood the legal context in which their decisions were taken: R (Bishop’s Stortford Civic Federation) v East Herts District Council [2014] PTSR 1035 considered. (3) In the present case, the objection of the planning consultants for the local residents was put before the committee but the officer’s report made no mention of it. Policies such as the National Planning Policy Framework and PPG required that if a proposal gave rise to an impact from noise which was unacceptable then the application should be refused. However, such an omission did not necessarily lead to the conclusion that they were not taken into account. It was a matter of planning judgment how much information to put in the report and an inference that a matter was overlooked would only be appropriate where all known facts pointed clearly to that conclusion. The officer’s report accepted that there was likely to be noise impact on neighbours during construction but that was not assessed as significant and with mitigation and controls was assessed as acceptable. The officers were entitled to take into account the statutory environmental controls in place and the NPPF recognised that it might be assumed that such controls would operate effectively. (4) On a fair reading of the officer’s report as a whole, the conclusion of the planning officer, and thus the committee, that it was not necessary to re-consult the environmental health officers and that the construction noise was acceptable, was one which they were entitled to arrive at. That conclusion was consistent with local and national policy and entailed the exercise required by article 8 of the European Convention of Human Rights as to whether interference with neighbours was necessary in the interests referred to. There was no sufficient indication that such policies and rights had been overlooked. The planning officer and the environmental officers might be taken to have some expertise about detailed noise levels in such matters, and to know the legal context in which the decisions were taken.   (5) The planning officer was entitled to say that policy CL7 was a “permissive policy”. It was clear from the officer’s report that the acceptability of construction noise was a material consideration. Permissive was precisely that: unless the requirements set out in CL7 were met by a proposal, it did not comply with that policy. If such requirements were met then the proposal complied with that policy but regard had to be had to other policies and material considerations. Although there was a clear connection in the policy between the relative size of the basement and the garden and construction noise, it was also clear from the terms of the policy, and from the explanatory policy, that the relative size had an impact upon several other issues therein referred to such as inappropriate development, stability, character of gardens, drainage and carbon emissions. Jenny Wigley KC (instructed by Town Legal LLP) appeared for the claimant; Charles Streeten (instructed by Bi-Borough Legal Services) appeared for the defendant; Robert Walton KC (instructed by Mischon de Reya LLP) appeared for the interested party. Eileen O’Grady, barrister Click here to read a transcript of R (on the application of Davies) v Royal Borough of Kensington and Chelsea