Town and country planning – Planning permission – Fallback position – Defendant local authority issuing abatement notice concerning noise at motor racing circuit – Defendant subsequently granting conditional planning permission to develop circuit – Claimant applying for judicial review – Whether defendant properly considering fallback position – Whether fallback position including future enforcement to control noise nuisance – Whether defendant properly applying paragraph 183 of National Planning Policy Framework to avoid duplication between planning and pollution control regimes – Application dismissed
The claimant local resident applied for judicial review of the decision by the defendant local authority to grant planning permission for development at Lydden Hill Race Circuit. The circuit was a motorsports venue, operated by the interested party, near Wootton Village, in the Kent Downs Area of Outstanding Natural Beauty.
In 2015, the defendant had served a noise abatement notice on the interested party under section 80 of the Environmental Protection Act 1990 on the basis that noise levels from activities on the site constituted a statutory nuisance.
The claimant’s main contention was that the defendant had erred in law in regarding the existing level of noise, which was a statutory nuisance and/or causing noise at a significant observed adverse effect level (SOAEL), as a fallback position against which to judge the planning application, even though it was aware that the abatement notice had not adequately controlled the noise or abated the nuisance; it should have considered the correct fallback position as including such future enforcement, whether by a further abatement notice or otherwise, as was required to control the nuisance.
A question arose as to the application of paragraph 183 of the National Planning Policy Framework, which provided that the focus of planning policies and decisions should be on whether proposed development was an acceptable use of land, rather than the control of processes or emissions (subject to separate pollution control regimes); and that planning decisions should assume that those regimes would operate effectively. Equally, where a planning decision had been made on a particular development, the planning issues ought not to be revisited through the permitting regimes operated by pollution control authorities.
Held: The application was dismissed.
(1) The purpose of paragraph 183 of the NPPF was to avoid needless duplication where the pollution control regimes operated parallel to the planning regime. Whether or not there had been any proceedings under the pollution control regime, the planning decision-maker had to assume that the regime would operate effectively in the future. However, where there had been such proceedings, they would be a material consideration which the planning decision-maker had to consider and take into account.
In the present case, the defendant correctly took the view that proceedings under the 1990 Act and the abatement notices were a material planning consideration. The planning officer’s report gave a detailed and balanced account of the issues on noise which the planning committee had to consider, and gave appropriate advice. There was sufficient evidence on which the officer and committee members could rationally conclude that the increased number of days on which activities were permitted would not increase the impact on local residents: Gateshead Metropolitan Borough Council v Secretary of State for the Environment [1995] Env LR 37; [1994] EGCS 92, R (Frack Free Balcombe Residents Association) v West Sussex County Council [2014] EWHC 4108 (Admin); [2014] PLSCS 342 and Norman v Secretary of State for Housing, Communities and Local Government [2018] EWHC 2910 (Admin) considered.
(2) The planning officer was correct to identify the fallback position as that which currently existed, under the existing planning permission and the existing revised abatement notice. The term fallback had acquired a specific meaning in planning law: where an applicant could demonstrate that the grant of a permission would be less harmful than a use or development which had previously been permitted. For a fallback development to be a material consideration, there had to be a real prospect that it would be reverted to.
The officer’s report was not required to consider or advise planning committee members as to what further abatement notices might be served in the future. It was not their responsibility to make any decision on such matters, and speculation would not have been appropriate: R (Mansell) v Tonbridge & Malling Borough Council [2017] EWCA Civ 1314; [2017] PLSCS 174 applied.
(3) There was no legal basis for the claimant’s objection to the fallback position adopted in the officer’s report on the basis that the current level of noise amounted to a statutory nuisance and/or a SOAEL, and therefore could not properly be relied on. Once satisfied that a statutory nuisance existed, the defendant complied with its duty under section 80(2A) of the 1990 Act and served an abatement notice which required the nuisance to be restricted in accordance with the schedule to the notice. It was a matter for the defendant’s discretion whether it chose to impose all or any of the requirements available in section 80(1) of the 1990 Act. There was no duty to serve a notice that required the nuisance to be abated. The revised abatement notice was lawful and could be relied on by the defendant and the interested party as part of the fallback position. Accordingly, it was not irrational for the defendant to treat the revised notice as part of the fallback position: Lawrence v Fen Tigers Ltd [2014] 1 EGLR 147; [2014] EGILR 57 distinguished.
Members were correctly advised in the officer’s report to consider whether the proposed planning permission would be more effective in controlling noise levels, because it would include more stringent and more effective conditions than the existing planning permission and revised abatement notice.
(4) It was for the planning officer’s discretion to determine how much of the history of the abatement notices should be relayed to the committee. It could not be said that committee members were seriously misled.
The defendant was entitled to conclude that it was reasonable for it to decide to address the noise issues by way of detailed planning conditions rather than a further abatement notice, on the basis that planning conditions were more flexible and could include a wider range of requirements than an abatement notice, which had to be capable of forming the basis of a criminal charge: That was an exercise of discretionary judgment on the part of the defendant.
Estelle Dehon (instructed by Richard Buxton Solicitors) appeared for the claimant; Richard Banwell (instructed by Dover District Council Legal Services) appeared for the defendant; Kevin Leigh (instructed by Direct Access) for the interested party.
Eileen O’Grady, barrister
Click here to read a transcript of R (on the application of James) v Dover District Council
