Town and country planning – Planning permission – Conditions – Planning condition restricting hours of use of multi-use games area adjacent to appellant’s property – Condition removed after respondent council concluding that condition not solving noise problem and that no unreasonable or substantial noise produced in any event – Whether respondents failing to consider policies on noise in para 123 of National Planning Policy Framework – Whether these more stringent than local plan policies – Appeal dismissed
The appellant’s house and garden adjoined land which was used as a multi-use games area (MUGA), with a hard-surfaced, fenced games court, basketball hoops and goal posts and a youth shelter. Originally, the use of the MUGA was subject to a planning condition which required that it be used only between 9am and either sunset or 8.30pm, whichever was the earlier. However, following a “trial period” of unrestricted use, the respondent council decided to remove the planning condition. They considered that a curfew did not solve the noise problem and that, in any event, no unreasonable or substantial noise was emanating from the MUGA, such that the condition no longer served a useful purpose. They took the view that its removal would not result in an unacceptable impact on residential amenity and that it would be acceptable in terms of local plan policies.
The appellant applied for judicial review of the respondents’ decision. She contended that the respondents had failed to have regard to para 123 of the National Planning Policy Framework (NPPF) on noise caused by new development, so far as it required that planning policies and decisions should mitigate and reduce to a minimum adverse impacts on health and quality of life arising from noise, including through the use of conditions. The appellant contended that para 123 of the NPPF was more stringent that the local plan policy on noise considered by the respondents since, so far as the NPPF required that significant adverse impacts be avoided and other adverse impacts be kept to a minimum, it sought to ensure that any effects were actively reduced as far as possible, whereas the local plan policy only required that noise be kept at a level which was “not unreasonable”. She also submitted that, under the local plan policy, impacts on amenity fell to be considered only by reference to the enjoyment of the property generally, whereas the NPPF required specific consideration of impacts on health. The claim was dismissed in the court below and the appellant appealed.
Held: The appeal was dismissed.
The government’s Noise Policy Statement for England, referred to in the footnotes to para 123 of the NPPF, stated that noise impact was to be minimised “within the context of Government policy on sustainable development”; in other words, it was not a free-standing requirement. The statement that noise should be “minimised” could not be taken in isolation or literally, because noise minimisation would mean no noise at all; rather, the policy was to be interpreted as minimising noise as far as reasonably practicable. The policy meant that all reasonable steps should be taken to minimise noise. Considerations of noise did not trump everything else. That was clear from the Noise Policy Statement, which said that the relevant part of the policy did not mean that adverse effects from noise could not occur, and from the opening part of para 123 of the NPPF, so far as it described the noise policy as an “aim” rather than as a rule.
Whether the imposition of a condition was a “reasonable step” was a matter of planning judgment which could take into account the position of both the would-be developer and those who would be affected by the development. Para 123 of the NPPF did not prohibit the decision-maker from balancing conflicting considerations. Accordingly, once para 123 of the NPPF was read in the context of the Noise Policy Statement to which it cross-referred, there was no material difference in between para 123 and the open-textured local plan policy considered by the respondents. Although there were textual differences between the two, they were no more than semantic. There was no difference in emphasis or any practical consequence to considering a proposal against the yardsticks of whether adverse impacts from noise were kept to a minimum or whether the noise would have an unreasonable impact on amenity.
Further, the NPPF had to be read as a whole, including the requirement in para 12 that development that accorded with an up-to-date local plan should be approved unless other material considerations indicated otherwise, and the presumption in para 14 in favour of sustainable development, pursuant to which development proposals that accorded with the development plan were to be approved without delay. The proposal to remove the planning condition did accord with the development plan. Para 206 was also relevant so far as it re-stated the position that a planning condition should only be imposed where it was “necessary, relevant to planning, enforceable, precise and reasonable in all other respects”. The essence of the respondents’ reasoning was that the planning condition no longer served a useful purpose since it did not “solve the problem” and the noise itself was neither unreasonable nor substantial. Once they had reached that conclusion, as a matter of their planning judgment, it was difficult to see how they could have justified retaining the condition, or what further reasonable steps they could be required to consider. Their decision disclosed no error of law.
Rebecca Clutten (instructed by Richard Buxton Environmental & Public Law, of Cambridge) appeared for the appellant; Charles Banner (instructed by the legal department of Rother District Council) appeared for the respondents.
Sally Dobson, barrister
