May, R (On the Application Of) v Rother District Council & Ors

Mrs May lives at Orchard Cottage, Ticehurst, East Sussex. Her house and garden are next to a Multi-use Games Area (a “MUGA”). It is a hard-surfaced, fenced games court next to which there is a “youth shelter” as well as basketball hoops and goal posts. For most of the period of its operation the MUGA was subject to a planning condition which limited its hours of operation to the hours between 0900 hours and the earlier of sunset and 2030 hours. Mrs May was understandably disappointed when, contrary to the advice of its Environmental Health Officer and Planning Officer, the Rother District Council decided to remove that condition. Mrs May challenged that decision by judicial review but her challenge was rejected by Mr Ian Dove QC. She appealed with the permission of Patten LJ. At the conclusion of the hearing we decided that the appeal would be dismissed. These are my reasons for joining in that decision.

The single remaining ground of challenge is that in reaching its decision the Council failed to have regard to a material consideration, namely parts of paragraph 123 of the National Planning Policy Framework (“NPPF [123]”). That paragraph deals with noise caused by new development. It is true that that paragraph of the NPPF was not referred to in the Officer’s Report placed before the planning committee, nor in the Council’s reasons for their decision. It is common ground that in itself that does not matter, provided that the Council took into account the substance of what NPPF [123] provides. The Officer’s Report (and the reasons for the decision) did refer to policy GD1(ii) of the Rother District Local Plan, which also deals with noise. The principal issue on this appeal is whether there is any difference of substance (as opposed to semantics) between NPPF [123] and policy GD 1 (ii).

Policy GD 1 (ii) is a general planning policy which states that all development should meet a number of criteria of which criterion (ii) is that:

“it is in keeping with and does not unreasonably harm the amenities of adjoining properties”

The relevant part of NPPF [123] on which Mrs May relies states:

“Planning policies and decisions should aim to;

• Avoid noise from giving rise to significant adverse impacts²⁷ on health and quality of life as a result of new development;

• Mitigate and reduce to a minimum other adverse impacts²⁷ on health and quality of life arising from noise from new developments, including through the use of conditions.”

Footnote 27 states:

“See Explanatory Note to the Noise Policy Statement for England (Department for the Environment, Food and Rural Affairs).”

That Explanatory Note in turn says:

“The first aim of the Noise Policy Statement for England

Avoid significant adverse impacts on health and quality of life from environmental, neighbour and neighbourhood noise within the context of Government policy on sustainable development.

2.23

The first aim of the NPSE states that significant adverse effects on health and quality of life should be avoided while also taking into account the guiding principles of sustainable development (paragraph 1.8).

The second aim of the Noise Policy Statement for England

Mitigate and minimise adverse impacts on health and quality of life from environmental, neighbour and neighbourhood noise within the context of Government policy on sustainable development.

2.24

The second aim of the NPSE refers to the situation where the impact lies somewhere between LOAEL and SOAEL. It requires that all reasonable steps should be taken to mitigate and minimise adverse effects on health and quality of life while also taking into account the guiding principles of sustainable development (paragraph 1.8). This does not mean that such adverse effects cannot occur.”

The acronym LOAEL means “lowest observed adverse effect level” (the lowest level at which an adverse effect can be observed); and the acronym SOAEL means “significant observed adverse effect level”.

The minutes of the discussion by the planning committee record:

“Having previously granted permission for a “trial period” for the [MUGA] to be used on an unrestricted basis, Members discussed the acceptability of removing the restricted hours condition permanently. Members considered all the evidence provided by interested parties both against and in favour and had before them a report of the head of environmental services. They considered that the use of the MUGA in the context of the wider recreational ground and determined that a curfew did not solve the noise problem and that in their view there was not unreasonable noise or substantial noise emanating from the MUGA. While the activity was audible it was not excessive to warrant restricted usage.”

In the reasons explaining the decision the Council stated:

“Members assessed the application following the 'trial period' when the use of the multi games area (MUGA) had been unrestricted. Objections to the removal of the condition and also the representations in favour of an unrestricted use of the facility were considered. While it was noted that there was significant support in the village for making full use of the facility that had been provided it was also accepted that the residential amenity of individuals was a material consideration. Advice from the Environmental Health Service was considered. It was determined that in the context of the recreation ground as a whole the curfew imposed by the condition was no longer required as there had been no substantial or unreasonable noise nuisance arising from the use of the MUGA during the trial period. The condition no longer served a useful purpose and its removal would not result in an unacceptable impact on residential amenity. The proposal was considered to be acceptable in terms of Policy GD1(ii) of the Rother District local plan (2006) and Policy OSS5(ii): General Development Considerations: contained within the Rother District local plan – core strategy.”

The argument for Mrs May, presented on her behalf by Ms Clutten, rests on three propositions:

If the first of these propositions is correct, then the remaining propositions are either common ground or follow inexorably. So the appeal turns on the question whether there is a substantive difference between NPPF [123] and policy GD 1 (ii).

Ms Clutten argues as follows. First, the policy test in NPPF [123] is more stringent than that contained in GD1 (ii), in that it requires adverse impacts be kept to a minimum, rather than be at a level which is “not unreasonable”. The essence of the distinction between the two policies is that the NPPF seeks to ensure any effects which exist are actively reduced as far as is possible (the ordinary and natural meaning of “minimised”). If effects exist but are not “unreasonable” GD1 (ii) does not require anything more to be done which might be capable of improving the situation by their reduction. Under policy GD 1 (ii), therefore, the protection of the amenity of neighbours may be overridden by factors that weigh in favour of the proposed development. Second, in GD1 (ii) the consideration of “amenity” relates to the enjoyment of the property generally, whereas the NPPF requires specific consideration of impacts on health, which is a distinct issue.

NPPF [123] as amplified by the Explanatory Statement is a hierarchical policy. Where, as in this case, the noise caused by the proposed development crosses the threshold of LOAEL the decision maker must at least give consideration to the question whether there are any further steps that can reasonably be taken to reduce the impact of noise. Policy GD 1 (ii) does not include this requirement. This is the real and substantive difference between NPPF [123] and policy GD 1 (ii).

Although Ms Clutten advanced this argument most attractively, I am not persuaded by it.

As Lord Reed observed in Tesco Stores Ltd v Dundee City Council [2012] UKSC 13, [2012] PTSR 983 at [19]

“Although a development plan has a legal status and legal effects, it is not analogous in its nature or purpose to a statute or a contract. As has often been observed, development plans are full of broad statements of policy, many of which may be mutually irreconcilable, so that in a particular case one must give way to another. In addition, many of the provisions of development plans are framed in language whose application to a given set of facts requires the exercise of judgment. Such matters fall within the jurisdiction of planning authorities, and their exercise of their judgment can only be challenged on the ground that it is irrational or perverse.”

The same is true of the NPPF.

The second part of the Noise Policy Statement for England says that noise impact is to be minimised “within the context of Government policy on sustainable development”. In other words, it is not a free-standing requirement. Moreover as paragraph 2.3 of the Noise Policy Statement points out the statement that noise must be “minimised” cannot be taken in isolation or literally, because “noise minimisation would mean no noise at all.” Rather, the policy is to be interpreted as minimising noise as far as reasonably practicable. Thus within the Noise Policy Statement itself there is a clear statement that the concept of “minimisation” cannot be taken literally; and that what is meant by the policy is that “all reasonable steps” should be taken to minimise noise. The Noise Policy Statement also makes it clear that considerations of noise do not trump everything else, because it says in terms that the relevant part of the policy does not mean that adverse effects from noise cannot occur. Finally the opening part of NPPF [123] describes the noise policy as an “aim” rather than as a rule (in contrast, for example, to those parts of the NPPF which require decision makers to apply a sequential test to applications for town centre uses).

Whether the imposition of a condition is a “reasonable step” is, in my judgment, one of planning judgment for the planning authority. As the history of this case shows it is a judgment on which reasonable people can disagree. I also consider that whether a step is a reasonable step is a judgment which may take into account both the position of the would-be developer and also the position of those who would be affected by the development. I do not, therefore, consider that NPPF [123] prohibits the decision maker from balancing conflicting considerations. Nor does policy GD 1 (ii). I also consider that policy GD 1 (ii) is an open-textured policy, rather than giving rise to a cut-off point in the way that Ms Clutten suggests. Accordingly, in agreement with the judge I do not see any material difference between NPPF [123] and policy GD 1 (ii) once NPPF [123] is read in the context of the Noise Policy Statement to which it cross-refers. As the judge put it at [48]:

“I do not accept the submission that there is a different emphasis or indeed a practical consequence to considering a proposal against the yard stick of whether adverse impacts from noise are kept to a minimum or the yard stick of whether the noise would have an unreasonable impact on amenity.”

I agree. If, as the committee concluded, the noise was neither unreasonable nor substantial, it is difficult to see what further reasonable steps they were required to consider. In my judgment Ms Clutten’s argument treats the policies with which we are concerned as if they were statutory texts. There are textual differences between the two, to be sure, but in agreement with the judge I consider that they are no more than semantic ones.

In addition as Ms Clutten recognises, the NPPF must be read as a whole. This is made clear by NPPF [6] which says:

“The policies in paragraphs 18 to 219, taken as a whole, constitute the Government’s view of what sustainable development means in practice for the planning system.” (Emphasis added)

Ms Clutten points to NPPF [109] which provides that the planning systems should contribute to and enhance the natural and local environment by, among other things, preventing development from contributing to noise pollution. One might equally point to NPPF [70] and [73] which promote positive planning for sports venues and access to high quality opportunities for sport.

In addition NPPF [12] states that development that accords with an up-to-date Local Plan should be approved unless other material considerations indicate otherwise. This reflects the language of section 38(6) of the Planning and Compulsory Purchase Act 2004. NPPF [14] goes on to emphasise the presumption in favour of sustainable development and says that for decision making this means:

“approving development proposals that accord with the development plan without delay”

In the present case the proposal did accord with the development plan.

We are here dealing with the imposition or removal of a planning condition. Paragraph 206 of the NPPF restates the position that a planning condition should only be imposed where is it “necessary, relevant to planning, enforceable, precise and reasonable in all other respects.” The essence of the planning committee’s reasoning was that the condition did not “solve the problem” and that the noise itself was neither unreasonable nor substantial. In short the committee concluded that the condition “no longer served a useful purpose”. Once the committee had reached that conclusion I find it difficult to see how they could have justified retaining the condition. If it serves no useful purpose, how can it be “necessary”? Whether or not it did in fact serve a useful purpose might well have been highly controversial; but the answer to that question is one of fact or planning judgment. It reveals no error of law. I might also add that no one at the time suggested any alternative condition that might have been imposed.

It was for these reasons that I joined in the decision to dismiss the appeal.

I agree.

I also agree.