Swindon Borough Council v First Secretary of State & Anor

This is an application under s.288 of the Town and Country Planning Act 1990 to quash a decision of an inspector appointed by the First Secretary of State to determine an appeal by Hanson Quarry Products Limited (“Hanson”) against a refusal by Swindon Borough Council (“the council”) to grant planning permission for the change of use of a site in Swindon to a sui generis use as a road rail interchange. By her decision, dated 22 September 2002, the inspector allowed the appeal and granted permission subject to conditions. The council objected to the grant of permission and now challenges the inspector’s decision.

The appeal site lies to the north-east of the Swindon to Gloucester branch railway line at its junction with the London to Bristol main line at Swindon. On the opposite side of the branch railway line is a conservation area known as the Railway Works Conservation Area, including listed buildings occupied by English Heritage and used as the National Monuments Record Centre (“the NMRC”). To the south of the main line is another conservation area, the Village Conservation Area.

The appeal site itself is broadly triangular and has an area of 2.3 hectares. It is part of a larger piece of land owned by Network Rail (formerly Railtrack). It is generally flat and currently vacant apart from casual employee parking on an existing hard standing.

The proposed development relates to the use of the site as a depot for the importation of aggregates by rail and their onward distribution by road. It involves the construction of two railway sidings, a weighbridge, portacabin office and pylons for lighting and dust sprayers (i.e. to damp down dust). There are to be four lighting pylons, each 8 metres high and incorporating a dust sprayer at a height of 6 metres. There are also to be five separate pylons for dust sprayers, each 6 metres high, and further sprayers each of ½ metre in height around the access road. Up to five trains a week will arrive at the site, each of 16 wagons (8 wagons per siding), which will be unloaded by a tracked loader and grab over a period of up to 3 hours. The unloaded aggregate will form stock piles up to 4 metres high and 130 metres in length, running alongside the two sidings. An average of 34 lorries a day will enter the site (with an average of 4 lorry movements an hour) and will be loaded with aggregate by means of a wheeled loading shovel. It will take about 5 minutes to load each lorry. A road sweeping vehicle will operate on the perimeter road as required. This will take about 10 minutes and will occur simultaneously with the loading of lorries.

The council initially refused planning permission for two reasons. On Hanson’s appeal, the council advanced two further grounds of objection on the first day of the public inquiry, which gave rise to a lengthy adjournment of the inquiry. The resulting four grounds of objection were, in summary, (1) that the proposed development was contrary to adopted local plan employment policies SEM21A and SEM38, (2) that it would adversely affect the setting of the Railway Works Conservation Area and adjacent listing buildings, (3) that noise and dust generated by the proposed development would have an unacceptable impact on the amenity of occupiers of the NMRC, and (4) that the proposed development would compromise the long term potential of the area contrary to the Swindon Central Area Strategy (“the SCAS”) and the emerging local plan.

In paragraph 10 of the decision the inspector identified three main issues: (a) the effect of the proposal on the character and appearance of the setting of the adjoining Railway Works Conservation Area and on the setting of the adjoining Grade II listed buildings; (b) the effect of the proposal on the adjoining occupiers of adjacent land and property in terms of noise and dust; and (c) whether the proposal would compromise the council’s policies to provide a variety of employment sites within the central area of the town, including sites suitable for both B2 and B8 uses. The fourth of the council’s grounds of objection was not identified as a main issue but was dealt with in the context of main issue (c).

The inspector dealt with the first main issue at paragraphs 12-23. Her overall conclusion, expressed at paragraph 23, was that the proposal would not cause demonstrable harm to the character or appearance of the setting of the conservation area or the setting of the adjoining listed buildings. Consequently she found no conflict with national or local policy. Various aspects of her reasoning are subject to challenge. I shall consider the relevant passages later.

She dealt with the second main issue at paragraphs 24-43. She referred first to certain policies of the development plan, on which nothing turns. At paragraphs 26-27 she described the adjoining properties:

She went on to contrast and describe the proposed development, concluding in paragraph 29 that “it seems to me that the proposal would have many features in common with industrial uses and surface mineral workings” and that it would be likely to generate both dust and noise.

At paragraphs 30-34 she considered noise. She concluded that external noise levels would not cause undue harm to the quiet concentration required in the NMRC buildings (paragraph 32) and that internal noise levels, although to some extent exceeding reasonable levels, would not be sufficient reason to dismiss the appeal. Her findings on noise are now the primary ground of challenge. It is more convenient to set out the relevant passages of her decision when I come to consider that issue.

At paragraphs 35-42 she considered dust, concluding at paragraph 42 that there was unlikely to be any adverse impact upon the NMRC building from the effects of dust. There is no challenge to that finding. Nor is there any separate challenge to the further finding in paragraph 43, in relation to buildings other than the NMRC, that there would not be likely to be any adverse impact on any of them in respect or noise or dust.

The inspector considered the third main issue at paragraphs 44-58, finding no conflict with policies SEM21A and SEM38. She went on to consider at paragraphs 59-70 the SCAS and the emerging local plan, concluding at paragraph 70 that to grant a temporary planning permission for the appeal proposal would not prejudice the outcome of the plan process and that there was not sufficient evidence to suggest that it would prejudice the achievement of the objectives of the SCAS. This led to her conclusion on the third issue, at paragraph 71, that “until such time as the appeal site becomes surplus to operational railway requirements, the proposed use of the appeal site for a temporary period of 15 years would not compromise the variety of available employment sites within the central area of the town that are suitable for both B2 and B8 uses”. There is a challenge to parts of her reasoning in support of that conclusion, and again it is more convenient to set out detailed passages from her decision when considering that ground of challenge.

After considering the question of conditions and a s.106 undertaking, the inspector went on in paragraphs 74-77 to restate certain of her conclusions on the main issues and to express her overall conclusion that the appeal should be allowed.

In her skeleton argument Miss Robinson summarised her grounds of challenge as follows:

Conservation area: (a) in finding that the development would preserve the character and appearance of the conservation area the inspector failed to have regard to or to address the nature and environmental impact it would have (other than visual appearance); (b) the inspector’s conclusions as to visual impact fail to have regard to the evidence as to the detail of the proposals and their impact; and (c) the inspector’s conclusions as to impact on the conservation area and listed buildings are perverse.

Noise: the inspector failed to have regard to BS4142 or to give any reasons for rejecting this important element of the council’s case.

Land use policy: the inspector acted on no evidence or made a material error of fact when concluding that the grant of a temporary planning permission would not be contrary to policy and failed to take into account the effect of a 15 year permission on adopted local plan policy; (b) when rejecting the council’s case that the proposals would conflict with the SCAS and emerging local plan the inspector took into account irrelevant considerations; and (c) the inspector failed to give adequate or intelligible reasons as to whether the proposal was in accordance or in conflict with adopted local plan policy and, if in conflict, the reasons why.

In her oral submissions Miss Robinson placed the issue of noise at the forefront of her case, and I propose therefore to deal with it first.

The straightforward submission made by Miss Robinson on the issue of noise is that the council relied heavily before the inspector on the guidance in BS4142, yet in her assessment of noise the inspector does not mention BS4142: thus the inspector has either overlooked it or has failed to give reasons for rejecting what was a main plank of the council’s argument on noise.

BS4142 is a British Standard, the scope of which is described as follows in paragraph 1 of the document:

An important feature of the standard, dealt with in paragraph 8, is that certain acoustic features are considered to increase the likelihood of complaint over that expected from a simple comparison between the specific noise level and the background noise level. Where present at the assessment location, such features are taken into account by adding 5dB to the specific noise level to obtain the rating level. The 5dB correction is applied if one or more of the following features occur or are expected to be present: the noise contains a distinguishable, discrete, continuous note (whine, hiss, screech, hum, etc.); the noise contains distinct impulses (bangs, clicks, clatters, or thumps); or the noise is irregular enough to attract attention.

The likelihood of complaints is assessed by subtracting the measured background noise level from the rating level. The greater the difference, the greater the likelihood of complaints. A difference of around +10dB or more indicates that complaints are likely. A difference of around +5dB is of marginal significance.

A noise assessment was provided to the inspector as an appendix to the statement of common ground. It stated that background noise levels were established at the local properties in accordance with BS4142. Under the heading “noise sensitive properties”, it stated that a number of office buildings close to the site required consideration. While they were not as noise sensitive as residential properties they were more sensitive than purely industrial installations. The closest were the BT office to the north of the site and the NMRC to the south. The nearest residential properties were over 300 metres away from the site, with no direct line of sight into the proposed depot area. The average existing background noise level was measured at 48.2dB, whilst the background noise level adjacent to the NMRC was 50.5dB. Predicted noise levels at the NMRC included figures in the range of 54.7dB to 57.8dB for periods when a train was being unloaded by a grab bucket and/or a lorry was being loaded by a loading shovel. (In referring baldly to dB figures without including relevant additional details, e.g. “L_Aeq,1hr”, I am being technically inaccurate, but nothing turns for present purposes on the various technical bases of calculation of background and predicted noise levels respectively, so I propose to adopt a simplified approach.) The conclusion expressed in the assessment was that there would not be a significant impact on any residential properties and that noise levels would have a minor impact on the industrial units surrounding the depot. However, noise levels at the nearby offices (including the NMRC building) would be within 10dB of the average background noise level of 48.2dB.

At the time when that assessment was submitted, there was no issue between the parties on the question of noise. Noise was, however, one of the additional objections advanced by the council at the first hearing before the inspector and this was one of the reasons why the inquiry had to be adjourned. By the date of the adjourned hearing the council and Hanson had each put in separate evidence on noise.

The council’s environmental health officer, Mr Ashmore, referred in his proof of evidence to a number of guidance documents as being of general relevance to the development. Amongst those documents was BS4142, which he described as “a key document for this application”. He explained that it considers whether the noise source proposed is likely to give rise to complaints from persons living in the vicinity and said that, in the light of the fact that no such guidance exists specifically for sensitive office workers, Hanson had been willing to consider the development against the BS4142 parameters. The assessment suggested that predicted levels would be within 10dB of the average existing background noise level. Whilst this was factually accurate, it did not provide the assessment necessary when considering a sensitive receiver such as the NMRC. Mr Ashmore referred to the circumstances in which, on the BS4142 methodology, an additional 5dB had to be added to the predicted noise levels. On that basis, he stated, the predicted noise levels at the NMRC would include figures between 59.7dB and 62.8dB. Since that represented a difference of around +10dB or more compared with the existing background noise level at that location, it provided a positive indication that complaints were likely.

Mr Ashmore also referred to Mineral Planning Guidance Note 11 (MPG11). That document is concerned with noise from surface mineral workings. It states in paragraph 34 that “the Government takes the view that during the working week … the daytime nominal limit at noise-sensitive properties used as dwellings should normally be 55dB … This is roughly equivalent to the noise made by a person talking normally and is generally agreed to be a tolerable noise level; above this level continuous noise could well cause annoyance.” Although the guidance is for dwellings, it is relevant to note that paragraph 11 states:

Mr Ashmore contended that for noise purposes MPG11 was less relevant than BS4142, though the fact that the predicted levels included figures in excess of the 55dB limit suggested in MPG11 should be a further ground for refusal.

Hanson’s noise expert, Mr Peckham, took a materially different view. He stated robustly that “BS4142 is not applicable in this circumstance as the National Monument Record Centre is not a residential building”, and said no more about that document. On the other hand, it was his view that MPG11 could be applied to minerals-related sites such as the proposed development. His background noise survey included figures ranging from 46dB to 53dB outside the NMRC building. As regards additional sources of noise from activities at the appeal site, he identified three stages of operation, namely (i) lorries entering/leaving and being loaded by a loading shovel, (ii) unloading from trains and (iii) a road-sweeper undertaking a cleaning circuit of the perimeter roadway. His predicted noise levels generated by those activities ranged between a minimum of 47dB and a maximum of 58dB outside the NMRC building, the minimum/maximum depending on where on the site the activity was taking place. His conclusion, at paragraph 7.2 of his report, was:

In her closing submissions to the inspector, Miss Robinson (who represented the council at the inquiry as in this court) relied on the noise assessment submitted in support of the application, pointing out inter alia that there had been an acceptance at that time of BS4142 as an appropriate standard for assessing impact on the NMRC, that the figures were not dissimilar to Mr Peckham's later predictions but omitted the 5dB correction factor required by BS 4142, and that it was accepted by Mr Peckham that this correction factor should be added if BS 4142 were applied. On this basis the predicted noise levels would be 9.2dB to 12.3dB higher than the measured background levels, which was a positive indication that complaints were likely. It was accepted that BS4142 was designed to assess the likelihood of complaints from residential premises, but was pointed out that MPG11 and another standard referred to in the evidence (BS8233, relating to internal noise levels) were not directly applicable either. Thus:

In the closing submissions for Hanson it was stated that BS4142 applied to noise levels received by residential dwellings and that Mr Ashmore did not put forward any evidence to support his assertion that the NMRC building was a noise sensitive receptor. The submissions went on:

In the inspector's decision letter the section on noise runs from paragraphs 30-34. In paragraph 30 she first stated that "there is no directly applicable standard for siting a new noisy development next to an existing noise sensitive development". She was unable to place much weight on an unratified consultation paper relating to MPG11. She went on:

She went on in paragraphs 33-34 to consider internal noise levels, concluding that they would exceed "reasonable" levels (as defined in BS8233) in limited parts of the building whenever the road was being swept and for half the time the train was being unloaded, but that "given the limited duration of these activities, the limited locations in which reasonable levels would be exceeded and the limited amount by which they would be exceeded, I do not consider that this would be sufficient reason to dismiss the appeal."

It is striking that the inspector made no mention at all of BS4142.

Mr Karas for the Secretary of State, supported by Mr Jones for Hanson, submitted that the inspector plainly accepted Mr Peckham's evidence as to the inapplicability of BS4142 and concluded that it was either irrelevant or of no weight because it applied to residential properties and, as she found at paragraph 26, there were no residential properties near the appeal site. Mr Jones went so far as to submit that there was no evidential basis upon which the inspector could rationally have placed any weight on BS4142.

In my judgment those submissions do not face up to the way in which the council's case on noise was advanced before the inspector. The case was that neither BS4142 nor MPG11 was directly applicable but that each could and should inform the judgment to be made by the inspector in relation to the proposed development. That was a very clear contention and there was a perfectly rational basis for it. The figures in each document related to residential properties or dwellings but were capable in principle of providing a point of reference for other noise-sensitive properties: paragraph 11 of MPG11 made that clear and there was no obvious reason why the same should not also be true of BS4142. Thus, the fact that there were no residential properties near the appeal site was far from an end of the matter. Further, although BS4142 was concerned with industrial sources of noise and MPG11 with noise from surface mineral workings, there was no obvious reason why this should make only the latter and not the former relevant to the proposal: at paragraph 29 the inspector found that "the proposal would have many features in common with industrial uses and surface mineral workings". If, therefore, MPG11 provided a useful point of reference, as the inspector plainly thought it did, it is by no means self-evident why the same was not also true of BS4142. BS4142 cannot simply be dismissed as obviously irrelevant or lacking in weight.

In those circumstances the inspector's omission of any reference, whether explicit or implicit, to BS4142 is a real puzzle, especially as she mentions all the other main documents advanced by either party as containing relevant guidance. I am driven to the conclusion that she must have fallen into error in one or other of the ways for which Miss Robinson contends. Either she failed to take BS4142 into consideration in reaching her conclusions on the issue of noise or, having considered and concluded that it was irrelevant or of no weight, she failed to set out that conclusion or to give reasons for reaching it and for rejecting the council's case to the contrary.

It would certainly be surprising if the inspector failed to take BS4142 into consideration, given its prominence in the council's case on noise. It must, however, be possible that she did so. If she did, then plainly it amounted to a failure to take into account a material consideration.

As to reasons, there was no dispute before me concerning the applicable legal principles. It was common ground that an inspector has a duty to give reasons and that such reasons must be proper, adequate and intelligible and deal with the substantial points that have been raised (Re Poyser & Mills Arbitration[1964] 2 QB 467 at 478) or, as it was put in Hope v. Secretary of State for the Environment (1975) 31 P&CR 120 at 123 (and approved in Bolton Metropolitan District Council v. Secretary of State for the Environment (1996) 71 P&CR 309 at 313), they must enable the reader to understand on what grounds the appeal has been decided and be in sufficient detail to enable him to know what conclusions the inspector has reached on the principal important controversial issues. It was also common ground that the adequacy of reasons must be assessed from the point of view of parties who are well aware of the issues and of the arguments deployed in relation to them.

The significance of the guidance in BS4142 was on any view one of the substantial points raised and one of the principal important controversial issues. It was at the centre of the argument on noise, and the impact of noise and dust was one of the four grounds of objection to the development. Accordingly, it was incumbent on the inspector to explain what conclusion she had reached on the council's case concerning BS4142 and, if she rejected that case, the basis upon which she rejected it. Yet she did not begin to do so, let alone do so in terms that were adequate and intelligible. What makes the deficiency all the more notable is that the general thrust of her reasoning on MPG11 appears on the face of it to be equally applicable to BS4142, subject to the important proviso that BS4142 recommends the addition of 5dB to predicted levels to reflect certain kinds of noise source.

In my judgment the council has been substantially prejudiced by the deficiency of reasons. It leaves a substantial doubt as to whether the inspector did take BS4142 into consideration at all and, if she did, as to whether she reached a rational view on its value or lack of it. That falls into the first of the categories of prejudice considered by Lord Bridge in Save Britain’s Heritage v. Number 1 Poultry[1991] 1 WLR 153 and 167C-H. It may also, as Miss Robinson submitted, fall into the third category, in that the deficiency leaves the council uncertain as to how to approach BS4142 in the future, e.g. in relation to the 58dB boundary condition.

Nor can it be said that proper consideration of BS4142 was incapable of making a difference to the result. The inspector's conclusions on noise were expressed in terms of degree: the noise levels would not cause "undue harm" to the quiet concentration required in the NMRC building (paragraph 32) and the limited excess over reasonable noise limits inside the building would not be "sufficient reason" to dismiss the appeal (paragraph 34). If the assessment had been informed by the more stringent standard laid down in BS4142, i.e. the addition of 5dB to predicted noise levels in certain circumstances, the conclusion might possibly have been different. It cannot be put higher than that, but that is enough to make it inappropriate for the court to withhold relief in the exercise of its discretion.

I should make clear that the absence of any technical criticism of what the inspector actually said does not help the defendants' case. The point is not that what she said about MPG11 is wrong, but that proper consideration of BS4142 as an additional input into her assessment could have resulted in a different conclusion.

For those reasons the claimant's challenge to the inspector's conclusion on noise succeeds.

In order to explain the council's challenge to the inspector's findings on the conservation area issue, it is necessary to deal more fully with the relevant part of the decision. After referring in paragraph 12 to relevant policies and describing in paragraphs 13-14 the appeal site and views of the site, the inspector went on to describe the Railway Works Conservation Area and its setting:

Then, in paragraph 20, she set out her finding that the proposed development would not have an adverse effect on the character and appearance of the area:

In paragraphs 21 and 22 she dealt with specific issues raised by the council with regard to the proposed boundary fence and the appearance of the site:

This led to her overall conclusion, at paragraph 23:

The council's challenge to that conclusion has three main elements to it. First, Miss Robinson submits that the inspector failed to deal with the effect that the use of the appeal site would have on the character and appearance of the conservation area. It was an important part of the council's case that the proposed development would involve a minerals use which was both historically inappropriate and inappropriate when compared with the present uses of the area and which, having regard both to the storage of aggregates and to the noise and dust that activities on site would generate, would harm the setting of the area. Yet the inspector did not address those matters.

Secondly, there is specific criticism of the inspector's finding in paragraph 21 concerning graffiti. It is submitted that the inspector failed to have regard to the council's evidence that similar structures along railway lines to which there was no legal public access attracted graffiti, and that it was irrational for her to conclude that the absence of a legal right of access would make it unlikely that the fence would attract graffiti.

Thirdly, criticism is directed towards the inspector's findings in paragraph 22 that the proposed lighting pylons and dust sprayers would have a utilitarian appearance which "would be little different from the lighting standards that are on site at present" and that the proposal "would improve the current appearance of the site". It is submitted that the former finding fails to take into account the number and location of the proposed pylons, which would be far more numerous and obvious than the lighting standards (if any) on site at present. It is submitted that the latter finding fails to have regard to the evidence as to the totality of the structures and activities which the proposed development would involve and that it defies common sense and is beyond the range of responses open to a reasonable decision-maker.

I am not persuaded by any of those submissions. Although the case was skilfully presented by Miss Robinson in terms of failure to take relevant matters into account or the making of irrational findings, in substance it came very close to an impermissible attempt to rerun arguments on the merits. It is also important to bear in mind that all the matters here in issue relate to areas of judgment which it is particularly difficult to challenge on grounds of irrationality, especially given that the inspector's judgment will have been informed by a site inspection as well as by consideration of all the evidence and submissions: see e.g. per Sullivan J in Newsmith Stainless Ltd v. Secretary of State for the Environment, Transport and the Regions[2001] EWHC Admin 74 at paras 7-8 and in JC Decaux Ltd v. First Secretary of State[2003] EWHC 407 Admin at paras 28-29. Although I was shown a number of photographs of the site, they were obviously nowhere near equivalent to a site inspection and could not give the court anything like the same impression of the site or of how it might be expected to affect the surrounding area. Nor do I have the inspector's advantage of having heard all the evidence in the case.

As to the first element of the challenge, it is plain from the decision letter as a whole that the inspector was fully aware of the nature of the proposed use of the appeal site, including the storage of minerals, the various unloading and loading activities and the resulting noise and dust. In my judgment she must have had such matters in mind when reaching her conclusion in paragraph 20 that the use would be historically appropriate and that its scale and relatively open character would preserve the character and appearance of the area. Although she evidently attached weight, as she was entitled to do, to the fact the proposed use was "rail-related", there is no reason to believe that she was excluding any other aspect of the proposed use from consideration. Her conclusion that the proposed use would be historically appropriate took into account the changes to the character of the conservation area. She acknowledged those changes in the opening part of paragraph 20 as well as in the preceding paragraphs, but clearly regarded the railway history and setting as of continuing importance, as again she was entitled to do. Her conclusion that the scale and relatively open character of the proposed use would preserve the character and appearance of the area is a further indication that she had the nature of the proposed use well in mind. It was not necessary for her to comment specifically on noise and dust, which in this context had received the briefest of mentions in the council's evidence and submissions.

The inspector's conclusion that there was no reason why the proposed fence should attract graffiti is surprising, given the marked presence of graffiti on at least one of the nearby buildings that can be seen in the photographs and the generally widespread appearance of graffiti alongside urban railway lines in places not readily accessible to the public. I think it clear, however, that she took into account what the council was saying on the subject; and I am not satisfied that her conclusion, reached as it was with the benefit of what she learned on her site inspection about the location of existing structures covered in graffiti, was irrational. In any event this was only a relatively minor aspect of the council's case and, even if she erred in relation to it, there is no real possibility that a different conclusion concerning graffiti would have altered her overall conclusion that the development would not cause harm to the character or appearance of the setting of the conservation area.

In referring to the proposed lighting pylons and dust sprayers, in my view the inspector plainly had in mind the proposed number and locations of such structures, as well as their shape and size. I see no basis for the contention that she failed to take any of those matters into consideration. It is true that, so far as one can tell from the photographs, there are no lighting standards in the middle of the existing site. A late witness statement for Hanson explains, however, that the inspector’s attention was drawn to the one pylon on the site and to lighting pylons along the edge of the footpath, some of which appear in the photographs. I think it clear what type of structure the inspector had in mind when she stated that the proposed pylons and sprayers would have a "utilitarian appearance" little different from that of the existing lighting standards. She was not saying that they would be similar in number and locations to the existing standards but that, because of their similarly utilitarian appearance, she did not consider that they would have a harmful effect. That was a judgment reasonably open to her.

As to her finding that the proposed development would improve the current appearance of the site, again I see no basis for the contention that she failed to take into account the totality of the relevant evidence. This was a judgment based on an overall assessment of the evidence and it cannot possibly be impugned as irrational. A judgment of that kind is a classic example of a judgment with which the court will be very slow indeed to interfere.

I therefore reject the claimant’s challenge to the inspector’s findings on the conservation area issue.

The first set of submissions under this general heading relates to the way in which the inspector dealt with issues relating to local plan policies SEM21A and SEM38. Policy SEM21A provides that the site “will be allocated for employment development within classes B2 [industrial uses] and B8 [storage and distribution uses] on becoming surplus to operational railway requirements. Proposals for the reuse or redevelopment of the site and buildings will have regard to opportunities to retain and make use of the existing rail link ….” Policy SEM38 provides that “developments for purposes falling within classes A, C and D … will not be permitted on land identified for employment development within class B unless they are directly ancillary to the business of an intending class B occupier of the site. Similarly on industrial estates and business parks changes of use involving a loss of land or floorspace from employment use will not be permitted unless they are directly ancillary to the business of an existing or intending class B occupier of the site”.

The council’s case was that the site was already surplus to operational requirements and that the development, not being for a class B2 or B8 use, was therefore contrary to policy SEM21A; alternatively, that the site could become surplus to operational requirements in the future and that the objectives of policy SEM21A would be frustrated if a permanent permission were granted for a use other than a class B2 or B8 use. Similarly the development was contrary to the objectives of policy SEM38 in that it would result in the loss to a non-employment use of a site identified as having a potential for employment uses.

The inspector described the relevant policies and their background at paragraphs 44-49. In paragraph 50 she dealt with the status of the site as operational land which had not been formally disposed of or released for disposal, and pointed out that Railtrack had not declared it as surplus to its longer term operational requirements. In paragraph 51 she effectively accepted the thrust of the point made by the council in relation to policy SEM21A, stating that since the site had not yet been declared surplus to operational railway requirements, it would not be appropriate to grant planning permission for a permanent change of use, in particular for a use which would fall outside classes B2 and B8 and would thereby be contrary to policy SEM21A. She went on, however, as follows:

In paragraphs 55-57 she further concluded that the proposed development would be operationally and economically viable over a 15 year period, would be exceptionally advantageous environmentally (subject to satisfactory mitigation measures) and would therefore be consistent with the type of development particularly encouraged by policy SEM21A.

In paragraph 58 she dealt with the application of policy SEM38:

She came back to some of these points in her overall conclusions in paragraphs 74-77, noting in paragraph 74 that a temporary use would not compromise the objective of the adopted development plan, and observing in paragraph 75 that the appeal site was not yet surplus to operational railway requirements and was therefore not available for long term redevelopment and could not be counted for the purposes of employment allocation.

Miss Robinson’s main criticism of those findings concerns the inspector’s conclusion that the grant of temporary planning permission would not be contrary to policy SEM21A. That conclusion, she submits, is founded in part on the assumption that if the land became surplus to operational railway requirements it would become available for redevelopment in accordance with policy SEM21A. That assumption, however, is erroneous, since the very grant of a temporary planning permission will prevent the land becoming available for redevelopment if it becomes surplus to operational railway requirements at any point prior to the expiry of the temporary permission, there being no provision for termination of the lease on the ground that the land has become surplus to operational railway requirements. If, for example, the land became surplus to operational railway requirements after 5 years, it would not be a ground for termination of the lease and the land would not become available for redevelopment during the remaining 10 years of the lease. Yet throughout that 10 year period policy SEM21A would apply and the use permitted by the temporary permission would be in conflict with it.

The point made is a very narrow one and the passage criticised must be viewed in context. The inspector was right to proceed on the basis that policy SEM21A did not apply in terms to the proposed development but that a permanent permission for a use other than a class B2 or B8 use would in that respect conflict with the objective of the policy (though in other respects the proposed development would be consistent with the type of development particularly encouraged by the policy). It was legitimate in those circumstances to consider the alternative of a temporary permission. The council's case is directed essentially to the reasoning in the middle of paragraph 54 in support of a 15 year temporary permission, in particular these two sentences: "I note first, that the planning circumstances are expected to change at some point in the future when Railtrack requires the land for its own purposes. Or, in the alternative, if it became surplus to operational railway requirements, it would become available for re-development." In considering what the inspector meant by the alternative to which she referred, it is important to bear in mind the relevant evidence.

As appears fom the closing submissions at the inquiry by counsel for the Strategic Rail Authority, it was common ground that Railtrack had said that it continued to hold the land for long-term operational requirements (and it is not in dispute that, if Railtrack wanted the land for its own operational requirements, it could terminate the lease for that purpose on 6 months’ notice). Further, the consent of the Rail Regulator would be required for the disposal of operational land. The inspector referred to some of these matters in paragraphs 50 and 52 (see also e.g. the first sentence of paragraph 67) and would appear to have had them at the forefront of her mind. There was moreover no evidence that the land was likely to be declared surplus to operational railway requirements in the short to medium term or even in the long term.

Against that evidential background and looking at the decision letter as a whole, my reading of the relevant passage is that the inspector proceeded, as in my view she was reasonably entitled to proceed, on the basis that the land might be recovered by Railtrack for its own operational purposes during the period of a 15 year temporary permission, but that there was no real prospect of the land being declared surplus to operational railway requirements during that period. Thus the reference in paragraph 54 to the alternative possibility of the land becoming surplus to operational railway requirements was a reference to the position in the long term, after the expiry of the temporary permission; and if that happened after the expiry of the planning permission, so that land become available only then for redevelopment, it could be dealt with in accordance with policy SEM21A. On that basis there was no error of reasoning on the part of the inspector and she was entitled to conclude that the grant of a 15 year temporary permission would not be in conflict with the policy.

If, contrary to the view I have taken, the inspector considered that there was a real prospect of the land becoming surplus to operational railway requirements before the expiry of the 15 year temporary permission, then I accept that her reasoning was subject to the problem identified by Miss Robinson, since in those circumstances a continuation of the use permitted by the planning permission would be in conflict with policy SEM21A yet the lease contained no relevant provision for early termination. As a matter of discretion, however, I would not be disposed to quash the decision on this ground alone. The point raised was not one advanced by the council at the inquiry. It is true that the evidence at the inquiry was addressed to the issue of a permanent permission and that the question of a temporary permission was raised only at a late stage by the inspector herself, during the discussion of possible conditions prior to closing submissions. It is understandable that the matter was then dealt with only briefly by counsel. It did, however, remain open to counsel to seek an adjournment or to come back to the point in closing submissions if it was thought to raise substantial additional issues. The absence of any provision for early termination of the lease in the event of the land becoming surplus to operational railway requirements was a point that, if relevant, could and should have been made to the inspector. Although the omission to raise it does not preclude a challenge to the inspector’s decision, it weighs heavily against an exercise of discretion in the council’s favour, and if the point stood alone there would not in my view be a sufficient justification for requiring the decision-making process to be gone through afresh. (The fact that the point was not raised at the time may of course be attributable to its having been of no significance because, in accordance with my primary finding, there was no real prospect on the evidence of the land becoming surplus to operational railway requirements at an earlier stage.)

Miss Robinson contends that the inspector made the same error of approach in relation to policy SEM38. But what I have said about policy SEM21A applies equally to policy SEM38 and it is unnecessary to deal separately with the issue.

A further point made by Miss Robinson is that, in concluding that the grant of temporary planning permission would be acceptable and would not conflict with the adopted local plan, the inspector failed to have regard to the fact that the adopted local plan was in the process of review and would be superseded long before the expiry of the 15 year temporary permission. It does not seem to me that the point gets anywhere. The inspector looked both at the adopted local plan, which had the potential of applying throughout the period she was considering, and at the SCAS and emerging local plan which had the potential to replace it. I see no material difficulty in her reasoning with regard to the adopted local plan beyond the matter with which I have already dealt. Her reasoning with regard to the SCAS and emerging local plan gives rise to separate issues to which I turn next.

The significance of the SCAS and emerging local plan are explained as follows in paragraphs 59-61 of the decision:

In paragraph 61 the inspector expressed, in effect, the view that the proposed development need not be in conflict with the SCAS or emerging local plan:

She then set out a number of additional considerations, the third and fourth of which are of particular relevance:

After setting out those and other considerations, the inspector reached her conclusion on this aspect of the case:

In paragraph 71 she then expressed her conclusion on the third main issue, namely that “until such time as the appeal site becomes surplus to operational railway requirements, the proposed use of the appeal site for a temporary period of 15 years would not compromise the variety of available employment sites within the central area of the town that are suitable for both B2 and B8 uses”.

It is also necessary to set out the inspector’s overall conclusions, at paragraphs 74-76, since they too are referred to in Miss Robinson’s submissions on this issue:

In relation to the inspector’s findings on the SCAS and the emerging local plan, Miss Robinson first criticises the inspector’s reliance on a conflict between the adopted local plan and the emerging policy (see the last sentences of paragraphs 64 and 74). It is submitted that the point was simply irrelevant.

I reject the submission. In considering the SCAS and the emerging local plan, the inspector was entitled to take into account the extent to which they might be subject to amendment, and the existence of a conflict between the adopted plan and the emerging policy was a relevant factor in her assessment of that question (a point to which she refers in paragraph 69). In any event I do not see how the point advanced could assist the council in circumstances where the inspector did not accord much weight either to the SCAS or to the emerging local plan (see paragraphs 59, 61, 69 and 75) and found that the proposed development would not compromise the achievement of the objectives of the SCAS (paragraphs 62, 70 and 74).

The next point made is a criticism of the inspector’s observation in paragraph 65 that “if the proposal would result in noise levels of 58dB(A) at the southern site boundary, it seems likely that the noise levels would be similar at the eastern boundary”. It is submitted that the inspector is in error, since there is no evidence that the noise levels at the two boundaries would be the same and, as the eastern boundary will be much closer than the southern boundary to the source of noise, common sense suggests that the noise level at the eastern boundary will be in excess of the figure at the southern boundary.

Again, I do not accept that criticism. The inspector’s observation must be seen in context. She says earlier in the paragraph that, in the absence of a masterplan showing where residential development would be located, it is difficult to foresee how the proposal would be likely to cause harm to future neighbouring developments. She goes on to consider in particular the effect on the proposed urban park to the east of the site, referring first to the suggested 65dB limit in MPG11 for noise affecting open spaces. In that context what she says about noise levels at the southern boundary is plainly not intended to be a precise figure. That is also shown by the very language she uses (“it seems likely”, “similar”). The underlying point is that there is unlikely to be noise in excess of 65dB affecting the urban park and that the proposed development would therefore not be likely to harm future users of the urban park. I see nothing wrong with her reasoning or with her conclusion.

Miss Robinson submits finally that the wording of the overall conclusions in paragraphs 74-76 suggests that the inspector considered there to be a conflict between the proposed development and the adopted local plan, whereas the inspector had previously found that there would be no conflict with the adopted local plan. This, it is submitted, betrays a confusion of thought and/or a failure to give adequate and intelligible reasons for her decision. For my part, however, I see nothing in paragraphs 74-76 to indicate any confusion on the inspector’s part or any departure from the conclusions she has previously expressed on the absence of conflict between the proposed development and the adopted local plan in the event of a 15 year temporary permission being granted.

For all those reasons I reject the various grounds of challenge advanced by the council under the general heading of land use policy.

In the event I have found in the council’s favour in relation to only one out of the three broad areas of challenge, namely the case on noise. As explained above, however, I take the view that the decision is sufficiently flawed on the issue of noise that it cannot stand. For that reason alone I will order that the decision be quashed and the matter be remitted to the Secretary of State for reconsideration.