May v Rother District Council

On 17 July 2001 Ticehurst Parish Council (the First Interested Party) were granted planning permission for the erection of an all weather playing area of a type known as a Multiple Use Games Area (“the MUGA”). The committee report which recommended the grant of planning permission for that facility included observations from the planning officers expressing his concern about the likelihood of nuisance and disturbance arising from noise and activity associated with its use and, whilst he supported it in principle, wished to give consideration to its relocation. The Claimant objected to this application on the basis of its potential noise impact upon her home and garden. She lives a relatively short distance to the south of the site. The officers’ recommended reconsideration of the MUGA’s location does not appear to have occurred and following the grant of planning permission at some point in 2005 the facility was constructed.

In 2006 the Beatrice Drewe Trust (the Second Interested Party in this case), applied for planning permission for an increase in the height of the mesh fence around the MUGA, basketball hoops and the siting of a youth shelter. The committee report in respect of that application noted that there had been complaints in relation to noise generated by the use of the MUGA and following an initial committee meeting the matter was deferred in order for further advice to be obtained from the Environmental Health Officer (“the EHO”). The Claimant again objected on the basis of the noise impact that the use of the facility was causing.

The EHO reported back through a consultation response reported in a subsequent committee report indicating that his opinion was that the hours of use of the MUGA should be constrained in order to seek to address these complaints. In the officer’s observations it is noted that the EHO had advised that the additional facilities contained within the planning application had the potential to increase noise levels and that it would be necessary to mitigate the duration of the noise by restricting the use of the facility during the late evening or night time. As a result, a condition was imposed when planning permission was granted in 2006 as follows:

“2.

The Multi-Use Games Court shall not be used other than between the hours of 9 and sunset or 20:30, which ever occurred first. Within one month from the date of this permission, unless otherwise agreed in writing, specific proposals for the management of the facility to prevent use outside these hours, together with a timetable for implementing proposals shall be submitted for the consideration and agreement of the local planning authority.”

Reasons were provided for the imposition of the condition which included the need to comply with Policy GD1 of the Rother District Local Plan. So far as is relevant to these proceedings, the provisions of Policy GD1 are as follows:

“Policy GD1 all developments should meet the following criteria: … (ii) it is in keeping with and does not unreasonably harm the amenities of adjoining properties.”

Although I was referred to a more recent policy which was in force and referred to in subsequent decisions, which appears in a Proposed Submission Core Strategy at Policy OSS5, there is no material difference in the relevant text of that policy which also refers to development “not unreasonably harming the amenities of adjoining properties”.

It appears that there were breaches of this condition and in 2007 a Planning Contravention Notice was served on the operators of the recreation ground. As a result, this prompted an application in 2007 for the removal of condition 2. A committee report was prepared in respect of the application and the EHO in his consultation response advised that there was no need to remove the condition which sought to reduce the noise impact of the MUGA. The Director of Services-Amenities, also in a consultation response, noted an ongoing problem of alleged disturbance to residents of an adjacent property (the Claimant’s home) which might be exacerbated. The Claimant was again an objector to this application.

In the committee report the officers noted the advice of the EHO whose role was to provide technical advice on noise related matters and asked members to consider whether there had been any change in circumstances since the previous application had been approved so as to render the condition unnecessary. Their recommendation was that planning permission should be refused. That was a recommendation which was endorsed by the planning committee who refused planning permission for a single reason related to the concern that the condition was required to mitigate against potential noise impact resulting from the use of the MUGA that might otherwise occur at antisocial times, disturbing the residential amenity of neighbouring dwellings. The members reason for refusal also noted the absence of any material change in circumstances justifying the removal of the condition.

There was an appeal against that refusal which was considered by means of the written representations procedure and, following a site visit on 24 June 2008, the inspector issued a decision on 27 June 2008. The appeal was dismissed. In the inspector’s reasons for rejecting the appeal he concluded as follows:

“6.

Orchard Cottage is set back from the main road and is accessed by a narrow driveway and the distance between the garden and the road, combined with intervening buildings, results in low levels of background noise. The grounds of the Cottage include a large pond and a wooded area within a deep depression next to the recreation ground. The more formal garden area of the Cottage is at a higher level and is further from the recreation ground. The three metre acoustic fence appeared to be of a high quality but it is positioned some distance from the source of the sound which I consider would make it less effective in reducing noise levels as perceived from the properties to the south. At the site visit I was able to hear the sound of a ball being bounced on the court and on the basis of what I have read and what I saw and heard I have no reason to doubt that the use of the court area would be likely to result in noise that would be audible from Orchard Cottage. In my view this would take the form both of impact noise generated by ball games on the court and by noise arising from the high spirits of those using the court.

7.

I consider that the double glazed windows of the Cottage would be likely to prevent the noise from being excessive from within the house, but in the warmer evenings when the occupiers could reasonably expect to use their garden and have their windows open the repetitive impact noises and the general noise of activity from within the court area would be unacceptable. I consider it likely that the noise would also be experienced by the occupiers of the new house being constructed on the site of Orchard Farm which would be closer to the court and as far as I am aware would not have the benefit of an acoustic fence.

8.

I share the view of supporters of the proposal that sport and physical recreation should be encouraged and to this end the games court represents a valuable local facility. However the use of the court must be balanced against the effects of its use on nearby residents. Compliance with the condition does not prevent the court from being used during the daytime or before the times indicated and the condition does not prevent the use of the other facilities in the recreation ground. The absence of a cut off time would enable the court to be used at anytime during the summer months, when nearby residents are most likely to be using their gardens, this could continue to 22:00 or later. In my view the absence of a condition controlling the hours of use will be likely to result in unacceptable disturbance that would conflict with the guiding criteria of the Structure Plan and specifically with Policy GD1(ii) of the Rother District Local Plan 2006 that indicates that developments should not unreasonably harm the amenities of adjoining properties.”

In 2008 a retrospective application for planning permission for a basketball post and skate area equipment including ramps was made to the council. The application was necessary because whilst the principle of the skate area had been approved and it had been assumed that would include the equipment within it, subsequently the Defendant did not accept this assumption, and had requested an application for retrospective planning permission for the equipment which had been installed in 2005 at the time when the facility was established.

Consultations occurred in relation to this application and a committee report was prepared. The EHO noted that complaints had been received in relation to the use of the MUGA albeit they had not been substantiated. As the proposal had the potential to increase noise generated from the site, it was recommended that the condition as to hours of use should again be imposed. In the officers analysis they observed that complaints in relation to the use of the facility had been investigated and that it had been determined that there was not a statutory nuisance. Concern was expressed by the officers in relation to whether or not the imposition of a condition of the kind sought by the EHO would pass the test of necessity, and also whether or not such a condition could be enforced. It appears that further advice was sought from the council’s legal advisers and, as a result of that, when the item returned to the committee a recommendation was made that planning permission should be granted and that the consent should include an hours of use condition. Indeed when planning permission was granted on 19 June 2008 the first condition of that consent was in like terms to the condition which I have set out above.

Following this, on 22 January 2009, a report was taken to the committee in relation to observed breaches of the hours of use condition which had occurred. The officer’s advice was that although the breaches had not involved the use of the MUGA for a significant period after sunset, nevertheless the officer was concerned that if the situation were allowed to continue, it would become much worse in the summer months when evenings were lighter and previous breaches had been reported of use after 20:30. Thus the members were advised that a breach of condition notice ought to be served. On 20 April 2009 the defendant served a breach of condition notice on the Beatrice Drewe Trust relating to breaches of the hours of use conditions.

This enforcement activity no doubt prompted the Beatrice Drewe Trust to apply on 12 February 2009 for an alteration in the terms of the hours of use condition. They wished that the condition be amended so as to provide for a single start and finish time at all times of the year, namely 09:00 to 20:30. They considered that this would be easier to manage and enforce and eliminate any confusion as to when sunset had actually occurred and therefore when the condition was being breached.

Again, consultation occurred and a committee report was prepared. Once again, the EHO raised concerns in relation to the increase in the hours of use giving rise to noise impact on residents. In the officer’s analysis reference was made to the previous inspector’s conclusions and the officer went on to consider whether or not there was justification for precluding the use of the facility between sunset and 20:30, since if it were daylight, the use would be permissible. On this basis the recommendation was that planning permission should be granted. Notwithstanding this, it appears from the minutes of that meeting that the EHO identified concerns, in particular in relation to noise after dark, and whilst noting that noise impact could be disturbing whether it was light or dark, the advice the EHO provided was the impact might be greater at night. Members are noted in the minutes as holding the view that the increase in permitted times for the use of the MUGA could potentially result in noise and disturbance and, therefore, they refused permission.

In 2011 a further application was made to remove the hours of use condition altogether. That was considered at a planning committee meeting of 26 May 2011 which was assisted by the preparation of another committee report following internal and public consultation. The EHO again supported the retention of the condition and the refusal of the application on the basis that although there was not a statutory noise nuisance as a result of the use of the MUGA, the noise was nevertheless audible in neighbouring residential properties and had an effect on their amenity which could only be limited by the hours of use condition.

Officers in their appraisal of the application advised that planning permission should only be given if there had been a material change in circumstances which would justify doing so in the light of the planning history which I have set out above including, in particular, the observations of the inspector at the appeal which was set out in some detail in the committee report. The views of the officers were that permission should be refused.

To assist in considering this application members of the planning committee inspected the site and experienced a demonstration of the use of the MUGA. The decision which they reached in relation to the application was that permission should be granted but on a temporary basis. They therefore granted the application for the removal of the hours of use conditions on the extant consents governing the use of the MUGA for a temporary period of one year. In doing so they provided reasons for their grant of permission as follows:

“Members inspected the site and carried out an assessment of the noise levels while the court was in use. It was considered that changes had been made since the inspector’s decision in 2008 in that skateboard equipment had been relocated, CCTV equipment was to be installed and that sound insulation material had been attached to the backboard of the basketball hoops. It was noted that there was significant support in the village for making fully use of the facility that had been provided. Members took the view that during the test the noise levels were considered acceptable and would not unreasonably harm the amenities of the adjacent properties and would be in accordance with Police GD1(ii) of the Rother District Local Plan. A trial period of one year without hours of use condition was appropriate to test whether the measures put in place were sufficient to safeguard the amenities of Orchard House and Orchard Cottage.”

In addition to lifting the hours of use condition for a temporary period of one year the decision also included a requirement to install a CCTV system at the MUGA and retain recordings so as to enable monitoring of the use of the MUGA.

On 22^nd June 2012 Ticehurst Parish Council applied again for the removal of the condition. There was, again, public consultation and the preparation of an officer’s report. In the light of the submissions which were made it is important to set out the EHO’s consultation dated 2 October 2012 in some detail. In that consultation response it is noted that the CCTV was not installed in time to allow a full year of monitoring. The EHO observes that as a result of this the records may not present a complete picture. Analysis is presented of the CCTV coverage which records 14 occasions from 19 November 2011 to 28 July 2012 when the use occurred after 8.30pm or sunset. The EHO’s conclusions were as follows

“It is alleged that disturbances caused during normal day time hours, not just after 8.30pm or sunset (whichever is the earlier). Previous comments made by the Environmental Health Service still remain valid in that restricting the hours is the only main option for controlling noise of this type.

Use outside the previously permitted hours had generally been by about 30 minutes, but there are 2 instances of well over that – 1 hour 32 minutes and 1 hour 46 minutes.

The digital audio tape (DAT) recorder was installed on 29 August 2012 and was collected on 10 September. Recordings were made on Friday 31 August, Saturday 1 September, Sunday 2 September, Thursday 6 September, Saturday 8 September and Sunday 9 September 2012. After listening to the recordings I can confirm that activity at the MUGA is audible inside and outside the building, shouting, use of a whistle, ball bouncing and clapping are the main sounds from the MUGA. The noise from the MUGA correlates to the CCTV coverage which shows the MUGA in use at the dates and times of the recordings. The use of the MUGA during the time of the DAT recorder use did not go beyond 8.30pm but 3 occasions (Saturday 1, Saturday 8 and Sunday 9 September) activity occurred after sunset.

Regarding recommendation(s) from the Environmental Health Service, I believe that permission should be refused – as stated in 2011. The reported instances, borne out by viewing of the CCTV footage, shows that the MUGA has been used after the previously permitted closing hours. The near neighbours subjective response to the MUGA’s use is borne out by the DAT recordings. Any control concerning loss of amenity can only be achieved by restricting the hours of use. Based on the above I recommend that the application be refused.”

The Claimant made strong objections to the application and provided in support of her objection an experts report from the English Cogger Partnership dated 11 May 2011 (which I assume was initially produced for the purpose of the earlier application which led to the grant of the temporary permission).

The officer’s report contains these concerns and objections alongside representations which were made in support of the removal of the condition. Within the officer’s appraisal it is noted that the previous inspector’s decision is a material consideration. It is also noted that two of the residential properties close to the MUGA had maintained that they did not experience any noise nuisance from the use of it. The officer’s report pointed out that the EHO had analysed the evidence from the CCTV and the DAT recording and the officer’s advice is encapsulated in the following paragraph from the committee report:

“6.10

Members should be mindful of the appeal decision in the consideration of the new application. Similarly, they will wish to give consideration to all material factors – including the demonstration of the use of the MUGA that they were able to witness last year, and also the views of the Environmental Health Service that had been received on the new planning application. In respect of the principal issue, the advice of the Environmental Health Service has to carry significant weight in the determination of the new application. In this regard the recommendation accords with the position taken by the planning inspector and sets out that on the basis of the information available the condition is still necessary as being the only means of limiting the noise impact on neighbouring residential properties.”

The minutes of the planning committee meeting of 18 October 2012 which considered the application and material which I have set out above record the following in relation to the member’s debate:

“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.”

As a result members resolved to grant permission. In doing so they provided reasons for granting the planning permission as follows:

“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 mug 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.”

As a result of this resolution on 18 October 2012 planning permission was granted and the hours of use condition was removed. It is that decision which is the subject of these proceedings.

In the course of these proceedings the Defendant submitted a witness statement from Susan Prochak who is a member of the Defendant council and furthermore a member of the Planning Committee. In the witness statement she offers evidence in relation to the deliberations of the committee, how the reason for granting consent should be interpreted, and what she (and she believes the other members of the committee) took into account in reaching their decision. Whilst I have no doubt that in some cases material of this kind my be appropriate I have not found it helpful in this case and have reached my conclusions on the basis of the public record of decisions set out above.

As Miss Clutten correctly observes in her Skeleton Argument there are no novel or controversial propositions of law in play in the present case. A planning application of this kind falls to be determined applying section 38(6) of the Planning and Compulsory Purchase act 2004 which requires applications for planning permission to be determined in accordance with the development plan unless material considerations indicate otherwise. In making their decision and being faithful to that duty decision makers need to proceed on a proper understanding of the development plan and other planning policies that might amount to other material considerations (see EC Gransden and Co Limited v Secretary of State for the Environment [1987] 54 PNCR86). The meaning of the planning policies which they need to have a proper understanding of in order to carry out that duty is a matter of law for the court to determine (see Tesco Stores v Dundee City Council [2012] UKSC278). Decision makers need to have regard to all material planning considerations and if they fail to do so they will err in law (see Seddon Properties Limited v Secretary of State for the Environment (1981) 42 PNCR26). The court is not concerned with adjudicating upon the planning merits which will engage questions of planning judgment but is solely concerned with considerations which might amount to an error of law; nonetheless if the conclusion which was reached was one that no reasonable planning authority could have arrived at then the court will interfere (see Tesco Stores v Secretary of State for the Environment [1995] 1 WLR 759 and R (Newsmith Stainless Limited) v Secretary of State [2001] EWHC 74 (Admin)).

Where a challenge involves the consideration of a committee report that report is to be read as if addressed to an educated audience familiar with the planning circumstances of the site. It should not be made subject to inappropriate and overly forensic analysis or read as if it were a contract or statute. At the time when the planning permission was granted article 31(1)(a)(ii) of the Town and Country Planning (development management procedure) Order 2010 required local authorities to include in any decision notice granting planning permission:

“A summary of the policies and proposals in the development plan which are relevant to the decision to grant permission”.

There is a substantial body of jurisprudence dealing with the nature of this obligation but there is no need for me to set that material out here given the narrow confines of the argument which is raised in relation to this issue. This will become apparent from the discussion which is set out below.

On behalf of the Claimant, Miss Clutten advanced four grounds of challenge. I propose to deal with them in the order in which they were raised at the hearing which differs from the order in the pleadings. The first ground is an allegation that it was not rational for the committee, against the background of the material set out above and in particular the expert advice of the EHO, to conclude that planning permission could be granted. Secondly Miss Clutten complains that the Defendant failed to take into account the National Planning Policy Framework (‘the Framework’) in reaching its decision on the application. The third ground is that the Defendant failed to properly interpret and apply Policy GD1(ii) in that a standard of noise nuisance was applied rather than one of unreasonable impact on amenity. Finally, Miss Clutten contends that the planning permission did not, as required by article 31 of the 2010 Order, contain a summary of all the policies relevant to the decision. She does not contend that the consent should be quashed on the basis of that ground alone but contends rather that a declaration should be made in relation to the Defendant’s failing.

This ground was founded particularly as set out above on the expert advice which was provided by the EHO. In addition Miss Clutten relied upon a number of contextual points. She submitted that the committee were non-experts whereas they had the advice of their own internal experts to which, as officers had previously alluded, significant weight should attach. Secondly, against the background of the extensive planning history it was difficult she submitted for the committee to reach an alternative view. She did not take any point in making this argument about the need for consistency in decision making, but rather relied simply on the existence of the previous planning decisions. Thirdly she relied upon the narrow nature of the issue to be determined. She submitted that this was a simple single question rather than engaging a wide ranging planning judgment over a variety of conflicting considerations which could arise in balancing a number of different factors when reaching a decision in other planning cases.

She further relied on the reference set out above in the minutes of the meeting to the reference to a curfew not solving “the noise problem”. She submitted that this reference to a noise problem was inconsistent with the observation made later in the minutes (and in the reason for granting permission) that there was no substantial or unreasonable noise nuisance. This further reinforced the conclusion that the judgment in this case was one which no reasonable planning authority could have reached. Bearing in mind the robust nature of the EHO’s consultation response that was grounded in actual experience from the trial period of both the CCTV and the DAT recordings which, it was emphasised, bore out and supported the subjective complaints of the Claimant the decision to remove the condition was one which no reasonable authority could have reached.

I have set out above the provisions of Policy GD1 (ii). Since that policy was adopted the Framework has been published. It also contains policies in relation to noise which are in particular set out at paragraph 123 which so far as relevant provides as follows;

“123 Planning policies and decisions should aim to;

•

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

•

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

The complaint raised by Miss Clutten is that this is a case falling within the second bullet point of paragraph 123 of the Framework and that firstly, the Framework is not identified anywhere as a relevant consideration in the officers report of the application and, secondly, the approach taken in the Framework in relation to reducing adverse impact to a minimum in relation to impact on health and quality of life arising from noise is an approach which differs from that contained in Policy GD1 (ii).

I do not consider that anything turns on the absence of specific reference to the Framework in the officer’s report. Whilst of course it is no doubt desirable and a matter of good practice that the relevant elements in the Framework should be drawn to members attention when making a planning decision it is not in my view an error of law for the Framework not to be mentioned.

In fact in this case the defendant had undertaken an audit of the extent to which the policies of the local plan were compliant with the Framework and had concluded for amongst others the benefit of the members of the planning committee that Policy GD1 was a policy which was compliant with the Framework and in particular compliant with paragraph 123.

The real question here, as distilled in the course of argument, is whether there is a meaningful difference in the test of Policy GD1 (ii) (“unreasonably harm the amenities of joining properties”) and the test from the Framework (“mitigate and reduce to a minimum other adverse impacts on health and quality of life arising from noise from the new development”) such that the omission of any reference to the Framework meant that the committee had reached their decision without regard to a material consideration (namely, the different approach to these issues in the Framework).

The argument which ensued in relation to seeking to understand whether there was a difference between those two formulations was to my mind unnecessarily and unhelpfully philosophical. Ultimately it has to be recognised that both of these pieces of text are policies which have to be read purposely with an object in mind of ensuring that noise pollution does not imperil a reasonable and appropriate standard of residential amenity for people’s homes. They have to be applied in a practical context.

I can see no meaningful or practical difference between the two formulations which would persuade me that the failure of the officers to draw paragraph 123 of the Framework to the attention of the members meant that they were either mislead or failed to take into account the Framework as a new and different material consideration.

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 impact from noise are kept to a minimum or the yard stick of whether the noise would have an unreasonable impact on amenity. These are two formulations of essentially the same practical question. Once that point has been apprehended the absence of the Framework from the officer’s report could not amount to any error of law.

Miss Clutten’s submission in respect of this ground was that where the reasons referred to “no substantial or unreasonable noise nuisance” they betrayed a lack of understanding on the part of the members and the application of a test which was not required by Policy GD1 (ii). She contended, in my view correctly, that there is a clear distinction to be drawn between the existence of a statutory noise nuisance on the one hand, and on the other the existence of an impact on residential amenity from noise which has not reached the level of a statutory nuisance or to which there may be some defence available to the creator of the nuisance. The later may well be highly material to the planning system without reaching the level of a statutory nuisance. In other words the standard required of an impact on amenity for instance from noise so as to justify the refusal of planning permission measured against Policy GD (ii) can be lower than would be necessary in order to demonstrate a statutory nuisance. Thus Miss Clutten submitted that the use of language and in particular the word “nuisance” here in the reasons for granting planning permission showed that the committee had not applied the correct test of whether or not there was an unreasonable harm to amenity but had rather applied a test of whether or not a nuisance existed.

I am not satisfied that there is any substance in this concern. It is important to bear in mind that these are summary reasons for the grant of permission and they are not intended to be construed with the level of technical sophistication which is inherent in the submissions made under this ground. I have no doubt that when the members referred to there being “no substantial or unreasonable noise nuisance” they were using that language as being synonymous to the “unacceptable impact on residential and amenity” which they used in the following sentence of the reasons.

Reading the reasons as a whole alongside the minutes I do not consider that there is material or persuasive evidence that the committee applied the wrong test or a test which was not the one contained within Policy GD1 (ii).

As I have set out above this ground is pursued on an exceedingly narrow basis namely that there was not a summary of all of the policies relevant to the decision. That said it will be clear from the reasons which I have set out above that the two principle policies and in particular the central Policy GD1 (ii) were specified in the reason. Given that I have not found there to be any substance in the first three grounds of challenge and bearing in mind the narrow nature of this ground even were I persuaded that there was an error of law of the kind described I do not consider that it would be appropriate to grant a declaration in respect of this aspect of the case. Whilst it is correct to observe that there is no summary of those relevant policies in the reasons neither the claimant nor to my mind the wider public have been in anyway prejudiced or disadvantaged by that failing. I do not propose therefore to grant a declaration in relation to this ground.

For the reasons which have been set out above each of the claimants’ grounds of challenge must be dismissed.