Nicholson, R (on the application of) v Allerdale Borough Council & Ors

The Dovenby Hall Estate extending to about 45 hectares in all, lies directly adjacent to the small village of Dovenby and about 4 km north-west of Cockermouth in Cumbria. The site was formerly occupied by the NHS as a hospital up until about 15 years ago. It contains a Grade II listed building, Dovenby Hall. It is enclosed by historic stone boundary walls and much of the site is screened from public view by bands of mature trees. When the hospital closed it became necessary to find a suitable use for the site.

In 1997 the Defendants, Allerdale Borough Council (“the Council”) granted planning permission for the change of use of the hospital buildings to provide office and corporate accommodation and for the erection of new workshops and associated stores. The redevelopment enabled M-Sport Limited (“MSL”) to locate its head office in Dovenby Hall and its business in adjacent buildings. MSL is said to have been at the forefront of world rallying since 1997. It operates a global rallying programme. It uses the site for the manufacture of performance cars.

Since moving to the site MSL’s business has continued to thrive and grow. In 2002 the Council granted planning permission for a mixed use scheme changing the use of four vacant buildings to employment use, and creating a lecture theatre and multi-purpose building.

On 28 May 2014 MSL made a hybrid application to the Council for planning permission to extend the development at Dovenby Hall. The application for full or detailed permission included:-

The object of the proposal is to sustain and expand the existing business. The existing workshop facilities are said to be over capacity. MSL’s Planning Framework statement explained that testing facilities are needed in order to meet international requirements. Whereas all the major World Rally Car (“WRC”) teams with whom MSL is in direct competition have testing facilities at their home base, MSL does not and is at a significant disadvantage. However, the main purpose of the evaluation facility is to enable road car equipment and systems to be tested, rather than just rally cars. MSL intends to enter the road car sector by providing research and development facilities coupled with a testing and evaluation centre so as to be able to develop new business with car manufacturers. It is also proposed that the centre and track be used for corporate days for sponsors and promoters. The new B1 building of 9735 sq m would be used not only for manufacturing but also managing and operating the track facility, including dealing with noise management data in order to comply with noise controls. It is emphasised that the track would not be used as a motorsports venue. The corporate use would be ancillary. The principal use of the track would be for testing and evaluation of rally, track and road cars and their equipment, operated in conjunction with the new manufacturing and evaluation building.

The proposal was the subject of a lengthy and detailed report by Officers to the meeting of the Council’s Development Panel on 23 December 2014. The Panel resolved to grant planning permission, which was issued on 16 January 2015.

Mr. Peter Nicholson, the Claimant, lives together with his wife at Lanefoot Cottage, which is located in the village and about 350m from the proposed testing track. They have lived there for 23 years. He made detailed objections to the proposal, which included reports he had commissioned from two acoustic consultants.

On 16 April 2015 the Claimant was granted permission by Stewart J to apply for judicial review of the planning permission. In summary, the Claimant applies to have the permission quashed on three grounds:-

I will deal with the grounds in the following order: (1), (3) and (2). I should add that in his oral submissions Mr Kolinsky QC, who appeared on behalf of the Claimant, helpfully refined the points being taken by his client. A number of issues (e.g. the classification of the use proposed for the manufacturing and evaluation centre and whether it should be classified separately from the sui generis test track use) were not pursued and therefore have not been dealt with in this judgment.

The grounds of challenge in this case primarily involve criticisms of the officer’s report. The relevant principles upon which the High Court will approach a challenge of this nature have been set out in a number of cases and were summarised in R (Luton Borough Council) v Central Bedfordshire Council [2014] EWHC 4325 (Admin) at paragraphs 90 to 98.

For the purposes of the present application I would emphasise the following principles drawn from that summary :-

Under ground 2 the Claimant contends that the Council’s handling of noise issues was irrational. The Claimant accepts (see paragraph 24 of skeleton) that the observations of Sullivan J (as he then was) in R (Newsmith Stainless Ltd) v Secretary of State [2001] EWHC Admin 74 (at paragraphs 6 to 8) on perversity challenges to the decisions of planning Inspectors are also applicable where challenges of that nature are made to the decisions of a local authority.

Thus, an application for judicial review is not an opportunity for a review of the planning merits of the Council’s decision. Although an allegation that such a decision was perverse, or irrational, lies within the scope of proceedings under CPR Part 54, “the Court must be astute to ensure that such challenges are not used as a cloak for a rerun of the arguments on the planning merits” (Newsmith at paragraph 6). In any case where an expert tribunal is the fact finding body, as in the case of a planning committee (see Cranston J in R (Bishops Stortford Federation) v East Herts D.C. [2014] PTSR 1035 at paragraph 40), the threshold for Wednesbury unreasonableness is a difficult obstacle for a Claimant to surmount, which is greatly increased in most planning cases by the need for the decision-maker to determine not simply questions of fact, but a series of planning judgments. Since a significant element of judgment is involved, there will usually be scope for a fairly broad range of possible views, none of which could be categorised as unreasonable (Newsmith at paragraph 7). Moreover, the decision may also be based upon a site inspection, which may be of critical importance. Against this background, a Claimant alleging that a decision-maker has reached a Wednesbury unreasonable conclusion on matters of planning judgment “faces a particularly daunting task” (Newsmith at paragraph 8).

On the other hand, as Mr. Dan Kolinsky QC (who appeared on behalf of the Claimant) pointed out, irrationality challenges are not confined to the relatively rare example of a “decision which simply defies comprehension”, but also include a decision which proceeds from flawed logic (relying upon R v North and East Devon Health Authority ex parte Coughlan [2001] QB 213, 244 at paragraph 65).

Policy REM10 is a saved policy of the Allerdale Local Plan 1999 and therefore formed part of the statutory development plan on the date when the planning permission was granted. Sections 70(2) of the Town and Country Planning Act 1990 (“TCPA 1990”) and section 38(6) of the Planning and Compulsory Purchase Act 2004 (“PCPA 2004”) applied to Policy REM10 along with all other relevant policies of the statutory development plan, notably policies in the Allerdale Local Plan (Part 1) adopted on 16July 2014. The obligation on the local authority is to have regard to relevant policies of the statutory development plan taken as a whole in order to decide whether the proposed development is “in accordance with the development plan”. When applied to a particular proposal the authority may judge that different policies pull in different directions. If so, the authority should consider factors such as the importance of the policies complied with or infringed and the extent of such compliance or breach in order to determine whether the proposal does or does not accord with the development plan viewed as a whole (City of Edinburgh Council v Secretary of State for Scotland [1997] 1WLR 1447; R v Rochdale Metropolitan Borough Council ex parte Milne (No. 2) (2001) 81 P&CR 27 at paragraphs 44-50).

Section 38(6) creates a presumption in favour of the development plan. In other words, if it is decided that the proposal accords with the development plan, then planning permission is to be granted unless greater weight is to be given to other material considerations telling against that outcome. Likewise, if the judgment reached is that the proposal does not accord with the development plan, then unless greater weight is given to other material considerations favouring the grant of planning permission, the application is to be refused R (Cala Homes (South) Limited v Secretary of State for Communities and Local Government [2001] EWCA Civ 639 at paragraph 6).

Policy REM10 was introduced in the 1999 Local Plan in order to address the future of the Dovenby Hall estate following the closure of the hospital. The reasoned justification or explanatory text for the policy was given in paragraph 6.12.35 of the plan followed by the policy itself:-

“Dovenby Hall Hospital

6.12.35

Dovenby Hall Hospital has recently closed as part of the Health Authority's care in the community programme. The future use of the Hospital and its grounds is therefore an important issue for the village of Dovenby and its environment. Dovenby Hall Hospital stands within a very attractive wooded parkland setting extending to some 115 acres on the edge of Dovenby Village. The Hall itself is an attractive Grade II Listed Building and there are a number of detached institutional buildings of various styles, sizes and designs within the grounds, some rather unattractive. The site lies adjacent to the A594 in the triangle between Cockermouth, Maryport and Workington, yet is near the boundaries of the National Park and the AONB. The parkland is included as an Historic Park in English Heritage's list, although it is not given on (sic) grading. The Hall and Park are therefore of considerable environmental and historic merit, which deserve special consideration. Policies in the Conservation Chapter are therefore relevant as is Policy EN24. Yet at the same time, the past use of the site and the number of buildings on it mean that it does have some potential for employment generation. To give some guidance on the future of the hospital, and to safeguard the significant amenity value of the hospital site as a whole, the following policy will apply:

Policy REM10: In assessing any proposals for the re-use and/or redevelopment of Dovenby Hall Hospital and its grounds, there will be a presumption in favour of proposals which conform to the following criteria.

i)

Any conversions and/or redevelopment should preserve or enhance the amenity value of the hospital grounds as a whole, and the character of the Listed Building and sites of archaeological interest.

ii)

Proposals should not have an unacceptably detrimental impact on the amenities of the residents of Dovenby Village.

iii)

Proposals should normally comply with the Borough and County Council's highway and parking standards and should not overload the local highway network.

iv)

The aggregate amount of building, including new building, in terms of floorspace should not exceed the total floorspace of the existing development, except where the overall scheme would result in a more beneficial impact upon the landscape than the existing situation or would include some other overriding environmental, economic or social benefit.

Subject to the above criteria, the following uses are acceptable in principle, either individually or in combination.

- institution(s) standing in their own grounds;

- nursing homes or residential care home;

- education, management or training centre;

- corporate office headquarters or business accommodation

- class B1, hi-tech development or science park;

- hotel/restaurant and conference centre;

- leisure development;

- health farm;

- tourist related development;

- high quality residential development (limited by the above criteria).

Proposals for other uses will be treated on their merits in accordance with the above criteria and any other relevant policies in the Plan.”

Mr. Kolinsky QC submits that the Council treated policy REM10 as central to its decision to grant planning permission and concluded that the proposal was supported by that policy. His criticisms focus on the outdoor test track. It is common ground that, unlike the B1 and hotel development proposed, the test track was not listed as one of the uses considered to be acceptable in principle. It therefore fell within the last sentence of REM10 and was therefore to be assessed “on its merits in accordance with” criteria (i) to (iv) at the beginning of the policy and any other relevant policies in the development plan. It is submitted that the outdoor test track was not assessed in the officer’s report or by the Council against REM10 and in particular its four criteria. If that exercise had been carried out, the Council would have concluded that the adverse effect of the test track on the parkland setting of the listed building, as found elsewhere in the officer’s report, conflicted with criterion (i). The Claimant also submits that the effects of the use of the test track upon the amenities of residents of the village should have been assessed under criterion (ii).

Mr. Kolinsky QC then argues that it is no answer for the Council and MSL to say that these matters were assessed elsewhere in the officer’s report, because, as a matter of construction, policy REM10 is concerned with whether uses proposed are acceptable in this sensitive location which depends upon compliance with criteria (i) to (iv). If a proposal does not comply with one or more of these four criteria then it cannot be said to be in accordance with, or supported by, that policy. Because that analysis applies to the uses listed in Policy REM10 as being “acceptable in principle”, logically that must also apply to non-listed uses which are to be assessed “on their merits”. It is also submitted for the Claimant that on a proper construction of the policy the economic and regeneration benefits of the proposal were not relevant considerations which could be taken into account in determining whether the test track complied with criteria (i) and (ii). Mr Kolinsky QC submitted that because Policy REM 10 expressly allows environmental, economic or social benefit to justify exceeding the limit on total floorspace in criterion (iv) but criteria (i) to (iii) are silent on that point, the implication is that such benefits are irrelevant to determining whether a proposal accords with the first three criteria and hence the policy as a whole.

Mr. Kolinsky QC also submitted that the Claimant’s construction of Policy REM 10 is supported by the explanatory material in paragraph 6.12.35 of the 1999 Local Plan. The plan acknowledged that the future use of the hospital and its grounds was an important issue for the village and its environment. The woodland parkland setting of Dovenby Hall is “very attractive” and historic. “The Hall and Park are therefore of considerable environmental and historic merit, which deserve special consideration”. It was therefore suggested that if Policy REM10 was open to more than one construction then paragraph 6.12.35 justified adopting a more restrictive interpretation in order to give effect to the objectives there stated.

In Tesco Stores Ltd v Dundee City Council [2012] PTSR 983 the Supreme Court held that the correct interpretation of planning policy is a question of law to be determined by the Courts (paragraph 18). But, notwithstanding its legal status and effects, a development plan is not analogous to a statute or a contract and therefore its policies must not be construed as if they were statutory or contractual provisions. That is because development plans often contain broad statements of policy, and policies of that nature may be difficult to reconcile if construed strictly. In addition, the language used to express planning policy may depend upon the exercise of judgment by the decision-maker when applied to a given set of facts. The exercise of judgment by a planning authority when applying a policy is legally distinct from the construction of that policy. Such matters of judgment fall within the jurisdiction of the planning authority and may only be challenged in the courts if irrational or perverse (see paragraph 19 and also Tesco Stores Ltd v Secretary of State for the Environment [1995] 1WLR 759, 780).

In R (Cherkley Campaign Ltd) v Mole Valley District Council [2014] EWCA Civ 567 the Court of Appeal held that when determining the extent to which a proposal conforms with a local plan, the correct focus is on the plan’s detailed policies. The supporting text consists of descriptive and explanatory material and/or reasoned justification in respect of the policies. That text is relevant to the interpretation of the policy with which it is concerned, but it does not itself constitute policy or form part of policy. Because the supporting text does not have the force of policy it cannot trump or override the policy to which it relates. So, for example, a criterion which is to be found in supporting text but not in a policy of the plan, could not affect the decision as to whether a proposal accords with the development plan (see paragraph 16 of Cherkley).

I turn to consider how the officer’s report dealt with relevant policies in the development plan. On the acceptability in principle of the uses proposed, the report recognised (p. 460 of bundle) that ordinarily national and local policies would require office and hotel development to be located in accordance with the “town centre first” or “sequential” approach. However, in the present case they were considered to be acceptable because (i) the principle of expanding the existing business is supported by the 2014 Local Plan and (ii) those uses are acceptable under policy REM10. It was in that context that the report stated “In principle, saved policy REM10 of the Allerdale Local Plan 1999 is supportive of the majority of the proposed land uses”. The reasoning in support of these conclusions was elaborated in the body of the report. No legal criticism has been made, nor could be, of these particular conclusions.

The report then dealt with the scale of the development proposed. It was accepted that because of the allocation of the site for employment purposes in the 2014 Local Plan and the policy support for expanding the business there, the scale of the development was justified as regards the employment policies of that plan. Turning to criterion (iv) of REM10 the report treated the “considerable” economic benefits set out in the body of the report as overriding the provision that the aggregate amount of floorspace (both existing and new) should not exceed the floorspace of the existing buildings. The report accepted that there was a need for the proposed level of expansion to secure the future growth and success of the business, particularly as regards the evaluation centre and test facility. The alternative would be for the business to relocate completely or operate from split sites with attendant disadvantages. No legal criticism is made of that approach to criterion (iv) in REM10.

The report then continued:-

“Whilst the policy contains a presumption in favour of proposals which meet the specified criteria it does not rule out other proposals but adopts an approach to such other proposals of judging them on their merits. Taking all these factors into account it is considered that the application proposals comply with policy REM10.”

Thus, it is plain from the officer’s report that the Council treated the application as complying with REM10 when assessed on its merits. However, the Council did not go so far as to treat the proposed scheme as benefiting from the presumption in favour of planning permission contained in the first part of REM10. The distinction between those two concepts is significant to an understanding of REM10, as I explain below.

As I have said, the Claimant’s complaint is that the report did not give specific consideration to the application of criteria (i) and (ii) to the test track. He points out that elsewhere the report did conclude that there would be an adverse impact on the landscape character of the estate, in particular the parkland setting. The report also concluded that in terms of paragraph 134 of the National Planning Policy Framework (“NPPF”) there would be “less than substantial harm” to heritage assets and therefore that harm “should be weighed against the public benefits of the proposal including securing its optimum viable use”.

The report’s overall conclusions on these matters were as follows:-

“The proposal will not preserve or enhance the setting of the listed building, the impact on the setting of Dovenby Hall through the loss of much of what remains of its parkland setting including areas of mature trees and woodland that contribute to the parkland and the understanding of the role of the parkland has made historically to the Hall, will be harmful. Whilst at present, more modern forms of development are restricted mainly to south-western areas of the site, the proposal would extend the built form into a large area of the eastern parkland and to the north. However, the advice of the Council’s Conservation Officer is that existing modern development has already adversely affected the setting to such a degree that whilst the proposal would result in further harm, the effects of this on the heritage asset itself (i.e. the Hall) would not be ‘substantial’.”

“To conclude, it is considered that the proposal will have a harmful impact on the setting of Dovenby Hall. Policy S27 provides a presumption in favour of conserving all heritage assets and against allowing harm. This harm must be considered in the context of the duty under s66 to have special regard to the desirability of preserving the building or its setting or any features of special architectural or historic interest which it possesses. The desirability of preserving the setting of listed buildings must be given considerable importance and weight (in accordance with the judgment of the Court of Appeal in East Northamptonshire DC v Secretary of State for Communities and Local Government). Where harm is identified either directly or by harming setting, both the NPPF and Policy S27 require such proposals to be refused unless there are clear and convincing public benefits that will outweigh the harm caused to the asset. As discussed above, the public benefits of this proposal are economic in the main and are considerable, attracting significant weight. It is considered that in this instance, these benefits outweigh the harm caused to the asset, and as such, the proposal is acceptable in relation to Policy S27, the NPPF and the duty under section 66.”

Mr. Kolinsky QC submits that the Council failed to apply these conclusions under criterion (i). Had they done so he submits that they would have determined that the proposals failed to preserve or enhance the amenity value of the hospital grounds and therefore the proposal should have been treated as being in breach of criterion (i) and thus, on a true construction, in breach of REM10. He contends, that whereas policy S27 of the 2014 Local Plan and paragraph 134 of the NPPF allow for economic benefits to override harm to heritage assets (and thus treated as policy compliant), properly construed REM10 criterion (i) (as distinct from criterion (iv)) does not. He submits that it would be illogical to treat a land use which falls to be assessed “on its merits” under the last part of REM10 as complying with criterion (i) by virtue of overriding economic benefits, whereas criterion (i) does not allow that approach to be taken for a land use which is acceptable in principle under REM10. Accordingly, it is said that the Council’s conclusion that the proposal complies with REM10 involved a misconstruction of that policy.

As regards the protection of residential amenity under criterion (ii), the Claimant relies upon the Council’s treatment of the noise impacts from the test track. The report concluded that with a robust noise management plan secured by a condition attached to the planning permission, the testing facility “could be operated in a manner that maintains an appropriate standard of residential amenity for residents within their locality”. “Whilst it would not be possible to eliminate all noise for residents it is considered that subject to the mitigation measures proposed and the recommended conditions, the adverse effects on living conditions would not be unacceptable”. These were freestanding conclusions, in the sense that the report did not rely upon the economic benefits of the proposal in order to determine that noise impact did not justify a refusal of planning permission. Nonetheless, Mr. Kolinsky submits that under REM10 it was necessary for the Council to consider noise issues specifically under criterion (ii), and without regard to the mitigation measures proposed, as a prior question to determine whether the proposed land uses, in particular the test track, are acceptable in principle to be located on the Dovenby estate in close proximity to the residents of the village. He argued that it is only where that question is answered in the affirmative that the decision-maker can go on to consider whether the noise effects can be appropriately mitigated (see paragraph 39 of the Claimant’s skeleton).

For a number of reasons I do not accept that the purpose of REM10, properly construed, is simply to determine whether land uses are acceptable on the site by reference to criteria (i) to (iv), such that if a proposal conflicts with one or more of those criteria it must be treated as being in breach of REM10.

When the policy is read as a whole it can be seen that it operates in two different ways. The first part of the policy creates a positive presumption in favour of proposals which conform to all of the four criteria. Not only will such a proposal be treated as being compliant with, or not in breach of, policy REM10, it will also benefit from a specific presumption in favour of granting planning permission. Thus, if a proposal breaches other policies, whether at a national or local level, the Council may choose to give more weight to the positive policy presumption in REM10. The policy identifies a list of uses which are acceptable in principle, so long as the use proposed complies with criteria (i) to (iv). As paragraph 6.12.35 of the 1999 Local Plan makes clear, one of the purposes of Policy REM10 is to encourage the re-use of the site for employment purposes. But taking into account the environmental sensitivities of the location, the policy does not confer on a proposal its positive presumption in favour of the grant of planning permission unless the four criteria are satisfied.

Secondly, REM10 deals with proposals for “other uses” which do not attract the positive presumption in the policy, because they do not do not fall within the list of uses which are “acceptable in principle” and/or they do not comply with all four of criteria (i) to (iv). The policy states that such proposals are to be assessed “on their merits …”. This last part of the policy applies in two ways. First, it applies to any proposal for a land use which falls outside the list of uses which are stated to be “acceptable in principle”. Second, it applies to a use which is contained in that list but where the proposal does not comply with criteria (i) to (iv). Proposals which fall into either of these two categories cannot benefit from the REM10 presumption in favour of the grant of permission, but nevertheless they are to be assessed on their merits. Plainly, it would make no sense if a proposal for a use on the “acceptable in principle” list (e.g. offices), but not benefiting from the presumption in the first part of REM10, has to be treated as being in breach of that policy and not assessed on its merits under the final part of REM10, whereas a use which is not on the list of “acceptable” uses can be assessed on its merits and thereby be treated as compliant with REM10.

The Claimant’s contention that the four criteria impose strict constraints on what may be allowed under REM10 fails to grapple with the fact that those criteria appear in an opening passage which creates a positive presumption in favour of granting permission so long as certain conditions are met. By contrast, policy REM 10 does not begin by saying “Proposals for the re-use and/or redevelopment of Dovenby Hall Hospital shall not be permitted unless …” criteria (i) to (iv) are satisfied.

Once the dual purpose and structure of REM10 is correctly understood, and it is appreciated that all types of land use may be assessed on their merits under the final part of the policy, even if they do not qualify for the positive presumption in the first part of the policy, it can be seen that the illogicality suggested by Mr. Kolinsky QC (see paragraph 28 above) does not arise. Non-listed uses would not be treated more favourably than listed uses.

Proposals which do not benefit from REM10’s presumption in favour of permission are required to be assessed on their merits “in accordance with” not only criteria (i) to (iv) but also all “other relevant policies in the plan”. Therefore, proposals in this category are not to be assessed under REM10 solely against criteria (i) to (iv); they are also to be assessed against all relevant policies of the development plan including REM10. The final part of policy REM10 does not give any superiority or greater weight in the decision-making process to criteria (i) to (iv) as compared with other relevant local plan policies. Instead, a proposal is to be assessed for the degree of compliance with all such policies on its merits. Although REM10 is a “saved policy” it is to be read alongside other policies forming part of the statutory development plan, notably the 2014 Local Plan. Paragraph 6.12.35 of the 1999 Plan plainly states that EM24 of that plan is a relevant policy. EM24 of the 1999 Plan has been replaced by Policy S27 of the 2014 Local Plan. In line with paragraph 134 of the NPPF, policy S27 allows “a clear and convincing public benefit” of a proposal to outweigh the harm that it would cause to a heritage asset. Therefore, under the final part of REM10, policy S27 of the 2014 Local Plan is to be read and applied alongside criterion (i).

I have therefore reached the firm conclusion that under the final part of REM10 the Council was entitled to treat the “considerable” economic benefits of the development as outweighing the “less than substantial” harm to heritage assets, in particular the parkland landscape and setting and to give that compliance with policy S27 greater weight than the extent to which the proposal failed to meet criterion (i). On that basis the Council’s conclusion that the proposal complied with REM10 on its assessment of “the merits”, involved no misconstruction of the policy.

As regards criterion (ii), I reject the Claimant’s criticism that a merits-based assessment under the final part of REM10 could not have regard to proposed mitigation measures or to the Council’s conclusion that the impact on residential amenity of noise from the use of the track would be acceptable taking those measures into account. For the reasons I have set out above, Policy REM10 is not to be read as if its purpose was restricted to filtering out land uses which are not “acceptable in principle”. That approach is inconsistent with one of the objectives of the policy, namely to promote the re-use of the site by encouraging employment development, including development which is found to be acceptable “on its merits”.

The flaw in the Claimant’s argument can be illustrated by taking one of the uses listed as being “acceptable in principle” as an example. A proposal for office development might have to some degree an adverse impact upon the amenity value of the hospital grounds in terms of its landscape and therefore conflict with criterion (i). It would make no sense to exclude from the application of criterion (i) landscape works which have been included as part of the proposal in order to mitigate that impact or even improve the overall quality of the landscape. Indeed criterion (i) refers to the preservation or enhancement of amenity value which plainly indicates that such measures are to be taken into account. I cannot see why criterion (ii) should be construed in any different way. The language of the requirement that proposals should not have an “unacceptably detrimental impact” is broad enough to embrace the mitigation included in a proposal. As Mr James Maurici QC pointed out on behalf of MSL, the Claimant’s argument is reminiscent of a similar contention in the context of screening under the Habitats Directive for likely significant effects, which was rejected as “ludicrous” by Sullivan J (as he then was) in R (Hart DC) v Secretary of State for the Environment [2008] 2 P & CR 16 at paragraph 72.

For all these reasons, I have reached the firm conclusion that ground 1 must be rejected. The Council did not err in law by misconstruing policy REM10 of the 1999 Local Plan.

Furthermore, even if I had been persuaded that the Council had misconstrued policy REM10 in the respects contended for by the Claimant, I would refuse to quash the planning permission on this ground. In my judgment even if the Council had adopted the Claimant’s construction of REM10, it is inevitable that, on their assessment of the merits of the proposal, they would have granted planning permission (see Simplex GE (Holdings) Ltd v Secretary of State for the Environment (1987) 57 P&CR 306 and R (Smith) v North East Derbyshire PCT [2006] 1 WLR 3315).

Not only did the Council conclude that the proposal complied with REM10, it also decided that the proposal complied with the statutory development plan as a whole. It is clear from the officer’s report that the Council’s reliance upon REM10 to outweigh conflict with policies which favour locating certain uses in town centres, solely related to the office and hotel elements of the proposal and there is no legal challenge to that aspect of the decision. The Council did not treat the proposal as benefiting from the positive presumption in REM10. Instead, the Council’s decision was based on an assessment of the overall merits of the proposal.

The thorough and careful report by officers went through a great many issues, some just as important as those raised in these proceedings. The report identified very little conflict with local plan or other policies. So the difference which would result from the Claimant’s construction of REM10 would be that the test track element of the proposal would be treated as conflicting with criteria (i) and (ii) of that policy. But, according to the reasoning and decision of the Council, that conflict would still have to be weighed against such matters as the economic benefits which were found to outweigh impact on heritage assets under other policies in any event, the mitigation of noise impact to acceptable levels, and compliance with the remainder of the development plan taken as a whole. In other words, the factors which the Council found to tell in favour of the proposal and which the Claimant says should not have been taken into account within the ambit of policy REM10, would still have fallen to be taken into account under other policies. In my judgment it is impossible to see how, even on the Claimant’s case, those factors could have attracted any less weight or, given the strength of the Council’s reasoning in favour of the merits of the proposal, the Council’s decision could have been any different.

The extract from the officer’s report quoted in paragraph 27 above makes it plain that the Council had well in mind its duty under section 66 of the Listed Buildings Act 1990. Section 66(1) provides:-

“In considering whether to grant planning permission for development which affects a listed building or its setting, the local planning authority or, as the case may be, the Secretary of State shall have special regard to the desirability of preserving the building or its setting or any features of special architectural or historic interest which it possesses.”

In Barnwell Manor Wind Energy Limited v East Northamptonshire District Council [2014] EWCA Civ 37 the Court of Appeal held that section 66(1) requires “considerable importance and weight” to be given to the desirability of preserving the setting of a listed building. That principle is sometimes expressed as a presumption against the grant of planning permission which would harm the setting of a listed building, the strength of the presumption varying according to the importance of the heritage asset to be preserved and the seriousness of the harm that would be caused.

Although the legislation requires considerable weight to be given to the preservation of a listed building and its setting, that factor or presumption is capable of being outweighed by other relevant considerations. Although there was a faint suggestion in the claimant’s grounds that the officer’s report had not complied with the principles laid down in the Barwell Manor case, it is plain from the passages quoted in paragraph 27 above that any such complaint would be completely untenable. The report referred to the Court of Appeal’s decision, correctly summarised the principle and went on to apply it. The report plainly stated that the considerable economic benefits of the proposal outweighed the harm that would be caused to the setting of Dovenby Hall, including the importance and weight to be given to the desirability of preserving that setting.

Mr Kolinsky QC submitted nevertheless that the Council’s decision was flawed in two respects:

On the first point the Claimant’s case was encapsulated in paragraph 58 of Mr Kolinsky’s skeleton:-

“The Council’s approach simply asserted that the public benefits of the proposal which were asserted to be “economic” “in the main” were sufficient to outweigh the harm to the heritage assets which had been identified. This was the same asserted benefit and the level of reasoning as was deployed to outweigh other detrimental aspects of the proposed development.”

The assumption in the Claimant’s first criticism is that the benefits of the proposal had been treated elsewhere in the officer’s report as being no more than sufficient to outweigh other disbenefits. However, the Claimant was unable to identify any passage in the officer’s report to support that assumption. Indeed, it is contradicted by at least two examples. The report referred to the loss of an area of ancient woodland and to paragraph 118 of the NPPF which requires planning permission to be refused unless the need for and benefits of the proposed development “clearly outweigh” the loss. The report identified a range of economic and employment benefits which were judged to be “considerable” and clearly outweighing the loss of ancient woodland. Similarly, the report identified the potential of the proposed development to have adverse impacts on European protected species and their habitats and therefore considered the likelihood of a licence being granted under regulation 53 of the Conservation of Habitats and Species Regulation 2010 (in line with R (Morge) v Hampshire County Council [2011] 1 WLR 268). The report considered that the benefits of the proposed development amounted to “imperative reasons of overriding public interest”. The assumption in paragraph 58 of the claimant’s skeleton is therefore fallacious.

In any event, the concluding section on the officer’s report made it plain that when dealing with the impact of the proposal on the parkland setting of the listed building the Council did not commit the legal error identified in The Forge Field Society case:-

“In order to give effect to the statutory duty under section 66(1), a decision-maker must attach considerable importance and weight to the “desirability of preserving…the setting” of listed buildings when weighing this factor in the balance with other ‘material considerations’ which have not beengiven this special statutory status.” (emphasis added)

Thus the Council did not merely carry out a simple balancing exercise between harm to the setting of Dovenby Hall and the benefits of the proposal. Instead, the Council also weighed the “section 66(1) presumption” in the balance. In the final analysis, the officer’s report explained at some length the considerable weight to be attached to the economic and employment benefits of the proposed scheme which outweighed all of the harm or disbenefits resulting from the proposal, including the weight to be attached to the objectives laid down in section 66(1) of the Listed Building Act 1990.

As to the second point, the application of paragraph 134 of the NPPF, Mr Kolinsky QC submitted that the Council had failed to consider how the benefits of the scheme could be achieved without causing harm to the setting of the listed building or with only a lesser degree of harm. I will assume in the claimant’s favour, without deciding, that that is a correct understanding of paragraph 134. The short answer is that the point was properly addressed in the officer’s report. It noted that the MSL had put forward information to justify the need for the level of expansion proposed in order to secure the future success and growth of the business, which included the evaluation centre and test track. The report accepted the analysis in MSL’s Socio-Economic Technical Appendix as to the benefits which would result from the scheme. It also accepted the “compelling case” provided as to why alternative sites for relocating the business or the operation of the business on more than one site would pose logistical problems and affect the viability of the project. These were matters of judgment for the Council and no legal basis has been advanced by the Claimant to challenge those conclusions or to explain, let alone justify, why their appraisal was legally inadequate.

For those reasons Ground 3 must be rejected.

The officer’s report stated:-

“The proposed testing facility is considered to have the most potential for noise generation. In relation to residential properties within Dovenby village, the testing track at its closest point will be approx. 250m (to Linden House) on the A594. Nearest properties within the village itself will be approx. 310m from the testing track at its closest point (1 The Cottages).”

In support of the application MSL submitted an Assessment of Community Noise Levels, a section of the Environmental Statement devoted to noise issues (Volume II, Chapter 8), a Noise Technical Appendix and a Noise Management Plan.

Both the 1998 and the 2002 planning permission contained conditions to control the effect of the noise from MSL’s premises upon residential properties nearby (condition 13 and condition 20 respectively). The 1998 permission required that noise emitted from the premises, when measured at a short distance from the external façade of any “noise sensitive premises” (referring to existing residential properties in Dovenby village) should not exceed “an equivalent continuous sound pressure level” of 45dBA LAeq in any one hour period between 8am and 8pm and 30dBA LAeq in any five minute period between 8pm and 8am. The 2002 permission imposed the same restrictions on noise levels save that the 30dBA LAeq level is stated to apply from 11pm rather than 8pm. The LAeq measure expresses the totality of the noise measured over a defined period of time as if it equated to a single continuous level of noise throughout that period. Thus, fluctuating levels of noise are measured and expressed as if they were a constant level representing all of that noise. The shorter the measuring period and the lower the dB level stipulated, the stricter the control imposed. Hence, night time noise levels, for example, are not only set at a lower figure, but they are also required to be monitored over shorter time intervals.

The officer’s report recorded MSL’s proposals for the use of the test track. They included up to 416 tests a year for MSL’s rally car production (the majority of those cars being fitted with noise silencers), and in excess of 400 tests a year for GT3 series vehicles (producing according to MSL an overall total of about 900 tests a year). That usage was said to represent existing demands from current and expected contracts in 2014/15. In addition, MSL’s business model planned for growth in this area of above 20% over the next 5 years. MSL also proposed 10 corporate or sponsor events a year each lasting 2 to 3 days (which would be likely to increase in the future), plus a minimum of 10 visits a year by motor clubs with a typical duration of 1 day each. MSL sought permission to use the track between 8.30am and 5pm (BST) and between 8.30am and 7pm (GMT).

In order to accommodate these proposals MSL put forward noise controls which would relax the daytime limits set by the 1998 and 2002 planning permissions. They asked the Council to allow up to 126 days a year in which noise levels could exceed the pre-existing 45dB LAeq (1 hour) limit made up as follows:

When it resolved to grant permission the Council’s Development Panel decided that category 1 noise levels should not be permitted. Consequently the number of days in a year when the existing day time limit of 45 dB LAeq might be exceeded was reduced from 126 to 120. Condition 7 of the permission prevents the use of the track for racing of vehicles or competition and prohibits spectators other than for MSL’s corporate activities. Thus, the test track may not be used as a motorsport venue.

The noise impacts of the proposal, particularly the test track, attracted numerous and substantial objections from the public. The claimant commissioned reports from Clarke Saunders Acoustics and from MAS Environmental to give their assessment of the proposals and to review the technical information submitted on behalf of MSL. Some 11 or so pages of the officer’s report were devoted to a lengthy review of the issues and the adequacy of the controls proposed. The views of the planning officer were also informed by expert advice from the Council’s Environmental Health Department at different stages in the handling of the planning application. In addition the report summarised the views of local objectors on noise issues in some detail and presented a clear summary (occupying over 5 pages) of the opinions and analysis of Clarke Saunders and MAS Environmental. There can be no doubt that members of the Council were fully and properly informed as to the representations on noise issues made on behalf of those who objected to the scheme. Not surprisingly, it is not suggested on behalf of the Claimant that the officer’s report was “materially misleading” on noise issues, applying the test given in the Samuel Smith case.

In his submissions on behalf of the Claimant Mr Kolinsky QC focused on 5 criticisms:-

Plainly an application for judicial review is not a forum for resolving issues between the parties on technical matters such as the assessment of existing levels of noise in the community or the noise that would be emitted from the test track when in use, and the means by which that noise should be controlled. These are matters of judgment for the local planning authority. The officer’s report referred specifically to the concerns raised in the reports by MAS Environmental and Clarke Saunders Acoustics. Planning officers relied upon advice from Environmental Health Officers. As to the latter, the report to the Development Panel stated “due consideration was given to the issues raised by objectors, and these concerns were reflected in their [the EHOs] recommendations to restrict and control the proposed operations on site”.

The final advice of the Council’s Environmental Health Officers was summarised as follows:-

“Having considered all the information submitted and subsequent discussions with the applicant, Environmental Health main objective was to consider the impact on surrounding amenity and where possible to minimise the impact of this development. There was due consideration given to the issues raised by objectors, we feel this has been reflected in our recommendations to restrict and control the proposed operations on site. This proposal is unique in some respects as we are not aware that such a testing facility exists within the UK, therefore we are not able to make a direct comparison to such similar operations.

We took account of the most appropriate assessment criteria in accordance with current UK guidance. We recommend that the use of the test track will meet World Health Organisation (WHO) guideline values, with the exception of Category 1 days which we have now recommended is limited to 6 days per annum occurring at least every 2 months. It is the view of Environmental Health that the World Health Organisation Guidelines (WHO) and British Standard Code of Practice BS8233: 1999 are the correct guidance documents for the applicant to make reference to, which they have with their category 2, 3 and 4 days.

There have been discussions regarding the use of BS4142, the standard is not intended to be applied to the rating and assessment of sound from all forms of motorsport or indeed the assessment of low frequency noise which is associated with vehicle emissions.

As part of our assessment we considered the operational restrictions of motorsport venues within the UK, however this information had to be treated with caution as this proposal is not a motorsport venue and only a test facility with restricted days and times of operation. The proposed development is a track for testing vehicles so it was considered not applicable for this type of development. Our recommended conditions allow an operational Noise Management Plan to be in place prior to first use. This document is a working document and can be updated at any time to this development (sic) is a track for testing vehicles so it is not applicable for this type of development. We have set out community levels which must be complied with as stated within the draft Noise Management Plan which we feel will provide a satisfactory standard of amenity.”

The main body of the officer’s report reached the following conclusions with regard to the proposed test track:-

“On the basis of advice from EH Officers, it is considered that subject to a robust noise management plan, the proposed testing facility could be operated in a manner that maintains an appropriate standard of residential amenity for residents within the locality. Whilst it would not be possible to eliminate all noise for residents, it is considered that subject to mitigation measures proposed and the recommended conditions, the adverse effects of living conditions would not be unacceptable. The proposal is therefore considered to be acceptable in this respect with regards to Policy S32 of the Allerdale Local Plan (Part 1) 2014…

A Noise Management Plan has been submitted and is considered acceptable in relation to the broad principles and community levels established within the document. A final version of this would be required to be agreed by condition to ensure some additional control measures including consideration of maximum noise levels and for example the type of vehicles and activity permitted at the track can be incorporated if necessary to ensure that the agreed community levels are complied with. The Noise Management Plan would also be subject to regular review to ensure ongoing monitoring and compliance. The Noise Management Plan makes provision for the day to day operational management of the site, including a complaints procedure, monitoring, and would incorporate measures to account for wind conditions on site.”

The officer’s report relied upon guidelines published by the World Health Organisation (“WHO”) in order to establish levels of noise which were judged to represent an acceptable standard of amenity for local residents. But officers entered two caveats. First “there is no single criterion to determine the acceptability or otherwise of noise levels from particular sorts of activity associated with vehicle testing relating to motorsports/road cars or for motor sports and recreation.” Second, the WHO guidelines based on LAeq measures “assume a continuous noise source” whereas “the testing of vehicles proposed would not be continuous and may contain characteristics potentially harmful to amenity despite achieving the average hourly level.” The EHOs had in mind points of the kind made by MAS Environmental in their report of 5 November 2014:-

“Unlike road traffic noise that is often more steady and benign in nature, the testing (racing) of vehicles on the test track may include rapid acceleration and deceleration, tyre squeal/skid and revving of engines with bursts of noise and possibly backfire.”

MSL has not disputed these points.

In their report of 5 November 2014 MAS expressed the same caveat about reliance solely upon WHO LAeq levels over a 1 hour period (paragraph 3.11). Consequently, they invited the Council to have regard to more stringent noise levels set in nuisance cases for motorsport venues by setting LAeq levels at a lower figure and for a shorter measurement period than 1 hour, namely 5 to 15 minutes.

The officer’s report stated that the Council’s EHOs had considered the operational restrictions imposed on motorsport uses in the UK but concluded that the comparison had to be treated with caution because the proposal was for a testing facility with restricted days and hours of operation and not for a motorsport or competition venue. The EHOs advised that for that reason the information on motorsport venues was considered to be “not applicable for this type of development.” That was a matter of judgment for the Council. It was not suggested, nor could it be, that the judgment was perverse. It is not open to challenge in this Court by way of judicial review.

However, it is essential to note that the Council’s officers did not accept that the WHO guideline figures on noise levels should be applied without qualification. From the outset the EHOs have stipulated that noise peaks should be assessed and controlled by LAmax. “LAmax is the loudest instantaneous noise level. This is usually the loudest 125 milliseconds measured during any given period of time” (p23 of MSL’s Noise Technical Appendix). In the report to the Development Panel on 23 December 2014 officers continued to take the view that:-

“As part of the assessment for compliance with the community levels consideration needs to be given to the nature of the noise source. It is recommended that A weighted maximum noise levels (LAmax) are adopted as a measurement parameter when dealing with intermittent noise sources as references in the WHO guidelines for Community Noise.”

This acceptance by officers of the broad principles and community noise levels set out in MSL’s first draft Noise Management Plan issued in November 2014 was qualified by the following:-

“A final version of this [the Noise Management Plan] would be required to be agreed by condition to ensure some additional control measures including consideration of maximum noise levels and for example the type of vehicles and activity permitted at the track can be incorporated if necessary to ensure that the agreed community levels are complied with” (emphasis added)

This understanding of the officer’s position, and likewise the position of the Development Panel which accepted their advice, was confirmed by Mr Roger Lancaster who appeared on behalf of the Council. I return to this subject below.

In the report from Clarke Saunders Acoustics dated 17 October 2014 it was said that MSL’s suggestion that category 4 events at up to 43 dB LAeq (1 hour) should have no significant effect on the community was unsound because MSL’s own survey data had revealed background noise levels (LA90) at sensitive receptors in the village as low as 34dB LA90. Levels at 43dB were obtained at locations where background noise was increased by the sound of running water and that source of noise should be excluded from the analysis. This particular point was drawn to the attention of the Developmental Panel in the officer’s report.

Mr Kolinsky QC referred to MSL’s “Assessment of Community Noise Levels” where LA90 background levels were given as 43dB, based on receptor points affected by running water and explained that where receptors currently experience lower background levels in the order of 34dB LA90, LAeq levels of 43dB would amount to an unacceptable noise impact. Mr Maurici QC’s first response (at page 26 of his skeleton) was that the Technical Noise Appendix to the Environmental Statement relied upon the lower LA90 figure of 34dB in any event. Second, he pointed out that the object of the Assessment of Community Noise Levels was to ensure that the existing permitted noise level of 45dB LAeq (1 hour) should not be exceeded, save for a specified number of days and subject to defined limits (pages 1 and 6 and see also the 1998 and 2002 permissions). There has been no response from the Claimant to these points.

It is well-established that it is a matter for officers to judge how far they should go in their advice to members in dealing with points of this nature. I see no error of law in the way this particular point has been handled by the Council. On a fair reading of the report as a whole, there is no reason to think that the Council has failed to have regard to this point. The Council has concluded that, subject to the need to control variable noise or peak noise levels, the use of WHO guidelines on LAeq levels provides an adequate level of protection for residential amenity in this locality. Taking into account the noise conditions in the 1998 and 2002 permissions, but bearing in mind the Council’s explicit caveat, I can see no legal fault in the Council’s decision based on the LA90 data.

Mr Kolinsky QC pointed out that paragraph 8.4.2 of the Environmental Statement accepts that the noise calculations have been based on “neutral” weather conditions, whereas it is acknowledged varying wind conditions could require a correction of +/- 7dB to be applied. He points out that the noise assessment did not consider a true “worse case” position. This point was specifically identified in the officer’s report to the Development Panel as a matter raised by the EHOs.

Subsequently in November 2014 the Council received the first draft of the Noise Management Plan. Paragraph 4.3 makes it plain that once the track facility is constructed it will be possible to carry out physical noise testing to measure the effects on receptors of actual usage of the track by vehicles. The version of the Noise Management Plan which will be approved under condition 6 of the planning permission will be based upon these physical measurements rather than the calculated (or estimated) figures used to date. Page 26 of MSL’s skeleton also relies upon paragraph 3.4 of the draft Noise Management Plan, which explains that once the track becomes operational wind direction and speed will be measured on each day of use so that adjustment can be made to trackside measurements to ensure compliance with community levels stipulated by the planning permission. There has been no response from the claimant to these points. The Council has accepted the principles of the draft Noise Management Plan. There is no material before the court to show that their stance is irrational or otherwise unlawful on this subject.

Paragraph 4.2 of the draft Noise Management Plan explains that it is difficult to measure the actual contribution of a noise source to noise levels at a relatively distant point. Therefore noise levels will be measured at some 10m from the trackside, and then adjustments made based on physical measurement of noise once the track is completed, to arrive at noise levels at the receptor points which are attributable to the use of the track (paragraphs 4.3 and 5.8). The Claimant’s criticism of this technique is solely based upon the variability of wind and weather conditions (paragraph 46 of the Claimant’s skeleton), a point which I have addressed above. There is therefore no merit in this point as a legal basis for impugning the Council’s decision.

Initially officers considered that MSL should carry out noise assessment under BS4142 so that controls could be applied using that standard, as well as relying upon the WHO guidelines (see the Screening Opinion in September 2011 and the views in the memorandum by the EHOs dated 10 June 2014). However, in their report to the Development Panel meeting on 23 December 2014 officers explained in very clear terms why they no longer considered that BS4142 should be used for the assessment of control of the use of the test track. No legal basis for impugning the Council’s judgment on that technical matter has been put forward by the Claimant. Indeed, during oral argument this criticism evaporated.

However, as I have already explained, the Council has made it plain that the variability of the noise from vehicles using the test track needs to be controlled by an additional parameter, LA max, over and above the LAeq controls derived from the WHO guidelines. That was made plain to MSL in the memorandum from the EHOs dated 10 June 2014 who went on to add pithily:-

“it [the system] needs to include LAmax…As the consultant is aware in any one hour the car may be on the track for 5-10 minutes only so it is essential to control maximum noise levels. Additionally tyre squeal needs to be mentioned and how it will be controlled. This noise management plan is the most important document for Environmental Health…”

I therefore find it very troubling that the draft Noise Management Plan issued in November 2014 did not address these matters so plainly raised by the Council’s officers. Instead, in MSL’s Assessment of Community Noise Levels issued at the same time, it is asserted that it is “virtually impossible” to include in an assessment or to control LAmax levels attributable to outdoor leisure noise. “LAmax can never be used as a criteria (sic) as it is not always controllable.” Plainly the Council disagrees on this subject. But even if it were to be assumed that MSL is correct, the inevitable consequence would be that some other method of providing adequate control over intrusive peak levels of noise would need to be considered and applied given the significant limitations of the LAeq 1 hour parameter to which the Council has pointed. From the evidence before the Council one obvious alternative could be to use an LAeq measure over a much shorter time period than 1 hour, say 5 or 10 minutes.

Accordingly, there was argument during oral submissions as to whether the conditions imposed by the Council on the planning permission enable the Council to impose controls on peak noise levels or variations in the character of the noise from cars using the test track. It was common ground that only condition 6 is relevant for this purpose. It reads as follows:-

“no operational use of the test track facility shall commence until an updated Noise Management Plan based on the principles and community noise levelsset out in the Noise Management Plan Issue No 1 dated November 2014 (– excluding category 1 activity which shall not be permitted) has been submitted to and approved in writing by the Local Planning Authority and until the completion of physical testing on site in order to demonstrate compliance with agreed Community levels.

The Noise Management Plan shall include the following:

•

Details of M Sport operational and management structure

•

Details of how the Council will access a noise monitoring system at all times

•

Details of the sound control and monitoring scheme and methodology used (including consideration of maximum noise levels) to demonstrate compliance with the community levels

•

Details of the measures proposed to ensure compliance with the community levels including reference to hours of operation, number of days and sound levels and the type of vehicles and activity that will be permitted at the track

•

A detailed complaints procedure

A review of the Noise Management Plan shall take place within the first six months of the operational use of the test track facility commencing and then annually thereafter. At all times the test track facility shall operate in accordance with the most recently approved Noise Management Plan. The test track shall operate at all times in accordance with the Community Levels set out in the Noise Management Plan.” (emphasis added)

In my judgment, applying the principles of construction set out in Telford and Wrekin Council v Secretary of State for Communities and Local Government [2013] EWHC 79 (Admin), condition 6 does not enable the Council to impose LAmax levels as a control on peak noise or variations in the character of noise emitted from vehicles in use on the test track. The condition provides that the Noise Management Plan to be approved by the Council will be based upon the principles and community noise levels set out in the draft issued in November 2014. The only control put forward in that document is expressed in terms of LAeq 1 hour.

Mr Lancaster submitted that the phrase “including consideration of maximum noise levels” was sufficient to enable the Council to impose additional controls by way of LAmax. Mr Maurici QC agreed. But that phrase only appears in the context of “details of sound control and monitoring scheme and methodology used” to “demonstrate compliance with the community levels”. The words “the community levels” refer back to the community noise levels “set out in the Noise Management Plan Issue No 1 dated November 2014”, which did not include any parameters other than LAeq 1 hour.

MSL, or any successor in title, would be entitled to say that, on a true construction, condition 6 accepts the principles and community noise levels in the draft Noise Management Plan and the Council is no longer entitled to require other noise parameters such as LAmax or LAeq 5 minutes to be used when approving details under condition 6. That stance would be in line with MSL’s Assessment of Community Noise Levels in which they resisted the use of LAmax and simply sought to imply peak noise levels from LAeq 1 hour figures. However, I do not accept Mr Kolinsky’s submission in reply that MSL’s bare denial that LAmax can be used as a noise control in this case demonstrates that there was a lack of information before the Council to show that such a control could be imposed consistently with the use permitted. The Council was entitled to rely upon the expert opinion of its EHOs on this subject, which has remained constant throughout the processing of the planning application.

In my judgment it is plain that the Council intended to impose LAmax or similar controls when approving details under the planning permission and that this was fundamental to their willingness to grant that permission. Given that as a matter of construction the conditions imposed failed to give effect to the Council’s decision, it must follow that the judicial review must succeed as regards this single, but highly important, aspect of ground 2. I reject the other arguments which have been advanced by the Claimant under ground 2

The Claim fails under grounds 1 and 3. But because ground 2 succeeds to the extent I have indicated, the Claimant is entitled to some form of relief, although in proceedings for judicial review the form which that relief takes is a matter for the Court’s discretion.

In my judgment the public interest in the proposed development proceeding is sufficiently great that it was plainly preferable for the Court to allow the parties an opportunity to seek to remedy the flaw identified above rather than for the permission to be quashed, provided that that could be achieved within a finite and reasonably short timescale.

In R (on the application of Midcounties Co-Operative Ltd) v Wyre Forest D.C. [2011] J.P.L 173 the Court of Appeal accepted that a legal flaw in the drafting of a condition could be overcome by the execution of a planning obligation under section 106 of TCPA 1990 which remedied the defect in the condition, so that it became unnecessary to quash the permission. Since then, the same principle has been applied in R (Barr) v North Somerset Council[2015] EWHC 1735 (Admin) at paragraphs 21 to 24 and 26 to 34 to remedy defective conditions by the use of section 96A of TCPA 1990 (an application for a “non-material alteration” to a planning permission). This matter was raised briefly during the main hearing.

If the defect in condition 6 could not be cured by a measure acceptable to the Court, then the permission would have to be quashed. The measure adopted would need to allow the Council to impose noise controls on peak noise whether by LAmax or measures such as LAeq over a much shorter duration than 1 hour.

On 27 August 2015 this judgment was made available to the parties in draft form. I invited them to make submissions by 31 August on an appropriate form of order so as to give effect to paragraphs 82 to 84 above, including a timescale for the consideration by the Court of any revised measures for the imposition of noise controls. I therefore did not envisage that the parties would necessarily be able to devise appropriate measures by 31 August.

In fact the Defendant and the Interested Party did put forward a proposal for the hearing on 1 September. They suggested that a section 106 planning obligation be executed which would require the owner of the site to obtain the Council’s approval to a final version of the Noise Management Plan based upon a revised draft of that document agreed between the Council’s Environmental Health Officer and MSL on 31 July 2015 (version 2e). In effect the noise controls to be approved under the planning obligation would be based upon the July 2015 draft of the Noise Management Plan rather than the November 2014 draft (version 1). In particular version 2e would require the Council’s approval to noise levels set not only by reference to LAeq 1 hour but also LAmax or other measures, in order to control peak noise. This was intended to supply the control missing from condition 6. However, it was not proposed at that stage to alter condition 6 itself.

In written submissions dated 31 August 2015 and at the hearing on 1 September the Claimant argued that the proposed planning obligation provided an insufficient basis for the Court to exercise its discretion against quashing the planning permission. The primary reasons advanced by the Claimant were that (a) the July 2015 draft of the Noise Management Plan had not been considered by members of the Defendant’s planning committee, (b) the unamended condition 6 would not allow the imposition of controls on peak noise levels, and (c) it was inappropriate that the normal statutory remedies for dealing with breaches of condition should not be available for something as important in this instance as the control of peak noise levels. It was also submitted that inconsistency between noise controls in condition 6 based upon a plan limited to the use of LAeq 1 hour and excluding the use of LAmax (the November 2014 draft) and controls in a section 106 obligation based upon a plan which included LAmax as well as LAeq (the July 2015 draft) would lead to an enforcement muddle.

In addition, the Claimant objected that there had been no opportunity for the public to be consulted on the revised draft Noise Management Plan. The Claimant also submitted that the July 2015 version was “unsatisfactory” in a number of important respects, such that the Court should not refuse to quash the planning permission by relying on controls based upon that document (paragraph 6c of the submissions dated 31 August 2015). However, the Court was not invited to adjudicate on the merits of the Claimant’s criticisms of the technical content of the July 2015 draft plan.

At the hearing on 1 September 2015 I adjourned the delivery of a final judgment until 12 October so that the Defendant and the Interested Party could address matters raised by the Claimant. I suggested that consideration should be given to the use of section 96A of TCPA 1990 so as to amend the planning permission in order to express the Defendant’s intentions regarding the imposition of controls on peak noise levels when it decided to approve the planning application.

On 5 October 2015 the Defendant and Interested Party provided further written submissions on relief. The Claimant responded in writing on 8 October and the Defendant and Interested Party gave their final written responses on 9 October. All parties have agreed that I should proceed to deliver a final judgment and deal with the exercise of the Court’s discretion without the need for a further oral hearing.

On 3 September 2015 an application was made under section 96A to amend condition 6 of the permission so that the noise management plan must include provision for noise controls by both (i) LAeq 1 hour levels and (ii) LAmax or LAeq 5 minutes levels. By letter dated 17 September 2015 the Claimant’s Solicitors suggested that (ii) should be amended so as to allow controls to be imposed by reference to both LAmax and LAeq 5 minutes levels. Properly read, the draft judgment had not suggested that the defect in condition 6 had merely related to the ability of the Council to impose LAmax or LAeq controls as mutually exclusive alternatives.

The application under section 96A was the subject of public consultation and a number of representations were made to the Council.

The Defendant’s Development Panel met on 29 September 2015 to consider the section 96A application. It received a report from officers which concluded that the proposed amendment accorded with the Defendant’s intent in granting planning permission, namely that “appropriate controls over peak noise levels would be secured through the approval of a noise management plan” and that the amendment of condition 6 as proposed would be “non-material” and thus within the scope of section 96A.

The Panel resolved that subject to MSL amending the application so that condition 6 would refer to the imposition of both LAmax and LAeq 1 hour controls, the decision to approve the application be delegated to the Head of Development Service. The section 96A application was so amended and on 1 October 2015 the approval of that application was granted. Accordingly, condition 6 of the permission dated 16 January 2015 now reads as follows (with tracked changes to show the alterations made to the version contained in the permission dated 16 January 2015):-

“No operational use of the test track facility shall commence until an updated Noise Management Plan (based on the principles and community noise levels set out in the Noise Management Plan Issue No 1 dated November 2014 – excluding category 1 activity which shall not be permitted), and save that the updated Plan must include maximum noise levels as provided for below, has been submitted to and approved in writing by the Local Planning Authority and until the completion of physical testing on site in order to demonstrate compliance with the agreed Community levels.

The Noise Management Plan shall include the following:

LAeq 1 hour noise levels

Maximum noise levels measured in LAeq 5 minutes and LAmax

details of M Sport operational and management structure

details of how the Council will access a noise monitoring system at all times

details of the sounds control and monitoring control and monitoring scheme and methodology used (including consideration of maximum noise levels) to demonstrate compliance with community levels

details of the measures proposed to ensure compliance with the community noise levels including reference to hours of operation, number of days and sound levels and the type of vehicles and activity that will be permitted at the track

a detailed complaints procedure

A review of the Noise Management Plan shall take place within the first six months of the operational use of the test track facility commencing and then annually thereafter, At all times the test track facility shall operate in accordance with the most recently approved Noise Management Plan. The test track shall operate at all times in accordance with the Community noise levels as set out in the Noise Management Plan”.

The Claimant accepts, correctly in my view, that condition 6 as now amended enables maximum noise levels to be imposed and that the cross-reference to the November 2014 draft of the Noise Management Plan no longer involves any inconsistency in that respect because “the condition carves out” a specific exception from that document (paragraph 14 of the Claimant’s submissions dated 8 October 2015). It is therefore common ground between the parties that the defect in condition 6 identified in the draft judgment has been overcome.

I also note that it has not been suggested in the Claimant’s submissions that the Court should not exercise its discretion against the quashing of the planning permission because the amendment of condition 6 falls outside the proper ambit of section 96A.

Nevertheless, the Claimant still maintains that the Court should quash the planning permission granted on 16 January 2015 in a somewhat surprising volte face. Whereas in his submissions dated 31 August 2015 the Claimant had been arguing that the July 2015 draft of the Noise Management Plan was “unsatisfactory” in a number of important respects such that the Court should not base any decision not to quash the planning permission upon that document (see paragraph 88 above), the Claimant now complains (paragraphs 7 to 8 and 11 to 15 of submissions dated 8 October 2015) that the amendment of condition 6 fails to cross-refer to the July 2015 draft of the plan (version 2e) instead of the November 2014 draft (version 1). This is because it is said that the July 2015 version contains “improvements” as compared with the November 2014 version (paragraph 7 of the submissions) which the Claimant welcomes. Criticisms by the Claimant of the July 2015 draft have been relegated to footnote 1 on page 3 of his recent submissions:-

“1.

For the avoidance of doubt, the Claimant reserves the right to contend in other forums that the controls contained in version 2e do not go far enough. Such arguments are immaterial for present purposes because on any view version 2e goes further and contains welcome and necessary improvements when compared with the position in the November 2014 NMP.”

On the issue as to how the Court should exercise its discretion to grant relief, the Claimant now complains that the reliance placed in the amended condition 6 upon version 1 of the draft plan will prevent the Council from securing the improvements contained in version 2e when it comes to approve the final version of the plan before the track starts to be used.

I mention for completeness the Claimant’s criticisms of version 1 of the draft plan in paragraphs 19 and 23 of his submissions dated 8 October 2015. But those are the criticisms set out in the letters from the Claimant’s Solicitors dated 17 and 24 September which essentially concerned the Council’s ability to set noise controls using LAmax and LAeq 5 minutes measures, a matter which the Claimant now accepts has been sufficiently addressed for present purposes.

In its letter dated 21 September 2015 the Council sought to justify the continued cross-reference in condition 6 to version 1 rather than version 2e of the draft Noise Management Plan simply on the basis that the more recent version “has not yet been finalised and has not had approval of Members”. The same stance is repeated in the Council’s submissions dated 8 October 2015. I am unable to accept that response. At the hearing on 1 September 2015 the Council was asking the Court to exercise its discretion not to quash the planning permission because the proposed section 106 obligation would enable it to impose controls by reference to a final version of the plan based upon version 2e rather than version 1. Furthermore, there has been an opportunity since 27 August 2015 for that version to be placed before members for their consideration and approval. I invited submissions on this aspect in an email dated 8 October.

Likewise I do not accept the response proferred in MSL’s submissions dated 9 October that the fact that the amendment to condition 6 has overcome the only defect identified by the draft judgment deals with the issue I raised in that email. Nor do I accept the suggestion that that issue is legally irrelevant to the exercise of the Court’s discretion. First, the draft judgment was prepared without the Court being aware of version 2e of the draft Noise Management Plan. Second, if the Court is to exercise its discretion against the quashing of the permission it has to take account of current circumstances. For example, if the decision were otherwise to be quashed the application for planning permission would have to be redetermined on the basis of circumstances existing at the date of the redetermination, which would include version 2e of the draft plan.

Nevertheless, the parties having had full opportunity to make submissions on the exercise of discretion, I have reached the clear and firm conclusions that:-

I have reached these conclusions for a combination of reasons. First, the plan which is to be approved under condition 6 is only to be “based on” version 1. Second, condition 6 now makes it clear that the Council may set the LAeq 1 hour, LAeq 5 minutes and LAmax levels which it considers to be appropriate. Third, I do not accept the Claimant’s assertion in paragraph 13 of his submissions dated 8 October 2015 that it will be possible for MSL (or a successor in title) to resist the imposition of “improvements” contained in version 2e because they are “inconsistent with or not required by” the contents of version 1. I have carefully considered each of the passages relating to the “improvements” relied upon by the Claimant (e.g. in paragraph 7 of his submissions). In my judgment the imposition of those improvements in version 2e would not be inconsistent with anything contained in version 1. Moreover, I reject the suggestion that those matters could not be imposed by the Council under condition 6 because they had not been explicitly set out as “requirements” in version 1. In this respect I agree with MSL’s submission (paragraph 9(2) of submissions dated 9 October) that condition 6 allows the Council to approve a plan which will evolve from the November 2014 version upon which it is based. It is permissible for the plan approved by the Council to include, for example, the “improvements” contained in the version dated 31 July 2015 as well as matters arising from the practical tests which will be carried out following construction of the track identified in paragraph 4.3 of the draft plan. Fourth, when the Council receives an application for approval under condition 6 of the Noise Management Plan prior to the track coming into use, the Claimant and other members of the public will have the opportunity, in the usual way, to advance any criticisms they may still have of the proposed plan, including their criticisms of version 2e (see “footnote 1” quoted in paragraph 97 above) for the Council to take into account.

For these reasons I refuse to make an order quashing the planning permission dated 16 January 2015. However, having regard to paragraph 12 of the judgment of Lord Toulson JSC in R (Hunt) v North Somerset Council [2015] 1 WLR 3575, I accept the Claimant’s submission that a declaration that the Claim has been successful to the extent set out in paragraphs 73 to 80 of this judgment should be made. The Court has been informed that the parties have agreed that the Defendant should be ordered to pay the Claimant’s costs in the sum of £26,125 plus VAT.