Bent v Cambridgeshire County Council & Anor

The Claimant (“C”) seeks judicial review of the decision of the Defendant Cambridgeshire County Council (“D”) to grant planning permission under ref E/3008/14/CM (“the Permission”) to the Interested Party (“IP”) for an extension to a quarry at Dimmock’s Cote Quarry, Stretham Road, Wicken, Ely, CB7 5XL (“the Site”). Permission to bring this challenge was given by Collins J. on 17 January 2017.

Quarrying has taken place at the Site with the benefit of planning permission since the 1960s and the current Policy M8B of the Cambridgeshire and Peterborough Minerals and Waste Site Specific Proposals document (February 2012) allocates a further 13 ha of land for the extraction of limestone from the quarry. The IP sought planning permission for the winning and working of limestone from a 9.1 ha strip of that allocated area of land, which lies to the north of the existing quarry and for the deposit of inert waste following extraction. All of the mineral proposed to be extracted is to be processed by an existing mineral processing plant and the activities in the extension would continue to use the existing Site access.

C and his family live at Kingfisher Bridge House, 40 Stretham Road, Wicken, Cambs, which is situated close to the Site’s northern boundary. He was an objector to the IP’s planning application and attended and spoke against it at the D’s Planning Committee meeting held on 16 June 2016. C is concerned with regard to the additional noise which he considers will be generated as the result of the implementation of the Permission. It is not disputed that he has standing to bring this challenge.

The D’s members reached the decision to grant planning permission at a meeting on the planning committee on 16 June 2016 in the light of a report from its planning officer (“OR”).

Councillor Connor (the chairman of the planning committee) explains in his evidence that members undertook a site visit on 15 June 2016, the day before their meeting, and visited C’s property where C was permitted to draw members’ attention to his concerns and to point out the proposed quarry boundary in relation to his land.

The material parts of the OR stated as follows:

“1.4

The quarry is situated on a modest Upware Limestone outcrop that rises from the fens towards the north and east. It is situated within an otherwise flat open agricultural and wetland, fenland landscape to the east of the River Cam. The River Cam is situated within 440 metres of the west of the application site. To the west of the site is Dimmocks Cote Farm.

1.5

To the north of the application site there is a strip of grassland on which a windsock is situated, beyond that is tree planting. There are five residential properties , the nearest of which is approximately 142 metres from the application site, with the extent of its residential curtilage being approximately 60 metres from the edge of the application area. Adjacent to the eastern boundary of the site is Red Barn Farm. The single track High Fen Road provides access to Red Barn Farm, properties to the north of the application site and the Kingfisher Bridge CWS Nature Reserve.

…

1.7

The limestone is currently extracted from the quarry by tracked excavator. The material is screened within the quarry and transported to the processing and drying plant by dump truck via a dedicated haul road. The existing quarry is dewatered to enable dry working to maximise mineral extraction (this method of working is proposed to continue). The mineral leaves the site mainly in the form of powder, within 40 tonne articulated bulk road tankers at a an average rate of 10 loads generating 20 vehicle movements daily, for use mainly as a filler for the manufacture of asphalt with on average one 32 tonne tipper lorry (2 daily movements) of agricultural lime (the method of transporting the mineral is proposed to remain the same).

…

1.9

One listed building is situated within one kilometre of the proposed extension area, which is High Fen Farmhouse (a grade II listed farmhouse). It is situated approximately 250 metres north of the proposed extension area and is separated from the site by an agricultural field and a tree belt.

…

2.

PROPOSAL

•

Extension to extract 1.2 million tonnes of limestone from 9.1 hectares of agricultural land working a proposed maximum of 65,000 tonnes per annum of which [sic] would be an estimated annual production of 60,000 tonnes of asphalt filler and 5,000 tonnes of agricultural lime;

•

Mineral extraction over 18.5 year period;

•

Proposed mineral extraction to be extracted in 13 phases working generally from east to west;

•

Total of 35,000 tonnes per annum of inert waste proposed to be imported, of which approximately (a little more than) 30,000 tonnes per annum to be used onsite for restoration purposes;

•

Proposed anticipated ancillary recycling recovery of approximately (a little less than) 5,000 tonnes per annum of saleable materials;

•

Waste proposed to be sourced from development sites within an approximate 25 mile radius;

•

Open sided storage building;

•

Proposed restoration of total application site to

•

8 hectares to be restored to a state fit for agricultural use to be managed as low input grassland;

•

16.6 hectares proposed for nature conservation uses and including landscaping;

•

1.3 hectares retained buildings and plant site; and

•

Total application site size 25.9 hectares.

2.1

Planning permission is sought for the winning and working of limestone from the 9.1 hectares strip of agricultural land to the north of the existing quarry, which is proposed to be worked as a northerly extension to the existing quarry. The application site is stated to contain approximately 1.2 million tonnes of limestone. It is proposed to work this deposit over a period of 18.5 years working at approximately 65,000 tonnes per annum (as is currently worked from the existing quarry). It is proposed to work the extension in 13 phases predominantly from east to west.

2.2

All mineral would be processed by the existing mineral processing plant, which is within the planning application site area. It would be transferred to the processing and storage building and areas (within the quarry) by truck. Following processing, it would leave by road via the existing access onto the A1123. The bulk of the material (approximately 60,000 tonnes per annum) would leave the site (as it does currently) in a powder form in road tankers for use as asphalt filler with approximately 5,000 tonnes per annum proposed to leave in 32 tonne tipper lorries for use as agricultural lime.

2.3

It is also proposed to import 0.32 million m3 of inert material equating to approximately 30,000 tonnes per annum for restoration purposes. To ensure adequate inert materials a total of 35,000 tonnes per annum is proposed to be imported of mixed loads of inert waste containing soils. The applicant asked to be allowed to import a maximum of up to 40,000 tonnes or inert waste per annum to allow for flexibility between years should a shortfall occur and need to be made up during the following year. This has been taken into account within the schedule of recommended conditions towards the end of this report (see Condition 10). A proposed inert recycling plant would be sited within the existing quarry void for ancillary recycling purposes to recover recyclable materials from the imported waste. It is estimated that the recycling plant would recover approximately 5,000 tonnes per annum of saleable materials. The proposed waste recycling plant consists of a crusher and a screener, which would be located within a bunded area towards the eastern area of the existing quarry for phases 1 to 11 and then moved to a similarly bunded area within the proposed extension area to facilitate continuing restoration for the working of phases 12 and 13. The Environment Agency has confirmed that the proposed waste operation would also need to be controlled by permit. The material is proposed to be sourced from development projects within approximately a 25 mile radius, which would include Ely, Cambridge and Newmarket.

2.4

The development would continue to use the existing site access, which accesses the A1123 close to the southern end of Fodder Fen Drove. It is stated that the traffic flows would be expected to follow the existing pattern of heavy commercial vehicle (HCV) movements to the quarry which is 70% to and from the west (travelling through Stretham when travelling towards the A10 and other destinations) and 30% to the east (travelling through Wicken when travelling towards the A142 and other destinations). It is stated that the proposal would result in approximately an additional 10 HCV movements passing through Wicken per day, representing 1 additional movement per hour when spread over a working day. Travelling towards Stretham approximately an additional 20 HCV movements are envisaged. When spread over a working day this would be expected to represent two additional movements per hour.

2.5

The total HCV movements per day that would be expected to result from the application site would be an average of 35. Of these 16 movements would be expected to result from an average of 8 loads of incoming inert waste/removal of recycled materials per day, which would be expected to be reduced by an average of 2 movements per day as a result of back hauling. The quarry operates 272 days per year. The average HCV movements per annum would therefore be approximately 9,520.

…

2.7

In addition the site employs 7 full time employees. The existing quarry generates an average of 16 (maximum of 20) daily light goods vehicle/car movements). The additional HCV waste traffic is proposed to be to enter and leave the quarry during the normal quarry operating hours. That is between 0700 and 1800 Mondays to Fridays and 0700 -1300 Saturdays.

2.8

Additionally, Minerals processing currently takes place between 0700– 2200 Mondays to Saturdays. Bulk tanker traffic is proposed to continue to arise in relation to the minerals processing operations, as existing. In addition up to one bulk tanker per night visits the site between 2200 and 0700. This is also proposed to continue.

2.9

Furthermore, it is proposed to erect a steel framed portal building near the southern boundary of the site to be used to store the extracted material prior to processing. The dimensions of the proposed building are 77.34 metres in length by 33.64 metres wide with its ridges each being 7 metres high…

…

2.11

The application includes the restoration of 8 hectares of the application site to low level land suitable for agricultural use to be formed on an inert waste platform (alongside the eastern part of the northern, and the eastern boundaries of the site) to a level of between 1 and 4 Metres AoD. This would coincide with the change in the character to the limestone. This restored area is proposed to be initially cropped to prepare it to be managed as low input grassland. Approximately 16.6 hectares of the quarry is proposed to be restored to a condition suitable for conservation habitat including a wet heath at quarry floor level, areas of calcareous grassland and landscaping areas…”

The OR then considered community involvement, publicity and the lengthy planning history. Under “Consultation and Representations” advice from the East Cambridgeshire District Council environmental health technical officer (“EHTO”) was summarised by the OR as follows:

“Initial response: - No objections

Pumps: -Notes that the water pumps will operate outside the working hours of the quarry as they currently do and in the same location - therefore no issues. The acoustic consultants advised the pumps should remain in their current locations within the old quarry and not be moved into the new extension or closer to the residents.

Hours of operation: - Hours of proposed extension should be limited to same as existing quarry. Hours of on-site mineral processing differ but unaffected by application.

Noise:-

•

EHO identifies limited differences between the report and the EHO’s calculations with background approximately 1dB higher than reported;

•

Noise consultant assessed worst case’ scenario when most of the plant is operating in close proximity to the nearby residential premises;

•

A daytime background noise level of 38dB (LA90) is reasonable. Difference between the background and the predicted noise levels of some concern but within the advised upper limit of 55dB(A);

•

Some concerns regarding the potential impact of the plant on Kingfisher Lodge and Red Farm Barn. No complaints or apparent concern regarding the current operation of the site - not in a position to recommend refusal of this application or advise noise limits lower than those predicted, as these will be ‘as near to 10dB above background as practicable’;

•

Whilst the noise limits are a worst case prediction there should be an attempt to control and mitigate noise levels as far as possible.

Conditions:- Recommends requiring:-

•

Water pumps to remain in the same locations or a noise condition to cover both current and any new water pumps.

•

Limit the hours of use for the proposed extended area to the same as those for quarry operations on the rest of the site is advised;

•

A noise management plan;

•

A noise limit and conditions to restrict the noise levels to be emitted from the site when measured at nearby properties;

•

The submission and implementation of a noise management plan;

•

The implementation of measures to control dust;

•

All fill materials should not be wastes unless they have an environmental permit or exemption;

And

•

Details of the source and testing of wastes (to prevent contamination).

Further comments:-

Comments on matters of condition detail accepting that a condition requiring details of source and testing of wastes will not be required if the site is to be the subject of an Environmental Permit.

It is noted in relation to Figures 2 and 3 of the Environmental Noise Assessment that a roadway for vehicles had been modelled outside of and to the north of application site boundary together with an incorrect access route, which are not proposed. Noise levels should shift further south and it should be less noisy for residents than shown on the contour maps. No need to request new contour maps as the information on the maps predicts that the government’s guidance should be met and the maps show higher noise levels than the worst case scenario.”

The OR then summarises many consultation responses received, including extensive objections. Under the heading “6.27 Additional Representations” there was included the following:

“Concerns relating to loss of neighbouring amenity including: -

…

•

No bund on the northern boundary, which would reduce noise for residents to north and within the Kingfisher Bridge Project …”

Planning policy is summarised at Section 7, referring briefly to the NPPF, National Planning Policy for Waste and development plan policy. No specific reference was made to the noise guidance in the PPG.

Section 8 “Planning Considerations” begins with a reference to the statutory duties in s. 38(6) of the Planning and Compulsory Purchase Act 2004 and s. 70(2) of the Town and Country Planning Act 1990. Having considered the need for the development the potential environmental impacts are then considered including “Air Emissions, Including Dust Noise Light and Vibration”. This included a discussion of the matters of most concern to C:

“8.62

The Environmental Noise Assessment (ENA) within Chapter 10 of the Environmental Statement predicted that noise levels may exceed the background note level by more than 10db at two of the closest receptors. And concluded that the NPPF noise criterion of LAeq1hour 55dB(A) is unlikely to be breached even at the nearest residents under a worst case scenario and recommends best practice measures.

8.63

Local representations were received in December 2014, stating that a bund along the northern boundary to the remaining strip of the mineral allocation that is outside of the ownership of the applicant would reduce noise pollution. In paragraph 9.1 of the ENA it was stated that predictive modelling had showed that a 3 metre high bund along the entire north of the quarry would reduce noise levels by less than 2dB under most scenarios which was considered to be a barely perceptible decrease in noise levels and therefore the assessment did not include a recommendation that a bund should be erected along the northern boundary. Additionally the noise monitoring had been based upon a worst case scenario that is proposed to exist, given the modelling of an access road on the land to the north, which is not owned by the quarry and is outside of the application area. In March 2016, the noise monitoring was further questioned upon the basis that there had been one day of monitoring and that it was carried out 120 metres away from one of the nearest noise sensitive properties and that the reading had been taken within woodland. It was also requested that new readings be taken 1m from the façade of the property and within an outdoor living area. Concern was also then expressed in March 2016 that a lot of time is spent out of doors by the family and that the proposed development would have a significant effect upon the residents health and quality of life and be contrary to the Noise Policy.

8.64

The proposed extension area is allocated as a mineral reserve by Policy M8B of the CMWCS together with the grass strip or field immediately to the north of the application area.

8.65

East Cambridgeshire District Council’s Environmental Health Officer responded to the additional points raised and confirmed that the proposal was compliant with guidance and that it was considered that there were no noise grounds upon which the Environmental Health Officer considered would justify a recommendation for refusal of the application. A recommended condition was revised to relate to 1 metre from the façade of the relevant noise sensitive property, which has been included in recommended condition 13 in Section 10 below.

8.66

No significant additional issues have been raised in relation to vibration. In relation to mitigation measures, conditions would be imposed to control and or require hours of operation, noise limits, a register of complaints, the submission and implementation of a noise management plan, the implementation of dust control measures, and restrictions upon pump installation and replacement as recommended in conditions 12-18 in Section 10 below.

8.67

It is considered that with the mitigation measures in place to cover the noise concerns above, that the proposal would be compliant with Policy CS34 of the CMWCS which seeks to protect surrounding uses and Policy ENV 9 of the LP and would not be likely to result in unacceptable demonstrable harm in relation to surrounding uses.”

Following a discussion of other potential impacts, the OR concluded at Section 9:

“9.

CONCLUSION

9.1

Although there is no inert waste allocation and for this reason the proposal is a departure to the development plan, it is considered that material considerations set out above indicate that the proposal would not in principle result in demonstrable harm to the policies of the development plan nor significant harm in relation to the material planning considerations, which having taken the concerns into account cannot be mitigated by the proposed measures and planning conditions

10.

RECOMMENDATION

10.1

Planning permission be granted subject to the following conditions…”

C sent late information to D shortly before the meeting and this was made available to members, who were aware of his additional submission, as Councillor Connor, the Chairman of the Planning Committee, has confirmed in his witness statement.

Members of the public, including C, were each given 5 minutes to speak with respect to their concerns at the meeting. C expressed concern on a number of issues, and is recorded by the Minute as having said this on the subject of noise:

“Speaking against the application Mr Tim Bent informed the Committee of his objections. Mr Bent lived directly north of the quarry, at Kingfishers Bridge House, identified as 40 Stretham Road. The current operations at the quarry were inaudible but expressed concerns that the extension and change of use would have an Impact on his enjoyment of the land so was relying on members of the Planning Committee to safeguard his amenity. Mr Bent appreciated the conditions that had been applied to the proposed development but the application would impact on his quiet home. The application was also inconsistent with the Minerals and Waste Core Strategy.”

Notwithstanding the objections, members accepted the recommendation in the OR and granted planning permission. In accordance with general principles applicable to local authority planning decision-making (see below) it is to be assumed that members adopted the substance of the reasoning in the OR in the absence of evidence to the contrary.

The conditions imposed on the planning permission did not include the requirement for an extension to the bund, as the OR discussion rejected it, but imposed a number of conditions relevant to noise (including an hours of operation condition), and specifically dealt with noise limits at Condition 13:

“13.

Noise limits

The level of noise emitted from the site shall not exceed the following limits at a distance of one metre from the façade of the specified noise sensitive property to which they refer when measured and, or calculated in accordance with BS4142 and the National Planning Practice Guidance: -

Location Noise Limit (dBLAeq, I hour)

Kingfishers Bridge House (40 Stretham Road) 52

Dimmocks Cote Farm 45

Red Barn Farm 53

Reason: In the interests of limiting the effects on local amenity to control the impacts of the development and to comply with policy CS34 of the Cambridgeshire and Peterborough Minerals and Waste Core Strategy (2011).”

This condition is the subject of Ground 3 of the challenge.

Condition 16 required a detailed noise management plan to be submitted and approved:

“16.

Noise Management Plan

No development shall commence until a noise management plan, which shall include but not be limited to:-

a.

Provisions for maintenance of haul roads, speed limit of maximum of 10 miles per hour with n the site and avoidance of excessive revving;

b.

Details of any new haul roads (to be sited as far away as possible from residential properties) and of the maintenance programme for the haul roads;

c.

Locations and depths of siting of all crushers and screeners (to be located as far away from residential properties as possible and the crusher should be located at a depth of 6 metres of more within the quarry);

d.

Installation and use of broadband reversing alarms and their use on all vehicles working on site;

e.

Use of modern and well maintained quietest available equipment and plant at all times and in conformity with EU Directives including details of the use of enclosures and screens;

f.

Shutting down of equipment when not in use where practicable and avoidance of unnecessary revving;

g.

Minimising height of material drops from lorries and other plant and use of rubber line chutes, dumpers and transfer points to reduce impact noise from falling material;

h.

Existing pumps to remain within the existing quarry as required by condition 18 below;

i.

Consideration in relation to Sections 8.2 and 8.3 of BS5228:1

(Code of practice for noise and vibration on construction and open sites – Part 1: Noise) regarding Control of Noise;

j.

Details of regular toolbox talks/training for staff members to ensure proper use of tools and equipment and avoidance of unnecessary noise and positioning of equipment to reduce noise to neighbourhood;

k.

Details to limit use of any noisy plant or vehicles;

l.

Details for starting up plant sequentially rather than all together;

m.

Details for ensuring noise control measures fitted on plant and vehicles are utilised when in operation;

n.

Details of consideration of acoustic treatment or retrofitting of existing plant;

o.

Details of the procedure to investigate and to address all noise complaints, which may be received, who is responsible for the investigation and how they can be contacted.

shall have been submitted to and approved in writing by the Mineral and Waste Planning Authority. No development shall commence until all of the provisions of the approved noise management plan are fully in place. They shall be thereafter retained and no activity shall take place within the application site edged red on drawing number CP/FF/DCN/02 dated September 2014 unless fully in accordance with the approved noise management plan.”

C submits that D fell into error for three reasons:

Mr Burton for D and Mr Moules for IP both resist the application on all grounds. In summary their response is:

Both the D and IP also rely both on the Court’s discretion and on s. 31(2A) of the Senior Courts Act 1981, which applies once permission has been given (s. 31(3C) applies to the permission stage).

I do not need to set out at length the well-established principles of law which apply to the consideration of planning decisions by local authorities and whether they reveal an error of law. See for example the distillation of the applicable principles by Hickinbottom J. (as he then was) in R. (Midcounties Co-operative Ltd.) v Forest of Dean DC [2015] J.P.L. 288 at [5] and Holgate J. in R. (Nicholson) v Allerdale BC [2015] EWHC 2510 (Admin) at [10]-[14]. On planning decisions generally, see Lindblom J (as he then was) in Bloor Homes East Midlands Ltd v Secretary of State for Communities & Local Government [2014] EWHC 754 (Admin) at [19].

The duty to give reasons in planning cases is found in the well-known statement of Lord Brown in South Buckinghamshire DC v Porter (No.2) [2004] 1 WLR 1953 at [36], summarised in Bloor at [19(2)]. I note Lord Brown’s endorsement at [33] of Sir Thomas Bingham MR’s observations in Clarke Homes Ltd v Secretary of State (1993) 66 P & CR 263 at pp 271–272:

“I hope I am not over-simplifying unduly by suggesting that the central issue in this case is whether the decision of the Secretary of State leaves room for genuine as opposed to forensic doubt as to what he has decided and why. This is an issue to be resolved as the parties agree on a straightforward down-to-earth reading of his decision letter without excessive legalism or exegetical sophistication.”

This case concerns, to some extent at least, a dispute over technical evidence in the context of specialist guidance, and it is necessary to recall that the judicial reluctance to interfere with matters of judgment is reinforced. As Holgate J. observed in R. (Nicholson) v Allerdale BC at [60] -

“60 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.”

(See also Carnwath J. (as he then was) in British Aerospace Plc v Secretary of State (1998) 75 P & CR 486 at pp. 497-8.)

In Greaves v. Boston DC, above, at [35] to [39] Dove J. set out the approach to be taken to the precisions and enforceability of noise conditions in terms that reflect that of Holgate J. in Nicholson to noise issues generally. The case concerned a condition placed on a permission for wind turbines which set noise limits:

“3.

Noise arising from the wind turbine shall not exceed LA90, 5min of 35dB(A) or the background level plus 5dB(A), whichever is the greater, at one meter from the façade of the nearest residential property with different ownership from the wind turbine. In the event of audible tones being generated by the wind turbine a 5dB(a) penalty for tonal noise shall be added to the measured noise level.”

It was alleged (coincidentally by Mr Henderson’s instructing solicitor who appeared as an advocate in that case) that the condition was not sufficiently certain so as to be enforceable (see Dove J at [18]).

As a prelude to considering the noise condition Dove J. referred at [34] to the summary of the principles applicable to the construction of conditions by Elias LJ in Hulme v Secretary of State [2011] EWCA Civ 638 at [13] which included the following:

“a)

the conditions must be construed in the context of the decision letter as a whole

b)

the condition should be interpreted benevolently and not narrowly or strictly: Carter Commercial Development Ltd v Secretary of State for the Environment [2002] EWHC 2100 (Admin) para 49 per Sullivan J as he then was

c)

a condition will be void for uncertainty only “if it can be given no meaning or no sensible or ascertainable meaning, and not merely because it is ambiguous or leads to absurd results” per Lord Denning in Fawcett Properties v Buckingham County Council [1961] AC 636, 678. This seems to me to be an application of the benevolent construction principle.”

Dove J. then added:

“35 What is clear, therefore, from these principles of construction is that the fact that a condition might be better, or more fully, worded is not in and of itself a reason to conclude that it is unlawful. Indeed the approach to interpreting conditions should be, as the authorities observe, benevolent and neither too narrow nor too strict. The question is whether or not, when read in context, a sensible and reasonable interpretation can be reached in relation to the condition. This approach, and my observations which follow, therefore govern the question of whether the condition is sufficiently certain so as to enable it to be enforced. There are other tests which planning conditions must pass, as is well known, but they are not in point in the present case.

36 It follows from the principles set out above that it is not fatal to the condition that it does not specify every measurement, dimension, or methodology which might be required in order to understand whether or not breach of the condition has occurred. I accept the submission made by Mr Smyth that whilst the condition is to be understood as a reasonable reader would understand it, in this case one is considering a noise condition. A noise condition will very often if not invariably require measurements to be taken to establish whether compliance has been achieved. A noise condition is therefore a condition which will be read, understood, and applied mainly by environmental health officers or acousticians. Most members of the public would not be able to describe what is meant by an LA90 5 minute dB(A) measurement but that does not mean that the condition is unenforceable or unlawful.

37 It is not unusual to find planning conditions which may require persons with specialist knowledge to undertake measurements or administer tests to investigate their application and compliance with them and in doing so they may well need to deploy professional judgment…

38 Measured against this approach, in my view, the criticisms of the claimant cannot be sustained. True it is that, as written, the experts are correct in concluding that it may be impossible in practice to individually assess each five minute period as defined by the LA90 five minute measurement index. However, that observation does not without more render, in my judgment, the condition unintelligible or unenforceable. The condition requires interpretation deploying professional judgment to evaluate compliance and it has within it the necessary information to establish limits against which to test compliance with the condition using that judgment. The approach is as follows.

39 It will require separate evaluation of the background noise and the noise arising from the turbine itself. The fact that there may be a number of different methodologies that could be deployed in order to achieve that objective, or that those methodologies may produce different results, does not detract from the fact that the condition can be interpreted and applied. Its interpretation must occur against the backdrop of the reason for its imposition that is to say to protect residential amenity. It will therefore be a matter of judgment for those seeking to determine compliance with the condition to arrive at the most appropriate methodology to measure the relevant noise levels to achieve that objective. Again, the fact that there may be differences in professional opinion about that matter does not render the condition illegal. It is important to appreciate that in broad terms the claimant does not contend that the condition is unintelligible or incapable of any sensible meaning, rather that because in certain respects it lacks definition it is open to interpretation and might give rise to more than one answer in relation to whether or not it has been complied with. The fact that whether there has been compliance or not with the condition might be interpreted differently with competing answers as a result of the application of professional judgment does not in my view render the condition unlawful. It is not unusual, as I have set out above, that the question of compliance with conditions will have to be informed by the application of professional judgment, by the local planning authority in the first instance, but then by others if their decision is challenged. I accept that there might be conditions where their terms are so hopelessly vague or adjectival that they are not capable of sensible ascertainable meaning, but this condition is not one of them.”

In my judgment these principles are relevant and applicable to Ground 3, below.

There is currently a large bund at the northern edge of the quarry and C made a number of requests for a similar bund to be constructed along the boundary of the expanded quarry to reduce the noise impact on his home. Mr Henderson submitted that there was no evidence that, in granting the Permission, D considered whether this, or any other form of noise mitigation, should reasonably have been imposed on that grant and that this error is significant when considered alongside the failure to apply the national guidance properly.

The Environmental Statement submitted with the planning application included at Chapter 10 an assessment of “Noise”, which comprised a report by Sean Sullivan of Acoustic Associates (“the Noise Report”). The conclusions summarised the report in these terms:

“2.1

The background noise is assumed to be low in this rural area. Three surveys carried out since 008 show levels during the proposed working hours of between LA90,T 30 dB(A) and between LA90,T 50 dB(A) with LA90,T 38 dB(A) being the most typical.

2.2

Assuming that La90,T 38 dB(A) is a representative background noise level, predictions from operations under a “worst-case” scenario are likely to exceed the background noise level by more than 10 dB at two of the nearest residents. If this occurs they will exceed the recommended criterion level documented in NPPF Technical Guidance (Reference 3).

2.3

Prediction show that under this “worst-case” scenario the noise levels will not exceed the upper limit of LAeq, 1hour 55 dB(A) which is recommended by NPPF Technical Guidance.”

The details of the assessments (which were predictions based on a number of factors including the sound produced by individual noise sources, their assumed “on-time” and their distance from the various receptors as well as measured ambient noise levels) were provided in Sections 7 and 8 of the Noise Report which set out to assess noise impact by reference to “worst-case operations”:

“The following 2 scenarios in order to estimate worst-case operations on site.

Scenario A) Soil strip/quarrying at ground level in the new (northern) section. Recycling in the southern section. Table 1 items 1,2,3,4,5,6,8,9 and 10 were all assumed to operating.

Scenario B) Infill of southern section of quarry whilst Excavator and Loader working in northern section. Table items 1,2,4,7,8,9 and 10 were all assumed to operating.”

Section 8 set out the results of the assessments and showed those worst-case scenarios where 50db(A) LAeq, but not 55 dB(A) LAeq, was predicted to be exceeded at Kingfisher Lodge and Red Barn Farm when all plant other than the crusher was working at ground level (Table 3). However, the assessments did indicate instances when the assessed noise at the various receptors (including Kingfisher Lodge) exceeded the ambient noise level by more than 10dB(A). The Noise Report noted that:

“The predictions assume that all plant is working as described in section 7.3 and is close to the receptors. …

As can be seen, predictions show that levels are likely to exceed the background noise level by more than 10dB however under no conditions are likely to exceed the absolute limit of Laeq,1hour 55 dB(A).”

Section 9 of the Noise Report dealt with the possibility of providing bunding or a barrier but did not recommend their use:

“Predictive modelling showed that a 3 metre high bund along the entire north of the quarry would reduce noise levels by less than 2 dB under most scenarios, which is a barely perceptible decrease in noise levels. Hence this Assessment does not include a recommendation for mitigation by the use of bunds/noise barriers. If bunds are created as part of the extraction process which is carried out in phases then they may have some effect whilst operations are at or close to ground level provided that:

•

The noise sources are close to the barriers;

•

The barriers complete intersect the source and the receiver (the residents);

•

The barriers are at least 3 metres high.”

The reference in the Noise Report to the “NPPF Technical Guidance” is to the predecessor to the guidance in the PPG which had been issued in 2012 and contained guidance at para. 30 the substance of which is repeated in para. 21 of the PPG. Para. 30 was set out at section 6.3 of the Noise Report, the relevant part of which states (original emphasis):

“30 Subject to a maximum of 55dB(A)LAeq, 1h (free field), mineral planning authorities should aim to establish a noise limit at the noise-sensitive property that does not exceed the background level by more than 10dB(A). It is recognised, however, that in many circumstances it will be difficult to not exceed the background level by more than 10dB(A) without imposing unreasonable burdens on the mineral operator. In such cases, the limit set should be as near that level as practicable during normal working hours (0700-1900) and should not exceed 55dB(A) LAeq, 1h (free field) …”

Para. 30 was replaced from 6.3.14 by the guidance in para. 21 to the Minerals Guidance (section 27 of the PPG) (emphasis added):

“What are the appropriate noise standards for mineral operators for normal operations?

Mineral planning authorities should aim to establish a noise limit, through a planning condition, at the noise-sensitive property that does not exceed the background noise level (LA90,1h) by more than 10dB(A) during normal working hours (0700-1900). Where it will be difficult not to exceed the background level by more than 10dB(A) without imposing unreasonable burdens on the mineral operator, the limit set should be as near that level as practicable. In any event, the total noise from the operations should not exceed 55dB(A) LAeq, 1h (free field). …”

Mr Henderson submitted that it was required that the planning decision-maker should consider and apply the advice in the light of the assessment that the background noise levels would be exceeded by more than 10dB(A) at times. However, he says that D did not properly construe or apply the PPG in that at no time did it apply the part of the guidance highlighted above. This aspect of the guidance is not expressly referred to or addressed at any stage, either in Ms Braybrook’s advice (below), the OR, the Planning Committee minutes or the decision. He adds that Ms Braybrook’s witness statement does not suggest that the “unreasonable burden” part of the guidance was explicitly covered in her advice at the relevant time, but rather that she used language which “summarised and reflected” the guidance.

Where a decision-maker purports to apply guidance, it will be an error of law if the decision-maker misconstrues the guidance: see Bloor Homes at [19(4)] applying Lord Reed in Tesco Stores v Dundee City Council [2012] P.T.S.R. 983, at [17] to [22]. The importance of distinguishing between the construction of policies and their application to the individual circumstances, by means of the exercise of planning judgment, referred to by Lord Reed was underlined recently by Lord Carnwath and Lord Gill in Hopkins Homes Ltd v Secretary of State for Communities and Local Government [2017] 1 WLR 1865 at [22] to [26] and [71] to [75]. Lord Gill stated:

“74 The guidance given by the Framework is not to be interpreted as if it were a statute. Its purpose is to express general principles on which decision-makers are to proceed in pursuit of sustainable development (paras 6—10) and to apply those principles by more specific prescriptions such as those that are in issue in these appeals.”

The same approach must also apply to the PPG, which comprises a mixture of policy and guidance produced in a less formal manner than the NPPF and subject to frequent on-line revision.

Further, it is unnecessary for a policy (especially if it is well-known) to be recited by a decision-maker in order for a decision to be lawful, provided it has been considered, and the courts will not readily infer that policy has not been complied with if it is clear that it was considered and in the absence of “some positive indication to the contrary”: see Lewison LJ in R (Palmer) v Herefordshire Council [2017] 1 WLR 411 at [7] and [8].

The OR referred to the assessment that the bund would only attenuate the noise from the development by 2 dB, which was referred to as “barely perceptible” in section 9.1 of the Noise Report and not considered appropriate for this reason at para. 8.63 of the OR. This was in my view a matter of judgment for D, in the light of the OR advice and supported by the Noise Report.

There is a contrary argument by Mr Stigwood but this was contained in his witness statements dated 7.11.16 and 17.3.17 (the second with a “detailed technical rebuttal) respectively and self-evidently submitted after the decision, the second purportedly in response to D’s witness statements. This raises an issue arising with respect to the many witness statements filed in this case by the C and D.

Since Mr Stigwood’s own assessment and views were not put before members in time for them to consider when determining the application, I do not consider that the admission of such further material can be justified to support a ground alleging an error of law. In the context of judicial review proceedings, it is difficult to understand the purpose of seeking to challenge a judgment by the production of new expert evidence several months after the decision under challenge. If such material is to be of value, then it should have been produced in good time before the decision under challenge so that members in reaching their decision could consider it. The production of contradictory expert evidence does not approach establishing that the judgment reached at the time was unreasonable or otherwise unlawful.

The evidence of Mr Lewis on the noise issues dated 20.2.17, filed on behalf of the D, attracts the same criticism as the submission of Mr Stigwood’s evidence – although it may understandably enough have been produced as a precaution given that Mr Stigwood’s first statement was filed with the claim form. It should not be necessary to do so, given the volumes of authority on the nature and limits of judicial review, but I feel compelled to remind the main parties that judicial review is not an opportunity to retry a planning application on the merits, still less an opportunity for an objector to seek to undermine a decision by the submission of ex-post facto expert evidence or for an authority to support its own case by further expert evidence. It is possible that there will be some exceptional cases where the circumstances may warrant new expert evidence but this is not one of them. Such new evidence cannot be appropriate in the general run of planning cases such as this where the issues concern the application of policy or guidance and the reaching of planning judgments based on the information available to the decision maker at the time of the decision. I therefore do not consider that it is appropriate to have regard to the expert evidence in the statements of Messrs Stigwood and Lewis.

I have already mentioned Councillor Connor’s evidence, which simply gives evidence of fact as to what happened around the time of the decision, which does not seem to me to be objectionable.

I approach with caution the evidence of Ms Claire Braybrook, the East Cambridgeshire EHTO (environmental health technical officer), and Ms Jane Stanley, the D’s planning officer, which occupies a middle ground between the ex-post facto expert evidence and the factual evidence of the councillor, given that it is a further explanation of the process followed and also for what was done in terms of the provision of advice to members in the OR. Some of that evidence is plainly factual, and unobjectionable, explaining the sequence of events, but other parts seek to explain aspects of the advice contained in the OR.

Such evidence on behalf of a decision-maker may be admissible to elucidate but not to contradict what is said in the document, nor to make good any defects in the original document. Without reviewing the law in detail, I gratefully refer to the recent judgment of Lindblom LJ in R (Watermead Parish Council) v Aylesbury Vale District Council [2017] EWCA Civ 152 where he dealt with the concerns arising from new evidence at [32]-[36]. As his judgment at [36] illustrates, the effect of providing a more detailed explanation of how views came to be expressed in a report, or what the report was intended to mean, may have the effect of emphasising the defects alleged in the report itself. As Lindblom LJ held at [35] -

“As the authorities show, the court should always be cautious in admitting evidence which, in response to a challenge to a grant of planning permission, elaborates on the advice given by a planning officer in his report to committee – the more so when it expands at length on the advice in the report, or even differs from it. This is not simply because an attempt to reinforce the advice given in the report may only strengthen the argument that the advice fell short of what was required, or was such as to mislead the committee. It is also for the more basic and no less obvious reason that the committee considered the proposal in the light of the advice the officer gave, not the advice he might now wish to have given having seen the claim for judicial review.”

Other than in respect of the factual evidence of the events surrounding the decision, I prefer to deal with the substance of the grounds of challenge by reference to the contemporaneous advice provided by Ms Braybrook, the summary of it by Ms Stanley in the OR and the judgments reached in the light of the advice in the OR. In the light of the facts of this case, I do not need to go further and grapple with the admissibility of aspects of those witness statement which go beyond explaining the facts.

It is relevant to consider the full form of Miss Braybrook’s contemporaneous advice, which was given in an email sent on 23.12.14. It referred to the Noise Report and included the following advice:

“As with the majority of noise reports there is a certain amount of prediction required and there has to be an element of trust in what the acoustic consultant is reporting, for example the accuracy of the predicted ‘on’ times (pg 11 - Table 1 - Noise Sources operating at the site) and that the model data has been entered correctly etc.

Table 2 regarding the summary of measured noise levels during proposed working hours, shows background and ambient noise levels obtained recently and during a previous exercise along with the averages. My calculations indicate that the average (arithmetic) background and average (logarithmic) ambient noise levels are slightly higher than those within the table, with the background being approx 1dB higher than reported by the noise consultants.

I understand from this assessment that the noise consultant has assessed on a ‘worst case’ scenario with Scenario A where they are predicting the impact if most of the plant is operating in close proximity to the nearby residential premises.

I consider a background noise level of in the region of 38dB(LA90) to be reasonable during the day at this location. I do have some concerns regarding the level of difference between the background and the predicted noise levels. Whilst I accept that they are within the advised upper limit of 55dB(A) I do have concerns regarding the potential impact of the plant on Kingfisher Lodge and Red Farm Barn.

There appears to be no other concerns raised regarding noise and we have not received any complaints regarding the current operation of the site. Taking these aspects into account as well as the type of site, current usage, the consultants report and the planning guidance I do not consider I am in a position to recommend refusal of this application or advise noise limits lower than those predicted, as these will be ‘as near to 10dB above background as practicable’. However, whilst the noise limits are a worst case prediction I consider there should be an attempt to control and mitigate noise levels as far as possible and I would therefore recommend a noise management plan as well as a noise limit. Therefore I would advise the following conditions:”

The conditions referred to include the first versions of what became conditions 13 and 16. Indeed, the suggested draft of what became condition 13 did not differ a great deal from the final version, although the reference to the PPG was substituted for a plan policy reference. The basis structure and the noise levels and the use of BS4142 originated with the EHTO.

I have set out the relevant passages from the OR already and it appears to me clear that they reflect the advice given by Miss Braybrook in her email.

Whilst it is correct that Ms Braybrook did not expressly refer to the PPG she refers to “the advised upper limit of 55dB(A)” and “as near to 10dB above background as practicable” which, whilst not directly quoting para. 21 of the PPG, are nonetheless clearly references to it. This is also true of the statement that “the limit should be as near that level as practicable”, i.e. no more than 10dB(A) above the background LA90, 1h and not exceed 55dB(A) LAeq. She also says she has had regard to “the type of site, current usage, the consultants report and the planning guidance”. I have no reason to doubt that Ms Braybrook considered and applied the guidance in para. 21 of the PPG and that it is incorrect to suggest it was ignored or overlooked. She set out her expert view on the issue and concluded that mitigation measures should be imposed, in the form of the conditions imposing noise levels and noise management. It appears to me that she considered those proposed conditions not to impose unreasonable burdens on the IP since she recommended them as appropriate mitigation.

In my judgment, reading the OR as a whole, with the requisite degree of benevolence, it is sufficiently clear that the advice was given in the context of the PPG guidance and that it was a matter of planning judgment whether the provision of a bund would be justified. In view of the assessed acoustic properties of the bund in my judgment it lay within the reasonable planning judgment of the decision-maker to conclude, as the OR advised, that a 2dB attenuation of noise was not significant and did not justify the imposition of a requirement for a bund. That, in substance, is a judgment that it would have been unreasonable to impose it.

I am satisfied that the PPG guidance was properly understood and applied in this case, that appropriate and detailed mitigations measures were imposed, and that the suggestion of a new bund, or extension to the existing bund, was properly rejected on grounds which were a matter for the reasonable judgment of the authority. There was no need to recite the guidance, mantra-like, when the evidence shows that it was considered and understood.

I therefore reject Ground 1.

Put pithily in his skeleton argument by Mr Henderson, the point comes to this:

“In the light of South Bucks v. Porter (No. 2) [2004] 1 WLR 1953 (followed recently in CPRE Kent v. Dover District Council [2016] EWCA Civ 936), because the Claimant could not understand why the Defendant concluded a noise increase of more than 10dB(A) was acceptable, the decision is unlawful for failure to give adequate reasons. The Claimant was quite genuinely unable to understand why the Defendant refused to require the Interested Party to take steps to reduce the noise levels further.”

I have already set out at length my consideration of Ground 1 and the manner in which the conclusions on the noise evidence were reached. As Mr Burton pointed out, Ground 1 as well as Ground 2 is concerned, at least to a large extent, with the adequacy of the reasoning. Applying the legal formulation of Lord Brown in Porter (No. 2), I have found no difficulty in understanding the reasons given in the OR, in the context of the PPG, and thus the decision reached. To return to the formulation by Sir Thomas Bingham MR in Clarke Homes, the decision does not leave “genuine as opposed to forensic doubt” as to what D decided and why.

I therefore agree with Mr Burton and Mr Moules’ submissions and find that Ground 2 is also not made out.

Mr Henderson submits that Condition 13 was unenforceable because the noise limits stipulated were said to be “calculated in accordance with BS4142 and the National Planning Practice Guidance”. He argued that the condition was unenforceable because it did not stipulate which version of BS4142 (often applied in planning noise cases) was to be applied and BS 4142 (relying in part on Mr Stigwood’s evidence) was not any event applicable to the assessment of low frequency noise, which was amongst the concerns here. There is an acknowledgment of this in the note in BS4142:2014, at the end of Section 1, “Scope”.

The ground changed a little in oral argument, Mr Henderson accepting that this was not a low frequency noise case as such but submitting that BS4142 was not a “measuring tool”.

I see no difficulty with the reference to BS4142 since the natural inference is that the version to be applied is that in force at the date of the grant of the planning permission, namely BS4142:2014. This version was published in October 2014, prior to Ms Braybrook’s advice with regard to the imposition of the condition referring to it and 18 months before the condition was imposed on the grant of permission. Moreover, having in mind Greaves, the use of it was advised by Ms Braybrook who will be familiar as EHTO with its application.

Since this was not a case where low frequency noise was the primary concern I do not consider the use of BS4142 to raise an error of law, especially since the use of the standard was advised by the EHTO. Moreover, BS4142 uses dB(A) and that use of “A” weighting is intended to reflect the response of the human ear (see the Noise Report Appendix 1, Glossary). This appears reasonable given that the complaint relates to impact on residential amenity. As BS4142 states at Section 3:

“NOTE All the measurements and values used throughout this standard are "A''-weighted. Where "A" weighting is not explicit in the descriptor, it is to be assumed in all cases, except where it is clearly stated that it is not applicable, as in the case of tones.”

Further, although BS4142 may not be a “measuring tool” strictly speaking, it provides ample guidance on a wide range of matters relevant to assessment and is therefore apt for the purpose of imposing it as part of a condition. For example, I note:

It is abundantly clear that BS4142 contains a considerable body of advice, which is of value to the acoustic expert in approaching the measurement and assessment of sound levels and thus assisting in the determination of whether the levels set in Condition 13 are met. The condition sensibly refers to the standard in general rather than specifying in greater, and possibly very lengthy, detail the approach to be adopted when monitoring and, if necessary, enforcing the levels in the condition.

Even if it is right that the reference to the PPG was otiose, or added nothing of substance as Mr Henderson submitted, that of itself does not render the condition uncertain or unenforceable.

The condition thus embodies the application of expert technical judgment and, as Dove J, pointed out in Greaves (above) -

“It is not unusual to find planning conditions which may require persons with specialist knowledge to undertake measurements or administer tests to investigate their application and compliance with them and in doing so they may well need to deploy professional judgment”

Uncertainty should therefore not be confused with matters left to the exercise of technical expert judgment. I find there to be no substance in the allegations of uncertainty here and Ground 3 also fails.

In view of my conclusions on the grounds, the remaining points on s. 31(2A) of the Senior Courts Act 1981 and discretion do not arise for my decision.

For the reasons I have given, I dismiss this application for judicial review. I will deal with the issue of costs and any ancillary orders in writing without the need for attendance by the parties.