Royal Courts of Justice
Strand, London, WC2A 2LL
Before:
MR JOHN HOWELL QC
Sitting as a Deputy High Court Judge
Between:
THE SHORE LIMITED | Applicant |
- and - | |
SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT and SOUTHEND ON SEA BOROUGH COUNCIL | Defendant Interested Party |
Mr Gregory Jones QC (instructed by Allen & Overy LLP) for the Applicant
Mr Guy Williams (instructed by the Government Legal Department) for the Defendant
The Interested Party did not appear and was not represented.
Hearing date: 7th February 2018
Judgment
Mr John Howell QC:
This is an application under section 288 of the Town and Country Planning Act 1990 (“the 1990 Act”) by The Shore Limited to quash the decision of an Inspector, Mr Grahame Gould, who dismissed its two appeals against decisions of the local planning authority, Southend-on-Sea Borough Council, refusing to grant planning permission for the development of land to the rear of The Shore, 22-23 The Leas, Westcliffe-on-Sea.
INTRODUCTION
The Shore is a recently constructed, multi-storey block, containing 46 flats, with its own basement car parking for 51 vehicles. The land to which the applications for planning permissions related is an outdoor communal space for use by the occupiers of The Shore at the rear of the site. The applicant sought planning permission for the provision on that land of 16 surface level car parking spaces with replacement car park entrance gates. The second application also proposed the erection of some acoustic fencing. Access to the proposed car park was to be obtained from a quiet side street, Grosvenor Mews, a no-through road serving 14 dwellings, via a narrow access track between two residential properties, 3 Grosvenor Mews (“No 3") and Elm Cottage. The Inspector decided to dismiss the applicant’s appeals against the decisions of the Borough Council to refuse permission in the light of his views on the effect that noise from movements of cars, to and from the proposed car park would have on the occupiers of those two properties.
The grounds on which, on an application under section 288 of the 1990 Act, this court may quash a decision, given on a planning appeal by the Secretary of State or one of his inspectors, were summarised by Lindblom J in Bloor Homes East Midlands Limited v Secretary of State for Communities and Local Government [2014] EWHC 754 (Admin), [2017] PTSR 1283, at [19].
In this case the application was brought under section 288 on four grounds, namely: (i) that the Inspector failed to have regard to the Secretary of State’s policy and guidance on the approach to potential noise in the exercise of development control (which was a material consideration); (ii) that the Inspector misinterpreted or misapplied that policy and guidance; (iii) that the Inspector failed to acknowledge that he was departing from that policy and guidance or to give reasons for so doing; and (iv) that his decision was unfair or in breach of the applicant’s legitimate expectations.
I granted permission to make this application on part of one of the grounds on which it was made. I refused permission on the other grounds on which it was sought. The point on which I granted permission to make this application was one of the arguments put forward in support of the second ground. In one paragraph of his decision letter, paragraph [11], it was arguable that the Inspector had fallen into a logical error or applied the wrong test, when he apparently inferred that there would be a harmful impact on the amenity of the two residential properties concerned (or an unacceptably harmful one) from the fact that, in his view, it had not been demonstrated that there would be no such harmful impact.
The applicant renewed its application for permission on the other grounds and the parties have agreed that its application for reconsideration should be heard and, if granted, those grounds considered, at this hearing of this substantive application. In the event I heard full argument on all the applicant’s grounds.
THE CONTEXT FOR THE INSPECTOR’S DECISION
In considering whether the applicant’s complaints have any merit, it is necessary to understand what the Secretary of State’s policy and guidance is on how potential noise from proposed developments should be treated in development control, and what the arguments advanced on the appeals were, that the Inspector had to consider. These matters, together with the applicable development plan policies, formed the context within which the Inspector’s decision has to be read and understood.
relevant development plan policies
As is well known, the determination of any application for planning permission must be made in accordance with the development plan unless material considerations indicate otherwise: see section 70 of the 1990 Act and section 38(6) of the Planning and Compulsory Purchase Act 2004. The provisions of the development plan so far as material, therefore, are the starting point when making any such determination. In this case the development plan included both the Council’s Core Strategy Development Plan Document and their Development Management Document.
Policy CP4 of that Core Strategy provides that “development proposals will be expected to contribute to the creation of a high quality, sustainable urban environment which enhances and complements the natural and built assets of Southend. This will be achieved by...maintaining and enhancing the amenities, appeal and character of residential areas, [and] securing good relationships with existing development.”
Policy DM1 of the Council’s Development Management Document provides that “all development should...protect the amenity of the site, immediate neighbours, and surrounding area, having regard to.... noise and disturbance”. Policy DM15 provides that “access to the proposed development and any traffic generated must not unreasonably harm the surroundings, including the amenity of neighbouring properties...”.
the Secretary of State’s policy and guidance on noise
The Secretary of State’s planning policies are set out in the National Planning Policy Framework (“the NPPF”). The policies that it contains may provide material considerations to be taken into account when planning applications are determined.
The part of the NPPF, that is concerned with noise, uses terms, in particular the “lowest observed adverse effect level” (“LOAEL”) and the “significant observed adverse effect level” (“SOAEL”), that are derived from, and explained in, the Explanatory Memorandum in the Noise Policy Statement for England (“the NPSE”), issued in March 2010. That statement covers all types of noise, apart from noise in the workplace.
The Explanatory Memorandum to the NPSE states:
“2.20 There are two established concepts from toxicology that are currently being applied to noise impacts, for example, by the World Health Organisation. They are:
NOEL – No Observed Effect Level
This is the level below which no effect can be detected. In simple terms, below this level, there is no detectable effect on health and quality of life due to the noise.
LOAEL – Lowest Observed Adverse Effect Level
This is the level above which adverse effects on health and quality of life can be detected.
2.21 Extending these concepts for the purpose of this NPSE leads to the concept of a significant observed adverse effect level.
SOAEL – Significant Observed Adverse Effect Level
This is the level above which significant adverse effects on health and quality of life occur.
2.22 It is not possible to have a single objective noise-based measure that defines SOAEL that is applicable to all sources of noise in all situations. Consequently, the SOAEL is likely to be different for different noise sources, for different receptors and at different times. It is acknowledged that further research is required to increase our understanding of what may constitute a significant adverse impact on health and quality of life from noise. However, not having specific SOAEL values in the NPSE provides the necessary policy flexibility until further evidence and suitable guidance is available.”
The NPPF states inter alia that:
“109. The planning system should contribute to and enhance the natural and local environment by:
• ....
• preventing both new and existing development from contributing to or being put at unacceptable risk from, or being adversely affected by unacceptable levels of..... noise pollution;....
123. Planning policies and decisions should aim to:
• avoid noise from giving rise to significant adverse impacts** on health and quality of life as a result of new development;
• mitigate and reduce to a minimum other adverse impacts** on health and quality of life arising from noise from new development, including through the use of conditions;
• recognise that development will often create some noise and existing businesses wanting to develop in continuance of their business should not have unreasonable restrictions put on them because of changes in nearby land uses since they were established; and
• identify and protect areas of tranquillity which have remained relatively undisturbed by noise and are prized for their recreational and amenity value for this reason.”
The “**” that I have inserted in text are references that appear in the text to footnotes that refer to the Explanatory Note to the NPSE.
The Secretary of State has also subsequently issued Planning Practice Guidance (“PPG”) to assist in the application of the NPPF. It deals inter alia with the treatment of potential noise in development control. The PPG includes the following (Footnote: 1):
“[002] Can noise override other planning concerns?
It can, but neither [the NPSE] nor [the NPPF] (which reflects the [NPSE]) expects noise to be considered in isolation, separately from the economic, social and other environmental dimensions of proposed development.
[005] How to recognise when noise could be a concern?
At the lowest extreme, when noise is not noticeable, there is by definition no effect. As the noise exposure increases, it will cross the no observed effect level as it becomes noticeable. However, the noise has no adverse effect so long as the exposure is such that it does not cause any change in behaviour or attitude. ....
As the exposure increases further, it crosses the lowest observed adverse effect level boundary above which the noise starts to cause small changes in behaviour and attitude, for example, having to turn up the volume on the television or needing to speak more loudly to be heard. The noise therefore starts to have an adverse effect...
Increasing noise exposure will at some point cause the significant observed adverse effect level boundary to be crossed. Above this level the noise causes a material change in behaviour such as keeping windows closed for most of the time or avoiding certain activities during periods when the noise is present....
At the highest extreme, noise exposure would cause extensive and sustained changes in behaviour without an ability to mitigate the effect of noise...”
The PPG then sets out in paragraph [005] a table that “summarises the noise hierarchy, based on the likely average response” (“the PPG Table”). This Table includes the following:
Perception | Examples of outcomes | Increasing effect level | Action |
Lowest Observed Adverse Effect Level | |||
Noticeable and intrusive | Noise can be heard and causes small changes in behaviour and/or attitude, eg turning up volume of television; speaking more loudly; where there is no alternative ventilation, having to close windows for some of the time because of the noise...Affects the acoustic character of the area such that there is a perceived change in the quality of life. | Observed Adverse Effect | Mitigate and reduce to a minimum |
Significant Observed Adverse Effect Level | |||
Noticeable and disruptive | The noise causes a material change in behaviour and/or attitude, eg avoiding certain activities during periods of intrusion; where there is no alternative ventilation, having to keep windows closed most of the time because of the noise…Quality of life diminished due to change in acoustic character of the area. | Significant Observed Adverse Effect | Avoid |
Noticeable and very disruptive | Extensive and regular changes in behaviour and/or an inability to mitigate effect of noise leading to psychological stress or physiological effects, egregular sleep deprivation/awakening; loss of appetite, significant, medically definable harm, eg auditory and non-auditory | Unacceptable Adverse Effect | Prevent |
As can be seen, the PPG Table divides the “significant observed adverse effect level” into two, in one part of which there is merely a “significant observed”, and in the other an “unacceptable”, adverse effect.
Having described the “noise hierarchy”, when noise falls within each category and the recommended policy response, the PPG then provides some guidance on how to determine the likely average response to noise. It states:
“[006] What factors influence whether noise could be a concern?
The subjective nature of noise means that there is not a simple relationship between noise levels and the impact on those affected. This will depend on how various factors combine in any particular situation.
These factors include:
• the source and absolute level of the noise together with the time of day it occurs. .....;
• for non-continuous sources of noise, the number of noise events, and the frequency and pattern of occurrence of the noise;
• the spectral content of the noise (ie whether or not the noise contains particular high or low frequency content) and the general character of the noise (ie whether or not the noise contains particular tonal characteristics or other particular features). The local topology and topography should also be taken into account along with the existing and, where appropriate, the planned character of the area.”
The PPG then lists some specific factors that, in some cases, qualify the more general approach previously indicated but which are not of relevance in this case. The PPG had earlier stated (in paragraph [003])that “As noise is a complex technical issue, it may be appropriate to seek experienced specialist assistance when applying this policy.”
In summary, therefore, the effect of the Secretary of State’s policy and guidance, so far as relevant for present purposes, is that:
it is the likely average response (Footnote: 2) in terms of “behaviour and/or attitude” (Footnote: 3) to the potential noise that a development may cause that determines how the level of observed adverse effect is classified in the “noise exposure hierarchy” and what action should be taken by planning authorities;
The subjective nature of noise means that there is not a simple relationship between noise levels and the impact on those affected (Footnote: 4). There are no specific objective noise-based measures or values that define when the “significant observed adverse noise level” applicable to all sources of noise is crossed (Footnote: 5). The impact on those affected will depend on how various factors combine in any particular situation (Footnote: 6): cf Stoke Poges Parish Council v Secretary of State for Communities and Local Government [2016] EWHC 1772 (Admin) per David Elvin QC at [11] and [79].
when the noise that a development may cause is perceived as “noticeable and intrusive”, the likely average response is that that will only cause “small changes in behaviour and/or attitude” (and thus cross the “lowest observed adverse effect level”) (Footnote: 7). Such noise should be mitigated and reduced to a minimum (Footnote: 8), that is to say as far as reasonably practicable: see R (May) v Rother District Council [2015] EWCA Civ 610, [2015] LLR 853, per Lewison LJ at [17].
when the noise is perceived to be “noticeable and disruptive”, the likely average response is that that will start to cause a “material change in behaviour and/or attitude” (and thus crosses the “significant observed adverse effect level”) (Footnote: 9). Such noise should be avoided (Footnote: 10). If it is perceived as “noticeable and very disruptive”, it will have an unacceptable adverse effect and should be prevented (Footnote: 11).
the potential noise that may result should not be considered in isolation; account also needs to be taken of the economic, social and other dimensions of the development (Footnote: 12).
the applicant’s and the Council’s arguments on the appeals
The Council refused to grant planning permission for the development proposed in the two applications on three grounds: the unacceptable level of noise and disturbance that the traffic generated would cause to neighbouring residents; the effect of that traffic on highway safety and the efficiency of the highway network; and the loss of amenity space for residents of The Shore. The appeals against the Council’s decisions were conducted by written representations.
The Statement of Case for the applicant was submitted by its planning consultants. In it they asserted that a Noise Impact Assessment and Vehicular Access Study (“the Study”) by Mayer Brown clearly demonstrated that the proposed car park would not have any significant adverse impact on the health or quality of life of existing residential neighbours arising from noise and that it would not result in any loss of amenity for the site, immediate neighbours or the surrounding area as a result of noise impacts. They drew specific attention to paragraph 123 of the NPPF and parts of the PPG and claimed that the Council should be prepared to demonstrate that the noise impact was “significant” and they pointed out that “in the context of Practice Guidance a “Significant Adverse Effect Level” is described as being noise that is “noticeable and disruptive”. They also quoted a passage from the PPG that the outcome of such noise would be expected to cause “a material change in behaviour and/or attitudes”.
The Study, which had been produced to accompany the application by Mayer Brown, examined the noise implications of the proposed development at a number of locations. When looking at daytime noise, that examination was conducted in terms of LAeq 16 hour noise levels. That noise level is a result of transforming the fluctuating sound levels that occur over the 16 hour period between 7am and 11pm into an equivalent continuous sound level. A LAeq T (Footnote: 13) noise level may be thought of (somewhat crudely) as the “average” level of noise over the period (T) specified (Footnote: 14). The location examined that had the worst change in sound levels was near the eastern elevation of Elm Cottage facing the proposed access to the car park. The Study modelled its existing LAeq 16 hour noise level at 43.4 decibels or dB(A) (Footnote: 15). The Study predicted that the potential change to the noise level at that location would be an additional 2 dB(A) to the existing LAeq 16 hour noise level.
The Study approached its assessment of the significance of that change in two ways.
First it considered the significance of the change as such. It referred to the Highway Agency’s Design Manual for Roads and Bridges in which the impact of 1 - 2.9 dB(A) change in the LAeq 18 hour noise level in the short term was regarded was “minor” and in the long term as “negligible”. On that basis the Study concluded that the proposed development would not have any significant adverse impact.
Secondly the Study looked at the significance of the resulting noise level. It noted that, in the World Health Organisation’s “Guidelines for Community Noise”, it had been recommended that, where there are distinct events to the noise, such as aircraft or railway noise, measures of the individual events should be obtained (using for example, LAmax or LAE) in addition to measurements of LAeq over a specified period. It noted that the guidelines stated that, during the daytime, few people are seriously annoyed by activities with LAeq levels below 55dB or moderately annoyed with LAeq levels below 50dB. It then stated that “given that few people would be even moderately annoyed by noise lower than 50dB LAeq 16 hour, such a value can be appropriately taken as the “Lowest Observed Adverse Effect Level” (LOAEL).” As the noise level predicted was below this value, the Study again concluded that that there would be no significant adverse noise impact.
It may be noted the Study’s approach did not measure the noise of individual events as such in addition to measurements of LAeq over a specified period (as the Guidelines were said to recommend). LAmax is the maximum A‐weighted sound pressure level in a stated interval. LAE is the A‐weighted Single Event Noise Exposure Level (“SEL”). Instead the second of the two tests used by the applicant’s consultants simply looked at the significance of the resulting LAeq 16 hour noise level.
The Applicant’s Statement of Case also referred to an objection that the Council’s Environmental Health Officers had made to the application in the light of the Study and to a Technical Note produced by Mayer Brown in response, as a result of which the Environmental Health Officers had withdrawn their objection to the proposed development. The Statement of Case pointed out that, in the Officer’s Reports to the Planning Committee, it was stated that “this specialist advice should be afforded significant weight in the assessment of the application” and also that the Officer’s Reports had recommended that planning permission should be granted for the proposed development
The Council’s Statement of Case noted that the applicant’s submissions were based on an assessment of average daytime noise levels over 16 hours and that, while this would be a sensible approach to take in relation to constant road traffic noise (where the road is constantly in use and where the noise is characteristic of a background hum or drone), it was less applicable when the suggested maximum of 8 vehicle movements per hour would be in addition to the current peak along Grosvenor Mews of 7 per hour. It suggested that the applicant’s method of assessment was not appropriate. Instead, as each passing car would cause a spike of noise (rather than add to a constant hum of traffic in the distance) each should be treated as an individual noise event. It pointed out that the sound levels measured by the applicant showed maximum sound levels that were significantly higher than the average noise levels in this location, most likely as a result of cars passing the site. It was contended that the movement of the additional vehicles thus had the potential to generate significant additional noise in the form of significant spikes in noise (rather than the minor average increase above background noise levels suggested by the applicant).
THE INSPECTOR’S DECISION LETTER
The Inspector’s conclusion in paragraph [19] of his decision letter (“DL”) was that
“I have found that the development would not have an adverse effect on highway safety or the livings conditions for the occupiers of The Shore. However, I have found that the noise associated with the development would cause unacceptable harm to the living conditions of neighbouring residents. I therefore conclude that the appeals should be dismissed.”
The relevant part of his decision letter dealing with the potential impact of the noise from vehicles using the proposed car park was as follows:
“4. The new car park would be independent of the existing 53 space basement parking area1 and it would be accessed via Grosvenor Mews. Grosvenor Mews is a no through road that currently serves 14 dwellings, leading from Grosvenor Road. The access to the new car park would be via a narrow access track (the track) that passes between 3 Grosvenor Mews (No 3), a semi-detached house, and Elm Cottage, a detached house. While the track already exists, it is only used to access an electricity sub-station.
5. The provision of the new car park would result in the track being used much more actively, with appellant’s highway consultant predicting that this development would generate 54 vehicle movements per day, with a quite low hourly frequency2. Given the very limited existing use of the track I consider that its more intensive use would have the potential to generate noise that would be disturbing for the occupiers of No 3 and Elm Cottage. That is because No 3 and Elm Cottage immediately adjoining the track, with Elm Cottage having a large ground floor window facing the track.
6. Given the track’s existing low level usage I consider it likely that 54 intermittent car movements would be discernible, as distinct noise events, by the occupiers of No 3 and Elm Cottage, given Grosvenor Mews’ comparatively quiet side street location. That situation might be different if the track was already subject to regular flows of traffic and the flow arising from the new car park’s use was to be less intermittent. I therefore consider that for circumstances such as this, making a comparison between the existing background daytime and night-time LAeq and the predicted post development noise levels is of limited assistance. That is because the intermittent nature of the vehicular noise would have the potential to be more irritating, and thus intrusive, for the occupiers of No 3 and Elm Cottage as compared with noise generated on a more regular basis.
7. A worst case increase of two decibels over the existing background LAeq, 16 hour level is predicted for the occupiers of Elm Cottage. For all of the other nearby noise receptors the increase in noise is predicted to less than two decibels. It is submitted that the additional noise arising from the development would fall within the category of being a ‘lowest observed adverse effect level’, capable of causing some limited behavioural changes, such as speaking more loudly and closing windows.
8. However, as I have indicated above, I consider comparing the post development and existing background noise levels is not a particularly meaningful way of assessing this development’s impact on the occupiers of No 3 and Elm Cottage. I therefore cannot accept that the noise associated with the daily passage of 54 vehicles, along what is currently a lightly used narrow track, would be insignificant for the occupiers of No 3 and Elm Cottage.
9. The potentially noise disturbing nature of the development would be accentuated for the occupiers of Elm Cottage on occasions when that property’s flank window was open, given that there would be no practical means of providing attenuation against the egress of noise into that house when the side window was open. The narrowness of the track at its southern end would mean that there could, on occasions, be potential for vehicles with idling engines to stand near Elm Cottage’s open window while waiting for on-coming vehicles exiting the new car park.
10. The development subject to appeal B would involve the installation of acoustic fencing on the eastern side of the track, alongside No 3. There would be scope, through the imposition of a planning condition, for the development subject to appeal A to also include the installation of the same acoustic fencing. However, were such fencing to be installed it would provide no noise attenuation for the occupiers of Elm Cottage. The attenuating effect of the acoustic fencing has not been quantified as part of the appellant’s case. While I recognise that the acoustic fencing’s installation would have the potential to provide some noise attenuation for the occupiers of No 3, it is has not been demonstrated how effective that fencing might be.
11. For the reasons given above I consider it has not been demonstrated that there would be no harmful noise effect for the occupiers of No 3 and Elm Cottage arising from the increased use of the track. I therefore conclude that the development would cause unacceptable harm to the living conditions of the occupiers of neighbouring properties. There would therefore be conflict with Policy CP4 of the Southend on Sea Core Strategy of 2007 (the Core Strategy) and Policies DM1 and DM15 of the Southend on Sea Development Management Document of 2015 (the DMD). That is because the development through the generation of noise would be harmful to the living conditions (amenity) of its immediate neighbours.”
WHETHER THE INSPECTOR HAD REGARD TO THE SECRETARY OF STATE’S POLICY AND COMPLIED OR DEPARTED FROM IT.
As I have indicated the grounds on which permission was refused included the contentions (i) that the Inspector failed to have regard to the Secretary of State’s policy and guidance on the approach to potential noise in the exercise of development control (which was a material consideration); (ii) that the Inspector misinterpreted or misapplied that policy and guidance; and (iii) that the Inspector failed to acknowledge that he was departing from that policy and guidance or give reasons for so doing. The part of the second ground on which I granted permission relates to [DL11] in which the Inspector summarises his conclusions “for the reasons given above”. Before considering the contents of that paragraph it is convenient, therefore, to consider what those reasons were and whether or not the applicant’s contentions with respect to them are well founded.
submissions
On behalf of the applicant Mr Gregory Jones QC submitted that the Inspector failed to make any reference to, or to address, the Secretary of State’s policy on noise, in particular he failed to mention paragraph [123] of the NPPF. If noise resulting from a development fell into the “lowest observed adverse effect level”, the Secretary of State’s policy merely required it to be mitigated so far as reasonably practicable: see R (May) v Rother District Council supra per Lewison LJ at [17]. The applicant’s consultants had found that the noise resulting from the vehicular movements this development would generate would fall at worst into that category.
The Inspector had referred to that conclusion but, in rejecting it, so Mr Jones submitted, the Inspector did not realise that he was also rejecting the Secretary of State policy and advice. The approach adopted by the applicant’s noise consultants was that set out in the Secretary of State’s policy, which compares the existing background noise level to the predicted noise level should the development proceed. The Inspector’s reasoning makes clear that he plainly misunderstood that policy and guidance. The whole system is based on a hierarchy of increased noise exposure above what must be the existing background noise levels. Such a process can only be carried out by using a comparison between the existing background noise levels with the noise levels predicted by the proposed development. The LAeq approach is that favoured by the World Health Organisation’s Guidelines on which the approach in the NPSE and PPG is based. The Guideline values for community noise in specific environments in that document are expressed in LAeq over relevant day and night time periods (other than in a limited number of cases, none of which is relevant here, where there are suggested LAmaxfast values proposed.) There is thus a policy requirement to determine adverse noise effects during the day “by reference” to the calculated change in any background LAeq 16 hour noise level caused by the proposed development. By rejecting that approach, the inspector was in effect rejecting the approach set out in the NPSE and PPG as endorsed by the NPPF. Further, so Mr Jones contended, the Inspector had not found that the “SOAEL” had been crossed.
On behalf of the Secretary of State, Mr Guy Williams submitted that Inspectors can be taken to be familiar with national policy and that there is a presumption that they have understood the policy framework correctly: see Secretary of State for Communities and Local Government v Hopkins Homes Limited [2017] UKSC 37, [2017] 1 WLR 1865, per Lord Carnwath JSC at [25]. Their decision letters are principally addressed to parties who know what the issues, evidence and arguments were and they are to be construed in a reasonably flexible way. When it is suggested that an inspector has failed to grasp a relevant policy one must look at what he thought the important planning issues were and decide whether it appears from the way he dealt with them that he must have misunderstood the policy in question: see Bloor Homes East Midlands Limited v Secretary of State for Communities and Local Government supra at [19(1)] and [19(5)].
Mr Williams contended that in this case the Inspector had analysed the potential noise impact of the development within the categories identified in the Secretary of State’s policy and that he had addressed the substance of national policy to avoid noise giving rise to significant adverse impacts on health and quality of life as a result of new development. The Inspector had addressed the applicant’s argument that there would not be such a significant impact and he had rejected it in [DL8]. The Inspector had explained clearly why he considered that a comparison of the position before and after the development based on LAeq 16 hour noise measurements did not show that the impact would not be significant. In accordance with national policy any conclusion that there will be a significant adverse effect is a matter of judgment for the Inspector: cf R (Nicholson) v Allerdale Borough Council [2015] EWHC 2510 per Holgate J at [60]. There are no specific values for determining such effects in the NPSE, as the authors of the Study had recognised. The Secretary of State’s policy and the PPG focus on the behavioural responses to perceived noise in particular cases, as the Inspector did in this case. The World Health Organisation’s Guidelines recognise other measures for assessing noise than LAeq over a particular period of time. But in any event, in the context of national policy, the Guidelines are “not treated as setting any specific noise standards”: see Stoke Poges Parish Council v Secretary of State for Communities and Local Government supra per David Elvin QC at [44].
discussion
In this case much of the relevant policy framework provided by the Secretary of State had been set out in the applicant’s Study. The issue between the applicant and the Council in terms of the Secretary of State’s policy was whether the level of noise that would be experienced given the traffic generated by the development would merely cross the “lowest observed adverse effect level” (as the applicant contended) or whether it would cross the “significant observed adverse noise effect level”. The applicant contended that it had shown the latter level would not be exceeded. The Council contended by contrast that the adverse noise would be “significant”.
Because it is reasonable to assume that national planning policy is familiar to the Secretary of State and his Inspectors, it is not to be assumed that it has been ignored merely because it is not mentioned in a decision letter: see Bloor Homes East Midlands Limited v Secretary of State for Communities and Local Government supra at [19(6)]. Moreover, as Lord Carnwath JSC has stated, “the courts should respect the expertise of the specialist planning inspectors, and start at least from the presumption that they will have understood the policy framework correctly”: see Secretary of State for Communities and Local Government v Hopkins Homes Limited supra at [25].
In my judgment the Inspector’s reasons for accepting the Council’s case and rejecting the applicant’s are clear.
He found in [DL5] that the more intensive use of the track would in the circumstances have “the potential to generate noise that would be disturbing for the occupiers of No 3 and Elm Cottage” given that each has “a large ground floor window facing the track”.
The Inspector considered that the comparison, which the applicant used to support its case that only the “lowest observed adverse noise level” would be exceeded, between existing and predicted LAeq noise levels over a 16 hour period, was of “limited assistance” and “a not particularly meaningful way of assessing the impact on the occupiers of those dwellings”, as the intermittent car movements would be discernable as distinct noise events by the occupiers and would thus be more irritating, and thus intrusive, than noise generated on a more regular basis. He could not accept, therefore, that the noise would be “insignificant for them” (as the applicant had claimed): see [DL6]-[DL8].
He considered that the proposed acoustic fencing would provide no protection for Elm Cottage and, while it might provide some for the occupiers of No 3, how effective it might be had not been demonstrated: see [DL9]-[DL10].
In my judgment it is thus clear that the Inspector assessed for himself what the potential effect of the noise from the vehicular movements generated by the proposed development on the occupiers of the two properties would be in the absence of acoustic protection, finding that it would be disturbing, and that he rejected the applicant’s contention that the impact would merely exceed the “lowest observed adverse effect level” and would not exceed the “significant observed adverse noise level”. In my judgment it is clear that the Inspector addressed the Secretary of State’s policy and found that, in the absence of acoustic protection, the noise generated would exceed the “significant observed adverse effect noise level”.
To suggest, as Mr Jones did, that, when the Inspector said that he could not accept that the noise would be insignificant, he was not finding that it would cross the “SOAEL” is to read the decision letter without reference to the issue between the parties and in a pedantic manner that should have no place in the appraisal of such decision letters. He rejected the applicant’s contention that only the LOAEL would be crossed and his finding that the impact of the noise would not be insignificant was plainly intended to indicate that he also rejected the applicant’s contention that it would not cross the SOAEL (Footnote: 16).
Mr Jones sought to derive assistance for his submission that the Inspector had reached no conclusion on whether or not the observed adverse effect would be significant from the Inspector’s reference on a number of occasions to the “potential” of the vehicular movements to cause certain effects as implying that they were mere possibilities. In my judgment the reason why the Inspector referred in [DL5], [DL6] and [DL9] to that “potential”, that is to say their capacity, to produce certain effects, was that he was considering the position in the absence of acoustic fencing in [DL5] to [DL8], the effects of which he then went on to consider in [DL9] and [DL10].
Mr Jones submitted, however, in effect, that, even if the Inspector used the categories of noise referred to in the Secretary of State’s policy and the PPG and had determined that the observed adverse effect would be significant, he had failed to determine into which category the noise from this development would fall in accordance with the Secretary of State’s policy and guidance on how that matter had to be determined. That is required to be done, so he submitted, by comparing both existing and predicted noise expressed in terms of LAeq over a period of time, in this case 16 hours.
There is nothing in the NPPF, NPSE or the PPG that itself requires the adoption of any such approach. Mr Jones’s ultimate argument was that such a requirement was nonetheless to be implied, since (i) the approach in the NPSE is based on the World Health Organisation’s Guidelines, (ii) those Guidelines generally recommend the use of LAeq measurements over relevant time periods and (iii) those Guidelines promote community standards expressed in terms of such measured levels (with limited exceptions).
In my judgment this argument must be rejected.
The Secretary of State’s policy and the PPG are not prescriptive as to the method by which the likely average response to noise associated with a development is to be determined: the PPG merely identifies factors that may need to considered when making a judgment about it: see paragraph [18] above.
What the NPSE, the NPPF and the PPG do is to adopt two categories or levels of effect from the World Health Organisation Guidelines, but then add to them a category or level not derived from the Guidelines, namely the “SOAEL”. They do not adopt or incorporate more. Thus the NPSE, the NPPF and the PPG do not adopt or incorporate the specific advice in the World Health Organisation’s Guidelines about what types of noise measurements may be appropriate in particular circumstances. That is not to say that what is contained in the Guidelines may not be of value and may not usefully inform judgments on how noise may be best measured and predicted. It is simply to say that the Secretary of State’s policy and guidance does not require any of the those Guidelines to be followed in determining whether noise from a proposed development will exceed the “SOAEL” that national policy has itself defined.
Furthermore, had it been necessary to do so, I would have rejected Mr Jones’s submission that the World Health Organisation’s Guidelines require the use of LAeq T when comparing existing and predicted noise from a development such as this. As the applicant’s own consultant’s pointed out, “where there are distinct events to the noise, such as with aircraft or railway noise, the guidelines recommend that measures of the individual events should be obtained (using, for example, LAmax or LAE), in addition to LAeq T measurements”. Mr Jones sought to suggest that this advice related only to events such as aircraft and railway noise and only to sleep disturbance. In fact the Guidelines state that (Footnote: 17)
“for cases such as the noise from a single passing vehicle, LAmax values should be measured using the Fast response time because it will give a good correlation with the integration of loudness by our hearing system...Alternatively, discrete sound events can be evaluated in terms of their A-weighted sound exposure level.....Where there are no clear reasons for using other measures, it is recommended that LAeq,T be used to evaluate more-or-less continuous environmental noises....Where the noise is principally composed of a small number of discrete events the additional use of LAmax or SEL is recommended”.
What the NPSE, the NPPF and the PPG also do not do is to treat the Guidelines as setting any specific noise standards, as Mr Elvin QC pointed out in Stoke Poges Parish Council v Secretary of State for Communities and Local Government supra at [4]. Thus the NPSE, the NPPF and the PPG do not adopt or incorporate the World Health Organisation “Guideline values for community noise in specific environments” (which are “essentially values for the onset of health effects from noise exposure” (Footnote: 18)) and the NPSE specifically rejects “having specific SOAEL values”. Indeed in the Study the applicant’s experts had recognised that the NPPF and the PPG “does not generally provide any detailed technical guidance defining what may be considered to constitute a “significant” or “other” adverse impact.”
In this case the Inspector formed his own judgment having visited the site and in the light of the technical evidence with which he had been provided. In my judgment he was entitled when doing so to have regard to the fact that, in the circumstances, in his view the vehicular movements generated would be perceived as distinct noise events and more irritating and intrusive as such than if they had formed part of an existing, regular flow of traffic. These were all matters to which regard could be had consistently with paragraph [006] of the PPG and they were also matters on which he was entitled to rely when considering whether or not a comparison between existing and predicted LAeq T noise levels would assist him in determining whether the potential adverse noise impact would be significant.
In this case there was no dispute that noise from the vehicles would be noticeable. In terms of the PPG Table the difference, in terms of the likely average perceptual response to noise, between that which merely crosses the “LOAEL” and that which crosses the “SOAEL” is between that which is perceived merely as “intrusive” and that which is perceived as “disruptive”. The Inspector thought that the proposed development would have the potential to generate noise that would be “disturbing” for the occupiers of the two properties: see [DL5] and [DL9]. Given that he was evidently seeking to classify the level of noise in terms of the noise hierarchy (as I have explained) and the fact that he thought its effect would be significant, in my judgment the mere fact that he did not use precisely the same term as that used in the PPG Table does not signify that he was seeking to distinguish a disturbing from a disruptive effect or to suggest that he thought that it would be merely intrusive. I recognise that, in [DL9], the Inspector thought that the intermittent nature of the noise meant that it would have the potential “to be more irritating, and thus intrusive, for the occupiers...as compared with noise generated on a more regular basis.” But there he was making the comparative point that it would be more irritating and thus more intrusive than in other circumstances it might have been, rather than that the effect would merely be intrusive. Given the presumption that the Inspector understood the policy framework correctly and the need to read decision letters fairly in context, in my judgment it does not follow from the way the Inspector dealt with the issues that he must have misunderstood the Secretary of State’s policy: cf South Somerset District Council v David Wilson Homes (Southern) Limited (1993) 66 P&CR 83 per Hoffmann LJ at p85.
conclusion
In my judgment, therefore, subject to the issue in respect of [DL11], the contentions, (i) that the Inspector failed to have regard to the Secretary of State’s policy and guidance on the approach to potential noise in the exercise of development control; (ii) that the Inspector misinterpreted or failed to apply that policy and guidance, and (iii) that the Inspector failed to acknowledge that he was departing from that policy and guidance or give reasons for so doing, must be rejected.
THE REASONING IN [DL11]
The ground on which I granted permission was that it was at least arguable that the Inspector had moved illogically in [DL11] from the statement, that it had not been demonstrated that there would be no harmful impact arising from the increased use of the track, to the conclusion, “therefore”, that the development would cause unacceptable harm and that he may have applied the wrong test in that the NPPF does not require it to be shown that there will be no harmful effect.
submissions
Mr Jones submitted that [DL11] demonstrated that the Inspector wrongly thought that any harmful noise was unacceptable and that he had imposed a burden on the applicant to show that none would arise. That he had done so was supported by his repeated reference to the “potential” noise from the proposed development. But the mere possibility of such noise is not sufficient. Moreover not all harmful effects are necessarily unacceptable in accordance with national policy: see R (May v Rother DC supra. Indeed the PPG Table only shows that there is an “unacceptable adverse effect” which is to be prevented when noise is noticeable and “very disruptive” and the Inspector never found that would be the case.
Mr Williams submitted that to read [DL11] as embodying a logical leap would merely be an exercise in dissecting a decision letter to find fault contrary to the manner in which decision letters should be read. Read as a whole the Inspector was not applying a test that the applicant had to show that there would be no harmful effect. He considered the adverse noise effects and found that they would be disturbing; given that the applicant had not demonstrated by its evidence that they would not be significant or sufficiently ameliorated, he found that the noise would be unacceptable. When the Inspector referred to “potential” what he was referring to was the potential change in noise levels and the developments capacity to cause disturbance.
discussion
It is plain that the Inspector concluded that “the development through the generation of noise would be harmful to the living conditions (amenity) of its immediate neighbours” (as he stated in the last sentence of [DL11]) and that it “would cause unacceptable harm” to those conditions (as he stated in [DL19]) (Emphasis added). I would be reluctant to find that any Inspector had reached that conclusion merely because it had not been demonstrated that a development would not cause such harm if there is an intelligible explanation for what might otherwise appear to be a non-sequitur in [DL11]. A finding that it has not been demonstrated that there will be no harmful impact is not the same as a finding that there will be one (even if there is a potential for one).
In my judgment the key to understanding [DL11] are the opening words “for the reasons given above”. As I have explained, in my judgment the Inspector had found that, in the absence of acoustic protection, the adverse noise effect would be significant in relation to No 3 Grosvenor Mews and Elm Cottage. It did follow, therefore, that, because the applicant had not demonstrated that the potential noise would not be significant or that the acoustic fencing would mean that it would not be, the Inspector could conclude that there would be unacceptable harm. That harm was the significant adverse effect, the potential for which had not been shown to be removed by the proposed fencing. It was unacceptable as that effect was to be avoided, not merely mitigated so far as reasonably practicable, in the light of the Secretary of State’s policy. In my judgment the Inspector’s conclusion did not embody a non-sequitur when read in the light of the reasons that he had previously provided.
The Inspector likewise did not fall into the error of imposing a burden of proof on the applicant to show that there would be no harm. The starting point for the Inspector was his conclusion in [DL5] that, given the very limited existing use of the track, its more intensive use would have the potential to generate noise that would be disturbing for the occupiers of No 3 and Elm Cottage in the absence of acoustic protection. The applicant’s evidence about the predicted noise levels and the acoustic fencing did not persuade him that it would not do so.
In my judgment Mr Jones sought to read too much into the Inspector’s use of the term “potential” and did not take account of the context in which it appears, namely before consideration is given to the effects of the proposed acoustic screening in [D10] (Footnote: 19). Likewise Mr Jones simply assumed that noise may only cause unacceptable harm if it has an “Unacceptable Adverse Effect” as defined in the PPG Table. But a level of noise which is to be avoided, not merely mitigated so far as reasonably practicable, may be unacceptable if there are no sufficient offsetting benefits.
conclusion
For these reasons the applicant’s grounds insofar as they relate to the Inspector’s interpretation of the Secretary of State’s policy must be rejected.
THE APPLICANT’S OTHER COMPLAINTS ABOUT THE INSPECTOR’S REASONS
the applicant’s submissions
Mr Jones contended that, when adopting the reasons that he did for disagreeing with the applicant’s experts, the Inspector failed to address that evidence; and that he failed to acknowledge his approach was contrary to good practice, government policy for assessing road transport noise, the expert advice of the applicant’s consultants and the Council’s own Environmental Health Officers, who had withdrawn any objection to the proposed development. Given their expertise the Inspector should have given such views weight: see R (Weir) v Camden [2005] EWHC 1875 (Admin) per Collins J at [13]-[14]. That was particularly so, since the Council and the Inspector’s reasons for rejecting the approach of the applicant’s noise consultants was one that had been abandoned by the Council’s Environmental Health Officers on receipt of the Technical Note from Mayer Brown. The Council had not subsequently put forward any expert evidence to support their objection. But the Inspector had failed to explain why he rejected the expert view expressed in the Technical Note.
Mr Jones further contended that the proposed development would involve a low level of low speed vehicular movements and that it was simply impossible to see how it could reasonably be concluded that this would give rise to a “significant adverse” impact on the two residential properties in issue. Neither the findings nor the reasoning set out in the Inspector’s decision supported a judgment that “significant” or “unacceptable” impacts would occur. Moreover, in finding the impact unacceptable, the Inspector had failed to take account of the economic and social benefits of the proposed development.
discussion
In my judgment it cannot sensibly be argued that the Inspector failed to have regard to the applicant’s technical evidence to which he referred in terms, for example in [DL5] and footnote 2 in his decision letter.
The Inspector was entitled to form his own view, even if it conflicted with that of any, or all, of the experts involved. As Lord Widgery CJ stated, when giving the judgment of the Divisional Court in Kentucky Fried Chicken (GB) Ltd v Secretary of State for the Environment and another [1978] 1 EGLR 139, “the inspector (who is a man of experience, and, above all, specialised qualifications, who is sent to assess a problem of this kind) is supposed to use his own knowledge and, if I may say so, commonsense as well. He is intended to use his commonsense and he is not bound to accept the evidence of experts.”
In my judgment the Inspector was under no obligation to refer to the views of the Council’s Environmental Health Officers or to express any view about the withdrawal of their objection in the light of the Technical Note.
In fact the Inspector explained why the basis of the applicant’s noise assessment, namely the comparisons between existing and predicted noise levels expressed in terms of LAeq T were not, in his view, a meaningful way of assessing the impact of the proposed development on the occupiers of No 3 and Elm Cottage. Moreover the reason that the applicant’s experts had presented in the Technical Note in response to the Environmental Officers’ objections did not address the Inspector’s concern.
There the applicant’s advisers had stated that
“The Consultation response appears to be suggest [sic] that the impact of the proposed development should be alternatively assessed by comparing the maximum noise level (Lamax.fast) of an individual car pass-by event with the underlying levels of background noise (L90.T). We would respectfully submit that such form of assessment is not supported by normal industry protocols. It is also overly simplistic to suggest that such a form of comparison can provide an indicator of impact/effect, when it will fundamentally fail to take into account the context of the site, e.g. the characteristics and frequency of the existing transient noise climate (including the passage of existing cars on Grosvenor Mews and vehicles parking in other car parks which neighbour these properties).”
As can be seen, this response did not address the Inspector’s concerns about the use by the applicant of LAeq.T noise levels, as any informed reader would appreciate. Moreover, although the World Health Organisation’s Guidelines might in fact have supported the use of LAmax.fast, the Inspector did not seek to use that measure and he took account, as he said, of the properties’ “comparatively quiet side street location”.
Whether the Inspector’s judgments were ones that he was entitled to reach depends on whether or not they are ones that a reasonable person could have reached in the circumstances. There is no pleaded “irrationality” complaint. But, in any event, to determine whether the likely average response to the noise of the intermittent vehicle movements (including vehicles idling next to Elm Cottage’s open window while waiting for on-coming vehicles exiting the proposed new car park) would cause a “material change”, as opposed merely to a “small change”, in the behaviour of the occupants of these two properties (for example by avoiding certain activities during the periods of intrusion) or in their attitude (for example if they would consider that their quality of life had been “diminished”) are pre-eminently questions of judgment that can only be made by reference inter alia to the acoustic characteristics of the location; the position of any outdoor space, windows and rooms of any property in relation to the source of any noise; its characteristics and how it is likely that the noise will be perceived in all the circumstances. The Inspector, who has visited the site, had experienced the acoustic character of the area and had seen the properties, and their proximity to the access track, was in a far better position to make such judgments than this court is. He made his own judgment about how it would be perceived. In my judgment, despite Mr Jones’s apparent contention that the likely response would self-evidently not be “material”, it is not possible to determine on the material available to the court that the Inspector reached a conclusion, that the observed adverse level would be significant (in the absence of acoustic protection), which was one no reasonable person could have reached.
The proposed development was for an additional 16 parking spaces to serve The Shore which already had car parking in its basement that met the Council’s requirements. In response to the claim that the Inspector had not taken the particular social, environmental and economic benefits of the proposed development into account, the Defendant (in his Summary Grounds) pointed out that the applicant had not advanced any such benefits in its Statement of Case. The applicant’s response to that was that it was “not under a forensic duty to advance the balance of social and economic benefits of the proposed scheme in its grounds. The benefits are obvious”. Mr Jones did not elaborate on what those benefits might be.
It is obvious, however, that, if the existing parking provision for The Shore is inadequate, cars that might otherwise have been parked on the street might not do so if the new car park proposed is provided. But, unsurprisingly perhaps, the applicant does not appear to have contended that the planning permission that authorised the construction of The Shore provided an inadequate level of car parking spaces for that development.
Be that as it may be, in [DL11] the Inspector found that the proposed development would not be in accordance with the relevant provisions of the development plan and, as Mr Williams submitted, in its Statement of Case the applicant had itself stated that there were no material considerations to indicate that the appeal should be determined otherwise than in accordance with that plan. The applicant never advanced a case, which the Inspector might have had to address, that such were the advantages of the new car park that planning permission should be granted otherwise than in accordance with the development plan and when the noise impact it would produce should be avoided in accordance with the Secretary of State’s policy.
conclusion
For these reasons in my judgment the applicant’s other complaints about the Inspector’s reasoning must be dismissed.
FAIRNESS
Mr Jones contended that it was unfair for the Inspector to depart from what he contends was Government policy (by which he apparently meant the method of assessing the impact of noise) without warning. This complaint is unarguable (as Mr Jones recognised) if the applicant’s case on what constitutes the relevant policy and guidance of the Secretary of State is flawed (as I have found it to be). Further the approach that the Inspector adopted to the assessment of the noise impact of the proposed development was that which the Council’s Statement of Case had advocated. The applicant was plainly aware of the case it had to meet.
CONCLUSION
At this stage it is somewhat artificial to consider whether or not to grant permission to the applicant to make this application on the grounds on which permission was refused as I have heard full argument on all points. That inevitably also affects what has to be shown to warrant the grant of permission. Notwithstanding the fact that Mr Jones spent much of the day’s hearing arguing the applicant’s case, he failed to persuade me that the points on which permission was refused were really arguable. Accordingly I dismiss the application for reconsideration.
But, in any event, even if the application for reconsideration had been successful, for the reasons I have given, this application to quash the Inspector’s decision must in any event be dismissed.