Bryant Homes Ltd. v First Secretary of State [2003] EWHC 579 (Admin)

[2003] EWHC 579 Admin

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Venue Royal Courts of Justice

Date Thursday, 6 March 2003

Strand

London WC2

B E F O R E:

MR JUSTICE SULLIVAN

BRYANT HOMES LIMITED

(CLAIMANT)

-v-

FIRST SECRETARY OF STATE

(DEFENDANT)

Computer-Aided Transcript of the Stenograph Notes of

Smith Bernal Wordwave Limited

190 Fleet Street London EC4A 2AG

Tel No: 020 7404 1400 Fax No: 020 7831 8838

(Official Shorthand Writers to the Court)

MR J POWELL (instructed by Sharpe Pritchard) appeared on behalf of the CLAIMANT

MR J STRACHAN (instructed by Treasury Solicitor) appeared on behalf of the DEFENDANT

J U D G M E N T

(As Approved by the Court)

Between

Bryant Homes LtdClaimant

First Secretary of StateDefendant

[1]MR JUSTICE SULLIVAN: This is an application under section 288 of the Town and Country Planning 1990 (the Act) by Bryant Homes Limited, the claimant, against a decision of an inspector appointed by the First Secretary of State, the first defendant, contained in a decision letter dated 2 October 2002. In that decision letter the inspector, Mr Sims, dismissed the claimant's appeal under section 78 of the Act against a decision of Castle Morpeth District Council, the second defendant, dated 15 March 2002 to refuse planning permission for the construction of 42 dwellings and associated works on land at Ponteland Mart Meadowfield, off West Road Ponteland.

[2]The refusal notice contained two reasons for refusing planning permission. The first of those reasons was:

"The developer has failed to demonstrate to the satisfaction of the local planning authority that the relationship of the development to the nearby existing industrial estate will not result in a serious loss of amenity to future residents as a result of noise generated from existing industrial users."

[3]The second reason for refusal referred to the possibility of pedestrian and vehicular conflict arising out of elements of the scheme. Specifically reference was made to a pinch point in the access.

[4]The inquiry opened on 23 July, and the inspector made a site visit on that day. After the first day the inquiry was adjourned to allow time for the parties to try to agree common ground on noise issues, and also to consider a proposal which had been put forward for an amended noise barrier. When the inquiry resumed on 16th and 17th September both parties called expert noise evidence. For the claimant, Mr Whitfield, a noise and vibration consultant, and for the local planning authority Mr Purdue, an environmental health officer.

[5]In his decision letter the inspector identified the main issues in paragraph 2:

"After due assessment of the general suitability of the site for residential development, including affordable housing, I consider the main issues in the case to be: Car parking provision and road safety within the proposed development and along the access road, and. The impact on the development of noise from adjacent commercial premises and the effectiveness and suitability of the proposals, as amended, for sound attenuation."

[6]It will be seen that those issues reflect the reasons for refusal. The inspector considered the relevant planning policies and dealt with the general suitability of the site for residential development in paragraph 6 of his decision letter as follows:

"The current appeal site comprises only the former lairage fields, lying between the rear of residential properties fronting West Road and factories to the north and east. On the basis of a recent Urban Capacity Study, the Council remain satisfied that the sustainable urban location of the land, within the village settlement surrounded by Green Belt, makes it suitable to address an identified need for mixed housing in Ponteland at the proposed density of 35 dwellings per hectare, notwithstanding that the site has not previously been developed for building. I have not seen evidence to question this assessment and, accordingly, I regard the appeal land as suitable in principle for residential development, both in terms of local planning provisions and with respect to PPG3."

[7]The inspector then considered the need for affordable housing and concluded that the inclusion of two 2-bedroomed units among the range of 42 comparatively modest dwellings meant that the proposals complied with policy H7 in the development plan which seeks an element of affordable housing in residential proposals.

[8]The inspector moved on to consider the issues of parking and road safety. He found that the scheme made adequate provision for parking. So far as access was concerned, he concluded that this was generally satisfactory with one exception. That was where the access road contained a sharp bend into the housing area via what was described by all the parties as a pinch point. Having considered the implications of this in detail the inspector said that he regarded the pinch point coincident with the tight bend:

"... as a most regrettable feature of the design. The appellants admit that the arrangement would not be ideal. In my opinion the concern, inconvenience and possible danger it would cause bring the scheme into conflict with national and local planning policy to protect road safety and the residential environment."

[9]The inspector turned to the question of noise. In paragraph 14, under the heading:

"Sources and assessment," he said: "

At the Inquiry there was good agreement as to the sources and type of noise affecting the appeal site, and its calculated levels inside the proposed houses, both with windows open and closed. However there was marked dispute regarding the applicability of the available methodologies for assessing noise impact, not only between witnesses of acknowledged expertise in acoustics, but also between the national authorities they both quoted. I take all of the submitted material into account. I also bear in mind that, as agreed by both witnesses, the noise issue is not solely dependent on calculated sound levels, but is ultimately for subjective judgment based on commonsense in the particular case, informed by quantitive technical data."

[10]Pausing there, I can see no possible error in the inspector's overall approach to the noise issue. One does not look solely at calculated sound levels; one applies subjective judgment to them based upon commonsense.

[11]The inspector then discussed the policy advice relating to noise contained in PPG 24, and made specific reference to British standard 4142.

[12]In paragraph 16 of the decision letter he identified:

"The agreed main sources of noise, affecting the proposed development are the fan at the Manners Meat building to the east, metallic clanging from the handling of street light columns at Tofco and the operation of heavy goods vehicles (HGV) engines at Ponteland Tool Hire, both to the north. These noises often occur at unsocial hours, especially early in the morning. I personally experienced some of them on my site visit and, judging also from the agreed sound levels, there can be no doubt that the proposed development would be subject to intrusive noise events likely to give rise to complaint due to low ambient noise, albeit low background levels further preclude the strict application of BS4142."

[13]The inspector then went on to note that PPG 24 also refers to British Standard 8233, which deals with acceptable levels of noise within buildings. He specifically referred to the World Health Organisation standards which deal with noise levels that might cause sleep disturbance. Having identified the relevant sources of noise, and the relevant standards, the inspector said this in paragraph 18:

"In any event, on the agreed evidence, the noises would in reality be experienced at the calculated levels. These show that, with the proposed 5 m acoustic barrier in place along much of the northern and eastern site boundaries, and with acoustically designed double glazing and ventilation, acceptable internal sound levels would be achieved at all critical properties with windows closed. With windows open or ajar, it was further agreed, based on both experimentation by the appellants and WHO criteria, that acceptable levels would be exceeded to some degree in certain locations due to the Manners fan and Tofco light column noises. However, substantial exceedences would occur when HGV engines are revved at Ponteland Tool Hire."

[14]On behalf of the claimant, Mr Powell accepted that paragraph 18 accurately summarised the position in the light of the expert evidence. That is to say the position would be satisfactory according to BS8322 if windows in the proposed developement were kept closed, but if windows were left open or ajar, then the relevant standard would be exceeded. In the case of Ponteland Tool Hire, the exceedences would be substantial. Against that background, it seems to me that there can be no possible criticism of the manner in which the inspector then dealt with the noise question. In paragraph 19 he said this:

"Judgment as to the acceptability of the noise climate at the appeal site thus turns on whether it is sufficient that the proposed boundary noise barrier and acoustic double glazing and ventilation could ensure good sleeping conditions according to BS8233 with all windows closed. It is certainly the case that urban land qualified under the lowest NEC A is scarce, and that in locations such as near railways acceptable internal acoustic conditions are dependent on closed windows."

[15]Paragraph 20:

"However, the appeal land is a comparatively quiet, rural village and in the example of railway noise, the sound builds predictably to a crescendo and then dies away. In the case of metal clangs and revving engines the onset of the noise would be sudden and more startling, even allowing for a degree of familiarity on the part of nearby residents. Moreover, subjective reaction is likely to be more kindly disposed towards unavoidable train noise, compared with individual Lmax consequent upon specific actions of individuals operators."

[16]Again pausing there, those were conclusions which the inspector was entitled to reach. There may indeed be certain locations in urban areas where it is sufficient to be able to say that there will be a good internal standard with windows closed. There will be other locations, for example, in comparatively quiet rural villages where it will not be sufficient to say that noise standards will be met with windows closed, but will not be met if windows are left open. The inspector has to use his own judgment looking at the circumstances of the particular site, and the nature of the noise in question. It is not simply a question of looking at the figures and ignoring the characteristics of the particular noise; be it the sound of road traffic, railway engines, or metal clanging.

[17]The inspector considered the effect of the acoustic barrier in paragraph 21:

"Furthermore, once the acoustic barrier were in place, much general noise would be suppressed at individual properties and it seems possible that particular noise events might be more noticeable, depending on tone or frequency, even noting that BS8233 itself makes no such distinction within measured limits. In my opinion, the 5 m high acoustic barrier, although it could be maintained in good condition by management agreement, would itself act as a visually intrusive reminder of the closeness of noisy industry, especially before any landscape screening matured."

[18]In paragraphs 22 and 23 he considered the layout of the proposed development.

[19]Paragraph 22:

"I note that the general layout of the buildings has been chosen to take general account of neighbouring noise sources. However, there are openings between the buildings permitting a relatively direct sound path to some properties, and a lack of enclosed spaces, such as courtyards, whereby the need to close windows to achieve acceptable sleep conditions might be obviated."

[20]Paragraph 23:

"It must not be forgotten that the quality of the residential environment is also a matter for potential residents to consider, and that the prospect of interference with human rights is limited to those owning the current non-residential interests in the land. Nevertheless, on balanced consideration of all the foregoing factors, I have formed the opinion that the development proposed in this case would be over-dependent on closed windows, double glazing and ventilation, low in the hierarchy of available attenuation measures. Thus the design does not suitably address the conflict between the residential development and the adjacent industry due to noise, and fails to meet the requirements of relevant planning policy."

[21]Pausing there, it will be seen that the inspector is, in effect, endorsing the council's first reason for refusal. The inspector expressed his overall conclusions in paragraph 24:

"Overall, having taken into account all other matters raised, I regard the unacceptable noise climate within the development as an overriding planning objection. The objection to the access adds further weight to the case against the scheme. For these reasons I conclude that the appeal should be dismissed."

[22]In his skeleton argument on behalf of the claimant, Mr Powell submitted that no less than nine issues arose. The first of those issues was: did the inspector determine the appeal by reference to a scheme which was not before him and which he regarded as being preferable? If the answer to that question is no, then many of the other issues do not arise for consideration.

[23]I turn, therefore, to consider that proposition which is at the heart of the claimant's case. It is submitted that the inspector erred in law by misdirecting himself in determining the appeal on the basis that there was a preferable development proposal rather than determining the proposal before him on its merits. Much emphasis is laid upon the inspector's conclusion in paragraph 6 of his decision letter that the appeal land is "suitable in principle for residential development". It is submitted that it follows that the inspector considered that there must be an acceptable residential development proposal, bearing in mind the constraints of the site. I do not accept that proposition. The decision letter has to be read as a whole. It is plain that when the inspector is referring to questions of general suitability for residential development, his conclusion as to suitability is subject to his detailed assessment of the car parking, access and noise issues.

[24]It is plain from the terms of paragraph 6 of the decision letter that the inspector was there considering whether a green field site, former lairage fields, was nevertheless suitable for residential development in principle. He concluded that it was in the light of the council's urban capacity study. It was suitable for residential development:

"... notwithstanding that the site has not previously been developed for building."

[25]That is as far as the inspector's conclusion in respect of general suitability for residential development goes. It is plainly, on the face of the decision letter, subject to further consideration of issues of access and noise. Thus it would have been entirely consistent with the inspector's conclusion as general suitability in paragraph 6 of the decision letter if he had concluded, for example, that the access arrangements at the pinch point were so unsatisfactory that planning permission should be refused.

[26]It is submitted that having concluded that the appeal site was suitable for residential development, the inspector also found that the proposed development complied with the appropriate noise standard. That is a reference to BS8233. There is no doubt that the inspector concluded that with all windows closed the standard in BS8233 would be met. He equally concluded that it would not be met if the windows were left open or ajar. Therefore he addressed himself to the question whether it was sufficient that BS 8233 standards would be met with all windows closed. At one stage, Mr Powell appeared to be submitting that was sufficient in itself. Insofar as that submission was being advanced on behalf of the claimants, I unhesitatingly reject it. The inspector was perfectly entitled to consider the common sense question: what if residents choose to open their windows or leave them ajar? What then would be the position?

[27]It is then said that because the inspector found the development to be:

"Over-dependent on closed windows double glazing and ventilation."

[28]He must have assumed that there was a preferable development which was not so over dependent. Thus it is said he wrongly refused the permission, not because the development was unacceptable by causing harm to interests of acknowledged importance by failing to comply with the appropriate standard, but because he concluded that it would be possible to produce a development which he regarded as being preferable. It is submitted that in so doing he took into account an immaterial consideration. That, in my judgment, is an erroneous interpretation of the inspector's decision letter.

[29]As he explained in paragraph 24 the inspector refused planning permission because he regarded:

"The unacceptable noise climate within the development as an overriding planning objection."

[30]Thus he considered the particular design before him upon its merits and concluded that since it did not produce an acceptable noise climate within the development it should be refused. If one then asks the question why did the inspector consider that the noise climate within the development would be unacceptable, one finds the answer in paragraph 23. The development proposed would be over dependant on closed windows, double glazing and ventilation. In short, whilst the standard would be met with all windows closed, that was simply not good enough in this particular location, in a comparatively quiet rural village, bearing in mind the effect of the acoustics barrier which would suppress much general noise, and bearing in mind the particular noises with which the inspector was concerned, which included metallic clanging and the revving of heavy goods engines. The inspector was entitled to distinguish such noises from the relatively predictable noise of railway trains.

[31]As the claimant is at pains to point out, there was no alternative scheme before the inspector. There is therefore no question of the inspector devising some alternative scheme of his own. He was required to and did decide whether the particular design put before him was satisfactory. He concluded that it was not.

[32]In paragraph 22 of his decision letter he noted certain features of the design and merely mentioned other design solutions, such as courtyards, whereby the need to close windows to achieve acceptable sleep conditions be obviated. The fact that the inspector referred to the possibility of alternative design solutions which might obviate the need to close windows cannot sensibly be elevated into a proposition that he took account of some alternative scheme. All that the inspector was doing was, in essence, agreeing with the council's first reason for refusal. If that be right, then the great majority of the remaining grounds of challenge founder.

[33]Ground two asserts that the inspector erred in law by determining the appeal on the basis that there was a preferable scheme. The short answer to that proposition is that he did not. The inspector determined this appeal on the basis that the proposals before him were unacceptable. He was not obliged to go further, although he mentioned that there might be ways in which the need to close windows to achieve acceptable sleep conditions might be achieved.

[34]Ground three contends that the claimant did not have a fair hearing, because the inspector was, in effect, requiring the claimant to demonstrate that the proposed scheme was the best possible solution to residential development on the site. Again that is based upon a misreading of the decision letter. The inspector merely concluded, agreeing with the local planning authority, that the proposals before him were not acceptable. It is plain that the acceptability or otherwise of the proposals in noise terms was a major issue at the inquiry. Both parties had ample opportunity to address that issue. Both parties called expert evidence about that topic. There is no question of the inspector failing to give the claimant a fair hearing. It is then said that the inspector failed to give adequate or intelligible reasons for his decision. In my judgment, the inspector's reasoning is perfectly clear and readily understandable. While he accepted that with windows closed the applicable standard in BS8233 would be met, he did not consider that was sufficient to overcome the noise problem in the circumstances of this particular case, given its location and the characteristics of the noises in question. That was a conclusion which he was entitled to reach.

[35]Complaint was made of the fact that the inspector had merely said that the development proposed in this case would be "over dependent" on closed windows, so the claimant did not know how dependent on closed windows an acceptable alternative scheme might be. The claimant was substantially prejudiced, because "The planning considerations on which [the] decision is based were not explained sufficiently clearly to enable [the claimant] to assess the prospects of succeeding in an application for some alternative form of development."

[36]See the speech of Lord Bridge in Save Britain's Heritage v. No.1 Poultry

[1991] 1 WLR 153

, page 167.

[37]The inspector was not required to do more by way of providing an explanation as to why the proposals before him were unsatisfactory than he did in this very carefully reasoned decision letter. He explained why the present proposals were not satisfactory, because there would be an unacceptable noise climate within the development. He was not obliged to go further and define precisely how much reliance could be placed on closed windows. In the absence of an alternative scheme all he could do was to mention helpful possibilities, as he did in paragraph 22 (above).

[38]One matter remains. Complaint is made of the fact that the inspector failed to mention in his decision letter that the erection of the noise barrier would benefit existing properties in West Road. Mr Powell showed me figures which indicated that with the existence of the barrier, the noise climate at number 30 and number 40 would be improved. Those figures incidentally show how changing the orientation of a property and the positioning of the windows can also effect an improvement, thus emphasising the fact that the inspector was simply concerned with the merits of the particular design before him.

[39]Returning to the noise climate at the existing properties, it is perfectly true that the inspector does not mention this point specifically, but there is nothing in the evidence to indicate that this was advanced by the claimant as a major benefit of the scheme. Indeed, the significance of the point may perhaps be judged by the fact that it is mentioned in a very general way in one paragraph of the 31 paragraph notice of appeal.

[40]Under ground two, where it is said that the inspector erred in law by determining the appeal on the basis that there was a preferable scheme, one finds in paragraph 23:

"Further, the Inspector failed to take into account a material consideration, namely evidence that the proposed development would improve the noise climate at existing houses."

[41]If that is a fair indication of the prominence given to this point in the claimant's case, then the inspector can be forgiven for not mentioning it specifically in his decision letter. He was required to mention each and every point, but only the principal points advanced on behalf of the parties. Moreover, it is plain that the inspector did have regard in paragraph 21 of his decision letter to the overall effect of the acoustic barrier. It would not necessarily be beneficial, in that since much general noise would be suppressed at individual properties, it was possible that particular noise events might be made more noticeable depending on tone or frequency. Thus the inspector did have regard to the general effect of erecting an acoustic barrier.

[42]For these reasons, this application must be refused.

[43]MR STRACHAN: My Lord, I ask for an order in those terms. My Lord, I would ask that the claimants pay the defendant's costs. Your Lordship may have a copy of the costs schedule.

[44]MR JUSTICE SULLIVAN: I think it came in late. It came in this morning. Is that £2,991.75?

[45]MR STRACHAN: Yes. Subject to your Lordship's agreement, that is agreed with the claimant, as I understand it.

MR JUSTICE SULLIVAN: Mr Powell, do you oppose the principle or the detail?

[47]MR POWELL: No, they are agreed my Lord.

[48]MR JUSTICE SULLIVAN: The application is dismissed. The claimant is to pay the first defendant's costs, which I summarily assess in the sum £2,991.75

[49]MR POWELL: My Lord, may I venture to seek your Lordship's permission to appeal?

MR JUSTICE SULLIVAN: You can certainly seek it, yes.

[51]MR POWELL: On the grounds, firstly, relating to arguability, that there are strongly arguable grounds that the Court of Appeal could consider relating to whether the inspector considered an alternative scheme because the express language in using the term "over-dependent" which must have pre-supposed an alternative scheme.

[52]Secondly, that the inspector has, in effect, applied a needs test to the form of attention proposed, and this was not communicated to the claimant at the inquiry. Also as a matter of public importance, given the current importance to my clients and the house builders of the appropriate approach to developing land which will be affected by industrial noise, the overall approach of the inspector in refusing a planning application in these circumstances and the relevant standard being complied with.

[53]MR JUSTICE SULLIVAN: Thank you very much. I do not need to trouble you thank you, Mr Powell. I think I would fairly characterise this application, persuasively though it has been put to me, as quite hopeless. Not merely that there are no good grounds or reasonable prospects for appeal, but I would say that the prospects are really quite hopeless. I shall refuse permission on those grounds.