O'Dwyer, R (on the application of) v City of Westminster & Anor [2008] EWHC 2358 (Admin)

Case No CO/9730/2007[2008] EWHC 2358 (Admin)IN HIGH COURT OF JUSTICEQUEEN'S BENCH DIVISIONTHE ADMINISTRATIVE COURTVenue Royal Courts of JusticeStrandLondon WC2Date Friday, 25 July 2008B E F O R E:HIS HONOUR JUDGE MACKIE QC
Between
THE QUEEN ON THE APPLICATION OF O'DWYERClaimant-v-
Between
CITY OF WESTMINSTERDefendantDERWENT VALLEY CENTRAL LTDInterested Party
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr McCracken QC and Mr Ormondroyd appeared for ClaimantMr Drabble QC and Miss Lean appeared for DefendantMr Porten QC appeared for Interested Party
J U D G M E N T

JUDGE MACKIE:

[1]I am going to give judgment in this case which was heard earlier this week now because I am concerned that the case has had considerable delays, and I would not like the outcome to have to be postponed until after the long vacation. It is for that reason I am giving judgment in the old-fashioned way rather than producing a document.[2]The claimant Mr O'Dwyer seeks permission to apply for an order to quash a planning permission granted on 30 August 2007 by the defendant Westminster City Council to the interested party Derwent Valley Central Ltd. An application for judicial review was made on 2 November 2007. On 10 April 2008 Sir Michael Harrison directed a rolled-up hearing of the permission application with the substantive hearing to follow. In practice, as usual, both aspects have been heard together.[3]The claimant has been represented by Mr McCracken QC and Mr Ormondroyd, Westminster by Mr Drabble QC and the interested party by Mr Porten QC.[4]I have had two bundles of documents containing the relevant correspondence and reports, together with a number of witness statements, the most significant being those of Mr Walcott and Mr Bradshaw for the defendant, Mr Williams for the interested party and Mr O'Dwyer, Mr Cousins and Mr Sharpe for the claimant. In interests of brevity, I am going to deal only with a short amount of the considerable material but I have tried to absorb it all in reaching my conclusions.[5]The disputed planning permission relates to a development which comprises the demolition of 16-19 Gresse Street and redevelopment of substantially increased office use and refurbishment of 7-8 Rathbone Place in Westminster for residential use. The residential use is to consist of six one-bedroom flats, two two-bedroom flats and three three-bedroom flats. There is also a requirement for provision of associated plant and refurbishment of Evelyn Yard. The office element of the development amounts to a total of 6,700 sq m over seven storeys, amounting to an increase of 2,613 sq m fronting on to Gresse Street.[6]The claimant is the owner and operator of the Eagle Restaurant and Roxy Bar at 3-5 Rathbone Place, which is next door but one to the residential part of the proposed development. He is concerned that his business is likely to be prejudiced by disputes with residents of the proposed development who will complain about the noise generated by his legitimate licensed operations.[7]Rathbone Place is a busy and noisy location just off Oxford Street in which several bars, clubs and restaurants operate. There is also a 24-hour post office sorting depot opposite 7-9 Rathbone Place and the area is mainly commercial. As is evidenced by one of the reports from KC Environmental Ltd obtained by the claimant, Gresse Street is much quieter. There does not seem much doubt about that.[8]Both the claimant's businesses are licensed. The Roxy Bar has a music and dancing licence enabling it to stay open until 3 am on Mondays to Wednesdays, 6 am on Thursdays and 9 am on Fridays and Saturdays. Liquor can be sold until 3 am. The Eagle Restaurant trades until 1 am.[9]The question of the residential component in this development arises from Westminster's policy, to which I will turn shortly, and was put together by the interested party, as it were, without enthusiasm. From the outset there was a long record of concern and complaint being expressed by the claimant about the proposed development, and one sees in particular correspondence in 2004 and a report obtained in 2005. Permission was first granted on 25 October 2005 and was quashed by order of Mr Justice Collins in this court on 14 November 2006.[10]It is important to turn to the judgment of Mr Justice Collins as some of his observations are central to this case. At paragraph 7 of his judgment the judge identified the three grounds then relied upon by the claimant:
" ..... firstly, that the officer's report ..... failed to consider the relevant advice in PPG 24 ..... Secondly, that there should have been consideration of re-arranging the residential element in the development so that it was located not in Rathbone Street (sic) ..... but in Gresse Street ..... Thirdly, [the council] should not have made an irrevocable grant of planning permission, subject to a condition which did not require a sufficiently firm and tight control of noise."
It was on that third ground alone that the judge decided the case, leaving the others open. Between paragraphs 9 and 20 of his judgment, Mr Justice Collins helpfully summarised the relevant planning considerations as they arise from Planning Policy Guidance 24 ("PPG 24"), the Unitary Development Plan ("UDP") and the particular provisions contained in that:
"9 The question of noise is dealt with in the guidance issued in PPG 24. Paragraph 7 of that guidance provides: '7 Where it is particularly difficult to separate noise-sensitive development from noisy activities, plans should contain an indication of any general policies which the local planning authority propose to apply in respect of conditions or planning obligations.' 10 That leads in, as we shall see, to the revised Unitary Development Plan, which was issued by Westminster in December of 2004, but which was not, at the time the decision was made, formally adopted and approved, but nonetheless was regarded as the plan to which the greatest weight should be attached. That approach is one which was, in the circumstances, entirely appropriate because the UDP, which was of 1997 vintage, contained no specific policies which dealt with this particular problem. 11 But PPG 24 goes on in paragraph 8 to provide as follows: '8 This guidance introduces the concept of Noise Exposure Categories (NECs), ranging from A -D, to help local planning authorities in their consideration of applications for residential development near transport-related noise sources.' Pausing there, although it may have been directed at transport-related noise, of course it can extend beyond transport -related noise. Going back to paragraph 8: 'Category A represents the circumstances in which noise is unlikely to be a determining factor, while Category D relates to the situation in which development should normally be refused. Categories B and C deal with situations where noise mitigation measures may make development acceptable. Annex 1 illustrates this approach in more detail. It also explains why the NEC procedure cannot be used in the reverse context for proposals, which would introduce new noise sources into areas of existing residential development. 9 The table in Annex 1 contains a recommended range of noise levels for each NEC covering day and night-time periods. However, in some cases it may be appropriate for local planning authorities to determine the range of noise levels which they wish to attribute to any or each of the NECs. For example, where there is a clear need for new residential development in an already noisy area some or all NECs might be increased by up to 3 dB(A) above the recommended levels. In other cases, a reduction of up to 3 dB(A) may be justified.' So that recognises that, in certain circumstances, it may be necessary to have residential accommodation in a noisy area, and if that necessity exists, then it may be possible to increase the levels which would otherwise not be regarded as acceptable by, it would seem, a maximum of 3 dB(A). 12 Annex 1 sets out the categories A, B, C, and D. So far as D is concerned, as paragraph 8 indicates, the rubric is that planning permission should normally be refused. When one goes over to see what are the exposure levels which relate to A, B, C and D, one finds that they are mixed sources, which refer to any combination of road, rail, air or industrial noise sources. In fact, there is no reason to believe that it does not extend to all potential noise sources. It does not specifically deal with noise relating to those emerging from or waiting to get into bars and nightclubs, but if that is a feature which produces regular noise, it clearly is something which can be taken into account. There was also in this instance the noise from the Post Office sorting depot, which would fall into the picture. In addition, as will become apparent and indeed is perhaps obvious as it backs on to Oxford Street, there is traffic noise, and noise, for example, from mini -cabs which tend to deposit or pick up customers from the nightclub. 13 One finds that category C in the night between 11pm and 7am has an exposure between 57 and 66 decibels, and D is in excess of 66. The Revised Unitary Development Plan deals with this in its policy 'ENV 6: Noise Pollution', and it is stated that the aim is to reduce noise levels throughout the city to below maximum levels set out in the World Health Organisation Guidelines; to limit and contain noise from development; to protect noise sensitive properties from noise disturbance; to protect tranquil areas; and to reduce noise from transport. All are obviously desirable objectives. 14 ENV 6 deals, as one would expect, with the policy relating to developments which will generate noise, and also to developments which require protection from noise. The relevant policy within ENV 6 for our purposes is number 4, which states the City Council will: 'Require residential developments to provide adequate protection from existing background noise ..... ' 15 So far as creation of noise is concerned, paragraph 6 provides that the Council will apply conditions when granting planning permission to restrict noise emissions, transmission of noise or perceptible vibration and hours of operation, to require incorporation of acoustic measures to meet these conditions, and to require, where appropriate, such conditions to be complied with before new plant or the development is used. 16 Residential development is dealt with in the narrative to ENV 6, starting at 9.82 which states: 'Government Guidance in PPG 24 (Paragraphs 8 & 9 and Annex 1) includes provision for assessment of noise exposure categories in relation to proposed residential development. The City Council will adhere to this guidance. This enables account to be taken of existing noise from mixed sources (road, rail, air and industrial sources) during both day and night time, so that an adequate level of protection against noise can be required in new residential developments. In Westminster, noise from bars, cafes, clubs and other commercial and entertainment uses form a significant element of 'mixed source' disturbance to residents. For residential developments in areas subject to high levels of noise exposure, adequate means must be provided to protect residents from excessive external noise. Sound insulation standards must be incorporated which are at least that specified in the Building Regulations 2000: Section 7, Building Envelope Insulation and Annex C Supplementary Guidance on Building Envelope Insulation. 9.83 Residential developments that will be exposed to high levels of existing noise will require design, features and sound insulation to enable residents to be protected from such external noise. These should be designed to enable the following WHO Guideline levels to be met in all residential developments: a) Indoors – 35 dB LAeq16, daytime (to prevent interference of speech and moderate annoyance) b) Inside bedrooms, night time – 30 dB LAeq8/45dB LAmax (to prevent sleep disturbance).' 17 There are then in paragraphs 9.84 to 9.87 provisions to deal with noise from mixed sources at the levels which are set out in PPG 24 in A to D (to which I have already referred.) 18 9.84 deals with D and provides that conditions will be imposed to ensure that the development incorporates highly effective protection against these very high levels of noise for a residential area. 9.85 deals with C, and states that conditions will be imposed to ensure that the development incorporates effective protection against these high levels of noise. Quite what the difference between 'highly effective protection' and 'effective protection' is I am not sure, because the purpose of both is to provide such protection as reduces the levels in the bedrooms to 30 decibels (or possibly, I suppose, if one follows PPG 24, although this is not set out in the RUDP, one might perhaps go up to 33, but no higher than that). 19 The reason why residential development is incorporated in the proposal made by the interested party is because of another policy in the RUDP. The relevant policy is COM 2(A), which provides: 'Where appropriate and practical, when increases in office floorspace are proposed, the provision of self-contained residential accommodation with separate access, where physically possible, will be required. The residential accommodation should comprise an amount of floorspace equivalent to the increase in office floorspace in the [Central Activity Zone].' 20 Paragraph 2.20, a narrative dealing with this particular policy, provides: 'Policy COM 2 sets out a clear hierarchy that indicates the priority the City Council attaches to the provision of housing as part of office schemes and office-led mixed use schemes in central Westminster. It will be for applicants to demonstrate to the City Council's satisfaction that it is not appropriate or practical to provide housing within the development site before the City Council will consider the appropriateness of alternative uses instead of the housing required under the policy. Applicants should also demonstrate to the satisfaction of the City Council that consideration has been given to the provision of the required housing on another site in the vicinity of the development site if this is a practical option.'"
[11]I shall refer shortly to one or two other passages in the relevant materials additional to those so helpfully set out by Mr Justice Collins.[12]Paragraph 21 of Mr

Justice Collins' judgment says:

"21 ..... Evidence before me asserts that, in truth, it would not have been possible, or certainly would not have been practical within the terms of COM 2(A) to have provided the residential accommodation in the Gresse Street block. That is why, if there was to be residential accommodation, it had to be in the Rathbone Place block."
[13]At paragraph 37 of his judgment one finds condition 3 which was in place at the time of the first planning consent. It reads as follows:
"37 ..... 'You must apply to us for approval of details of how the flats will be insulated to reduce noise passing between them and to reduce external noise. You must not start work until we have approved what you have sent us. You must then carry out the work according to the approved details before anyone moves into the flats."
That is to be contrasted with the current condition 3, to which I will turn shortly.[14]At paragraphs 43 and 44 of the judgment is the following:
"43 ..... Certainly, there is no discussion or indication relating to the noise that might be created from any machinery that had to be installed in order to provide for sufficient ventilation. It is obvious that on a hot summer evening, unless there is some form of what might broadly be described as air conditioning, it would be unlikely that anyone would want to sleep in a room which had no ventilation, and if there was no air conditioning, the desire would be to open the window. If the window was open, there is no possibility of reducing the noise levels, having regard to those outside, to anything like a satisfactory level which would comply with the RUDP or PPG 24. 44 It is important, in my view, to note that, if the proposal was to be openable windows, there was no chance, no possibility, of complying with the noise reduction requirements. ..... 48 ..... as it seems to me, it is clear, and should have been clear to the officer, that noise was a central issue in relation to this particular part of the development. On any view, on the material that was then before the officer, the ambient noise levels were on the border of C and D. Although it was Westminster's policy, as set out in the RUDP, that there should be residential development even though the ambient noise levels were within D, it was in such circumstances essential that the conditions imposed were such as could ensure, so far as possible, that the insulation measures were capable of and would reduce the noise levels to those which complied with the RUDP, namely 30 decibels during the night time. 49 It was in those circumstances, in my view, essential that the committee should appreciate the problem that existed in the circumstances of this case, and should be aware of the need to impose a satisfactory condition to meet this problem."
[15]At paragraph 53 the judge referred to what he identified as - "53 ..... a failure [by the defendant] to draw the committee's attention to a very important aspect, and a wholly defective condition proposed and agreed to ..... " and for those reasons there was no need for him to go into the other arguments. He said:
" ..... It suffices for me to say that failure, in my view, renders the grant unlawful."
[16]At paragraph 58 the judge referred to arguments that were put forward about the possibility of re-designing the development to include the residential accommodation in Gresse Street rather than Rathbone Place. He mentions authorities which had been cited to him about the question of alternative sites about which he forms no view. He added this:
"However the committee is concerned with the application that is put before it. If it does not consider it is appropriate, then it will refuse permission. If there is an alternative design for which permission might be granted, that can be indicated to the applicant, who can decide whether to amend in order to incorporate the changes or not. He may decide that, for various reasons which seem good to him, he is not prepared to amend his design, and if permission is refused, he will perhaps take his chances on appeal. But it is the application that matters, and if the committee had felt that an alternative design was one which would have been appropriate, then it no doubt could have said so. But it is not a basis upon which they should have granted permission."
[17]At paragraphs 60 and 61

the judge added:

" ..... although I am quashing permission really because of the failure to impose a proper condition because the committee's attention was not drawn to it, it does not mean that on reconsideration a planning permission will have to be refused; quite the contrary. It of course will be open to the committee, applying the RUDP and the relevant considerations in PPG 24, to decide that planing permission should be granted. But if it does so, it will have to be satisfied that the noise problem is properly addressed. It seems to me that any condition that is imposed must be such as requires that before any implementation of the permission can be undertaken, the officers are satisfied that the noise reduction proposals are sufficient to achieve what is required, and that the condition must be tight enough to ensure that that is the situation. I recognise of course that one can never be certain, because until the development takes place, you can never know whether it will work. But it must be shown that it is, on the face of it, capable of working and is satisfactory to achieve the necessary objectives. 61 Quite what form such a condition will take will no doubt be a matter for careful consideration by the committee, but it clearly should approach more a Grampian-type condition than the one which they saw fit to impose in the circumstances here. It may be that it proves impossible to ensure that the noise can be catered for, having regard to what we now know about the levels, because the most recent survey no doubt took account of the Post Office sorting depot, which was not operating on the night in 2003 when the survey was carried out by the council. If that turns out to be the case, it may be that it is not practical within COM 2 (A) to require, in the circumstances of this case, residential accommodation. That again will have to be considered in due course."
[18]I will come shortly to the new condition 3 imposed by the August 2007 consent. But it is common ground that, if nothing else, it meets the Grampian-type condition suggested by Mr Justice Collins.[19]Before turning to what happened next, I mention some provisions of PPG 24 and of the UDP, to which it was not necessary for Mr Justice Collins to refer given the situation which existed when these matters were last before the court. It is worth emphasising that PPG 24 guides local authorities in England on the use of their planning powers to minimise the adverse effect of noise. It outlines the considerations to be taken into account in determining planning applications, both for noise-sensitive developments and for those activities which generate noise.[20]The UDP takes the matter forward. In addition to the matters to which I have already referred indirectly, set out in Mr

Justice Collins' judgment, I mention 9-62, headed Noise in Westminster:

"9.62 Noise is unwanted sound. It can have a considerable impact on the quality of life. Noise is an aspect of sustainable development, and is fundamental to it. Excessive noise is irritating and can cause disturbance and annoyance for people living and working near to it. The density of uses and increasing pressures in Westminster mean that noise is already a serious problem throughout much of the city."
[21]I have referred indirectly to Policy COM 2 but I shall also mention, in view of one of the grounds put forward in this case, Policy COM 3. Paragraph 2.24, headed Off-site residential provision through policy COM 3 (relocation of uses) reads as follows:
"2.24 Where it is not appropriate or practical to provide the required housing on the development site, the City Council will seek the provision of the housing on an alternative site in the vicinity of the development site (see policy COM 3). Any such proposals must comply with the criteria set out under policy COM 3. It is recognised that this mechanism is only likely to be readily achievable in the case of landowners with large property portfolios within central Westminster. A higher quality and quantity of residential accommodation may also be achievable when the mechanism of swaps of land use is applied in appropriate cases through policy COM 3."
[22]Policy COM 3: Relocation of Uses provides as follows:
"Planning permission for the relocation of uses between sites will be granted where: (A) the swap is of lawful commercial and residential accommodation between sites which are in the vicinity of each other. (B) the location of new residential accommodation under the terms of CENT 3 or COM 2 is within an existing commercial site and is in the vicinity of the main development site. Such arrangements will only be acceptable if: [various conditions are met, including] 3 the new residential accommodation is of a higher standard in terms of quality and amenity ..... "
The application of the policy is set out in paragraphs 2.38 and 2.39.[23]The reference to sites in policy COM gave rise to an issue as to whether there were one or two sites in this case. Submissions were put forward on the basis of photographs and plans. I prefer to look at the matter on the basis of the planning application. When one looks at the application in context it seems to me clear that one is concerned with one site, not two.[24]Following the decision of Mr Justice Collins, the City of Westminster re-consulted, as one sees from the letter of 21 December 2006, considering the application afresh but also taking into account the existing materials before it. The interested party put in a revised application, making changes to the scheme for 7-8 Rathbone Place which had three particular features. First, the external open amenity spaces - or balconies - were closed off to form internal spaces and all external doors and terraces from the flats were omitted from the scheme. Secondly, high performance secondary glazing was included behind the double glazed windows with the incorporation of acoustic triple vents. Thirdly, mechanical ventilation and air conditioning were included in the bedrooms and living areas.[25]The interested party also obtained reports from consultants, RBA. The core of RBA's recommendations and conclusions is to be found in the report of 22 November. Having put forward suggested changes to the scheme, the report produced a table which compares the maximum levels of this revised scheme with the reasonable conditions under BS 8233 and with the WHO guidelines and the UDP requirements. Those figures are best looked at as a grid but the columns for daytime give "reasonable conditions 40", "WHO guidelines and UDP requirements 35" and "revised scheme 29". The equivalent for "night-time (bedrooms) dB LAeq" is 35, 30 and 29; and for "night-time (bedrooms) dB LAmax" it is 45, 45 and 45.[26]The report reaches conclusions and states:
"This report examines the requirements to show the internal sound levels and the external environment that surround the development. It shows the design and specification that has been incorporated in the project to ensure that acceptable sound levels are achieved in the residential accommodation, in particular reference to the bedrooms in accordance with the levels indicated in the Westminster UDP and World Health Organisation documents."
It sets out how that would be achieved.[27]Mr O'Dwyer obtained noise assessments from KC Environmental Ltd, and I have already referred to that obtained for Gresse Street in December 2006. He also obtained those in relation to Rathbone Place. The conclusions of that analysis are to be found in the report of 22 March 2007. The findings are that Rathbone Place is a noisy area, that the noise levels are such that the site falls within NEC "D" based on the guidance in PPG 24 and that, as such, planning permission for residential property should normally be refused. It refers to the high noise levels and in its conclusions states that its findings demonstrate that the interested party's expert's assumptions regarding high LAmax noise levels in Rathbone Place are incorrect, and that the assessment by their colleagues is therefore totally flawed.[28]There were a series of detailed, vigorous but courteous submissions made on behalf of Mr O'Dwyer and his various professional advisers, particularly on 23 February, 17 April, 19 May and 12 June. But on 19 April the matter came before the sub-committee and in the form of an addendum report which is lengthy. I will therefore only refer to the more significant passages. In the summary, the report referred to the applicant having submitted an acoustic report and what it contained. It mentioned that objections had been received from three nearby businesses - two bars and the Royal Mail - stating that any openable windows would conflict with a High Court judgment in that the required internal noise levels could not be achieved. It referred to an assessment by environmental health officers which confirmed - "that [the acoustic reports] are satisfactory and that the measures proposed would provide a good predicted internal noise environment and would ensure compliance with Unitary Development Plan (UDP) policy when the windows are closed." Adding - "For the reasons explained below, it would not be necessary to open the windows in order to achieve an acceptable level of ventilation within the new units. However, if the future residents wished to open the windows they could do so."[29]The report refers to the conclusion of environmental health officers that the reports obtained by the claimant have been appraised and the contents will not change their conclusions as to acceptability of the proposals. The report adds that these considerations, which they then set out in further detail, call for the exercise of planning judgment, members having to decide whether the level of amenity provided by the proposed residential units would be acceptable on the basis proposed.[30]The report referred to UDP Policy COM 2 and to the objections, and conclusions were reached about that. It also referred to an objection that the proposal should be considered under policy COM 3 and added:
"However Policy COM 3 relates to the relocation of uses and as such is not considered to be relevant."
[31]Under Land Use at paragraph 6.2.1 the report referred to COM 3 and stated:
"Policy COM 3 relates to the relocation of uses and in this case there is no relocation of uses, but merely a development which requires an increase in residential accommodation to meet the increase in office floor space. There is no residential being relocated and as such Policy COM 3 is not relevant."
[32]At paragraph 6.3.2 (i) the report addresses ENV 6. It sets out the guideline levels. It refers to the statement in PPG for category D that "planning permission should normally be refused", and mentions that ENV 6 requires conditions to be attached "to ensure that the development incorporates highly effective protection against these very high levels of noise".[33]There is also later in that section a passage which the claimant criticises. This has to be read in its context, but the relevant sentences are:
"It should be noted that the very loudest individual noise events might still exceed the LA Max levels suggested in paragraph 9.83 but that would be the case across most of the city, even with the benefit of extensive noise attenuation measures such as are proposed here. Officers consider that it would be both unrealistic and unreasonable to seek to eliminate the possibility that the most extreme noise events would exceed these levels. The result of the attenuation measures proposed would be a very good internal noise climate for central London."
There is a reference a couple of pages later similarly to the - "fact that any future occupiers would benefit from an exceptional internal noise environment for Central Westminster and a more comfortable environment in hot weather." In the interests of brevity, I do not refer to all the passages in that report to which attention was drawn by counsel for the three parties.[34]In May 2007 Mr Alan Bradshaw, a senior noise practitioner at Westminster, reported on the consideration which he had been giving to the further submissions put forward by the claimant. He revisited a memo which he clarified in certain respects, including the observation that he is satisfied - "that based on a 'windows-closed' regime RBA have adequately designed a façade that provides an acceptable internal acoustic environment of below 30 dB LAeq and restricts all but a few high energy event noises to a level of 45 dB LAMax."[35]Mr Bradshaw also referred to questions put forward about statutory nuisance complaints about noise which, it seems to me, would apply equally to civil nuisance complaints. He referred to two questions. The first question is this:
"1 If a future resident of the apartments either made a statutory nuisance complaint against noise coming from people exiting from 3-5 Rathbone Place or objected to a licence renewal, assuming that the noise assessment figures of EH contained in the officer's report are not exceeded, would EH support such complaints? 2 Secondly, what would the position of EH be in such circumstances if the noise generated were that predicted by KC Environmental?"
[36]The response is:
"Any noise complaints or objections to licence renewals would need to be fully considered having regard to the circumstances at the time. It is therefore considered premature to set out any response at this time."
[37]In time, the matter came back before the sub-committee on 14 June. This was because on 19 April it had resolved to grant conditional planning permission subject to a unilateral undertaking under a Section 106 agreement.[38]It is useful at this point to refer to new condition 3 which is contained in the permission granted on 30 August. Condition 3 reads as follows:
"Prior to occupation of the residential part of the development you shall incorporate all measures of sound insulation specified in the RBA Acoustics Report dated 22/11/06 and the Performance Specification for Mechanical Building Services by Norman Disney Young submitted with the letter from Slaughter & May dated 02/04/07 (to include the high performance secondary glazing, acoustic trickle ventilators and mechanical ventilation and air conditioning system) for the residential part of the development, all of which shall be permanently retained."
The reason given is:
"To protect the residents of the new units from existing ambient noise as is set out in policy ENV 6 (4) of our Unitary Development Plan adopted in January 2007 and to ensure that noise audible within the residential units when the windows are in the close position emanating from noise sources outside shall not exceed: [limits which are defined as being indoor level of 35 in the day-time and a night-time level for inside bedrooms of 30 to prevent sleep disturbance]."
The decision is stated later to have regard to policies of the City Unitary Development Plan, including, amongst others, COM 2 and ENV 6 but not, as we have seen, COM 3.[39]The background to the meeting of 14 June was the further representations made by the claimant, including in particular the statement that it intended to proceed again to judicial review. The report mentions that members had previously requested that an informative be added to the permission to draw to the attention of future occupiers of the new flats that there were late night entertainment uses nearby and that the flats had been designed to ensure a good internal living environment with the windows closed:
"Following legal advice members are advised that such an informative could not be relied [on] to prevent a future resident from seeking to establish that a noise nuisance existed. Nor would it provide a defence against any future claim for nuisance if one were otherwise made out or prevent an otherwise valid objection being made to a future application for the review or variation of the licence or an application for a new licence. As officers have made clear, however it is considered likely that such a nuisance will arise here. With the benefit of the mitigation measures which have been secured, the new residential units are considered to be compatible with other nearby land units. Members are therefore advised that the only purpose of such an informative would be to draw to the attention of possible future residents that there are late night entertainment uses nearby, thereby seeking to ensure that as far as possible those who choose to live in those flats do so with a fair understanding of the position. In the light of those matters, members are therefore asked to consider whether this affects their overall consideration of the application."
[40]There are further references to the risk of nuisance complaints in the memo which, for brevity, I will not read out beyond drawing attention to the passage reading as follows:
"Each complaint would be judged on its merits. The fact that a system expressly designed to prevent noise penetration (closed windows with air-conditioning) was being circumvented would be a factor in the consideration of a noise complaint. Proof that a statutory nuisance had occurred would have to be established and the source identified before any action could be taken."
Reference is then made to considerations. The conclusion is:
"As noted above, any complaint or objection would therefore need to be fully considered, having regard to all of the relevant circumstances as they were found to exist at the time."
[41]In addition to the record of correspondence, there is as I say a number of statements which I have mentioned, in particular from Mr O'Dwyer and Mr Cousins (a late expert witness) who gives the opinion that a viable mixed-use scheme could be designed within the building envelope to provide the benefit of residential accommodation otherwise than in Rathbone Place.[42]Mr Bradshaw provides a witness statement. It is pointed out that what he said was not available to the committee. One must have regard to the material they had before them. That of course is correct. He sets out his extensive experience dealing with noise surveys, and confirms his professional opinion that the evidence presented by the interested party indicates that the number of noise incidents likely to exceed an LAmax value of 45 dB in Rathbone Place will be substantially below the 10 to 15 (?) according (?) to the WHO guidance as being the maximum number of noise incidents per night which must not be exceeded for a good sleep. It is suggested that that is inaccurate but it does not seem to me that it contains any error beyond that inherent in any precis of complex matters.[43]Mr Horkan, an officer of Westminster Council, referred to a meeting he had with the applicant to discuss the way forward following Mr Justice Collins' judgment. He said that at that meeting various alternatives were discussed, including the potential for siting the residential in the Gresse Street block. The applicant confirmed, for the same reasons as are set out in the submissions of the interested party, that such an approach was not practically viable and the scheme would not be pursued on this basis. For this reason the re-design of the scheme to allow for the relocation of the residential accommodation was not in the system. The evidence of Mr Williams contains extensive reasons why that is the position of the interested party, and those are helpfully summarised in paragraph 4 of its detailed acknowledgement of service. I have no reason at all to doubt that the position is as Mr Williams stated and Mr Horkan accepted it to be.[44]Before turning to the five grounds, I will refer briefly to the submissions of law made by the parties. It did not seem to me that there was much dispute about what the legal position was. It is more a question of how it should be applied to the facts of this case.[45]The claimant sets out its propositions of law in its skeleton argument. The particular matters upon which it relies are that the decision maker must take into account all material considerations, namely any matter which might cause them to reach a different conclusion to that which they would have reached if they had not taken it into account; that is whether "it is a real possibility that they would have reached a different conclusion if they did take that consideration into account."[46]The claimant also submits that where there is a need for a type of development and there would otherwise be a planning objection, the existence of alternative means of meeting that need which do not involve - or involve to a significant lesser extent - that objection is material, particularly if local, national Government policy suggests the consideration of alternatives. That is a proposition that is not accepted.[47]The claimant relies for that on McCarthy, a decision of Judge Gilbart QC in this court. It is sufficient for me to refer to paragraph 37 of the judgment where the judge encapsulates the position as follows:
"An applicant for planning permission will only have to show that there is an absence of alternative sites if - (a) the relevant development plan policy, Secretary of State's policy, or other policy which is a material consideration states that an applicant will be expected to do so; (b) his proposal would otherwise cause harm or conflict with policy to a degree which would justify refusal; and he argues that there are reasons why a site must be found to accommodate the use which he proposes. Then the absence of an alternative site may be considered by the decision maker to outweigh the harm done."
[48]Counsel for the defendant and the interested party emphasise instead a series of authorities referred to in the decision of the Court of Appeal in Scott v North Warwickshire Borough Council [2001] EWCA Civ 315. The judgment of Lord Justice Laws considered a number of relevant authorities and discussed them before formulating a general proposition in the following terms at paragraph 30:
"Consideration of alternative sites would be relevant to a planning application only in exceptional circumstances. Generally speaking - and I lay down no fixed rule any more than did Oliver LJ and Simon Brown J - such circumstances would particularly arise when a proposed development, although desirable in itself, involves on the site proposed such conspicuous adverse effects that the possibility of an alternative site lacking such drawbacks necessarily itself becomes in the mind of a reasonable local authority a relevant planning consideration upon the application in question."
It seems that Judge Gilbart was not seeking to put forward any different proposition from that summarised by Lord Justice Laws and of course would not have wished to do so. Judge Gilbart's remarks have to be seen in the context of that particular case and against the background of the authorities summarised in Scott.[49]I pay careful regard to the other propositions of law set out in the skeleton argument put forward on behalf of the claimants. Similarly there is a series of propositions put forward by counsel for the interested party placing emphasis on the supervisory function of the court in planning matters, the limits imposed on the court when it has to apply Wednesbury principles and other authorities that emphasise that planning judgments are not for the courts and that the threshold for irrationality is a high one.[50]Although I have five grounds to consider, the real issue is whether the new condition 3 meets the requirements of the law, as described in the decision of Mr Justice Collins.[51]I first turn to ground 1. That is a submission that the council failed to take into account the ability to overcome or reduce substantially the serious noise problems of the Rathbone Place site location of the residential by locating that residential on the side of the Gresse Street building.[52]The applicant points to the points made in its letter of 12 June that residential accommodation in Gresse Street would have none of the exceedances of the UDP LMax, whereas the Rathbone Place units would have them every 20 minutes or so. That letter also refers to the background noise at Gresse Street being one-third of that proposed for Rathbone Place and the fact that Gresse Street was in a superior PPG 24 category, that is B rather than C or D. It is submitted that this failure was inconsistent with Government policy in PPG 24 and with UDP 92 which states that the guidance in PPG 24 will be followed.[53]The defendant submits that this ground of challenge is bound to fail on two grounds. The first is that for practical reasons Gresse Street was a non-runner for the reasons set out in Mr Hawkins' witness statement. Therefore on practical grounds, there was nothing in the point. The defendant also say that the submission is legally misconceived because there was no obligation on Westminster to consider any alternative in the light of the advice members were given on the acceptability of the site in noise terms.[54]The submissions of the interested party are expressed in different terms but are, in substance, the same. So far as ground 1 is concerned, it seems to me clear that if the measures in the condition achieve the purpose of providing an acceptable environment there was no need to consider the alternative. This, of course, begs the question.[55]So far as that question is concerned, it seems to me clear that in the April committee report consideration was given to the relationship between the UDP policy and ENV 6, the national guidance in PPG 24. The report to the committee considered in detail the relative merits of the noise monitoring exercises carried out by RBA Acoustics and by KC Environmental Ltd on behalf of the claimant. It advised members that environmental health recognised that Rathbone Place is a noisy street but no more so than numerous other areas in London, and reached a reasonable conclusion. Similarly the second committee report was specifically addressed to the issue of whether the residents would have a basis for a noise-nuisance complaint or licence objection. The advice was that they would not in the light of the mitigation measures.[56]Subject to a point I shall come back to when dealing with the question of open windows, it seems to me that it was open to the committee lawfully to conclude as they did. There is no serious suggestion that the committee acted irrationally or that material was concealed from them or anything of that kind. The effect of PPG 24 and the UDP is set out. Responsible advice was given and consultants were appraised and proper disclosure and evaluation was given of objectors' concerns. Westminster is a special place, not a Suffolk village. Indeed if it were not special, businesses like that of the claimant would not be permitted to operate and serve the public as they currently do. In my judgment, ground 1 fails.[57]Ground 2 is a submission that the council failed to recognise the materiality of COM 3. The claimant referred to the dismissal of COM 3 in the officer's report of 2007 which I have mentioned and says that the view of the council is inconsistent with the express words of COM 3 (b) which refers to the location of new residential accommodation under the terms of Section 3 of COM 2, is within "an existing commercial site and is in the vicinity of the main development site". The defendant says there is nothing in the point because the development at Rathbone Place is acceptable and therefore COM 2 (b) does not require provision in another site even if Gresse Street were to be regarded as another site. That I have found to be correct. But moreover - as I have already observed - it does not seem to me to be realistic to see this development as being two sites, not one. The defendant also suggests that COM 3 is simply permissive. It permits but does not require relocation between sites. It seems that when COM 3 is read fairly it does not apply. It concerns relocations between sites. This is one site. Moreover COM 2 applies and it is not necessary to go beyond its terms. So ground 2 fails also.[58]Ground 3 is expressed in these terms:
"The relevant committee of the council at a critical meeting based its decision on a reiterated assertion by its chairman of an assertion in the officer's report of 19 April that the UDP Lmax upper limits with closed windows would be exceeded at most sites throughout the city. This assumption as to a technical matter was (1) based on no evidence, (2) it failed to take account of the evidence before the council that the alternative site/arrangement proposed by the claimant would avoid such exceedances and (3) unlawfully inconsistent with the UDP policy which set such maximum levels."
[59]The defendant and the interested party submit that the committee's decision was taken on the totality of the evidence presented, that the assertion was justified and was not unlawfully inconsistent with UDP policy.[60]So far as ground 3 is concerned, it seems to me that it fails when one reads the materials as a whole. It seems to me that those quotations are taken out of context even when read against the passages I have read out earlier in this judgment and that the ground gives an inaccurate impression of what the report actually says. To the extent to which the particular matters are relied upon, it seems to me that these are legitimate matters for experienced officers with years of dealing with problems in offices to make as part of their overall advice.[61]So ground 3 fails also.[62]Ground 4 is put in the following terms:
"The council based its decision on the assertion that the noise levels within the flats would be such that the flats would have 'very good noise climate for central London' and 'an exceptionally good internal noise environment for central Westminster' (1) without any evidence of comparative levels in other flats in central London or Westminster and (2) despite uncontroverted evidence that levels would exceed the UDP maximum noise upper permitted peak level and (3) despite the evidence of the developer's experts' measurements that showed that the noise climate of the area was in PPG 24 Annex 1 category D."
[63]The response of the defendant and the interested party is that the committee had proper information before it decided that noise levels and living standards for the future residents would be acceptable with closed windows and air-conditioning. The interested party had gone to considerable levels to accommodate the claimant's concerns and that by the time the defendant imposed condition 3 that condition complied with the UDP, gave effect to the recommendations of Mr Justice Collins and provided an adequate protection for future residents of Rathbone Place, all of whom would have chosen to reside in a generally noisy part of Central London.[64]I accept that on the face of it the quotations relied on give a somewhat optimistic or rosy statement when not read in context. But these need to be read in the context of the advice which was being given.[65]There is a grievance of the claimant based on the fact that these observations are made when the measured noise levels, even if attenuated by condition 3, are so close to the maximum of WHO and the other bench marks. Nonetheless it seems to me that those observations are legitimate ones given the reality of conditions in a unique part of the borough.[66]Finally I turn to ground 5. Ground 5 is a claim that the council failed to assess the noise levels within the flats if the occupants chose to keep their windows open for cooling or fresh air. This was a serious omission. As the claimant pointed out in his letter of 12 June 2007, there was not a single minute during the five-hour monitoring of night-time conditions that the UDP maximum peak level would not be exceeded under those conditions.[67]The first answer to that is that it was common ground between the parties and throughout that noise levels with the windows open would be unacceptable in planning terms. There was no need therefore for anyone to make a careful evaluation of choice based on competing measured levels of what was a given of this scheme. The claimant says that this matter should have been evaluated and taken into account. It seems to me that is misconceived. But to a limited degree I do share other aspects of the claimant's concern.[68]In truth and in substance, the issue is whether condition 3 properly addresses the noise factor as required, identified and explained by Mr Justice Collins, particularly in paragraphs 44 and 60 of his judgment. The interested party submitted a proposal with closed windows but was apparently invited instead to submit one with openable windows, and that was done in the Spring of 2007.[69]Of course planning decisions involve considerations which must have regard to many interests other than that of the claimant in this case. But it was the particular concern of nuisance that was considered by the committee in June. The m accumulation of advice summarised at [pages] 316 and 317 of the bundle, to which I referred, led to correct but rather woolly conclusions as to what would happen or might happen should there be complaints about noise.[70]The members took their decision implicitly on the basis that the nuisance risk for the claimant would be satisfactorily resolved or eliminated. This was optimistic. Mr Drabble QC and Mr Porten QC reminded me that this was a planning matter for the council and I should not speculate about the future. I bear that in mind. But when members are making a judgment on a litigation question I consider that a little anxious scrutiny from the court is justified. Any civil nuisance litigation, apart from that through environmental health channels, will be conducted in and heard in the county court. That county court would be the Central London Civil Justice Centre which is a short walk from Rathbone Place. I was, for a period, one of the permanent judges of that court and I am familiar with and had experience of noise litigation in Westminster. Experience suggests that the provision of openable windows means that they will be opened, as Mr Justice Collins points out. The use of that amenity by those who buy or lease what will no doubt be called attractive flats - and legitimately so - may well lead not only to the windows being opened but of course to noise complaints. Educated, well heeled, tenants often combine to pursue such complaints sometimes leading to litigation which I was - perhaps rightly - told was inappropriate speculation. But it is difficult to turn a blind eye to what, in the real world, is obvious.[71]That risk and most of the potential mischief would be eliminated if the windows could not open. It would be eliminated or certainly greatly reduced if purchasers or tenants of the residential accommodation, at the time they acquired their interest, were fully aware of the limited purpose for which the windows could be used.[72]The advice available to the council was necessarily somewhat vague on this subject and, as I have pointed out, it correctly but perhaps unhelpfully observed, that future noise claims would have to be evaluated in the circumstances of the case and on their particular facts. It seems to me that the correct advice to the council should have been more explicit - that is to say if the scheme that was under consideration either had windows that were not openable or alternatively had restrictions of the kind to which I have referred the risk would have been eliminated a lot or greatly reduced.[73]Given what the judge said about openable windows, the nature of the claimant's complaint and the obvious fact that openable windows would be opened something more vigorous than the informative under discussion before the council would have greatly improved the situation, if not eliminated the risk altogether.[74]To this extent it seems to me that there was a material consideration to which the council did not pay sufficient or correct regard. To this limited extent, I am prepared to consider the grant of relief, but otherwise this application fails.[75]As I have to a limited degree upheld the claimant's claim in the way I have indicated, I must turn to reasons why counsel for the defendant and the interested party - and Mr Porten in particular - urge me to refuse permission and/or a remedy on discretion grounds. First, it is contended that the application was not made promptly. The position is that the permission was granted on 30 August 2007. Application was made on 2 November, comfortably within the three-month longstop. Of course, that is only a longstop. I recognise the obligation upon the claimant to move promptly. It seems to me that although, on the one hand, the claimant had plenty of time to prepare for the application before 30 August 2007 - given the previous legal history, the complexity of the matter and the wish to get it right - there was not an inexcusable delay in the bringing of this case.[76]The second submission that is made relates to discretion. The interested party says the claimant is in a position of having included the residential element of the scheme in order to comply with Westminster's policies but have expended considerable resources already on the project and would suffer very substantial prejudice if the permission were quashed. In contrast, there is no evidence that the claimant's interest would in fact be affected by the grant of planning permission.[77]Those are in theory sound submissions. I think they are, in practice, of limited relevance because - to the limited extent to which relief will be obtained by the claimant on this application - it will not much cut across the issues. Indeed, the interested party has indicated that if the court should reach a view along the lines I have indicated that it would or might be willing to address the matter. Considerations which would have been highly pertinent had the court, for example, found it unlawful for the residential accommodation not to be in Gresse Street simply do not apply, given the very limited extent to which I am going to allow this application subject to submissions about remedy.[78]I will hear from counsel now about that and other matters, with apologies to those of you who have had to sit here for an hour and a quarter listening to what I have to say.[79]MR PORTEN: The position has been reached that was, in part, contemplated as a possibility when we left court on Tuesday. On that occasion I asked for the opportunity - if we did reach this position - for the matter to be dealt with on the basis of some undertaking to overcome that ground on which your Lordship has felt that relief is justified. I have clear instructions that I am in a position to offer an undertaking which would be translated into probably a Section 106 agreement under the Town and Country Planning Act whereby my client would undertake that the windows to be provided would be not openable and would be maintained in that condition. We did try to achieve that pending the judgment, but your Lordship has moved even faster than we had expected and it has not been possible.[80]The consequence of that in terms of disposal of the matter, and I am a little uncertain, but what I am suggesting is if that could be done within a given time scale then the result could be that rather than quash the planning permission the court would accept that undertaking and on that basis find no reason to quash it, accepting that grounds had been found but avoid the quashing of the planning permission and the need for that to be determined. I am really inviting an indication from your Lordship whether that course is acceptable to the court.

JUDGE MACKIE: I will give that indication or not when I have heard from counsel.

[82]MR PORTEN: Is that clear?

JUDGE MACKIE: Yes.

[84]MR ORMONDROYD: My Lord, this may be one of those matters on which you helpfully indicated that it might be appropriate to seek an adjournment so you could be addressed by a more sophisticated member of counsel. Mr O'Dwyer's concern is that any solution reached is one which is going to be effectively enforced. An undertaking from the interested party to the court might not be one which would, in the event, be enforceable. It may be that the council are prepared to consider a 106 agreement which might render it more enforceable. I cannot express a concluded view. I think this is probably a matter on which we should adjourn and seek the assistance of Mr McCracken's submissions.[85]MISS LEAN: I reiterate the submissions of my friend about the appropriateness of an adjournment perhaps in this situation. My instructions are that in the event of a matter such as this arising, this is something which would be given further consideration by the council. I would ask for an adjournment for that consideration for the undertaking.[86]MR PORTEN: It seems to me, with respect, that the position is quite simple. Given the terms of your Lordship's judgment, if the planning permission matter were to go back to re-determination and if Westminster, on re-determination, were to impose a condition that notwithstanding what was shown on the plan no openable windows should be provided and that the windows should be kept sealed for all time, then there would be no prospect of a further application for judicial review succeeding. What I am trying to achieve is exactly that position without the quashing of the planning permission. I see no reason why that should not be done, and the undertaking translated into a Section 106 would be no less enforceable than would the form of condition that I have just indicated.

R U L I N G

JUDGE MACKIE:

[87]I am confident that junior counsel are not at all intimidated by Mr Porten when they make their applications for an adjournment. However I am also conscious that when the hearing ended I said that I would be receptive to an adjournment if, as I have done, I gave judgment speedily (I hope for good reason) necessarily not in writing and not at a time that was going to be convenient to counsel arguing the case.[88]Against that, it seems to me there is clear wisdom in terms of speed and costs saving in the proposal put forward by Mr Porten. I would be disappointed if the other two parties - once they have the time to consider which I am willing to give to them - do not support that way forward. Because, absent some consideration which has not yet been drawn to my attention, it does seem to be the best solution given the fact that there is no point in having a quashing order for the sake of quashing. If we do not have a solution along the lines proposed by Mr Porten there is going to be a further waste of time and costs. While I am going to give some time to the interested party and the defendant to consider their positions, I am not going to adjourn the matter generally. I do want there to be some order drafted by counsel emerging from today which, given the absence of an associate, will have to be prepared, agreed and submitted to the Administrative Court or to me for approval.[89]I give that strong indication that that is the way out. I urge the parties to reach a solution along the lines suggested by Mr Porten, absent some consideration of which I am not aware, and to agree outstanding matters. If matters cannot be agreed, they can be restored to me at relatively short notice except during the summer time because I am here in this room all legal year round.[90]I will for that reason extend time for things like permission to appeal for anyone who wants it for a reasonable period. How long? All three of you might want to appeal. How long do you want?[91]MR PORTEN: I remember in the context of this Mr McCracken suggested 30 August was the middle of the holiday period which I would accept. We are in that period. The first point is going to be how long is it going to be to submit what is hoped will be the agreed order? Given that I no doubt need to speak to my friends, Mr McCracken and Mr Drabble, about that before it can be done, time will need to run them from then. If you gave us a time limit of, say, one month for that order and then the normal time for appeal to run from that date.

JUDGE MACKIE:

[92]That sounds fair enough. If anyone is fired up to appeal they will get their act together by then.[93]MR PORTEN: They should know by then.

JUDGE MACKIE:

[94]Let us do that. We will need counsel to produce some sort of agreed order.[95]MR PORTEN: An interim order?

JUDGE MACKIE: Yes.

[97]MR PORTEN: And then an order that reflects the adjournment.

JUDGE MACKIE:

[98]Yes, because otherwise I will be chased by the Administrative Court to come up with one myself. Is there anything else that arises at this point?[99]MR ORMONDROYD: There is the issue of costs. Could I request that we resume after lunch, after we have had some time to consider our position on these issues? Would that be acceptable?

JUDGE MACKIE: My next case has settled so I could.

[101]MR PORTEN: I regret I am not available.

JUDGE MACKIE: What is it that you want from me at this point? Take instructions. (Pause)

[103]MR ORMONDROYD: On taking instructions, we are happy with the solution proposed: to have an interim order this morning and to come back within a month with a final order and to deal with costs then.

JUDGE MACKIE: Very well.

[105]MR PORTEN: I am wondering about the terms of the order today. Would it be along the terms of an adjournment or would it be along the terms - - - - -

JUDGE MACKIE:

[106]It ought to recite the fact the judgment has been given; that is what I am concerned about. I do not want to give it again. Recite the fact the judgment has been given. The matter be adjourned for the period which you have suggested, the parties to consider an agreed form of relief, time for applying for permission to appeal to be extended as we suggested.[107]MR PORTEN: Liberty to all three to apply.

JUDGE MACKIE:

[108]Yes. I would ask the claimant's solicitors to remove the bundles which I have placed upon the bench.