Forster v Secretary of State for Communities And Local Government [2015] EWHC 2367 (Admin)

[2015] EWHC 2367 (Admin)

Case No CO/5692/2014

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

PLANNING COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date Thursday 6 th August 2015

Before

Mr Justice Lindblom

Between

Pauline ForsterClaimant

Secretary of State for Communities and Local GovernmentDefendant

Tower Hamlets London Borough CouncilDefendant

Swan Housing Association LimitedDefendant

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Ms Annabel Graham Paul (instructed by Richard Buxton) for Claimant

Mr Ned Westaway (instructed by the Government Legal Department) for First Defendant

Mr Richard Ground (instructed by Dentons UKMEA LLP) for Third Defendant

Hearing Hearing date: 14 May 2015

Judgment

Introduction

[1]On the Commercial Road in Stepney in the East End of London, next to the George Tavern, stands a single-storey building which used to be Stepney’s Nightclub. In October 2014 planning permission was granted on appeal for its demolition and the erection in its place of a three-storey building, with commercial uses on the ground floor and six flats on the floors above. The court’s task in these proceedings is to decide whether that planning permission was unlawfully granted.

[2]The claimant, Ms Pauline Forster, is the owner of the George Tavern. The application for planning permission for the re-development of the site was submitted by the third defendant, Swan Housing Association Ltd., to the second defendant, Tower Hamlets London Borough Council, in October 2011. A previous scheme had failed on appeal in December 2008. In January 2012 and again in June 2012 Ms Forster objected to this new proposal, fearing that residents of the dwellings in the new building on the site might complain about the continued use of the George Tavern for live music, the making of films and other activities. The proposal was submitted to the council in three applications – for planning permission, conservation area consent and listed building consent. The application for conservation area consent was required because Stepney’s Nightclub is an unlisted building in the Commercial Road Conservation Area; the application for listed building consent because the George Tavern is a grade II listed building, as is the adjoining building at 2a Aylward Street and Swan’s proposal included alterations to the external walls of both of those buildings. The council refused all three applications in July 2013. In January 2014 Swan appealed against those decisions to the first defendant, the Secretary of State for Communities and Local Government, who appointed an inspector, Mr Tim Wood, to determine the appeals on his behalf. The appeal was decided on written representations. The inspector’s decision letter allowing all three appeals is dated 28 October 2014.

[3]Ms Forster challenges the inspector’s decision by an application under section 288 of the Town and Country Planning Act 1990. In her witness statement of 19 December 2014 she says (in paragraph 18) that she is pursuing these proceedings “not only to protect [her] own financial interests, but to protect a venue which is of importance for [the] local, music and artistic community”. The application is resisted by the Secretary of State. The council has played no active part in the proceedings.

The issues for the court

[4]The court is not in any way concerned with the planning merits of Swan’s proposal. It is, as I have said, concerned only with the lawfulness of the inspector’s decision.

[5]From the grounds in Ms Forster’s Part 8 claim form six issues arise:(1) whether the inspector misdirected himself in his approach to the evidence of Swan’s noise consultants, RBA Acoustics Ltd. – in particular, because he regarded that evidence as uncontentious (ground 1);

(2) whether his decision is vitiated by procedural unfairness (ground 2);

(3) whether he failed to take into account, as a material consideration, the deliverability of the measures proposed by Swan to mitigate the likely effects of noise from activities in the George Tavern on residents of the proposed flats (ground 3);

(4) whether he erred in law by imposing on the planning permission a condition that was ineffective to secure the necessary noise mitigation measures (ground 4);

(5) whether he failed to take into account as a material consideration the harm the development would do to the viability of the George Tavern (ground 5); and

(6) whether he failed to take into account as a material consideration the damage likely to be done to the George Tavern during the construction of the proposed development (ground 6).

Ms Forster’s objection

[6]In her objection of 11 June 2012 Ms Forster said:

“… The developer has not demonstrated that the proposed development would be acceptable in terms of noise, and this fact alone raises the very real risk of complaints about activities in the George, which would very possibly lead to revocation of our late night music license. … The George is inextricably linked with the nightclub. The plumbing, the electrics and the architecture are interlinked with the nightclub. The plumbing, the electrics and the architecture are interlinked. … If the roof of the nightclub were removed it would leave parts of The George Tavern bar (the corridor to the toilets) without a roof and open to the elements. We would have to close down. The George Tavern is a community run public house and live music venue as well as my home. It employs 11 young people all of whom would lose their jobs if the George were to close. It also supports and provides a platform for hundreds of artists from all cultures and backgrounds, local and international. …”

The council’s refusal of planning permission

[7]In its decision notice refusing planning permission, dated 31 July 2013, the council stated as its first reason for refusal:

“The amenity of the new residents within the proposed three-storey building and the area generally would be detrimentally affected by reason of general disturbance and significant noise emanating from clients using the outside beer garden area in Aylward Street and from the George Tavern public house building with live music licence including associated plant. In addition, noise from open areas around the building and noise from the main A13 road network would compromise the new residents[’] amenity. As such, the proposed residential accommodation is considered an incompatible use within the vicinity of a public house with live music licence and would be significantly detrimental to the future amenity of occupiers, contrary to policy SP10 of the Core Strategy 2010 and policy DM25 of the Managing Development Document April 2013. These policies seek to ensure that all developments protect the amenity of existing and future residents from unacceptable levels of noise pollution, other building occupants and the public realm.”

The parties’ written representations

[8]Swan lodged their appeals with the Planning Inspectorate on 15 January 2014. When they did so they submitted a report prepared by RBA Acoustics, entitled “Acoustic Assessment Review and Report”, dated 13 January 2014.

[9]In section 1.0 of RBA Acoustics’ report, “Introduction”, they referred to the council’s refusal of planning permission “on just grounds associated with noise issues potentially to be faced by future residents”. They said the report aimed “to set out the construction requirements” necessary to achieve the “internal noise criteria” they proposed. To achieve this, they had undertaken “various noise measurements … in and around the existing Stepney’s nightclub building …”. They continued: “In order to undertake measurements for our assessment, it has been necessary to engage with the owner of the George Tavern in order to gain access into the pub to measure noise levels within. Without this access, it would not have been possible to determine the performance of the existing separating partition. In addition, following completion of our first series of measurements of noise generated by activities within the George, we were advised that the event was not actually considered (by the George) to be fully representative of “worst case” conditions. We were therefore able to undertake additional measurements of a separate night in order to gain a more accurate description of “typical” conditions within the premises. Furthermore, we have discussed this scheme with Mr Joe Aghami of London Borough of Tower Hamlets in an attempt to work collaboratively with the Local Authority. This enabled us to understand the key issues of concern to the Local Authority …” .

[10]Section 2.0 of the report referred to previous acoustic assessments, summarizing questions which had previously been raised by Cass Allen Associates, the noise consultants acting on behalf of Ms Forster and the council’s environmental health officer in response to a report prepared in August 2009 by BRE [Building Research Establishment Ltd.], who had previously been advising Swan on noise, and BRE’s further report prepared in April 2012. It identified the main issues raised in the light of BRE’s further report, under the headings “Road traffic noise”, “Entertainment noise”, “Plant noise”, “Patron noise”, and “Other Issues”. Having discussed the case with the council’s environmental health officer, RBA Acoustics considered the “key issues which have not been addressed fully” as being “Noise transfer through the existing wall …”, “Road traffic noise intrusion …”, “Patron noise from the beer garden …”, and “Noise due to relocated plant …”.

[11]Section 3.0 of the report described the noise monitoring undertaken in November 2013. It referred to measurements taken on 9 and 10 November and 28 November. On the night of 9 and 10 November, it said, the George Tavern was “hosting an event which included a live DJ”. On that occasion, “[the] music being played was generally of the soul/jazz genre”, and “[during] the event (between 00:00 and 03:00 hours) noise levels were continuously monitored within the Stepney’s nightclub building …”. Further measurements were taken on 28 November, as RBA Acoustics explained:

“Following completion of our initial assessment of noise transfer from the George on 9 November, the landlady of the George informed us that she did not consider the event “very loud in comparison to live music or electronic music events”. … [We] therefore undertook an additional assessment of noise transfer into the building during a live music event. A further set of measurements were undertaken on Thursday 28 November 2013 within Stepney’s nightclub building, between 20:00 – 23:00 hours. The event within the George Tavern was attended to gain insight into the type of music being played during the event and to understand general noise levels within the pub during the event. The event included several four-piece live bands including a drum kit, bass guitars and electric guitars. In general, the genre of music was rock music. During parts of the event when bands were playing, it was difficult to converse with others very close, even whilst shouting. No noise levels were measured within the George Tavern during this event (although they were recorded at the various locations outside the George …).”

The measured noise levels were set out in a series of tables. It was noted that, on behalf of Ms Forster, Cass Allen Associates had previously undertaken noise measurements inside the George Tavern “during a typical music event”, and that the measurements made on 9 November 2013 “correlate well” to those earlier measurements, “giving confidence that the measured values were typical (notwithstanding the subsequent decision to undertake additional measurements during a “live music” event)”. However, the further measurements made on 28 November 2013 indicated “an increase in maximum noise levels … within the Stepney’s nightclub building”.

[12]In section 4.0 of their report, “Noise Transfer Through Wall”, RBA Acoustics considered the necessary performance of the wall between the George Tavern and the flats in the proposed new building, and suggested how this wall should be constructed. They concluded:

“Providing this system is installed, our calculations indicate compliance with the proposed criteria will be achieved in both living rooms and bedrooms [NR20 (Lmax) and NR15 (Lmax) respectively]. From our discussions with Swan New Homes, we understand that the building can be built to comply with this [sic] criteria. Compliance could also be secured by means of a Planning Condition to be attached to any planning permission that may be issued.”

[13]Section 5.0 of the report dealt with “External Noise Break-In”, and section 6.0 “External Building Fabric Assessment”.

[14]In section 7.0 RBA Acoustics considered “Patron Noise Break-In”. In subsection 7.2, “Existing Residents”, they said this:

“An important point to make is the [existence] of the residential block overlooking Aylward Street, directly opposite the entrance to the George Tavern along Jubilee Street. Despite the predicted noise level of 65bB Laeq, [the] London Borough of Tower Hamlets has confirmed that no complaints have been raised regarding patron noise from the George Tavern. This gives comfort in this respect, since these existing properties are in a similar (if not worse) position than any potential future facades of the Stepneys development site and yet external patron noise is not considered problematic to the existing residents.”

[15]Section 8.0 of the report dealt with “Plant Noise Emission Criteria”. Here RBA Acoustics proposed that “items of mechanical services” be designed so that the specified noise limits would not be exceeded “when assessed at the nearest noise sensitive location”, with a reduction of 5dB if the plant had “intermittent or tonal characteristics” in accordance with BS4142. In section 9.0, RBA Acoustics provided their “Plant Noise Assessment”. They noted that the plant on the roof of the former nightclub was to be relocated “as part of the proposed redevelopment”. They did “not consider that a full and detailed assessment of the exact noise emissions from the units is required at this stage as such works can simply be Conditioned as part of any Planning Permission for the site”. But they had “undertaken an exercise to demonstrate that, providing suitable mitigation measures are employed, compliance with the target criterion can be achieved”. They said that “[detailed] design worksas to the precise measures to be adopted can subsequently be undertaken in order to discharge the relevant Planning Condition”. There were “two potential mitigation solutions”: first, the “[installation] of condensing units within a purpose built acoustic enclosure to be located on the roof of the proposed development”, and second, “[condensing] units to be located at ground floor within a dedicated plantroom within the proposed development”. Either of these “solutions” would result in noise levels complying with the criteria identified in section 8.0.

[16]A summary of the conclusions of the report is in section 10, “Conclusion”:

“RBA Accoustics have undertaken noise monitoring at the proposed development site at 373 Commercial Road, E1 … . The measured noise levels are presented herein. The resultant noise levels have been used in our assessment of the adjoining wall construction and glazing requirements to ensure suitable internal noise levels are achieved at the proposed development with reference to BS8233 and WHO. Patron noise from the George Tavern along Aylward Street has also been assessed in detail and the predicted noise levels anticipated have been presented. We do not consider planning approval should be rejected on the basis of noise and can confirm internal noise levels can be effectively controlled with the provision of high specification glazing and specific construction methods. General guidance configurations have been suggested for the glazing constructions that should be capable of achieving the required specifications detailed within Appendix B. These specifications could be secured by means of a Planning Condition if considered appropriate. The data has also been used to set plant noise emission criteria for future assessment of any proposed plant at the development to ensure the adjacent neighbour’s amenity spaces are protected from plant noise emissions in line with the Local Authority requirements. Preliminary assessments of two separate plant mitigation solutions have demonstrated that compliance with the Local Authority requirements can be achieved. Again, compliance with these limits would be expected to be incorporated as part of Planning Conditions if considered appropriate.”

[17]On 23 January 2014 the council sent letters to a number of local residents, including Ms Forster, notifying them of the appeals, and telling them that documents relating to the applications and appeals could be viewed at its offices, that any comments originally made about the applications would have been sent to the Planning Inspectorate, that any additional comments could be sent to the Planning Inspectorate by 5 March 2014, and that “[representations] received after the deadline will not normally be seen by the Inspector and will be returned”.

[18]The council also referred to the Planning Inspectorate’s “Guide to taking part in planning, listed building and conservation area consent appeals proceeding by written representations – England”, which was available on the Planning Portal. The guidance in that document was effective at the relevant time. It refers to and reflects the statutory arrangements for written representations appeals in Part 2 of the Town and Country Planning (Appeals) (Written Representations Procedure) (England) Regulations 2009 (S.I. 2009/452) – in particular, regulation 13 (“Notice to interested persons”), regulation 14 (“Representations”), regulation 15 (“Third party representations”), regulation 16 (“Decision on appeal”) and regulation 17 (“Allowing further time”).

[19]Paragraphs 5.4, 5.5 and 6.1 of the guidance document state:

“5.4 You must make sure that we receive your comments within 6 weeks of the starting date for the appeal. The LPA should have told you the deadline. There is a timetable for the written representations procedure at the annexe to this guide. 5.5 The time limit given in the regulations for sending comments to us is important, and everyone taking part in an appeal must follow it. If you send us comments after the end of the time limit, we will not normally accept them. Instead we will return them to you. This means that the Inspector will not see them and so will not be able to take them into account. … 6.1 If, exceptionally, an appellant introduces material evidence during the appeal process which was not included with their appeal representations provided with their appeal such late disclosure may mean that we will extend the standard timetable to provide you with the opportunity to comment on the new material only.”

[20]On 20 February 2014 the council submitted its appeal statement to the Planning Inspectorate, opposing the appeal. In paragraph 9.12 the council asserted, in the light of its environmental health officer’s comments, that “the proposed residential accommodation is considered an incompatible use within the vicinity of a public house with live music [licence] and would be significantly detrimental to the future amenity of occupiers including the surrounding occupier’s amenity, contrary to policy objectives to safeguard residents[’] amenity at all [times]”.

[21]In her written representations on the appeal, dated 3 March 2014, Ms Forster said:

“… Please note the comments below should be considered in addition to those raised to contest the original application. Those points are still entirely relevant to consideration of the appeal and I urge you to uphold the original decision to refuse development on the site of Stepney’s. In summary, there is a very real risk that I will be forced to close The George Tavern if permission is granted for the development as the development will have a very serious adverse impact on my income stream from both my bar and photographic/film location businesses. It is highly likely that I will lose my live music license if permission is granted for residential use for the adjacent site, which will have an enormous detrimental impact on my bar business. The proposal will also result in a serious loss of light to the upper floors of The George Tavern, which will severely impact on my location business as further described below.”

Ms Forster went on to explain her concerns about the likely effects of noise emanating from the George Tavern on the living conditions of residents of the proposed development:

“With regard to the extra sound report submitted by Swan Housing, I would like to highlight that it was undertaken on what was in many respects, an atypical night at The George Tavern. The evening was a relatively quiet, ‘northern soul’ night which was more about fashion and style than loud music. The promoter used a ‘guest’ sound system for visual effect instead of our PA and the night only featured recorded music with no live bands. Live music tends to make much more noise than recorded music. Also on the evening of the sound report there was torrential rain, which meant that hardly any guests went outside and the event was much quieter than expected. Both of these factors have resulted in a sound-report which grossly under reports the sound levels of a typical night with live music at the George Tavern. On both occasions when the sound reports were being conducted, the noisy generator, which is located on the small roof in-between the theatre and my kitchen was switched off. This services the cellar cooler during the warmer months to keep the ales and beers at the optimal temperature. It makes the sound of a conventional generator and switches off and on 24/7. I found this to be one of the most disturbing sounds. I have looked into commissioning another sound report of my own and instructing a noise expert to analyse Swan’s two existing reports. I was quoted in excess of £2500 just for one report. Given the time constraints and the financial pressure I am under to finish the restoration project at The George, I simply can’t afford to instruct my own expert.”

Ms Forster expressed her anxiety about the consequences of the George Tavern having to close – in particular, the loss of jobs, the loss of opportunities for “artists and performers”, and the loss of a facility used by vulnerable and elderly people in the local community. She referred to her own investment in the restoration of the building, funded largely through its being let “as a location for film, music videos and for fashion shoots”. She was concerned about the possible reduction in natural light reaching the building if the proposed development went ahead:

“… [The George Tavern] is used by numerous celebrities from all over the world, making [it] as famous as the celebrities themselves. The artists who use it find it totally unique and enchanting, largely due to the 360 degrees of natural light it offers and the care and hard work I have invested in its aesthetic. On the east elevation, I have removed the ugly grey render, to uncover beautiful Georgian brickwork, which has now been repointed using traditional lime mortar. If the proposed application were to be approved then this would be obstructed. Not only would the work go to waste, but I would lose the sun light that pours through the windows onto the wide staircase and landings, the bedroom, part of the kitchen and my artists studio. If this natural source of light were to be denied or compromised, I would lose an essential part of my revenue, which is not only important to the restoration of the building, but also subsidizes the running and upkeep of the George Tavern bar. This is an important factor and should be seriously taken into account. As an artist working on portraits, the natural east light is essential and it is the only window in my studio.”

Ms Forster concluded her representations by emphasizing the importance of the George Tavern as “part of our cultural heritage”:

“… I’ve put my heart and soul into restoring this building, creating a space for the arts, and providing a service for the local community. Please don’t jeopardise all of my work over the last eleven years for the sake of ill-thought plans based around generic flats and retail space. Cultural hubs like The George are few and far between in the local area, and it would be a crying shame for both Stepney and London, if we were to lose The George Tavern.”

[22]In an appeal statement on behalf of Swan, dated March 2014, their planning consultants CMA Planning referred to the noise assessments in BRE’s report of May 2012 and RBA Acoustics’ report of January 2014, stating (in paragraph 6.26) that these reports “demonstrate that all the outstanding issues in relation to noise that formed the basis for the refusal can be overcome through the application of specific construction methods and high specification glazing”.

[23]Having received from the Planning Inspectorate on 10 March 2014 the council’s and Ms Forster’s representations on the appeal, CMA Planning sent the Planning Inspectorate a letter, dated 26 March 2014, responding briefly to those representations, and enclosing RBA Acoustics’ observations on the points raised on noise. As to Ms Forster’s concern about the noise measurements taken on 9 November 2013 RBA Acoustics said:

“The decision to undertake the measurements during the Northern Soul night [was] made in collaboration with Ms Forster. However, upon hearing from Ms Forster that the evening had not been fully representative of worst case noise levels, we undertook a set of further measurements during a live music event. The results of these measurements demonstrate that the noise levels within the George Tavern were in fact higher that those previously presented by Cass Allen (upon behalf of the George Tavern) as being representative of typical/worst case conditions.”

Their response to Ms Forster’s comment about the “noisy generator” having been switched off on both occasions when they undertook their noise measurements was this:

“Although we did not measure noise from this plant during our surveys, we have (as part of our report) undertaken outline calculations of mechanical services noise from plant serving the George Tavern the results of which demonstrate that compliance with the LBTH requirements can be achieved by either of the two options proposed.”

CBA Planning also referred to what Ms Forster had said about sunlight and daylight:

“A comment is also made regarding light, which was addressed in the original application daylight sunlight report, which confirms that any reduction in daylight based on the ADF [Average Daylight Factor] results and the ‘no sky line’ results, is unlikely to be noticeable according to the BRE guidance. We would also highlight that LBTH do not raise any issue on this point.”

This is a reference to Dr Peter Defoe’s “Report on The Availability of Natural Daylighting and Sun Lighting”, dated August 2011, which had been submitted to the council with the application for planning permission in October 2011. In the “Summary and Conclusion” in that report Dr Defoe said:

“The result of the changes to the proposed design, from that which was previously submitted to planning, is that there will be a significant improvement to the daylight availability to the existing rooms at second and third floor levels in the George Tavern that face towards the development. We have also demonstrated that the reduction in daylight, based upon the ADF results and the ‘no sky line’ results, is unlikely to be noticeable according to the BRE guidance.”

Dr Defoe also concluded that, having regard to the BRE guidance, all the living rooms and kitchens in the proposed flats would have at least acceptable daylight available to them.

Ms Forster’s request for more time

[24]On 20 March 2014, about two weeks after the deadline for the submission of the parties’ representations on the appeal had passed, Ms Forster sent an e-mail to the Planning Inspectorate, in which she said this:

“I am writing to you to request extra time to enable me to raise all my concerns regarding the planning appeal by Swan Housing. As I mentioned in my appeal statement, I was unable to pay for the two sound/acoustic reports to be analysed. Since then I have been able to secure funding for the two reports to be analysed and I feel that it is extremely important for this analysis to be made and added to my appeal statement. I feel that the planning officer should have all the evidence needed to make an informed and proper decision. I was … unaware that I may be given extra time under the circumstance until today. This extra time will enable me to commission an analysis of the two conflicting sound reports which I believe is crucial to your findings. I very much hope that I will be granted extra time and I look forward to hearing from you soon.”

Ms Lucy Wootton of the Planning Inspectorate responded by e-mail on 25 March 2014, asking Ms Forster, before her request was considered, to say how much time she might require. Ms Forster replied on 26 March 2014, requesting an extra two months, because she was going into hospital in April or May and needed this time “to allow for some recovery time from surgery”. Ms Wootton responded on the same day:

“Thank you for your email requesting an extension of time to enable you to instruct a specialist to analyse the appellant[’]s noise reports. Extensions are only agreed for exceptional circumstance and it is not considered that the reasons given are exceptional in this case. The appellant’s noise report was submitted with the appeal documents and therefore sufficient time was allowed for further comment and rebuttal. We do not consider that a further delay of two months is justified and therefore your request for an extension has been refused. … .”

On 27 March 2014 Ms Forster sent another e-mail to Ms Wootton, in which she said:

“Thank you for your e-mail. I understand now that perhaps two months was too much time. After receiving your e-mail yesterday I have been in contact with the sound consultants and asked them what is the shortest time that they would need to complete the analysis and they said that they could do it within 3 weeks. I’d like you to consider the fact that I am a small business owner, with just myself managing the business, the restoration and the appeal. Initially I contacted the sound reporter who carried out the first report for myself pro bono but he has left the firm to study for a doctorate and could not carry out the analysis. After contacting another consultant – I was quoted £3.5K for the analysis and couldn’t raise the funds to cover this straight away so that it could be completed within 4 weeks as they wanted money upfront. I had just paid for the restoration of the leaded lights on the ground floor. Would you consider granting me three weeks extra time to carry out the analysis of the sound reports? I hope you understand my predicament of not having enough funds at the time to make things happen quickly, please also take into account … the fact that this is a small company driven by myself. I look forward to hearing from you and I hope that you will take this into consideration.”

Ms Wootton replied on 17 April 2014:

“… I have sought advice from my Senior Manager as to whether we can now accept a noise report and I’m afraid that we will only accept late representations in exceptional circumstances. It has been decided that the reasons put forward are not exceptional and we will therefore not accept any further evidence/representations.”

The inspector’s site visit

[25]The inspector made his site visit on 7 October 2014. In his witness statement dated 8 January 2015 Mr Tim Gaskell of CMA Planning describes what happened:

“2.1 I attended the appeal site visit inspection on 7 October 2014 with the various parties. I can confirm that the Claimant, Mrs Pauline Forster, attended the site visit, along with her advisor, Jonathan Nichols. In my opinion, the site visit was extensive, with the inside of the site inspected, as well as the inside of the George Tavern and the areas around the buildings. 2.2 Mrs Forster accompanied the Inspector at all times (along with myself and the Planning Officer from the London Borough of Tower Hamlets), and on numerous occasions both outside and inside the two buildings highlighted key points she wished the Inspector to consider. The Inspector also informed all parties that he had conducted a wider visit of the surrounding area beforehand.”

The inspector’s decision letter

[26]In paragraph 5 of his decision letter the inspector identified “the main issue” in the appeal as being “whether the future residents of the proposed scheme would be subjected to unreasonable levels of noise”.

[27]In paragraph 7 he concluded, as the council had accepted, that the development “would preserve the setting of the listed buildings and would preserve the character and appearance of the conservation area”.

[28]In paragraph 8 he said: “The George Tavern operates as a public house and a live music venue, holding music events late into the night, until as late [as] 03:00hrs. The use of the public house also involves the use by patrons of the open area on Aylward Street as a beer garden. The site and surroundings are also subjected to noise from the surrounding roads, most notably Commercial Road. Concerns are expressed by the owner of the public house as well as many others, that the presence of residential units on the appeal site will give rise to restrictions on the functioning of the public house and its ability to host music events. …”.

[29]He then divided his consideration of the described the activities in the George Tavern under the headings “Noise transfer through the wall from the public house into the proposed flats” and “External noise entering the flats”.

[30]As to noise transferred through the wall, he said in paragraphs 9 and 10:

“9. Within the public house, the area used for music events is on the ground floor, close to the boundary with the appeal site. The proposed layout of the new building shows that there would be an entrance lobby and a partially enclosed external space, shown to include seating and cycle storage, as well as refuse storage and beyond that, the commercial unit. The residential units would abut the wall of the public house only at the upper levels and then, not bedrooms. 10. The appellants undertook 2 sets of measurements within the former nightclub building, when music events were being held at the public house. The appellant has then applied targets for noise reduction within the proposed neighbouring building in order to protect any future residents. It is notable that the Council and others have not contested either the sets of noise readings (although the first event was acknowledged to be quieter than most), nor the targets, which are considerably below the internal noise limit for ‘Good’ in BS8233. The appellant acknowledges that a level of noise reduction would need to be achieved in order to make the scheme acceptable. They have identified that a scheme capable of achieving their projected level of noise reduction would include: a 50mm clear cavity; 250mm concrete wall; 100mm cavity containing 75mm mineral wool; 100mm of dense block-work; and 13mm of plaster finish. There is no evidence before [me] to contradict the view of the appellants’ expert advisers that this specification would achieve an acceptable degree of noise reduction and the Council’s comment on this is that post completion testing would be necessary.”

[31]As for external noise, he concluded, in paragraphs 11 to 15:

“11. Concerns have been expressed that patrons of the public house may disturb future residents of the proposal by use of the outdoor area in Aylward Street. The appellant has undertaken noise readings within this area. It is notable that there would be no bedroom windows within the rear of the building and that the residential properties would be afforded some screening by the existing 2 storey building at No 2a Aylward Street. The modelling used by the appellants to predict the likely levels of noise here is based on the observed noisier event when 30 patrons were in the rear area, the door to the public house was open and music was being produced in the building. 12. The appellant[’s] figure[s] state that the highest noise level expected outside any of the proposed residential properties resulting from the above noise source would be 56dB LAeq and 51dB LAeq at the other rear living room windows. Taking account of the proposed laminated acoustic double glazing, the worst predicted internal night-time noise level is 29dB LAeq8hours, which is below the level set out by the appellants as an acceptable threshold within the WHO Guidelines, including the application of a ‘penalty’ of 5dB for assessing noise of a particular characteristic. 13. In relation to cooling/extraction plant used for the public house, this is currently on the roof of the former night-club building and, it is stated, would be relocated as part of the proposal. Although no specific solution is proposed as part of the proposal, the appellants consider that it could be dealt with as submissions to planning conditions; although they also suggest that such plant could be located in either an internal plant room or purpose-built enclosures. The predicted noise levels set out by the appellant are not challenged by the Council and would result in an acceptable solution. The Council raise the issue of land ownership as a possible obstacle to the provision of suitably constructed plant; I do not consider that this is a matter for me to address within this context. 14. Consideration is given to noise breaking out from the façade of the public house and then breaking in to the proposed new flats. The unchallenged figures set out by the appellants suggest that on Friday and Saturday nights (when music events occur at the public house) there is an increase in low frequency Leq noise levels of around 2dB, although it is not possible to separate out any contribution to this made by other factors such as greater traffic and pedestrian noise. I agree with the appellants that the measured noise of the first event would be insufficient to disturb residents of the proposal, and the noise from the second event would also be unlikely to as there would be a greater distance to bedroom windows than to the actual measuring device. 15. With regard to traffic noise, the appellant has provided noise reduction levels on the assumption of a specific external wall construction, means of ventilation and glazing. These indicate that [noise] levels within the proposed flats would be reduced to an acceptable level. The Council have asked for ‘Dnew’ value for ventilation associated with the glazing, but the appellants’ proposal contains no such ventilation as a MVHR (Mechanical Ventilation Heat Recovery) system is proposed and they state that additional attenuation could be incorporated if necessary. Taking these matters together, I am satisfied that the proposal would not give rise to any conflict in relation to Policy SP10 of the Core Strategy and Policy DM25 of the Managing Development Document.”

[32]Dealing with “Other Matters”, the inspector said in paragraphs 16 and 17:

“16. The appellants claim that the proposal would bring about a number of other benefits including: efficient use of brownfield land; provision of new homes; provision of commercial floorspace; improvement to the appearance of the site; provide good design. The Council do not appear to deny that these are positive aspects of the proposal and I consider that they should weigh in the planning balance in these appeals. Furthermore, the provision of new housing would be within the context of the Council failing to deliver new homes in line with Policy SP02 of the Core Strategy or table 3.1 of the London Plan. 17. Although the Council appear to be satisfied about the effects on residents within the adjacent public house, objections have been received in relation to these direct effects. I was able to gain access to the residential upper floors within the public house and to look out over the appeal site. Furthermore, the appellants submitted with the appeal an assessment of the effects of the proposal on daylight and sunlight received at the neighbouring property. As a result of my own consideration of this matter and in the absence of any evidence to the contrary, I accept the conclusions set out therein, that there would be no unreasonable effects in this respect.”

[33]In paragraphs 18 to 20 the inspector considered “Conditions”. So far as is relevant here, he said:

“18. … For the reasons set out in the main body of this decision, it is necessary to protect future residents from noise generated in the vicinity; I shall include a condition requiring construction in accordance with a scheme which shall be agreed with the local planning authority. Further, it is necessary to ensure that the proposed residential units are sufficiently insulated from noise that may be generated in the proposed commercial unit. … … 20. With respect to the Listed Building Consent, in order that the special interest of the buildings are not [prejudiced] it is necessary to ensure that all new materials and finishes shall match the existing building, unless otherwise specified. It is also necessary to ensure that the stability of the George Tavern public house is established prior to the demolition of the nightclub building.”

[34]In his “Conclusion”, in paragraph 21 of his letter, the inspector said this:

“I have taken account of the letters of representation submitted for these appeals including the letter from Rushanara Ali MP. All other matters have been taken into account and I find that, with suitable conditions, the living conditions of future residents can be protected from noise generated locally. The appeals are therefore allowed.”

[35]The condition to which the inspector referred in the passage I have quoted from paragraph 18 of the decision letter is condition 9 on the planning permission, which states:

“Construction works shall not begin until a scheme for protecting the residents of the proposal from noise has been submitted to and approved in writing by the local planning authority. The scheme shall address noise generated outside the development and also from the commercial unit within the development and also the insulation of any relocated plant associated with the public house. The measures shall be carried out in accordance with the approved details, prior to the first occupation of the development and shall thereafter be retained. Testing shall be carried out after completion but prior to occupation to show that suitable sound insulation has been achieved. The test results shall be submitted to and approved in writing by the local planning authority, prior to occupation.”

[36]The condition referred to by the inspector in paragraph 20 was condition 3 on the listed building consent, which states:

“No demolition works shall begin until details of measures to be taken to ensure the safety and stability of the George Tavern public house building have been submitted to and approved in writing by the local planning authority. Such measures shall include the protection of the eastern flank wall and to protect the building against the weather during the progress of the works. The measures shall be implemented in accordance with the approved details.”

Ground 1 – the inspector’s approach to RBA Acoustics’ evidence

[37]For Ms Forster, Ms Annabel Graham Paul submits that the inspector plainly regarded himself as bound to accept the conclusions of RBA Acoustics’ report. He ought to have appreciated that it was open to him, and indeed incumbent upon him, to form his own judgment on the likely effects of noise generated by and associated with the use of the George Tavern on the residents of the proposed flats. He seems to have regarded the appeal process as being merely adversarial, whereas it was, at least in part, inquisitorial. In support of this submission Ms Graham Paul relies on observations made by Pill L.J. in his judgment in Welsh Ministers v RWE NPower Renewables Ltd.

[2012] EWCA Civ 311

, (at paragraph 16):

“The Inspector had before him the written and oral evidence of the respondents’ experts and the written submissions of [the Countryside Council for Wales]. As the respondents recognised, the central question for the Inspector was whether the particular harm, or risk of harm, associated with the development was sufficient to justify refusal. They accept that the Inspector needed to ascertain the degree of harm the project would cause, taking into account the proposed mitigation measures. Their submission is that this was not a value judgment but a discrete technical issue, outside the Inspector’s expertise, which he could only resolve by reference to the expert evidence before him. I agree that expert evidence required careful consideration but I do not agree that the Inspector was bound to accept the opinion of the respondents’ experts or that he was disentitled from making his own planning judgment as to whether the effect on the peat bog habitat was significant.”

In this case, submits Ms Graham Paul, the inspector seems to have assumed that, since there was no evidence before him to contradict the assessment in RBA Acoustics’ report, he was bound to accept that assessment and the conclusions RBA Acoustics drew from it. But he was not, and he ought to have recognized that. He should also have recognized that the weight he gave to RBA Acoustics’ conclusions had to be judged in the light of the earlier acoustic reports, which were before the council when it determined Swan’s application for planning permission in July 2013, in the light of the fact that Ms Forster had sought the opportunity to submit a further expert report on noise in response, and also, in particular, in the light of her complaint, in her representations of 3 March 2014, that both of the events which had been taking place when RBA Acoustics undertook noise measurements in November 2013 were unrepresentative of the worst case. There is no evidence before the court to show that the inspector had seen the correspondence between Ms Forster and the Planning Inspectorate in which she sought, and the Planning Inspectorate refused, extra time in which to submit an expert report on noise. It can and should be inferred that he did not.

[38]I cannot accept that argument. In my view the premise for it is false. There is nothing in the decision letter to suggest that the inspector regarded himself as bound by RBA Acoustics’ report. He was entitled to have regard to the expert assessment and conclusions in that report, and he plainly did so. But at no stage did he say, or imply, that he regarded the report as relieving him of the task of applying his own judgment to the noise-related issues that he had to deal with.

[39]As Mr Ned Westaway, for the Secretary of State, and Mr Richard Ground, for Swan, both submit, the assessment and conclusions in RBA Acoustics’ report must be seen in their context. The context here was that a good deal of work on the noise-related issues in the case had already been done before Swan lodged their appeals. Discussions had taken place between BRE, who had originally produced reports on the noise for Swan, and the council’s environmental health officer. And Cass Allen Associates, the consultants previously acting for Ms Forster, had submitted to the environmental health officer their detailed comments on BRE’s assessment and conclusions. RBA Acoustics’ assessment followed from that previous work, and dealt with the outstanding issues as they perceived them to be. They were able to conduct their assessment with the benefit of knowing what the controversial matters were. Ms Forster knew they had been instructed. She was aware of the noise survey they undertook on 9 November 2013. She made it clear that she did not consider the event that took place on that day as being representative of events when live music or electronic music were played. RBA Acoustics therefore made a further set of measurements at another event, on 28 November 2013. After the council’s and Ms Forster’s written representations had been submitted to the Planning Inspectorate, they took the opportunity to answer the outstanding points raised in those representations.

[40]When the inspector’s decision letter is read fairly as a whole, as it must be, there can be no dispute that he exercised his own judgment on the noise-related issues in the case, having regard to all of the evidence before him relevant to those issues. He clearly knew that this was what he had to do, having identified as the main issue in the appeal the question of whether residents of the proposed building on the site of the former nightclub “would be subjected to unreasonable levels of noise” (paragraph 5 of the decision letter). And it is absolutely clear from what he said in paragraph 8 of his letter that he had well in mind Ms Forster’s concern that residents of the new flats might complain about noise coming from the George Tavern, which in turn would lead to difficulties for Ms Forster’s business, including the hosting of “music events”. It cannot be suggested that he failed to see the importance of exercising his judgment on that question. The whole of his analysis of the noise-related issues in paragraphs 9 to 15 of his letter engages with those concerns.

[41]He considered the question of noise transfer through the wall between the George Tavern and the new flats very carefully, having regard to the fact that the new residential accommodation in the proposed development would only abut the public house at the upper levels, and that the rooms in the flats which would be directly adjacent to the dividing wall would not be bedrooms (paragraph 9 of the decision letter). With the proposed layout of the new development in mind, he went on (in paragraph 10) to consider the noise measurements undertaken by RBA Acoustics, and the relevant targets for noise reduction to ensure that the living conditions of residents of the new flats would be properly protected. He noted that the noise readings RBA Acoustics had taken were “considerably below” the internal noise level limit described as “Good” in BS8233. He focused on the detail of the proposed construction of the dividing wall. Finally, he recorded the council’s position, which was that “post completion testing would be necessary”. It was only to be expected, indeed inevitable, that he would give due weight to the fact that RBA Acoustics’ expert view on the effectiveness of the proposed specification in achieving “an acceptable degree of noise reduction” had not been contradicted by any evidence in the appeal. He plainly found that view compelling and accepted it. He gave it great weight not merely because there was no evidence to rebut it, but also because he judged it to be correct.

[42]As he recognized, it was significant that the council, as local planning authority and with the benefit of its own expert advice from its environmental health officer, had not contested RBA Acoustics’ noise readings or the targets they had adopted, or provided evidence to refute RBA Acoustics’ conclusion on the critical point – which was whether the proposed specification for the dividing wall would achieve “an acceptable degree of noise reduction”. For her part, Ms Forster, in her written representations of 3 March 2014, had criticized RBA Acoustics’ noise measurements as including measurements taken on an “atypical night”. But the readings themselves were not in dispute. Neither were the targets. The inspector was entitled to take that into account when considering whether he could accept RBA Acoustics’ relevant conclusion as a reliable basis for the exercise of his own judgment. He did not, as Ms Graham Paul submits, disentitle himself from making a planning judgment of his own. He exercised his judgment independently, and in doing so committed no error of law.

[43]I do not accept that he misunderstood what Ms Forster was saying to him, in her representations, about the two “music events” during which RBA Acoustics had taken measurements in November 2013. In her representations Ms Forster had referred to “an atypical night … a relatively quiet, ‘northern soul’ night”, which seems to refer only to one night – not to two. This must be a reference to the first of the two nights on which RBA Acoustics took measurements, namely 9 November 2013, when, according to Ms Forster, live music had not been played but there was “recorded music”. RBA Acoustics referred to the earlier event as being a “soul/jazz” event. But they went back to take further noise readings on 28 November 2013 at an eventwhich they described as featuring “several four-piece live bands including a drum kit, bass guitars and electric guitars”. As RBA Acoustics’ report itself makes clear, it was because Ms Forster had raised her concern about the allegedly unrepresentative nature of the event held on 9 November 2013 that they had gone back to take further measurements on the second occasion. The inspector was well aware of this. He noted in paragraph 10 of his letter that the event in which noise readings were taken by RBA Acoustics on 9 November 2013 had been “acknowledged to be quieter than most”. He did not ignore or misunderstand Ms Forster’s point, and he did not ignore or misunderstand RBA Acoustics’ response to it. Ms Forster’s comment about “the noisy generator” having been switched off on both occasions had been specifically addressed in RBA Acoustics’ response to her representations, which was sent to the Planning Inspectorate with CMA Planning’s letter of 26 March 2014. There is nothing in the decision letter to suggest that the inspector misunderstood what Ms Forster had said about this, or RBA Acoustics’ response. Whether “the noisy generator” is relocated within the development or not, it will have to be dealt with in the “scheme for protecting the residents of the proposal from noise” required by condition 9.

[44]Similar points may be made about the inspector’s analysis and conclusions on the issue of “External noise entering the flats”. In paragraph 11 of his letter he considered the use of the outdoor area beside the George Tavern, in Aylward Street. Again he referred to the relevant noise readings undertaken by RBA Acoustics. Again he had in mind the design of the development, in which there would be no bedroom windows to the rear of the building. He also bore in mind that the new flats would be screened, at least in part, by the existing two-storey building at 2a Aylward Street. He referred to the modelling used by RBA Acoustics to predict the likely levels of noise, which was based on the “observed noisier eventwhen 30 patrons were in the rear area, the door to the public house was open and music was being produced in the building”. In paragraph 12 he referred to RBA Acoustics’ assessment, which demonstrated that, with the proposed laminated acoustic double glazing, “the worst predicted internal night-time noise level” was below the level of “an acceptable threshold within the WHO Guidelines”, even when the “penalty” for 5dB for “noise of a particular characteristic” was added. Once again, I can see nothing at all wrong in law with his approach or the conclusion to which he came, and no indication that he was simply deferring to the view of RBA Acoustics without exercising his own judgment on the questions he had to consider.

[45]Turning to the inspector’s conclusion in paragraph 13 of the decision letter, where he dealt with the noise generated by the cooling and extraction plant used for the George Tavern, I see nothing in the submission Ms Graham Paul makes. Here, once again, the inspector exercised his own judgment. He found, in the light of the evidence before him, that the necessary reduction of noise could be achieved by means of a condition on the planning permission. It did not therefore matter that Swan had proposed “no specific solution … as part of the proposal”. They had suggested, and the inspector accepted, that the plant could be placed either within a plant room inside the building or in “purpose-built enclosures”. There is nothing surprising about the inspector’s conclusion here, nor anything legally wrong with it. He noted that the predicted noise levels in RBA Acoustics’ report had not been challenged by the council. And he judged, in the light of those noise levels, that “an acceptable solution” could be achieved. The question of land ownership was not, in his view, a matter for him to resolve. This, I think, was an entirely reasonable view for him to take, so long as he could be confident – as he was – that the “acceptable solution” to which he referred could be achieved with a suitable condition.

[46]His conclusions in paragraph 14 of the decision letter, where he dealt with “noise breaking out from the façade of the public house and then breaking in to the proposed new flats”, are also unexceptionable. Yet again, the figures in RBA Acoustics’ report were “unchallenged”. The inspector set out the essential findings of their assessment, and, having regard to those findings, was able to agreewith their conclusion that noise at the levels generated by both of the events at which readings had been taken would be unlikely to disturb residents of the new building. This too was his own judgment, guided by the expert assessment and conclusions before him, but not simply adopting that assessment and those conclusions without bringing his own mind to bear on the issue he was considering.

[47]Finally, in paragraph 15, the inspector dealt with traffic noise. He had regard, again, to the design of the proposed development, including the “external wall construction, means of ventilation and glazing”. His conclusion – again his own and not merely that of RBA Acoustics’ – was that if the development was built as designed “[noise] levels within the proposed flats would be reduced to an acceptable level”. There is nothing wrong in law with this conclusion either.

[48]All of these matters are brought together in the final sentence of paragraph 15 of the decision letter, where the inspector concluded that the proposal was not in conflict with relevant policy – specifically Policy SP10 of the council’s core strategy and Policy DM25 of “the Managing Development Document”. This represents an acceptance of the case put forward on behalf of Swan, supported by an up to date assessment of the noise-related issues in the appeal by expert consultants, and the conclusions drawn by them from that assessment. It thus also represents a rejection of Ms Forster’s opposition to Swan’s proposal on noise-related grounds. Whether or not Ms Forster agrees with it, the court can only consider whether in any respect it is legally flawed. And in my view it is not.

[49]I reject Ms Graham Paul’s submission that the inspector ought to have dealt more fully than he did with the points raised by Ms Forster. His reasons are intelligible and adequate. He dealt sufficiently with “the principal important controversial issues” between the parties, including those raised in Ms Forster’s representations (see the speech of Lord Brown of Eaton-under-Heywood in South Bucks District Council v Porter (No.2) [2004] 1 W.L.R. 1953, at paragraph 36). It was not incumbent on him to deal expressly with each and every point raised in those representations, so long as he dealt with the substance of the objections to the scheme on appeal, including Ms Forster’s. He did that. He did not have to spell out that he knew he was not bound by RBA Acoustics’ assessment and conclusions. He did not have to define his own role as decision-maker, or the extent to which he saw his task as “inquisitorial” – as opposed to conducting an adversarial process. He did not have to refer explicitly to the consideration which had been given to the noise-related issues in the course of the council’s consideration of Swan’s proposal – not least because RBA Acoustics’ report was, as I have said, specifically directed at the issues which had emerged from that earlier work.

[50]The inspector did not have to conjecture about what further evidence on noise might conceivably have been produced by Ms Forster, if she had been allowed to do so, or what evidence might have been produced by Swan in response. He dealt only with the material which was before him. To speculateabout the possibility of RBA Acoustics’ assessment and conclusions being cast into doubt by evidence which was not before him was not only unnecessary; it would have been quite wrong.

[51]This part of the challenge must therefore fail.

Ground 2 – procedural unfairness

[52]Ms Graham Paul submits that Ms Forster was unfairly denied the opportunity to present to the inspector an expert’s report on noise responding to RBA Acoustics’ report. The Planning Inspectorate’s decision was unfair. It seems that the inspector was unaware of the e-mail correspondence between Ms Forster and the Planning Inspectorate, and perhaps even unaware of the decision itself. If he was aware of the correspondence, he did not mention it. But if he was, he could and should have permitted Ms Forster to put before him such further evidence on noise as she wished. In the circumstances it was unfair to proceed, as he did, to determine the appeal on the assumption that the conclusions in RBA Acoustics’ report were uncontentious.

[53]I see no force in those submissions.

[54]As Mr Westaway and Mr Ground submit, there was no unfairness in the Planning Inspectorate adhering to its normal and well advertised procedure in written representations appeals when it refused Ms Forster’s request for further time to procure an expert’s report to counter RBA Acoustics’ assessment and conclusions. Ms Forster had been made aware of the deadline of six weeks for the submission of representations by the council’s letter of 23 January 2014. That letter itself referred to the relevant guidance, which I have quoted. The guidance makes it absolutely clear that only exceptionally will the Planning Inspectorate accept late representations in a written representations appeal. Ms Forster’s request to submit additional evidence was only made after the deadline for the submission of evidence had expired – indeed about two weeks after it had passed. The deadline was 5 March 2014; her request was made on 20 March 2014. By then, some eight weeks had already passed since she had been made aware of the deadline for submissions. She had known at least since November 2013 that, on behalf of Swan, RBA Acoustics were undertaking further noise assessment. In truth, she had had ample time in which to instruct noise consultants of her own to undertake their own work, or to co-operate with RBA Acoustics in providing agreed noise measurements, and in identifying and refining any issues in the assessment. She did not do that. In the circumstances it was hardly surprising that the request for additional time was rejected.

[55]But was it unfair?

[56]In my view it was not. As Mr Westaway submits, when an assertion of procedural unfairness in a planning appeal is made, the court must consider whether the party complaining of procedural unfairness had been aware of the case that he or she had to meet and has had “a reasonable opportunity” to bring before the decision-maker evidence in response to that case and to make any submissions relevant to it (see the Court of Appeal’s decision in Secretary of State for Communities and Local Government v Hopkins Developments Ltd.

[2014] EWCA Civ 470

– in particular, the judgment of Jackson L.J. at paragraphs 46 to 63, and the judgment of Beatson L.J. at paragraphs 85 to 97). When one considers that question in the circumstances of this case, it is, in my view, quite impossible to conclude that Ms Forster was unaware of the case she had to meet, either in so far as it related to noise or generally, or that she was denied a reasonable opportunity to bring forward evidence of her own and make such submissions as she wished to make on the matters of concern to her. It cannot sensibly be denied, in my view, that she had ample time to digest the conclusions in RBA Acoustics’ report, allowing of course for the fact that she herself has no expertise in acoustics. At the very least, however, it cannot be denied that she had ample time in which to instruct expert noise consultants to consider RBA Acoustics’ conclusions and to advise her whether a case could properly be mounted against them. If she had thought that there was not time enough in which to seek such advice, she could and should have made that known to the Planning Inspectorate much sooner than she did. The fact that she did not do that is not evidence of any unfairness either in the procedure adopted by the Planning Inspectorate or in the inspector’s consideration of the representations which were put before him.

[57]The procedure governing written representations appeals is provided in the statutory arrangements in the 2009 regulations, which are reflected in the Planning Inspectorate’s guidance. That procedure is not inherently unfair. Nor was it unfair of the Planning Inspectorate to adhere to it in this case.

[58]Nor indeed was the inspector’s handling of the appeal itself unfair. I do not accept that he was obliged to refer in his decision letter to the correspondence between Ms Forster and the Planning Inspectorate, even if he was actually aware of it. He had not been asked to revisit the Planning Inspectorate’s decision. The matter had not, in fact, been raised directly with him. Ms Forster did not revive her request for extra time after it had been rejected by the Planning Inspectorate. And she did not seek to challenge the Planning Inspectorate’s decision. There was no unfairness in the procedure adopted in this case, either before the inspector received the parties’ written representations or in his consideration of those representations in determining Swan’s appeal. Ms Forster was treated fairly throughout the process, just as any other party to a written representations appeal could expect to be treated, given the procedural constraints applying to such appeals. She failed to persuade the Planning Inspectorate that there were, in her case, exceptional circumstances justifying an extension of time. The Planning Inspectorate’s view that no such exceptional circumstances existed was neither unreasonable nor unfair. And the inspector cannot be criticized for proceeding as he did.

[59]Quite apart from that, Ms Forster cannot demonstrate to the court that, if she had been allowed to present late expert evidence on noise, such evidence would have made any difference to the inspector’s consideration of the main issue in the appeal. She did not, in the event, instruct noise consultants to review RBA Acoustics’ report, and therefore she cannot say that, if she had done so, their evidence would have been such as to undermine the assessment and conclusions in that report.

[60]This ground of the application therefore also fails.

Ground 3 – the deliverability of the noise mitigation measures

[61]Ms Graham Paul submits that the inspector should have considered whether the proposed relocation of the George Tavern’s “cooling/extraction” plant, with the necessary measures to reduce noise coming from it, was feasible and deliverable. For him not to have done so was irrational. At the very least the inspector had to grapple with the possibility of a “land ownership obstacle” preventing the plant being re-sited. His failure to do that was a failure to have regard to a material consideration. He ought to have imposed a condition requiring the plant to be relocated before the former nightclub building was demolished.

[62]I am unable to accept those submissions.

[63]From paragraph 13 of the decision letter it is clear that the inspector was well aware of the council’s concern about land ownership as “a possible obstacle to the provision of suitably constructed plant”, but did not regard this as a proper reason for withholding planning permission. It cannot be said that he ignored the point the council had raised. He had it well in mind. But in his view it did not stand in the way of planning permission being granted for the development proposed by Swan. He did not find it necessary to favour a particular proposal for the relocation of the plant, given that there was more than one way in which this could be achieved. The two options which had been referred to were to put the plant in an internal plant room or to put it in “purpose built enclosures”. Both were feasible; he clearly accepted that. Whichever was chosen, it would be possible to prevent any unacceptable noise escaping from the plant. Swan had suggested that this could be dealt with by a planning condition. And the inspector agreed. The relevant condition is condition 9 on the planning permission, which embraces “the insulation of any relocated plant associated with the public house”. The legal adequacy of that condition is the subject of ground 4 of Ms Forster’s application.

[64]I do not think the inspector’s conclusions here can be said to be legally wrong.

[65]In his submissions on this issue Mr Ground points out that some of the plant currently serving the George Tavern is on the roof of the former nightclub building and thus, as he put it, “legally precarious” – which Ms Forster does not seem to have disputed in her representations. Swan had made it clear that they were prepared, in principle, to consider the relocation of the plant within their own site. This is reflected in the inspector’s reference in paragraph 13 to the two options for the relocation of the plant. Neither the council nor Ms Forster seems to have denied that it was physically possible for the plant to be relocated within the appeal site or to have raised any planning objection to that being done.

[66]As Mr Ground submits, there is obviously a strong incentive for Swan to make sure not only that the plant is relocated but also that, when it is relocated, it will not disturb the residents of the flats in their development. But the decisive question here, it seems to me, is whether the condition the inspector imposed – condition 9 – is effective to ensure that the plant, once relocated, will not produce unacceptable levels of noise. In my view the condition will achieve that. It was no part of the inspector’s task to compel Swan to relocate any of the plant serving the George Tavern on their own land. If there was no legal onus upon them to do that, this was not in his view a proper reason for turning away the scheme on appeal. In my opinion that conclusion does not offend any principle of law.

[67]Ground 3 of the application therefore fails.

Ground 4 – condition 9 on the planning permission

[68]Ms Graham Paul submits that condition 9 was not an effective and enforceable means of ensuring that adequate “sound insulation” would be put in place in the new building. An effective and enforceable condition was necessary to meet the recommendation in RBA Acoustics’ report, and to reflect the inspector’s own conclusion that unless such a condition was imposed planning permission for the proposed development should not be granted. Condition 9 is not such a condition. Itsimposition was irrational, or, at least, manifests a failure by the inspector to have regard to a material consideration. It goes no further than to require that testing be carried out to show “suitable sound insulation” has been achieved, and the results of that testing approved by the council, before the new building is occupied. The test results might therefore be approved and the building occupied even if the “sound insulation” itself is unsuitable.

[69]That argument is in my view untenable. I do not see condition 9 as being in any way legally flawed, or in any way inadequate to achieve the purpose the inspector had in mind for it.

[70]The approach to construing planning conditions should be benevolent and not excessively legalistic. Where a condition is imposed by the Secretary of State or an inspector in a decision letter on appeal, it should be read in its context, including the content of the decision letter itself, so as to give it, if possible, a sensible and reasonable meaning (see the judgment of Elias L.J. in Hulme v Secretary of State for Communities and Local Government

[2011] EWCA Civ 638

, at paragraphs 11, 31, 36, 37 and 38).

[71]When that approach is taken to condition 9, I can see no difficulty in construing it. The condition is in negative (or “Grampian”) form (see Grampian Regional Council v City of Aberdeen District Council [1984] J.P.L. 590). It prevents “[construction] works” being begun until a scheme of noise protection has been approved in writing by the council. The “scheme” must address three things: first, “noise generated outside the development”, secondly, “[noise] from the commercial unit within the development”, and thirdly, “the insulation of any relocated plant associated within the public house”. The condition requires the “measures”, which can only mean the measures in the submitted and approved “scheme”, to be carried out “in accordance with the approved details”, which means the details of the approved “scheme”, and it requires this to be done before “the first occupation of the development”. It also requires the “measures” to be retained after that. This means that the development cannot be occupied until the approved measures in the protective scheme have been carried out. But the condition does not end there. It also requires, again before the development is occupied, that “[testing] shall be carried out” after the development has been completed, “to show that suitable sound insulation has been achieved”. The test results must also have been submitted and approved in writing by the council before the development is occupied.

[72]The effect of all this is that the development cannot be lawfully occupied until the protective scheme has been approved, implemented, and tested to the satisfaction of the council. The condition makes clear that the purpose of the required testing is to ensure that adequate sound insulation in accordance with the approved scheme has in fact been achieved. It is a misreading of the requirements of the condition for testing to construe it as requiring only that the council be satisfied that the test results are accurate. The purpose of the testing is not merely to demonstrate the accuracy of the test results; it is to demonstrate that “suitable” sound insulation has been achieved in accordance with the approved scheme. It will be open to the council to refuse to approve the test results, and thus prevent occupation of the new development, if the test results do not demonstrate that “suitable sound insulation has been achieved”.

[73]Crucially, however, the council will not have approved the protective scheme in the first place unless it is entirely satisfied that the scheme will be adequate and effective. If it is not completely satisfied about that at the outset, it will not approve the scheme. And the development will not be occupied unless that scheme has been put into effect and is shown to be working as it should. Reading the condition as a whole, therefore, which is how it must be read, I reject the suggestion that it is inadequate to secure effective and sufficient noise protection in this development. The condition enables the council to make sure that effective and sufficient noise protection is provided, and retained.

[74]I should add that the protective scheme will only be approved if it is demonstrated to the council that the plant serving the George Tavern, whichever option for its relocation is pursued, has suitable sound insulation. Wherever the plant is relocated, the development approved by the planning permission cannot be occupied until such suitable sound insulation has been provided.

[75]Ground 4 of the application therefore fails.

Ground 5 – harm to the viability of the George Tavern

[76]Ms Graham Paul submits that the inspector failed to have regard to the potential harm to the operation of the George Tavern as an established business, even if condition 9 turned out to be effective. The testing of the “sound insulation” measures provided in the new development might show them to be adequate before the flats were occupied. But even if it did, this would be no guarantee that residents of those flats would not in the future complain to the council about noise coming from the George Tavern. Such complaints might lead to an abatement notice being served, or “the revocation of the [George Tavern’s] late night music [licence] on the ground that there was a breach of the licensing objective of prevention of public nuisance”, or an injunction being granted to prevent a private nuisance. It would be no defence to a claim in nuisance that the residents of the new flats had come to the nuisance. The inspector also overlooked the use of the George Tavern as a studio for artists and photographers and as a film location when he was considering the reduction in sunlight and daylight which the development would bring about. In both respects the potential harm to Ms Forster’s business was a material consideration in the appeal. Ms Forster herself raised it in her representations of 3 March 2014, as she had in her original objection in January 2012. Yet the inspector seems to have ignored this matter altogether. If he did consider it and rejected it as a valid objection, he entirely failed to provide any clear and adequate reasons for doing so.

[77]Those submissions are not well founded. The inspector did not fail to grasp the true nature of Ms Forster’s objection to the proposed development. In stating the main issue in the appeal to be “whether the future residents of the proposed scheme would be subjected to unreasonable levels of noise” (paragraph 5 of the decision letter), and in acknowledging Ms Forster’s assertion “that the presence of residential units on the appeal site will give rise to restrictions on the functioning of the public house and its ability to host music events” (paragraph 8), he effectively recognized the matters about which she was mainly concerned. If, as he concluded, residents of the flats in the new development were not going to be subjected to unreasonable levels of noise, it would follow that those residents would not be likely to complain about such noise and that the spectre of future proceedings against Ms Forster could therefore reasonably be discounted.

[78]This was, in effect, the central question in the appeal. The inspector tackled it fully. He made all of the planning judgments which he had to make on the specific issues arising from Ms Forster’s objection. In doing so he had regard to the design of the proposed development, which was intended to avoid any potential harm to the living conditions of residents of the new flats. On a fair reading of the whole of the decision letter, including his consideration of the noise-related issues, of “Other Matters” and of the conditions it was necessary to impose, one sees, in my view, a careful and thorough approach to the issues in the appeal.

[79]Mr Westaway and Mr Ground both submit, I think rightly, that Ms Forster’s anxiety about the vulnerability of her business to a claim in nuisance may be misplaced. Mr Westaway refers to the Supreme Court’s recent decision in Coventry (trading as RDC Promotions) v Lawrence

[2014] UKSC 13

(in particular the judgment of Lord Neuberger at paragraphs 47 to 58 and 77 to 99, the judgment of Lord Sumption at paragraph 156, the judgment of Lord Mance at paragraphs 165 and 166, the judgment of Lord Clarke at paragraph 169, and the judgment of Lord Carnwath at paragraphs 191 to 237). Mr Ground points out, as is recorded in subsection 7.2 of RBA Acoustics’ report, that there are existing residential properties no less exposed than would be the flats in the new development to noise generated by activities within the George Tavern and by its patrons, and there is not, apparently, a history of complaints. But in any event the inspector’s task was to make planning judgments on the land use planning issues before him, and not to anticipate the likelihood or outcome of future proceedings against Ms Forster as owner of the George Tavern. He cannot be criticized for not venturing into the law of nuisance. His remit was to determine Swan’s appeal on the planning merits, having regard to the public interest. That is what he did. The issues he discerned in the appeal were truly planning issues, the main one being whether planning permission should be withheld because residents of the flats in the proposed development would suffer unreasonable levels of noise. Having considered those issues, he could see no reason for planning permission to be refused.

[80]I also accept the submissions of Mr Westaway and Mr Ground on the inspector’s consideration of the likely effects of the proposed development on daylight and sunlight reaching the George Tavern. The inspector dealt with this matter in paragraph 17 of the decision letter. His conclusion matched that of the expert assessment on the effects of the development on daylight and sunlight, submitted by Swan with their application for planning permission in October 2011. The council had not opposed the development on these grounds. But the inspector came to his own judgment upon it, having regard to the material before him, and to what he had seen on his site visit, when he visited the upper floors of the George Tavern and looked out over the appeal site. Contrary to Ms Graham Paul’s submission, he did not fail to consider what she described as the “abnormally sensitive uses” on those upper floors. He did not neglect this aspect of Ms Forster’s objection, including her fear that the use of her premises “as a location for film, music videos and for fashion shoots” would be jeopardized. As he said at the end of paragraph 17 of his letter, he was satisfied that the development would not have “no unreasonable effects” on daylight and sunlight. This was classically a judgment for him to make, and with which the court cannot, in my view, properly interfere. I cannot see how any more detailed reasons could be expected here. They would only elaborate on what was, in fact, a straightforward exercise of planning judgment.

[81]I therefore reject this ground of the application.

Ground 6 – the construction of the development

[82]Ms Graham Paul submits that the inspector failed to have regard to the potential effects of the construction of the development on the George Tavern, as a listed building. The former nightclub and the George Tavern are connected – structurally, and by their electrics and plumbing. The work involved in constructing the new building could affect the structure of the George Tavern. The deliverability of the new development was therefore in doubt. A particular concern, raised by Ms Forster in her objection of June 2012, was that if the roof of the nightclub were taken off, it would leave the corridor to the lavatories in the George Tavern open to the elements, which would threaten its business as a public house. These too were material considerations, and they were neglected in the decision letter.

[83]I reject that argument. I find it impossible to accept that the inspector failed to have regard to the possible consequences of the construction of the proposed development for the George Tavern as a listed building, and hence for the businesses being carried on within the building. In paragraph 20 of the decision letter he specifically considered the “stability of the George Tavern”, observing that it was necessary for this to be “established prior to the demolition of the nightclub building”. He imposed a condition on the listed building consent, condition 3, again in “Grampian” form, to require measures for ensuring the safety and stability of the George Tavern to be submitted and approved before demolition was begun, and implemented. In particular the condition required these measures to include “the protection of the east flank wall [of the George Tavern]” and also the protection of “the building against the weather during the progress of the works”.

[84]It is true that the inspector did not impose a condition specifically to prevent the corridor to the lavatories of the George Tavern being exposed to the elements during the construction of the new development. Mr Ground submits that this concern is misconceived as a matter of fact, as the relevant drawings appear to show. But in so far as it can be regarded as a planning objection, I think it is satisfactorily met by the requirement in the condition that measures be taken to protect the building against the weather while the works proceed. Of course, any work to the structure of the George Tavern that falls outside the scope of the works for which listed building consent was granted by the inspector on the application before him would require a further grant of listed building consent.

[85]Whether there might also be some suitable remedy available to Ms Forster at common law is not a question the inspector had to consider, nor is it a question for the court in these proceedings.

[86]This ground of the application therefore also fails.

Conclusion

[87]For the reasons I have given this application must be dismissed.

Cited in 1 later judgment

Forster v The Secretary of State for Communities and Local Government & Ors 2016