“1. Notwithstanding the provisions of theTown and Country Planning (General Permitted Development) Order 1995 (or any order revoking and re-enacting that Order with or without modification), the site shall not be used for any purpose other than motor car, motor cycle and kart racing (including practice for those purposes). Reason: To prevent an over-intensive development and in the interests of visual and residential amenity and preserving the character of the AONB. 2. The following one-off events are permitted to be carried out on the land in 2014: One additional hour of racing on Sunday25th May 2014 , between 4pm and 5pm (for the World Rallycross Championships); Three consecutive weekends of two-day racing events in May 2014 (10th-11th May, 17th-18th May and 24th-25th May); Three consecutive weekends of two-day racing events in June-July 2014 (21st-22nd June, 28th-29th June and 5th-6th July 2014 ). Reason: To ensure that the event days comply with those permitted under this application and in the interests of sustainability and residential amenity. 3. Except for those events specifically set out in condition 2, the permitted uses shall not be carried out on the land on: (a) More than 52 days in any calendar year; (b) Consecutive days in excess of 12 occasions in any calendar year; (c) More than 2 consecutive days; (d) Two consecutive days at intervals of less than 10 clear days; (e) Except between the hours of 9am and 6pm on weekdays and 10.30am and 4pm on Sundays. For the purposes of this condition and condition 3, the term ‘calendar year’ means a period commencing on 1 April in one year and ending on 31 March in the succeeding year…. Reason: In the interests of residential and visual amenity. 4. A schedule of the days in which the use of the track is anticipated in the succeeding calendar year shall be submitted to the Local Planning Authority no later than 31st March each year. The Local Planning Authority shall be notified of any change in the submitted schedule prior to any change to the agreed schedule. Reason: In the interests of residential amenity and to ensure that the track is being used in accordance with approved details. 5. The public shall not be admitted to the site other than on days when public race meetings take place. Reason: In the interests of visual and residential amenity and preserving the character of the AONB. 6. Noise emitted from public address system on the site shall not exceed 40dB LAeq (5 minutes) at any time as measured at map grid reference points 230.465, 232.468, 240.464 and 245.466.The public address system shall, on request, be available for measuring and testing purposes by the Local Planning Authority at any reasonable time. Reason: In the interest of residential amenity. 7. The public address system shall be used only on days on which spectators are admitted to the site, between the hours of 9am and 6pm on weekdays and 10.30am and 4pm on Sundays. Its use, except in the event of an emergency, shall be limited to the purposes of commentary on racing and race practising. The public address system may be additionally used on the aforementioned days between the hours of 8am to 9am on weekdays and 9.30am to 10.30am on Sundays for the purpose of pre-race testing and the making of announcements to competitors. Reason: In the interest of residential amenity and preserving the character of the AONB. 8. All vehicles operating on the track shall be fitted with noise emission control equipment in accordance with the current Technical Regulations of the RAC Motor Sports Association or, as may be appropriate, the Auto Cycle Union. For track events regulated by the RAC, MSA vehicles shall not be admitted to the track if they exceed the maximum noise limit for that class of vehicles, as set out by that organisation. Vehicles not complying with those regulations shall not be admitted to the track without the prior written consent of the Local Planning Authority. Reason: In the interest of residential amenity and preserving the character of the AONB.” One additional hour of racing on Sunday25th May 2014 , between 4pm and 5pm (for the World Rallycross Championships); Three consecutive weekends of two-day racing events in May 2014 (10th-11th May, 17th-18th May and 24th-25th May); Three consecutive weekends of two-day racing events in June-July 2014 (21st-22nd June, 28th-29th June and 5th-6th July 2014 ). Reason: In the interests of residential amenity and to ensure that Reason: In the interest of residential amenity and preserving the character of the AONB.”
“3. Overall Conclusions 3.1 In June 2018 planning permission was refused for a comparable application for two reasons. The first reason related to the proposed erection of engineering units (Use Classes B1 and B2). In the absence of evidence to justify a functional need for the units to be located at the site or an overriding public benefit, the units were considered to be unsustainable. The second reason for refusal related to harm caused to the scenic beauty of the AONB, by virtue of the location, scale, height, design and use of materials of the buildings on site and the location and scale of the camping area. Following the refusal, the applicant has significantly amended the scheme in response to these reasons for refusal, omitting the engineering units (therefore addressing the first reason for refusal) and omitting the camping area which was cited in the second reason for refusal. The second reason for refusal also relied upon the visual impact caused by the buildings on site. These buildings have been rationalized into one building which is significantly smaller than the previously proposed building and would be positioned in a relatively concealed location. The previous application was considered acceptable in all other material respects (including noise and transportation), subject to conditions. This decision is material to the assessment of the current application. 3.2 Whilst the development accords with most relevant policies in the development plan, the location of the site conflicts with the blanket presumption against development which would generate travel outside of the settlement confines found within policy DM11. The increased use of the site is also contrary to Policy AS13, which states that proposals to expand the use of Lydden Circuit for motor sports or intensify its frequency will be refused, albeit many of the proposed additional uses are not motor sports. Notwithstanding the judgement that these policies carry reduced weight, it is therefore necessary to consider whether there are material considerations which indicate that permission should be granted. 3.3 The site lies within the Kent Downs Area of Outstanding Natural Beauty for which there is statutory protection and, as such, the development is considered to be in a sensitive location. The proposed Pavilion has been substantially reduced in size since the 2015 application was refused and would be located in a relatively discreet position on the site, where its visual impact would be limited. Where views would be possible, the building would be seen within the context of the existing features of the race circuit which already give the site an appearance which is distinct from the surrounding countryside. A landscaping scheme has also been proposed to provide further mitigation. Given the scale of the development and its location in the AONB, members may wish to undertake a Site Visit, to enable them to reach their own views on the landscape impacts of the development; however, this report concludes that the impact on the character of the landscape would be minor (albeit the sites location within the AONB requires that great weight be given to this harm). 3.4 Noise is an important consideration in the assessment of the development, with the existing site causing a managed (through a Noise Abatement Notice) nuisance to neighbouring properties and the majority of objections raising noise as a concern. Regard has been had for the Noise Policy Statement for England and advice has been received from the Councils Environmental Health team. Whilst the use of the circuit would be significantly expanded, it is considered that this would be balanced against the improved management of the circuit and more stringent monitoring (which would be secured by condition). Overall, the development would not exacerbate the impacts of noise and, therefore, no additional planning harm would be caused. The development would not harm the living conditions of neighbours in any other respect, subject to conditions. …… 3.10 The development would draw significant investment into the District and provide significant employment benefits, gaining the support of the Councils Strategic Tourism Manager, Tourism Manager Head of Inward Investment. Given the demography of the District and the unemployment rate, this benefit must be attributed substantial weight in the planning balance. 3.11 As the development is contrary to the development plan, it is necessary to considered whether the material considerations indicate that the development plan should be set aside and permission be granted. The National Planning Policy Framework has been assessed, being and important material consideration. It is acknowledged that this is a balanced case, which largely turns on whether the economic benefits are sufficient to provide an exceptional circumstance, and public interest, to set aside the conflict with parts of the development and to warrant major development within the AONB. Whilst the development would cause some harm to the character of the area, it is concluded that the economic benefits of this application, when weighed against the level of harm caused, are compelling. 3.12 Overall, it is considered that the application has overcome the concerns which led to the 2015 application being refused for two reasons (the principle of the engineering units and visual harm). The proposed development would cause a minor adverse impact on the character and beauty of the area, albeit within the context of the site which is already visually distinct from the agrarian countryside beyond. However, the development would provide significant benefits, most notably in terms of its potential contribution to the local economy. The application will also provide a more appropriate access onto the A2 and greater controls of noise. Whilst it is acknowledged that the application conflicts with policies DM11 and AS13, it is considered that the benefits of the application, in particular the economic benefit, indicate that these conflicts should be set aside and planning permission be granted.”
“If regard is to be had to the development plan for the purpose of any determination to be made under the planning Acts, the determination must be made in accordance with the plan unless material considerations indicate otherwise.”
“42. The principles on which the court will act when criticism is made of a planning officer’s report to committee are well settled. To summarise the law as it stands: (1) The essential principles are as stated by the Court of Appeal in R. v Selby District Council, ex parte Oxton Farms [1997] E.G.C.S. 60 (see, in particular, the judgment of Judge L.J., as he then was). They have since been confirmed several times by this court, notably by Sullivan L.J. in R. (on the application of Siraj) v Kirklees Metropolitan Borough Council[2010] EWCA Civ 1286 , at paragraph 19, and applied in many cases at first instance (see, for example, the judgment of Hickinbottom J., as he then was, in R. (on the application of Zurich Assurance Ltd., t/a Threadneedle Property Investments) v North Lincolnshire Council[2012] EWHC 3708 (Admin) , at paragraph 15). (2) The principles are not complicated. Planning officers’ reports to committee are not to be read with undue rigour, but with reasonable benevolence, and bearing in mind that they are written for councillors with local knowledge (see the judgment of Baroness Hale of Richmond in R. (on the application of Morge) v Hampshire County Council[2011] UKSC 2 , at paragraph 36, and the judgment of Sullivan J., as he then was, in R. v Mendip District Council, ex parte Fabre (2000) 80 P. & C.R. 500, at p.509). Unless there is evidence to suggest otherwise, it may reasonably be assumed that, if the members followed the officer’s recommendation, they did so on the basis of the advice that he or she gave (see the judgment of Lewison L.J. in Palmer v Herefordshire Council[2016] EWCA Civ 1061 , at paragraph 7). The question for the court will always be whether, on a fair reading of the report as a whole, the officer has materially misled the members on a matter bearing upon their decision, and the error has gone uncorrected before the decision was made. Minor or inconsequential errors may be excused. It is only if the advice in the officer’s report is such as to misdirect the members in a material way – so that, but for the flawed advice it was given, the committee’s decision would or might have been different – that the court will be able to conclude that the decision itself was rendered unlawful by that advice. (3) Where the line is drawn between an officer’s advice that is significantly or seriously misleading – misleading in a material way – and advice that is misleading but not significantly so will always depend on the context and circumstances in which the advice was given, and on the possible consequences of it. There will be cases in which a planning officer has inadvertently led a committee astray by making some significant error of fact (see, for example R. (on the application of Loader) v Rother District Council[2016] EWCA Civ 795 ), or has plainly misdirected the members as to the meaning of a relevant policy (see, for example, Watermead Parish Council v Aylesbury Vale District Council[2017] EWCA Civ 152 ). There will be others where the officer has simply failed to deal with a matter on which the committee ought to receive explicit advice if the local planning authority is to be seen to have performed its decision-making duties in accordance with the law (see, for example, R. (on the application of Williams) v Powys County Council[2017] EWCA Civ 427 ). But unless there is some distinct and material defect in the officer’s advice, the court will not interfere.” (1) The essential principles are as stated by the Court of Appeal in R. v Selby District Council, ex parte Oxton Farms [1997] E.G.C.S. 60 (see, in particular, the judgment of Judge L.J., as he then was). They have since been confirmed several times by this court, notably by Sullivan L.J. in R. (on the application of Siraj) v Kirklees Metropolitan Borough Council[2010] EWCA Civ 1286 , at paragraph 19, and applied in many cases at first instance (see, for example, the judgment of Hickinbottom J., as he then was, in R. (on the application of Zurich Assurance Ltd., t/a Threadneedle Property Investments) v North Lincolnshire Council[2012] EWHC 3708 (Admin) , at paragraph 15). (2) The principles are not complicated. Planning officers’ reports to committee are not to be read with undue rigour, but with reasonable benevolence, and bearing in mind that they are written for councillors with local knowledge (see the judgment of Baroness Hale of Richmond in R. (on the application of Morge) v Hampshire County Council[2011] UKSC 2 , at paragraph 36, and the judgment of Sullivan J., as he then was, in R. v Mendip District Council, ex parte Fabre (2000) 80 P. & C.R. 500, at p.509). Unless there is evidence to suggest otherwise, it may reasonably be assumed that, if the members followed the officer’s recommendation, they did so on the basis of the advice that he or she gave (see the judgment of Lewison L.J. in Palmer v Herefordshire Council[2016] EWCA Civ 1061 , at paragraph 7). The question for the court will always be whether, on a fair reading of the report as a whole, the officer has materially misled the members on a matter bearing upon their decision, and the error has gone uncorrected before the decision was made. Minor or inconsequential errors may be excused. It is only if the advice in the officer’s report is such as to misdirect the members in a material way – so that, but for the flawed advice it was given, the committee’s decision would or might have been different – that the court will be able to conclude that the decision itself was rendered unlawful by that advice. (3) Where the line is drawn between an officer’s advice that is significantly or seriously misleading – misleading in a material way – and advice that is misleading but not significantly so will always depend on the context and circumstances in which the advice was given, and on the possible consequences of it. There will be cases in which a planning officer has inadvertently led a committee astray by making some significant error of fact (see, for example R. (on the application of Loader) v Rother District Council[2016] EWCA Civ 795 ), or has plainly misdirected the members as to the meaning of a relevant policy (see, for example, Watermead Parish Council v Aylesbury Vale District Council[2017] EWCA Civ 152 ). There will be others where the officer has simply failed to deal with a matter on which the committee ought to receive explicit advice if the local planning authority is to be seen to have performed its decision-making duties in accordance with the law (see, for example, R. (on the application of Williams) v Powys County Council[2017] EWCA Civ 427 ). But unless there is some distinct and material defect in the officer’s advice, the court will not interfere.”
“80.(1) Subject to subsection (2A) where a local authority is satisfied that a statutory nuisance exists, or is likely to occur or recur, in the area of the authority, the local authority shall serve a notice (“an abatement notice”) imposing all or any of the following requirements— (a) requiring the abatement of the nuisance or prohibiting or restricting its occurrence or recurrence; (b) requiring the execution of such works, and the taking of such other steps, as may be necessary for any of those purposes, and the notice shall specify the time or times within which the requirements of the notice are to be complied with. …. (2A) Where a local authority is satisfied that a statutory nuisance falling within paragraph (g) of section 79(1) above exists, or is likely to occur or recur, in the area of the authority, the authority shall— (a) serve an abatement notice in respect of the nuisance in accordance with subsections (1) and (2) above; or (b) take such other steps as it thinks appropriate for the purpose of persuading the appropriate person to abate the nuisance or prohibit or restrict its occurrence or recurrence. (2B) If a local authority has taken steps under subsection (2A)(b) above and either of the conditions in subsection (2C) below is satisfied, the authority shall serve an abatement notice in respect of the nuisance. (2C) The conditions are— (a) that the authority is satisfied at any time before the end of the relevant period that the steps taken will not be successful in persuading the appropriate person to abate the nuisance or prohibit or restrict its occurrence or recurrence; (b) that the authority is satisfied at the end of the relevant period that the nuisance continues to exist, or continues to be likely to occur or recur, in the area of the authority.” (a) requiring the abatement of the nuisance or prohibiting or restricting its occurrence or recurrence; (b) requiring the execution of such works, and the taking of such other steps, as may be necessary for any of those purposes, and the notice shall specify the time or times within which the requirements of the notice are to be complied with. (a) serve an abatement notice in respect of the nuisance in accordance with subsections (1) and (2) above; or (b) take such other steps as it thinks appropriate for the purpose of persuading the appropriate person to abate the nuisance or prohibit or restrict its occurrence or recurrence. (a) that the authority is satisfied at any time before the end of the relevant period that the steps taken will not be successful in persuading the appropriate person to abate the nuisance or prohibit or restrict its occurrence or recurrence; (b) that the authority is satisfied at the end of the relevant period that the nuisance continues to exist, or continues to be likely to occur or recur, in the area of the authority.”
“183. The focus of planning policies and decisions should be on whether proposed development is an acceptable use of land, rather than the control of processes or emissions (where these are subject to separate pollution control regimes). Planning decisions should assume that these regimes will operate effectively. Equally, where a planning decision has been made on a particular development, the planning issues should not be revisited through the permitting regimes operated by pollution control authorities.”
“How can noise impacts be determined? Plan-making and decision making need to take account of the acoustic environment and in doing so consider: • whether or not a significant adverse effect is occurring or likely to occur; • whether or not an adverse effect is occurring or likely to occur; and • whether or not a good standard of amenity can be achieved. In line with the Explanatory note of the noise policy statement for England, this would include identifying whether the overall effect of the noise exposure (including the impact during the construction phase wherever applicable) is, or would be, above or below the significant observed adverse effect level and the lowest observed adverse effect level for the given situation. As noise is a complex technical issue, it may be appropriate to seek experienced specialist assistance when applying this policy. Paragraph: 003 Reference ID: 30-003-20190722 Revision date: 22 07 2019 What are the observed effect levels? • Significant observed adverse effect level: This is the level of noise exposure above which significant adverse effects on health and quality of life occur. • Lowest observed adverse effect level: this is the level of noise exposure above which adverse effects on health and quality of life can be detected. • No observed effect level: this is the level of noise exposure below which no effect at all on health or quality of life can be detected. Although the word ‘level’ is used here, this does not mean that the effects can only be defined in terms of a single value of noise exposure. In some circumstances adverse effects are defined in terms of a combination of more than one factor such as noise exposure, the number of occurrences of the noise in a given time period, the duration of the noise and the time of day the noise occurs. See the noise policy statement for England for further information. Paragraph: 004 Reference ID: 30-004-20190722 Revision date: 22 07 2019 How can it be established whether noise is likely to be a concern? At the lowest extreme, when noise is not perceived to be present, there is by definition no effect. As the noise exposure increases, it will cross the ‘no observed effect’ level. However, the noise has no adverse effect so long as the exposure does not cause any change in behaviour, attitude or other physiological responses of those affected by it. The noise may slightly affect the acoustic character of an area but not to the extent there is a change in quality of life. If the noise exposure is at this level no specific measures are required to manage the acoustic environment. As the exposure increases further, it crosses the ‘lowest observed adverse effect’ level boundary above which the noise starts to cause small changes in behaviour and attitude, for example, having to turn up the volume on the television or needing to speak more loudly to be heard. The noise therefore starts to have an adverse effect and consideration needs to be given to mitigating and minimising those effects (taking account of the economic and social benefits being derived from the activity causing the noise). Increasing noise exposure will at some point cause the ‘significant observed adverse effect’ level boundary to be crossed. Above this level the noise causes a material change in behaviour such as keeping windows closed for most of the time or avoiding certain activities during periods when the noise is present. If the exposure is predicted to be above this level the planning process should be used to avoid this effect occurring, for example through the choice of sites at the plan-making stage, or by use of appropriate mitigation such as by altering the design and layout. While such decisions must be made taking account of the economic and social benefit of the activity causing or affected by the noise, it is undesirable for such exposure to be caused. At the highest extreme, noise exposure would cause extensive and sustained adverse changes in behaviour and / or health without an ability to mitigate the effect of the noise. The impacts on health and quality of life are such that regardless of the benefits of the activity causing the noise, this situation should be avoided. This table summarises the noise exposure hierarchy, based on the likely average response of those affected. [The PPG provides a link to the Noise Exposure Hierarchy Table] Paragraph: 005 Reference ID: 30-0055-20190722 Revision date: 22 27 2019”
“AS13 - Proposals to expand the use of Lydden Circuit for motor sports or intensify its frequency will be refused. Only development ancillary to its existing use will be permitted.”
“172. Great weight should be given to conserving and enhancing landscape and scenic beauty in National Parks, the Broads and Areas of Outstanding Natural Beauty, which have the highest status of protection in relation to these issues. The conservation and enhancement of wildlife and cultural heritage are also important considerations in these areas, and should be given great weight in National Parks and the Broads. The scale and extent of development within these designated areas should be limited. Planning permission should be refused for major development [FN55 For the purposes of paragraphs 172 and 173, whether a proposal is ‘major development’ is a matter for the decision maker, taking into account its nature, scale and setting, and whether it could have a significant adverse impact on the purposes for which the area has been designated or defined.]other than in exceptional circumstances, and where it can be demonstrated that the development is in the public interest. Consideration of such applications should include an assessment of: a) the need for the development, including in terms of any national considerations, and the impact of permitting it, or refusing it, upon the local economy; b) the cost of, and scope for, developing outside the designated area, or meeting the need for it in some other way; and c) any detrimental effect on the environment, the landscape and recreational opportunities, and the extent to which that could be moderated.”
“180. Planning policies and decisions should also ensure that new development is appropriate for its location taking into account the likely effects (including cumulative effects) of pollution on health, living conditions and the natural environment, as well as the potential sensitivity of the site or the wider area to impacts that could arise from the development. In doing so they should: a) mitigate and reduce to a minimum potential adverse impacts resulting from noise from new development – and avoid noise giving rise to significant adverse impacts on health and the quality of life [FN60 See Explanatory Note to the Noise Policy Statement for England (Department for Environment, Food & Rural Affairs, 2010).]; b) identify and protect tranquil areas which have remained relatively undisturbed by noise and are prized for their recreational and amenity value for this reason; and c) limit the impact of light pollution from artificial light on local amenity, intrinsically dark landscapes and nature conservation.”
“32. I agree. The most important point here, however, as Holgate J. recognised (in paragraph 53 of his judgment), is that the requirement in the policy in the first part of paragraph 172 for “great weight” be given to the conservation and enhancement of landscape and scenic beauty in an AONB does not prevent its application providing a clear reason for the refusal of planning permission. 33. That it can be so applied is plain from the policy's context and purpose. Its context is a chapter of the NPPF whose objectives, as stated in the chapter heading, are “Conserving and enhancing the natural environment”
“2.65 At present, having regard for the planning permission for the circuit, together with the restrictions of the Noise Abatement Notice, the circuit can operate for: • 2 days of unlimited noise (‘Category 1’) • 24 days where noise cannot exceed 55dB LAeq 1 hour ‘Category 2’) at specified monitoring points • 26 days where noise cannot exceed 50dB LAeq 1 hour ‘Category 3’) at specified monitoring points The current application seeks to continue operating on these days and increase the current usage through the addition of the following uses: • 52 days (for demonstration/corporate events, car testing, river experience days, quiet vehicle festivals and shows, use of the site or road speed driving of vehicles at no more than 70mph and ancillary noise) where noise cannot exceed 45dB LAeq 15 minutes. (‘Category 4’) • 52 days (for car testing, driver training, driver experience days, slow speed cavalcades, demonstrations, photo shoots and media activities, and use of the site for road speed driving of motor vehicles at no more than 70mph and ancillary noise) where noise cannot exceed 40dB LAeq 15 minutes. (‘Category 5’) • An option to extending operating hours by up to two and a half hours on up to two Sundays per year, with one category 2 or 3 day being lost in compensation for each extended Sunday. If a period of up to an additional 2.5 hours of time takes place on a Sunday in association with an event falling within Categories 1 and 2 the number of days permitted to be used by a Category 2 event within that same calendar period will be reduced by 1 day. If the additional 2.5 hours were to take place within Categories 3, 4 or 5 the number of days permitted to be used by a Category 3 event within that same calendar period will be reduced by 1 day. • Up to 209 (210 in a leap year) for ‘other activity’, not falling within the above categories. This may include use by conventional road vehicles ancillary to charitable or other events, road driving lessons, emergency incident training, photo shoots, media activities and use by non-motorised bicycles for training during daylight hours, including non-motorised bicycle events. (‘Other Activity’).” • 2 days of unlimited noise (‘Category 1’) • 24 days where noise cannot exceed 55dB LAeq 1 hour ‘Category 2’) at specified monitoring points • 26 days where noise cannot exceed 50dB LAeq 1 hour ‘Category 3’) at specified monitoring points • 52 days (for demonstration/corporate events, car testing, river experience days, quiet vehicle festivals and shows, use of the site or road speed driving of vehicles at no more than 70mph and ancillary noise) where noise cannot exceed 45dB LAeq 15 minutes. (‘Category 4’) • 52 days (for car testing, driver training, driver experience days, slow speed cavalcades, demonstrations, photo shoots and media activities, and use of the site for road speed driving of motor vehicles at no more than 70mph and ancillary noise) where noise cannot exceed 40dB LAeq 15 minutes. (‘Category 5’) • An option to extending operating hours by up to two and a half hours on up to two Sundays per year, with one category 2 or 3 day being lost in compensation for each extended Sunday. If a period of up to an additional 2.5 hours of time takes place on a Sunday in association with an event falling within Categories 1 and 2 the number of days permitted to be used by a Category 2 event within that same calendar period will be reduced by 1 day. If the additional 2.5 hours were to take place within Categories 3, 4 or 5 the number of days permitted to be used by a Category 3 event within that same calendar period will be reduced by 1 day. • Up to 209 (210 in a leap year) for ‘other activity’, not falling within the above categories. This may include use by conventional road vehicles ancillary to charitable or other events, road driving lessons, emergency incident training, photo shoots, media activities and use by non-motorised bicycles for training during daylight hours, including non-motorised bicycle events. (‘Other Activity’).”
“Whilst the additional activities could exacerbate the existing SOAEL of noise, it is necessary to consider whether the additional activities would exacerbate the existing SOAEL and if so whether this additional harm can be mitigated.”
“3.4 Noise is an important consideration in the assessment of the development, with the existing site causing a managed (through a Noise Abatement Notice) nuisance to neighbouring properties and the majority of objections raising noise as a concern. Regard has been had for the Noise Policy Statement for England and advice has been received from the Councils Environmental Health team. Whilst the use of the circuit would be significantly expanded, it is considered that this would be balanced against the improved management of the circuit and more stringent monitoring (which would be secured by condition). Overall, the development would not exacerbate the impacts of noise and, therefore, no additional planning harm would be caused. The development would not harm the living conditions of neighbours in any other respect, subject to conditions.”
“Using a map reproduced from the AONB Management Plan, the site currently had a medium to medium-low level of tranquillity. Subject to conditions, and as set out in the report, Members were advised that it was not considered that the level of tranquillity would be significantly diminished as a result of the proposals. Third parties had raised numerous objections relating to the current levels of noise and the potential for increased levels should the application be granted. Noise levels were currently controlled by conditions attached to planning permission DOV/14/00415. These conditions, which limited the circuit to 52 days’ use per year and required the submission of a calendar of events each year, amongst other things, were not considered to be robust and made the identification of breaches difficult. Under separate (non-planning) legislation, the Council’s Environmental Health team had served a noise abatement notice which had established that noise from the circuit was causing a statutory nuisance and sought to limit that nuisance. Environmental Health officers visited the site around 12 times a year and had identified no breaches. The current application sought to retain current uses, as specified within the noise abatement notice, but reduced the period over which noise was averaged from one hour to thirty minutes in respect of the 55 decibel and 50 decibel events. This reduction in the time period over which noise would be averaged reduced the ability to dilute periods of louder noise with quieter periods, thus reducing the impact of these days on the aural environment. Residents would also be invited to join a new consultative committee. The application also sought to increase the use of the site for quieter, non-racing events. A full description of the proposed uses was set out at paragraph 2.65 of the report. There would also be 49 silent days with no activities. Whilst the circuit’s use would increase significantly, this was considered to be mitigated by the enhanced control of the circuit, including a noise management plan, the provision of a permanent noise monitoring system (with access to readings by the Local Planning Authority and their publication on the circuit’s website), a calendar of events, and the reduction from one hour to 30 minutes over which noise would be averaged for category 2 and 3 events. Members had been provided with the draft wording of the proposed noise conditions that would be attached to any permission granted.”
“Sometimes an applicant can demonstrate that the grant of a permission will be less harmful than a use or development which has previously been permitted; this is known, unsurprisingly, as fall-back”
“Surveys were carried out in 2013 and 2015 as part of the previous application. These were carried out over a three-week period in the summer which indicated that, at the most noise sensitive noise monitoring point, the modal noise level when no events are taking place at the circuit is 51dB LAeq, 1 hour. During visits to the site, it is noted that noise from traffic on the A2 is audible a significant distant away, albeit this noise has a relatively constant, benign character. It is also noted that the areas around the A2, and around the circuit are shown on the Tranquillity Map within the Kent Downs AONB Management Plan as having a medium to medium/low level of tranquillity.”
“After selecting the noisiest monitoring site (of the four shown on the Revised Notice map), an initial 30 minute reading is to be taken and if readings are at or below 51dB LAeq then no further readings would take place that day (para 7). At that level, a statutory nuisance would not be experienced in the community; If readings are over 51dB LAeq during the first 30 minutes then officers should continue to monitor until at least 2 hours of data is gathered (paras 8 and 9); and Audio readings should be taken throughout when readings are in excess of 51dB LAeq(para 10).”
“Tranquillity In addition to the landscape and visual impacts of the proposal, impacts on tranquillity are also relevant. Tranquillity is identified as one of the special characteristics of the AONB and policy SD7 of the AONB Management Plan advises that new development which impact on tranquillity will be opposed unless they can be satisfactorily mitigated. The AONB Unit has concerns that the proposal will introduce a significant intensification of use of the site, increased from the current 52 days per year to potential year round daily activity, both in terms of overall visitor numbers as well as in respect of new daily activity, with 104 days to be used for activities including car testing, driver experience days and driver training in addition to 52 days per year for motorsport activities, with the remainder of the year the site permitted to be used for activities including emergency incident training, cycle racing and driving lessons. This extensive increase in intensification of use of the site would result in a deterioration of tranquillity at the site.”
“2.82 Notwithstanding the above, it is also necessary to consider the noise impacts on the tranquillity of this area of countryside, being within the AONB. Paragraph 180 of the NPPF states that planning decisions should “identify and protect tranquil areas which have remained relatively undisturbed by noise and are prized for their recreational and amenity value for this reason”
“2.142 Throughout the assessment of this application, regard must be had for the duty contained withinSection 85 of the Countryside and Rights of Way Act 2000 which requires that in exercising or performing any functions in relation to, or so as to affect, land in an Area of Outstanding Natural Beauty (AONB), local planning authorities shall have regard to the purpose of conserving or enhancing the natural beauty of the AONB. 2.143 As set out at paragraph 2.21, paragraph 172 of the NPPF requires that ‘major’ development within the AONB should be refused unless exceptional circumstances exist, and it can be demonstrated that the development is in the public interest. The NPPF goes on to advise that that these considerations should include an assessment of: a) the need for the development, including in terms of any national considerations, and the impact of permitting it, or refusing it, upon the local economy; b) the cost of, and scope for, developing outside the designated area, or meeting the need for it in some other way; and c) any detrimental effect on the environment, the landscape and recreational opportunities, and the extent to which that could be moderated. 2.144 The application relates to an existing racing circuit, which already has a visual and aural character which is distinct from that of the surrounding AONB. The proposed development would have a minor adverse effect on views of the site, albeit this effect relates to views which are already impacted by views of the buildings, structures, track and parked vehicles within the circuit and/or the A2. However, this minor adverse effect must attract great weight. 2.145 The development would significantly increase the use of the circuit, increasing its utility as a leisure and sporting venue. The provision of additional social and recreational uses and the enhancement of the facilities at the site is considered to carry some weight in favour of the development. 2.146 Whilst the application proposes significant additional use of the circuit which would generate noise, the noise generated by the additional uses would be limited. Mitigation could be secured by condition to ensure that, overall, the noise generated from the site would be no more disruptive (possibly less disruptive) than the existing use. As such, the impact is considered to be neutral.”
“2.152 Returning to the NPPF paragraph 172 test, it is considered that, there is no realistic scope for developing outside of the AONB. The applicant has sought to moderate impacts of the development by significantly amending the scheme following the determination of the previous application. The development relates to an established race circuit within the AONB which provides recreational opportunities to participate or otherwise engage (spectate) in motorsport – the facilities for which are sparse. Despite being within the AONB, and notwithstanding the need to attribute great weight to conserving and enhancing the AONB, the adverse impacts of the development would be minor. The applicant has proposed mitigation in the form of landscaping to moderate these impacts. As such, it is concluded that there are exceptional circumstances in this instance. Furthermore, it is considered that the development would bring substantial economic benefits which provide a compelling public interest. As such, it is resolved that the ‘paragraph 172 test’ has been met.”
“2.153 Finally, it is necessary to consider whether the material considerations of this case indicate that the conflict with policies DM11 and AS13 should be set aside and permission be granted. 2.154 The development would provide a short-term economic benefit, by providing employment during the construction phase. The application advises that the cost of the construction works would be around£5.5 million . In the longer term, the development (provided it is fully built out) would increase visitor numbers and increase the range and quality of facilities and services available on site which would, correspondingly, increase spend and the number of jobs which could be supported, supporting a significant increase in the number of employees both at the site and beyond. It is considered that substantial weight should be attached to this benefit. The development would include the provision of highways and drainage infrastructure to meet the needs of the development without causing harm on-site or elsewhere. Overall, it is considered that the development would provide short term and long term economic benefits which must be attributed substantial weight in favour of the development. 2.155 The development would provide an enhanced leisure and recreation offer at the site which would help to create and foster recreational communities with shared interests (albeit these communities may be from diverse locations). The proposed Pavilion building is considered to be of a reasonable architectural quality, being reminiscent of other motorsport buildings in the UK whilst also referencing some of the agricultural buildings in the area. Overall, it is considered that the development would have a minor social benefit. 2.156 Turning to the environmental role, the development would cause harm to the natural environment, comprising major development in the AONB which would cause a minor adverse impact on the character of the landscape, whilst increasing the use of the site significantly. It is acknowledged that the tranquillity of this part of the AONB is already reduced (medium to medium/low) by virtue of the existing use of the circuit and by the busy A2. Subject to conditions, it is not considered that tranquillity would be significantly diminished. Subject to conditions, the development would cause no unacceptable impacts on biodiversity or protected species and would provide some enhancements. The development is not located such that it would promote or facilitate sustainable modes of transport; however, it is also acknowledged that race circuits necessarily draw people from a wide area and are not suited to built-up areas. Notwithstanding this, the site is not accessible by more sustainable modes of transport such as public buses or trains, although a shuttle bus service will be secured whilst four electric vehicle charging points will be provided, reducing the harm caused by the unsuitable location of the circuit when balanced against the existing use. The additional uses would generate noise, albeit at significantly lower levels than the existing uses. This would be balanced against the benefits of enhanced controls for the existing (and proposed) uses, to be secured by condition. Overall, attributing great weight to the harm caused to the AONB and having regard for all other environmental factors, it is considered that the development would cause a minor adverse impact. 2.157 Overall, the development would give rise to substantial economic benefits, minor beneficial social benefits and minor adverse environmental harm. It is concluded, applying a ‘flat’ balance, that the benefits of the development are compelling and indicate that the developments conflict with policies DM11 and AS13 should be set aside in this instance.”
“59. As to the charge of uncertainty, it would be wrong to be over-prescriptive, in a judgment on a single case and a single set of policies. However it should not be difficult for councils and their officers to identify cases which call for a formulated statement of reasons, beyond the statutory requirements. Typically they will be cases where, as in Oakley and the present case, permission has been granted in the face of substantial public opposition and against the advice of officers, for projects which involve major departures from the development plan, or from other policies of recognised importance (such as the "specific policies" identified in the NPPF - para 22 above). Such decisions call for public explanation, not just because of their immediate impact; but also because, as Lord Bridge pointed out (para 45 above), they are likely to have lasting relevance for the application of policy in future cases.”
“It is unlawful for a public authority to act in a way which is incompatible with a Convention right.”
“1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
“There may be positive obligations inherent in effective respect for private or family life….However, the concept of respect is not precisely defined. In order to determine whether such obligations exist, regard must be had to the fair balance that has to be struck between the general interest and the interests of the individual, while the state has, in any event, a margin of appreciation.”
“According to the case law of the ECJ, when uncertainties remain as to the existence or extent of risks to human health, the institutions may take measures without having to wait for the reality and seriousness of those risks to be fully demonstrated.”
“43. It emerges from the authorities: (a) Article 8 is concerned to prevent intrusions into a person's private life and home and, in particular, arbitrary intrusions and that is the background against which alleged breaches are to be considered. (b) Respect for the home has an environmental dimension in that the law must offer protection to the environment of the home. (c) Not every loss of amenity involves a breach of Article 8(1). The degree of seriousness required to trigger lack of respect for the home will depend on the circumstances but it must be substantial. (d) The contents of Article 8(2) throw light on the extent of the right in Article 8(1) but infringement of Article 8(1) does not necessarily arise upon a loss of amenity and the reasonableness and appropriateness of measures taken by the public authority are relevant in considering whether the respect required by Article 8(1) has been accorded.”
“81. The relationship between the domestic planning scheme and article 8 has been considered in a number of cases, notably Chapman v United Kingdom(2001) 33 EHRR 18 , Lough v First Secretary of State[2004] EWCA Civ 905 and Stevens v Secretary of State for Communities and Local Government[2013] EWHC 792 (Admin) at [47] and following (approved in Collins v Secretary of State for Communities and Local Government[2013] EWCA Civ 1193 ). These cases largely concerned planning control, e.g. decisions in respect of planning permission (often, in the cases, sought retrospectively) or enforcement, frequently in the context of caravans which had been sited without any cognisance of the planning regime. With regard to planning control, the following relevant propositions can be drawn from them. i) Article 8 does not give a right to a home, or to a home in any particular place. ii) However, where someone has a home in a particular dwelling, it may interfere with the article 8 rights of him and/or his family to require him/them to move. iii) Whilst those rights demand “respect”, they are of course not guaranteed. In this context, as much as any other, the public interest and/or the rights and interests of others may justify interference with an individual's article 8 rights. iv) Where article 8 rights are in play in a planning control context, they are a material consideration. Any interference in such rights caused by the planning control decision has to be balanced with and against all other material considerations, the issue of justification for interference with article 8 rights effectively being dealt with by way of such a fair balance analysis. v) That balancing exercise is one of planning judgment. Consequently, it may be amenable to more than one, perfectly lawful, result; and this court will only interfere if the decision is outside the legitimate range. Indeed, in any challenge, the court will give deference to the decision of the primary decision-maker, because he has been assigned the decision-making task by Parliament, and he will usually have particular expertise and experience in the relevant area. Such a decision-maker will be accorded a substantial margin of discretion. The deference and margin of discretion will be the greater if he has particular expertise and experience in the relevant area, and/or if he is acting in a quasi-judicial capacity (such as an inspector). vi) If the decision-maker has clearly engaged with the article 8 rights in play, and considered them with care, it is unlikely that the court will interfere with his conclusion. Article 8 rights are, of course, important: but it is not to be assumed that, in an area of social policy such as planning, they will often outweigh the importance of having coherent control over town and country planning, important not only in the public interest but also to protect the rights and freedoms of other individuals. In practice, cases in which this court will interfere are likely to be few.”