R (oao Harlow) v South Cambridgeshire DC

Transcript date:

Thursday, February 17, 2005

Matter:

Court:

High Court

Judgement type:

Substantive

Judge(s):

Richards J

Case No: CO/6400/2003

Neutral Citation Number: [2005] EWHC 173 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

 

Royal Courts of Justice

Strand, London, WC2A 2LL

 

Thursday, 17 February 2005

 

Before:

 

THE HONOURABLE MR JUSTICE RICHARDS

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Between:

 

R (on the application of Harlow) Claimant

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South Cambridgeshire District Council Defendant

 

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(Transcript of the Handed Down Judgment of

Smith Bernal Wordwave Limited, 190 Fleet Street

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Ms Deborah Tripley (instructed by Richard Buxton Solicitors) for the Claimant

Mr James Findlay (instructed by South Cambridgeshire District Council) for the Defendant

 

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Judgment

As Approved by the Court

 

Crown Copyright ©

 

 

Mr Justice Richards :

 

1. The claimant is an elderly man who lives in one of three bungalows (known as The Bungalow) adjacent to Riverview Farm in Over, Cambridgeshire. The other two bungalows (called respectively Riverside and Greenfields) are occupied by two of his daughters and their families, who share the responsibility of caring for him. The claimant says that the area used to be very quiet but that his life has come to be blighted by a series of planning permissions that have turned Riverview Farm into a site of light industry. By the present proceedings he challenges a decision of the local planning authority, South Cambridgeshire District Council, to grant a variation of a condition of an earlier planning permission so as to allow operations on the site to start at 7.30 am rather than 8.00 am on weekdays. The council is the defendant to the proceedings. The owner of Riverview Farm, Mr Norman, was served as an interested party but has played no part in the proceedings.

Factual history

2. Prior to 2000 the site had been used generally for agricultural purposes. It appears that one building had been used for engineering purposes by a firm called Keith Collier Engineering, originally without planning permission. On 2 February 2000 the council granted planning permission retrospectively for a change of use of the building to class B1/B2 use (light/general industrial). To avoid confusion I shall refer to this as "the Collier permission". It was not limited by way of condition as to hours of operation.

3. By a further planning permission granted on 6 November 2000 ("the original permission"), in part retrospectively, the council permitted a change of use of other buildings on the site from agricultural to class B1/B8 use (industrial/commercial and storage). Condition 2 provided that the permitted use was not to be carried out on site before 8.00 am on weekdays and Saturdays, nor after 6.30 pm on weekdays or 1.00 pm on Saturdays, nor at any time on Sundays or Bank Holidays. The stated reason for the condition was "to minimise disturbance to neighbouring residential properties".

4. On 9 February 2001 a temporary variation of condition 2 of the original permission was granted in respect of one of the buildings covered by that permission. The variation allowed extended hours of operation on weekdays, starting at 7.00 am, in relation to that one building, for a temporary period expiring on 31 December 2001. It appears that there was no application to renew that temporary variation because the business concerned moved away.

5. In May 2002, however, the interested party applied for a general variation of condition 2, initially seeking a 7.00 am start but subsequently amending it to a 7.30 am start. This led to a decision on 10 September 2002 granting a general variation of condition 2 for a temporary period expiring on the 3 September 2003 whereby the permitted use was allowed to commence at 7.30 on weekdays. The stated reason for the variation was "to enable the environmental impact of the extended working hours to be assessed".

6. The decision was taken by the planning committee, which had before it an officers' report recommending refusal of the application for a variation, on the ground that it would result in the likelihood of increased noise and general disturbance to the residents of the three bungalows, i.e. the claimant and his daughters. Objections had been received not only from the owners of the three bungalows but also from the council's Environmental Health Officer (“EHO”), who had expressed concern inter alia that once an extension in the operating times had been granted there were no planning restrictions to prevent an increase in noise or in traffic using the site, and had queried whether the site might be sold and used e.g. by a distribution firm. In the alternative he had requested that any grant of permission be made temporary so that the impact could be reviewed. Members of the planning committee visited the site, considered the issues and decided that the alternative of a temporary permission was acceptable.

7. On 3 September 2003 the council granted a further variation of condition 2 of the original permission so as to put the change in permitted commencement time, i.e. 7.30 am, onto a permanent basis. Again the decision was taken by the planning committee, which had a further officers' report before it. The report described the site and the proposal, summarised the planning history, referred to the relevant policy of the Local Plan, and then set out the results of consultations. They included the comments of the EHO, who did not maintain the objection he had voiced in respect of the earlier application:

“Three noise assessments in accordance with BS4142 were undertaken on the 8th, 10th and 15th July 2003.

The results of those assessments have demonstrated that the light traffic flows in and out of the site between 7.30 am to 8.00 am has had a marginal effect on the noise climate at Greenfields. Therefore, I have no objections to the current activities being undertaken at Riverview Farm between these times.

However, because of the low background noise levels in the locality, I must advise that any intensification of the use at the site may have a significant effect on the noise between these times. I would therefore recommend that any permission granted for a 7.30 am start be personalised and linked to Mr Norman’s ownership of the site. This would allow us the opportunity to reassess noise levels should there be any change and therefore intensification of use at the site, stemming fro new ownership.”

8. The officers’ report turned next to representations received, summarising the objections contained in letters from the claimant’s daughters. In addition, though it was not summarised in the report, members of the planning committee had been sent copies of a letter dated 8 August 2003 from Mr Stigwood of MAS Environmental, the consultant retained by one of the daughters. That letter raised various points of objection to the proposal. Mr Stigwood underlined his objections in an email sent on 2 September 2003 to at least one of the members of the committee, following receipt of the officers’ report.

9. After detailing the matters to which I have referred, the officers’ report provided planning comments as follows:

“Following the grant of a 1 year temporary permission last September both the Enforcement Officer and the Area Environmental Officer have monitored the site to assess the impact of the 0730 hours start, compared with the 0800 hours limitation previously imposed.

The Enforcement Officers brief was to record the time of vehicle arrivals and a description of each vehicle. 5 visits were made to the site. Some difficulty was experienced in differentiating between vehicles visiting the premises on the application site and the engineering workshop to the rear of the site, which has an earlier planning permission unencumbered by an hours of work condition and shares the same access. Nevertheless, the number of vehicles arriving before 0730am ranged from 2-5 on each occasion, the majority arriving between 0725-0730am. On the two occasions the site was monitored between 0730-0800am 8 and 9 vehicles were recorded. On the two occasions the site was monitored from 0730-0745am 3 and 4 vehicles were recorded. On one occasion monitoring took place between 0730-0750am and 2 vehicles were recorded. During the whole period of monitoring ie. 0640 (average) am to 0745-0800am only 3 lorries were recorded; the majority of the vehicles being vans and cars.

The Environmental Health Officer made noise assessments on three separate visits in July 2003. These assessments demonstrated that the light traffic flows in and out of the site between 0730-0800am had a marginal effect on the noise climate at the nearest dwelling. Therefore no objections would be raised to the current activities being undertaken on the application site between these times.

A caveat is added that because of the low background noise levels in the locality, any intensification of the use of the site may have a significant effect on the noise level between these times, and therefore it is recommended that the permission is made personal to the site owner to allow noise levels to be reassessed should there be any intensification in the use of the site, stemming from new ownership.

I do not consider a personal condition would be justified or appropriate in this case.

The original permission for the use of the site is not subject to a personal condition and Government advice is generally to avoid the use of personal conditions and to determine applications on land use considerations. Should complaints about noise arise in the future through changes of ownership/occupation these would be investigated by the Environmental Health Officer in the normal way and an assessment made of whether any action needed to be taken. Several improvements in working procedures/insulation have been carried out on the site following previous neighbour concerns.”

On that basis the report recommended approval of the application for a variation subject to stated conditions.

10. At its meeting on 3 September 2003 the planning committee accepted the recommendation and granted permission for the variation of condition 2 of the original permission so as to allow operations on site to start at 7.30.

11. The claimant lodged an application for judicial review on 1 December 2003. After various delays and amendments to the claim, it has come before the court now for a substantive hearing.

 

Issues

12. The claim is pursued on three main grounds: (1) that the council failed to have regard to policy ES6 of the Local Plan; (2) that it took into account irrelevant considerations, or failed to take into account relevant considerations, when assessing the environmental impact of the proposal, in particular with regard to noise; and (3) that it failed to have regard to the possibility of modifying the Collier planning permission pursuant to section 102 of the Town and Country Planning Act 1990. The written grounds also raise other issues, but none of those was pursued orally. I therefore confine my attention to the three main grounds identified.

Ground 1: failure to have regard to policy ES6 of the Local Plan

13. The officer's report to committee for the decision under challenge referred, under "planning policy", to policy ES6 of the Local Plan No.2: Proposed Modifications 2002. This was part of the emerging Local Plan which was adopted soon afterwards, in February 2004. It was materially the same as Policy ES1 of the existing Local Plan approved in 1993. It is common ground that the council was required to have regard to it.

14. Policy ES6 states:

“The District Council will seek, by the means of appropriate planning conditions, to minimise the impact of noise and pollution on noise-sensitive development arising from any new industrial, commercial or recreational activities.”

15. Although the policy refers to “new” activities, its relevance to the application to vary the permitted commencement time for the existing operations on site is not disputed. The policy was referred to expressly, and its wording reproduced, in the officer's report. To that extent there can be no issue that the committee took it into account. But the claimant's case is based on the explanatory notes to the policy and a related appendix which sets out certain noise thresholds. It is said that on the measurements taken by the council’s EHO, Mr Lavender, those thresholds were exceeded. The committee’s attention was not, however, drawn to the relevant policy material or to the fact that the thresholds were exceeded. This resulted in a failure by the committee to take into account a relevant consideration. The committee might otherwise have reached a different decision.

16. This point was introduced into the case at a very late stage. Although reference was made to policy ES6 in earlier pleadings, they did not include the ground now advanced by reference to the explanatory material and the appendix. The point was first signalled in a skeleton argument served less than two weeks before the hearing, and then included in draft further amended grounds of claim served two days before the hearing. For the council, Mr Findlay objected to the point being taken at such a late stage. He relied on the general importance of promptness in judicial review proceedings. He also sought to rely on absence of service of the further amended grounds on the interested party, but I was told by Miss Tripley that the interested party was served on the same day as the council was served and that there had been no response. Mr Findlay accepted that the council was not substantially prejudiced in dealing with the point, and he was able to mount his main submission in opposition to it, though a secondary submission might have been strengthened had there been time to obtain further evidence.

17. Had I thought that substantial prejudice would be caused to the council by the delay in raising the point, I would refuse the claimant permission to raise it. But I am satisfied, not just by Mr Findley’s concession but also through having heard the full argument de bene esse, that the council is not so prejudiced. By contrast, I would think it unjust to prevent the claimant from raising the issue, as an addition to a challenge that is already properly before the court. I also take into account that further detailed consideration of the case on noise was prompted by the very late receipt of a witness statement from Mr Lavender on behalf of the council, which was served only in mid-January 2005. It is true that the claimant had received Mr Lavender’s relevant measurements much earlier, in December 2003, and could have taken the point then had it been thought about. But I can understand how it came to be taken only after receipt of Mr Lavender’s witness statement.

18. In all the circumstances I think it right to exercise my discretion to allow the point to be taken. I go on to consider the substance of the point.

19. The explanatory text to policy ES6 states inter alia:

“11.27 The District Council will consider new proposals for industrial, commercial or recreational activities in the context of its standards set out in Appendix 11/1.

11.28 Where new industrial, commercial or recreational development is proposed to be located near to noise-sensitive development, a condition may be placed on a planning permission so that noise levels arising from the development should not cause any significant increase above background noise levels in the gardens of nearby noise-sensitive development, having regard to the Council’s adopted standards ….

11.30 When considering any proposal for industrial, commercial or recreational development, the Council will take into account increase in road traffic noise that might arise as a result of such development and the difficulties in controlling noise both on and off the site from vehicles. The Council may seek, by condition or agreement with the developer, to minimise traffic noise from the proposed development.”

20. Appendix 11/1, to which paragraph 11.27 of the explanatory text refers, states:

“1. The District Council considers that certain standards should apply relating to noise from industrial, commercial or recreational activities having regard to the advice in PPG24 ‘Planning and Noise’. These are set out below.

2. For new industrial, commercial or recreational activities, the Council will seek to achieve the standard either by:

(a) requiring that the industrial, commercial or recreational premises are suitably acoustically treated to achieve the level specified in paragraph 5 below; or

(b) setting a noise-limiting condition which will apply to a point accessible to the applicants and their successors. The level specified at this point will be calculated to ensure that the maximum acceptable noise levels to the facades of nearby noise-sensitive development, detailed in paragraphs 5 and below, are not exceeded.”

21. Paragraph 5 specifies how background noise levels are to be measured and how the maximum acceptable noise level (which, for the purposes of the adopted standard, is the noise arising from the proposed development) is to be measured. Paragraph 6 contains the adopted standard. The material provision is sub-paragraph (c), which states:

“Where background L.90 noise levels are … measured and found to be between 40 dB(A) and 47 dB(A) between 07.00 hrs and 19.00 hrs then the maximum acceptable noise level from industrial, commercial or recreational activities shall be numerically equal to the L.90 (but measured as LAeq (fast) (one minute) ….”

22. Paragraph 7 contains further relevant provisions, including an important qualification:

“Where the boundary noise levels set in any planning consent are exceeded, enforcement action will not be taken by the Council unless complaints arise from local residents. Furthermore, the levels will not, unless specifically stated in the condition, apply to vehicle movements or to transient or occasional events lasting for less than thirty minutes in any day. For example, from noise arising from material handling or deliveries during normal daytime working hours. The levels are intended to apply to plant or activities, including impact noise activities, forming an inherent part of the business or recreational activities.”

23. The claimant’s case is that on the readings taken by the council’s EHO, Mr Lavender, the background noise levels fell within the 40-47 dB(A) bracket referred to in paragraph 6(c) of Appendix 11/1, but the LAeq noise levels from activities on site were significantly higher. It follows, submits Miss Tripley, that the noise levels exceeded the maximum acceptable under the standard. This should have been drawn to the attention of the planning committee. Had the committee been aware of the point, it might have refused the application or imposed further conditions. As it was, the failure to draw it to the committee’s attention coupled with the absence of objection by the EHO on noise grounds resulted in the committee being misled and failing to take a material consideration into account.

24. For the council, Mr Findlay accepts that on Mr Lavender’s readings the LAeq levels exceeded the background noise levels and that there is no material distinction for this purpose between LAeq readings and the LAeq (fast) (one minute) readings to which the adopted standard refers. He submits, however, that the LAeq readings were higher than the background noise levels only because of the noise of traffic entering and leaving the site, and that the standard in paragraph 6(c) of Appendix 11/1 does not apply to noise from vehicles, whether on or off the site. Accordingly, there was no breach of the standard and it was not necessary to draw the planning committee’s attention to the explanatory text or to the appendix as the claimant contends. If the court rejects those submissions and holds that paragraph 6(c) of Appendix 11/1 does apply to traffic noise, then Mr Findlay concedes that there was a failure to have regard to a material consideration and that the claim must succeed.

25. So far as the evidence is concerned, I accept that the only reason why, on Mr Lavender’s readings, the LAeq levels exceeded the background noise levels was the effect of vehicles entering and leaving the site. Mr Lavender states in terms, at paragraph 27 of his first witness statement:

“It was my intention to establish whether the noise levels generated from the site during that additional thirty minutes would have a substantive, negative impact on the amenity of the neighbouring properties and I was looking to assess noise of an industrial nature. It only became apparent once undertaking the assessment that the only noise evident was that from a few vehicles entering and leaving the site.”

He also states in paragraph 6 of the same witness statement that the specific noise arose from vehicles entering and leaving the site and that there were no other specific noise sources identified during the assessment.

26. I also accept Mr Findlay’s submissions in relation to the interpretation of the relevant policy material. Paragraph 7 of Appendix 11/1 makes clear that the noise levels specified in paragraph 6 are intended to apply to plant or activities “forming an integral part of the business or recreational activities”, but not (unless otherwise stated in a condition) to (i) vehicle movements or (ii) transient or occasional events lasting for less than thirty minutes in any day: I reject a contention by Miss Tripley that the words “lasting for less than thirty minutes in any day” qualify “vehicle movements” as well as “transient or occasional events”. In my judgment the thrust of paragraphs 11.27-11.28 and Appendix 11/1 is to set a standard by way of maximum acceptable noise levels for activities other than vehicle movements and transient or occasional events, and to seek to achieve that standard by requiring premises to be acoustically treated or by setting noise-limiting conditions (see Appendix 11/1, paragraph 2). As paragraph 11.30 of the explanatory text makes clear, traffic noise will also be taken into account, and the council may seek to minimise it by condition or agreement with the developer. But it does not fall within the adopted standard.

27. That approach also seems to me to be consistent with the guidance in PPG 24 (Planning and Noise), Annex 4, to which both counsel referred me. Annex 4 contains examples of planning conditions, including conditions restricting noise emitted from industrial or commercial buildings and sites. A note states that authorities may wish to consider imposing two types of conditions. The first type sets a noise limit over a given period. The second type specifies the type of activity that may take place, any restrictions necessary on the hours of operation, and details of the construction and layout of the development: for example, it is said that conditions on the location of access to the development “may help to solve the problem of noise in neighbouring residential areas that arises from traffic … generated by the development”. That tends to support, and certainly does not contradict, the view that the standards and related noise-limiting conditions referred to in Appendix 11/1 are not intended to apply to traffic noise, which is to be considered and dealt with separately.

28. In any event that is how the council appears to have understood the policy. The matter is not dealt with in terms in the council’s evidence, since this ground of challenge was advanced by the claimant at such a late stage in the proceedings: this is the point that Mr Findlay said might have been strengthened had there been time to obtain further evidence. However, Mr Lavender’s second witness statement expresses the view that Appendix 11/1 (in particular the standards at paragraph 6 of the appendix) does not relate to vehicle noise, and he states that, as far as he is aware, it has never been used by the council in this context. In the circumstances, and having regard to the way in which the application was dealt with by the council’s officers, I consider there to be a sufficient basis for holding that the council understood the policy in the way I have indicated. That was an interpretation reasonably open to it and there is therefore no basis for interference by the court (see R v. Derbyshire County Council, ex parte Woods [1997] JPL 958, to which Mr Findlay referred in the course of his submissions).

29. Accordingly I reject the claimant’s case on ground 1.

Ground 2: relevant/irrelevant considerations

30. This ground embraces a miscellany of points relating to the issue of noise assessment. I should preface them by a brief indication of the evidence on the subject. I have referred already to the comments made by the council’s EHO, Mr Lavender, which were included in the officers’ report to the planning committee. I have also mentioned that a letter from Mr Stigwood, a noise consultant retained by one of the claimant’s daughters, had been sent to the members of the planning committee and that Mr Stigwood had underlined his concerns in an email the day before the planning committee met to consider the application on 3 September 2003. All of that material, therefore, was before the committee when it took the decision.

31. After the date of the decision, a lengthy report was prepared by Mr Stigwood and filed in support of the judicial review claim. In that report Mr Stigwood submits that there were various flaws in the council’s noise assessment, including an erroneous application of British Standard 4142, Rating industrial noise affecting mixed residential and industrial areas (“BS4142”). In reply to that, the council filed a lengthy witness statement of Mr Lavender in which he took issue with Mr Stigwood’s criticisms and confirmed the advice he had given to the committee. Mr Stigwood produced another lengthy report by way of rejoinder, which was filed a short time before the hearing. The final shot in the exchange was fired by Mr Lavender, by way of a short second witness statement produced on the day of the hearing, in which he corrected a misleading statement in his first witness statement, again confirmed his advice to the committee, and expressed disagreement with Mr Stigwood’s criticisms subject to one point where he accepted he had made an error but said that it would not cause him to change his advice.

32. All the post-decision evidence needs to be viewed with considerable caution. The court’s focus must be on the material that the planning committee had before it when it reached its decision. Fresh evidence can be admitted in judicial review proceedings only for limited purposes: see generally R v. Secretary of State for the Environment, ex parte Powis [1981] 1 WLR 584 and Lynch v. General Medical Council [2003] EWHC 2987 (Admin) at paragraphs 18-25. The present case does not fall within the scope of the principles discussed in E v. Secretary of State for the Home Department [2004] EWCA Civ 49 as to the admission of new evidence to prove a mistake of established fact. Indeed, one of the problems about the further evidence in this case is that it involves a dispute between experts which it is not the function of the court to resolve in judicial proceedings of this kind and which the court could not resolve without cross-examination. All these problems led Miss Tripley to make clear in her reply that the expert evidence is relied on by the claimant only for the limited purpose of throwing light on the technical material that was before the committee, so as to enable the court properly to understand the argument that the committee took into account irrelevant factors or failed to take into account relevant factors. It seems to me that that is a permissible use of such material (see per Collins J in Lynch at paragraph 24), but that I must be careful not to allow its use to extend beyond those limits.

33. When asked to identify the key aspects of her submissions on ground 2, Miss Tripley referred to four main points. I shall deal with those in turn.

34. The first main point is the submission that Mr Lavender wrongly confined himself to measuring the noise from vehicles entering and leaving the site instead of assessing noise from the site as a whole; and that he wrongly confined his attention to the period from 7.30 to 8.00 am rather than the whole day. It is said that he focused his attention on traffic movements because that is what the council’s enforcement officers had focused on; but the noise assessment for the purposes of determining the application to vary condition 2 required a different and broader exercise. The result was that the committee had no reference point against which it could measure the effect of an extension of operating hours.

35. As to that, it was in my view entirely appropriate to focus on noise in the period 7.30 to 8.00 am, since that was the period to which the application for a variation related. Condition 2 of the original permission allowed operations to commence at 8.00 am. That was not in issue and it represented the fall-back position. The temporary variation allowed operations to commence half an hour earlier, at 7.30 am. The relevant question was whether that extension in the permitted hours of operation should continue. Mr Lavender was therefore conducting an assessment directed to the issue before the committee. I reject the suggestion that he was simply following what the enforcement officers had done. (I should also mention that, since the appropriate focus was the noise during the 30 minute period between 7.30 am and 8.00 am, it was in my view reasonable for Mr Lavender to take measurements over the 30 minute period rather than the 1 hour period generally appropriate under BS4142.)

36. It was certainly necessary to assess noise from the site as a whole during that period, since the total impact on the neighbouring properties of a start at 7.30 rather than 8.00 am needed to be considered. But that is what Mr Lavender sought to do. I have referred already to his evidence that he was looking to assess all the noise from activities on the site, but that in practice the only noise evident was that from vehicles entering and leaving the site.

37. The second main point is that Mr Lavender conveyed the impression to the committee that this was a quiet location, yet his background noise readings showed that it was a very noisy area; and he should therefore have advised the committee not to permit any increase in noise levels since it was already a very noisy area. The background noise readings obtained by him, which were in the bracket 43-46dB, were much higher than those obtained by Mr Stigwood, who obtained levels of 29-32dB when he carried out monitoring on the same dates as Mr Lavender. Mr Lavender’s readings, it is said, were close to those to be expected in a suburban, rather than rural, location at this time of day (a proposition supported by reference to a study by BRE Environment on noise incidence in 2000/01).

38. There is an oddity about Mr Lavender’s background noise readings, in that they do appear to have been high readings for this rural locality. Such readings can be strongly influenced, however, by the precise location at which they are taken. The location in this case was close to the boundary hedge between the bungalow (Greenfields) and the road, and the readings could have been affected by bird noise and the rustling of leaves in the hedge. Mr Stigwood criticises that choice of location, but even if his evidence were admissible for that purpose I would reject the criticism. Mr Lavender provides a sensible explanation for his choice of precise location, namely that it had to be discreet so as to ensure that those using the site did not observe him and alter their behaviour accordingly.

39. In any event it is clear that Mr Lavender was aware of the influence of factors such as bird noise and rustling leaves and that he was not misled by the apparently high background noise readings. He advised the council that the background noise levels in the locality were low, and there is nothing to show that his background noise readings led him to understate the noise from use of the site. I refer below to what he says in his evidence about the measured and calculated levels of noise from the site. It is also material to note that, after stating in his first witness statement that he did not know where Mr Stigwood’s monitoring was undertaken and could not comment on the comparison with his own background readings, Mr Lavender went on: “However, I am satisfied that the measurements and conclusions I recorded are in line with my own subjective assessment of the traffic noise at the site, in that it was audible in the property of Greenfields but not intrusively so.”

40. Finally on this point, I find it strange that the claimant should be complaining about Mr Lavender’s advice that background noise levels were low in circumstances where the claimant’s own expert had relied on the low background noise levels in his own letter of 8 August 2003 to the council.

41. The third main point advanced by Miss Tripley concerns Mr Lavender’s use of a “calculation method” (a theoretical measurement of noise) to determine the noise impact. In order to consider the point, I need to outline the relevant evidence, which was the subject of some confusion:

i) In his first witness statement Mr Lavender explained that when analysing the monitoring data he realised that the difference between the measured noise level (from vehicles entering and leaving the site) and the residual noise level was lower than could normally be perceived and that a measured assessment could therefore not be relied upon for the purposes of BS4142. He therefore did a calculation on a worst case scenario, making assumptions as to a maximum number of 13 vehicles entering the site and the maximum noise limits for vehicle engines. The calculated figure indicated that the noise level would not exceed the BS4142 standard at which it would be likely to give rise to complaint.

ii) In his second witness statement Mr Lavender apologised to the court for the fact that his first statement had been misleading, and he gave a revised explanation of what he had done. His revised explanation is not as clear as I would have wished, but I take into account the shortage of time following receipt of Mr Stigwood’s response (which plainly triggered further consideration of the noise issue by Mr Lavender). But reading the witness statement in the way Mr Findlay invited me to read it, it seems to me that what actually happened is that Mr Lavender, having found the increase in noise levels too low for use of the measurement method, carried out a calculation on the basis of the actual number of vehicles he saw entering and leaving the site each day, which varied between 4 and 6. It was on the basis of this that he gave his advice to the committee. Only subsequently, in 2005, did he carry out a calculation on a worse case scenario of a maximum of 13 vehicles.

iii) Having considered Mr Stigwood’s reports, in his second witness statement Mr Lavender accepted one error in the method he used for his worst case calculation in 2005. He does not have his notes and calculations for 2003, but he has done a recalculation on the basis of the 4-6 vehicles he actually saw and taking into account Mr Stigwood’s criticisms. On the basis of his recalculation he confirms that his original conclusions were correct and that the BS4142 standard was not exceeded. He now agrees that the standard would be exceeded on the worst case scenario, but states that that would not cause him to change his recommendation on the basis of the use he actually experienced.

iv) Although Mr Stigwood has criticised Mr Lavender’s methodology and has referred to his own measurements of background noise, at no time has he produced actual readings of his own to support the claimant’s case as to the levels of noise from sources at the site.

42. Miss Tripley submits that the uncertainty concerning Mr Lavender’s evidence should cause the court to treat it as altogether unreliable and that this should be a sufficient basis for quashing the decision. I disagree. In my judgment the evidence can properly be read in the way I have indicated; and although Mr Lavender’s original evidence was misleading on this point, he must be given credit for having corrected the error in time and for making an appropriate apology to the court.

43. Miss Tripley’s skeleton argument contains further arguments to the effect that Mr Lavender’s calculation method was flawed by reason of various breaches of BS4142. I am not satisfied that any significant errors have been established, beyond that accepted by Mr Lavender and taken into account in his recalculation. Moreover, any more detailed consideration of these issues would require resolution of matters of expert dispute which it is inappropriate and impossible for the court to resolve in these proceedings. Mr Lavender’s recalculations have not caused him to alter his position concerning the advice he gave to the committee. Furthermore, that advice was based not just on the calculations he carried out at the time but on the totality of what he had learned about noise from use of the site, including his measurements and his subjective assessment. In all the circumstances the criticisms made of Mr Lavender’s calculations cannot get the claimant anywhere.

44. The fourth main point made by Miss Tripley is a submission that the planning officers should have drawn the committee’s attention to PPG24 and should have informed it that the only way to guard against future intensification of use at the site was by the imposition of conditions rather than by reliance on future enforcement action in respect of statutory nuisance. As to PPG24, paragraph 10 of the main text states that authorities “should also bear in mind that a subsequent intensification or change of use may result in greater intrusion and they may wish to consider the use of appropriate conditions”. Annex 4 suggests various conditions for restricting noise emissions. The note, to which I have already referred, states that one advantage of noise-limiting conditions (the first type of condition referred to in the note) is that “it controls noise in the long term since any future changes within the development must be made in such a way that the limits are not exceeded”. It is submitted that the officers’ report should have drawn the committee’s attention to those matters rather than relying on the possibility of enforcement action by the EHO, which is not an alternative to good planning control.

45. In my judgment it was not necessary for the officers’ report to draw the committee’s attention to PPG24. The possibility of imposing planning conditions to minimise the impact of noise must have been clear to the committee, not least from the terms of policy ES6 which were set out in the officers’ report. The need to consider possible future intensification of use was also squarely before the committee. The EHO had recommended a personal condition to deal with it. The officers’ report advised against a personal condition and expressed the view that any future complaints about noise could be investigated by the EHO with a view to considering enforcement action. Mr Stigwood’s letter of 8 August 2003 made specific representations about the need to consider potential foreseeable impact arising out of future use of the site and about the need to impose additional controls. His email of 2 September 2003 highlighted this point, expressing the view that it would be unlawful to approve the application without imposing additional conditions to control noise level and vehicle numbers. The committee was therefore clearly aware of the issue and must have taken it into consideration. Moreover, the variation to condition 2 was granted subject to conditions that inter alia “all machinery operations must only take place within the buildings with openings in the noise sensitive direction … fully closed” (to minimise disturbance to neighbouring residential properties). To allow the hours of operation to commence at 7.30 am rather than 8.00 am without imposing further noise-limiting conditions to guard against future intensification of use was perfectly reasonable in the circumstances. Thus there was no error in the officers’ advice or in the committee’s decision.

46. A further point of detail advanced by the claimant in connection with this issue arises out of the fact that Mr Lavender, in the advice he gave the planning committee, did not repeat the concern he had expressed in 2002 that the site might be sold and used e.g. by a distribution firm. In his first witness statement he says that he had had this concern until it was brought to his attention by the planning department that the nature of the site itself prevented it being used as a distribution centre: he concluded that the site was only fit for its current use. It is submitted that he was wrong to rely on such speculative information. In my view nothing turns on this point. Mr Lavender did in fact advise the committee of the possibility of greater noise levels through future intensification of use of the site, which was why he recommended a personal condition. Mr Stigwood’s letter of 8 August 2003 had stated that the whole site might be used for storage and distribution. The interested party’s property consultants took issue with that in a response of 3 September 2003. It is not clear to me whether that response was placed before the committee. But it does not matter. There was sufficient before the committee to ensure that it was seized of the issue.

47. I have not covered every detail of the submissions under ground 2, but I have dealt with the main points identified by Miss Tripley, and none of the other matters canvassed in her skeleton argument leads me to take a different view of the claimant’s case. In my judgment, for the reasons given, the claimant has failed to establish that the council erred in any of the ways advanced under ground 2.

Ground 3: failure to have regard to s.102 of 1990 Act

48. The claimant’s case under this head is based on the power in section 102 of the 1990 Act to impose conditions on the continuance of an existing planning permission if, having regard to the development plan and to any other material considerations, it appears to the local planning authority that it is expedient to do so in the interests of the proper planning of the area (including the interests of amenity). The section 102 power is not one to be exercised lightly. An order under it does not take effect unless it is confirmed by the Secretary of State, and compensation is payable for the interference with rights already granted. Miss Tripley submits, however, that the council, in considering the application for a variation of condition 2 of the original permission so as to permit commencement of operations at 7.30 am, ought to have considered the exercise of its section 102 powers to impose an hours of operation condition on the Collier permission (see paragraph 2 above).

49. The way the submission goes is as follows. The Collier permission was granted without any condition as to hours of operation. The existence of that permission makes it difficult to regulate the hours of operation in respect of other parts of the site. There have been difficulties in enforcement because of the problems of identifying whether vehicles entering and leaving the site were on Collier’s business or were connected with the other activities on the site. The desirability of bringing things into line was referred to in support of the application to vary condition 2 of the original permission. In those circumstances it was of obvious relevance to consider an alternative way of regulating the situation, by bringing the Collier permission into line with the original permission through the imposition of an hours of operation condition on the Collier permission. That matter was a material consideration and/or it was perverse of the council not to consider it.

50. I am of the clear view that the claimant’s case on this issue must fail. It is stretching things too far to say that, in considering whether to grant an application to vary a condition of one planning permission, the council should have considered instead the exercise of section 102 powers to impose a condition on a different planning permission. The issue before the planning committee was in truth a very simple one: whether to confirm on a permanent basis what had been in place for the past year on a temporary basis, namely that the operations permitted under the original permission be allowed to commence at 7.30 am rather than 8.00 am on weekdays. If, as the council judged to be the case, there were no sufficient grounds to refuse to allow operations to commence at 7.30 am, there is no sensible reason why, instead of granting the application, it should have been required to consider the imposition of conditions on the Collier permission.

51. It may be that the council would have been required to consider the exercise of section 102 powers if the point had been expressly raised in the representations received. But the point was not raised, by the claimant or anybody else, at the time. The possibility of exercising section 102 powers in relation to the Collier permission was first raised long after the decision to grant the application had been taken and judicial review proceedings had been commenced. What happened later cannot assist the claimant in the present challenge.

Conclusion

52. I have found against the claimant on each of the grounds upon which the claim was pursued before me. The claim must therefore be dismissed.