Race circuit intensification in AONB challenged

Lydden Hill circuit, a motor racing track in the Kent AONB, was granted planning permission to expand, including the increase in operating days from the permitted 52 to year-round opening, albeit with a cascading scale of ‘noisy activities’. This was despite an existing abatement notice restricting the operations. Richard Buxton Solicitors were instructed to assist in Judicial Review proceedings.

A noise abatement notice issued by the local authority in 2015 stated that a statutory nuisance within the Environmental Protection Act 1990 Pt III s.79(1)(g) existed and was likely to recur, caused by the motor  activities on site. The abatement notice restricted the recurrence of the noise nuisance by requiring that specified noise limits were not exceeded for the 52 events which were allowed each calendar year. There was a difference of opinion between the Council’s officers, and the claimant’s instructed expert, whether these limits had been repeatedly breached.

In 2019, the interested party applied for permission to develop the venue, and most importantly for the local community, to significantly increase the number of days on which racing operations were permitted (albeit with different noise limits). The planning officer’s report, although acknowledging that the noise from the circuit was creating a statutory nuisance, and despite the abatement notice restricting the noise, represented a significant observed adverse effect (‘SOAEL’). The local authority’s planning committee approved the grant of permission, subject to conditions.

The Claimant’s case was that the lawful fallback position was the 2014 planning permission, subject to control via the nuisance regime, which was not limited only to the existing NAN, but also included the Council power to serve a further NAN which restricted or abated the noise to a level below SOAEL. This was the appropriate ‘fallback position’. Ms James also challenged the Council’s approach to AONB policy; its reasons for granting planning permission and contends that the Council acted in breach of Article 8 ECHR.

The Court disagreed. Mrs Justice Lang found that the correct fallback position, as per its specific meaning in planning law, was what was currently existing under the existing planning permission and abatement notice, despite it resulting in a SOAEL. The Court found that the officers report was not required to consider or advise members as to what further abatement notices might be served in the future, and the planning conditions would result in more effective conditions, than the existing permission and abatement notice.

The Court also disagreed that in relation to the impact on tranquility on the AONB and the policy protection within para 172 of the NPPF were satisfied and that the adverse impacts would be minor. Grounds 3 & 4 relating to reasons and human rights were also dismissed.

Permission to appeal has been sought from the Court of Appeal. Estelle Dehon KC was counsel for the claimant.