Removal of noise condition within boundaries of committee’s planning judgement

Paragraph 123 of the National Planning Policy Framework (“NPPF [123]”) deals with noise caused by new development:

“Planning policies and decisions should aim to:

• Avoid noise from giving rise to significant adverse impacts on health and quality of life as a result of new development;

• Mitigate and reduce to a minimum other adverse impacts on health and quality of life arising from noise from new developments, including through the use of conditions.”

Footnote 27 which applied to both states:

“See Explanatory Note to the Noise Policy Statement for England (Department for the Environment, Food and Rural Affairs).”

NPPF [123] as boosted by the Explanatory Statement is a hierarchical policy. Where, the noise caused by the proposed development crosses the “lowest observed adverse effect level” (the lowest level at which an adverse effect can be observed) (“LOAEL”) the decision maker must at least give consideration to the question whether there are any further steps that can reasonably be taken to reduce the impact of noise.

In the Court of Appeal case of May, R (on the application of) v Rother District Council & Others [2015] the Appellant’s house and garden were next to a Multi-use Games Area (a “MUGA”). The MUGA was subject to a planning condition which limited its hours of operation to between 0900 hours and the earlier of sunset and 2030 hours. Contrary to the advice of it’s Environmental Health Officer and Planning Officer, the Rother District Council removed that condition. The Appellant challenged this.

The court said that the Noise Policy Statement for England said noise impact is to be minimised “within the context of Government policy on sustainable development”. It is not a free-standing requirement. The policy is to be interpreted as minimising noise as far as reasonably practicable. The Noise Policy Statement also makes it clear that considerations of noise do not trump everything else. It says that the relevant part of the policy does not mean that adverse effects from noise cannot occur.

Lastly the opening part of NPPF [123] describes the noise policy as an “aim” rather than as a rule. This was contrasted with other parts of the NPPF which, for example, require decision makers to apply a sequential test to applications for town centre uses.

Whether the imposition of a condition is a “reasonable step” is one of planning judgment for the planning authority.

It is a judgment on which reasonable people can disagree. Whether a step is a reasonable step is a judgment which may take into account both the position of the would-be developer and also the position of those who would be affected by the development.

NPPF [123] was consistent with the decision maker balancing conflicting considerations. If, as the committee concluded, the noise was neither unreasonable nor substantial, it was difficult to see what further reasonable steps they were required to consider.

Paragraph 206 of the NPPF restates the position that a planning condition should only be imposed where is it “necessary, relevant to planning, enforceable, precise and reasonable in all other respects.” The planning committee here decided that the condition did not “solve the problem” and that the noise itself was neither unreasonable nor substantial. The committee had concluded that the condition “no longer served a useful purpose”. Once the committee had reached that conclusion they could not have justified retaining the condition. If it served no useful purpose, it could not be “necessary”?

Whether or not it did in fact serve a useful purpose might have been highly controversial; but the answer to that question was one of fact or planning judgment. It showed no error of law.

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.