Tag Archives: planning conditions

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.

Permitted dependants under Agricultural Occupancy Condition need not be financially

Shortt v Secretary of State for Communities and Local Government & Anor [2014] concerned land owned and occupied by the claimants (“Mr & Mrs Shortt”) at Buckland Manor Farm, Buckland, Broadway, Worcestershire. The Second Defendant (“the Council”) was the local planning authority.

In 1975 the Council granted planning permission to construct a dwelling at Buckland Manor Farm. Planning permission was granted, subject to the following condition (“the Planning Condition”):

“The occupation of the dwelling shall be permitted to persons employed or last employed solely or mainly and locally in agriculture as defined by section 290(1) of the Town and Country Planning Act 1971, or in forestry and the dependants (which shall be taken to include a widow or widower) of such persons.”

The claimants wanted a certificate of lawful use based on the fact that for at least the last 10 years the Planning Condition had been breached by the house being occupied by non dependant children of Mr and Mrs Shortt.

The whole case turned on the meaning of the word “dependant”. The Planning Court could not find any meaning for that word here. Each case would depend upon its own facts.

Looking at the terms of the Planning Condition in context, on an objective basis, the definition of “dependant” in the context of that particular Planning Condition did not require financial dependancy.

In this case the Judge restricted himself to interpreting the particular Planning Condition in that permission as including Mr Shortt and the children regardless of their lack of financial dependency. He declined to give any general interpretation of the term “dependants”.

Consequently, as there had been no ten plus years’ transgression of the Planning Condition, enforcement action could not and could not have been taken against Mr and Mrs Shortt.

The Inspector had been right to find that there had been no breach of the Planning Condition for the necessary ten year period, and he was right to dismiss Mr & Mrs Shortts’ appeal that they were entitled to a Certificate of Lawful Use which could only have been predicated on there having been such a breach.

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