Barry Thorpe-Smith and Another v Secretary of State for Communities and Local Government and Another
| Jurisdiction | England & Wales |
| Judge | Mr John Howell |
| Judgment Date | 24 February 2017 |
| Neutral Citation | [2017] EWHC 356 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 24 February 2017 |
| Docket Number | Case No: CO/2574/2016 |
[2017] EWHC 356 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr John Howell QC
Sitting as a Deputy High Court Judge
Case No: CO/2574/2016
Ms Celina Colquhoun (instructed by Irwin Mitchell LLP) for the Claimant
Ms Katrina Yates (instructed by the Government Legal Department) for the First Defendant
Hearing dates: 14 th and 15 th February 2017
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Mr John Howell QC
Mr John Howell QC:
This application seeks to impugn a decision dismissing the Claimants' appeal against the refusal of their application for planning permission.
The Claimants, Mr and Mrs Thorpe-Smith, applied to North Devon District Council (" the Council") in May 2014 for outline planning permission to construct an Assisted Living residential scheme and associated works. The site for the proposed development consisted of the northern half of a field on the western edge of Ilfracombe immediately to the south of a recent housing development known as Langleigh Park. The Claimants' intention was to provide 30 one bedroom units for those aged 55 and above with a facility to summon assistance at all hours together with certain communal facilities and warden accommodation.
The Council refused their application for planning permission on October 16 th 2014. The Claimants then appealed against that decision to the Secretary of State for Communities and Local Government under section 78 of the Town and Country Planning Act 1990 (" the 1990 Act"). Following a local public inquiry held over four days between March 8 th and March 11 th 2016 and a site view, the Inspector appointed by the Secretary of State to determine the appeal, Mr Nick Fagan, dismissed it in a letter dated April 11 th 2016 (" the DL"). The Claimants seek to have that decision quashed in their application to this court under section 288 of the 1990 Act. Permission to make this application was granted by His Honour Judge Sycamore, sitting as a Deputy Judge in this court, on June 22 nd 2016.
The bases on which this Court may quash a decision under section 288 of the 1990 Act are well established: see eg Bloor Homes East Midlands Ltd v Secretary of State for Communities and Local Government [2014] EWHC 754 (Admin) per Lindblom J at [19]. They need no repetition.
On behalf of the Claimants, Ms Celina Colquhoun, contended that the Inspector's decision falls to be quashed on such grounds. These grounds concern the Inspector's treatment of questions relating to (i) the disturbance to nearby homes which access to the development would cause; (ii) its impact on the character and appearance of the area's landscape; and (iii) the "planning balance" and whether the development benefited from the presumption in favour of sustainable development given the absence of a five year housing land supply.
DISTURBANCE TO NEARBY HOMES
i. Background
The Claimant's application for planning permission for their Assisted Living residential scheme was in outline with all matters reserved. As the Inspector noted, however, it was likely that it would contain 30 individual flats and various communal facilities and access to the site would be achieved through the site of 37 Langleigh Park, a two storey detached house that would be demolished to make way for that access. That property is on a small cul de sac off Langleigh Park. The third main issue that the Inspector considered was whether the proposed development would "result in significant noise and disturbance to the immediate neighbours at 36 & 38 Langleigh Park due to the proximity of the access and the associated traffic generated."
The assessment in the Transport Statement submitted with the application for planning permission was that between 0700 and 1900 there would be 142 two-way pedestrian trips (12 per hour) and 72 two-way vehicle trips (6 per hour) as well as additional trips outside these hours. The Claimants' noise evidence was that the increase in the ambient noise level in the morning and evening peaks (which the Inspector was unconvinced was the best way to assess the overall noise impact realistically) would be negligible and that the ambient noise climate would increase by 1dB(A) over that twelve hour period.
The Inspector stated that:
"38. Whilst such a level of traffic could not be described as heavy or significant on a normal residential street, such an increase must have regard to the existing situation. There are 7 houses in this small cul-de-sac off Langleigh Park. The majority of the surface of this quiet enclave is brick paved and the front gardens of the houses facing onto it are open. I have heard evidence from neighbours that children from these houses regularly play in the front gardens and on the cul-de-sac itself and, given its design and the fact that these are family houses, this is to be expected.
39. Demolishing No 37 and putting in its place an access road to the proposed development, likely to comprise 30 individual flats, would clearly result in a marked proportionate increase in the levels of traffic into this cul-de-sac. It would also be likely to result in different types of traffic, for instance ambulances and HGVs delivering supplies for the care elements in the scheme. Such an increase would result in significant disturbance to the adjoining neighbours at Nos 36 and 38.
40. Even assuming the occupiers of Nos 36 and 38 would not suffer significant noise as the appellants' evidence maintains, the introduction of a vehicular and pedestrian access route so close to their side boundaries running past their rear gardens and No 36's side windows would undoubtedly result in significant disturbance compared with the relative peace and tranquillity that the neighbours in these houses currently enjoy.
41. For these reasons I conclude that, whilst the level of traffic generated by the development would, on balance, be unlikely to significantly increase noise levels for the occupiers of Nos 36 and 38, it would result in significant disturbance relative to the existing situation in this small quiet cul-de-sac. LP Policy DVS3 (Amenity Considerations) states that development will not be permitted where it would harm the amenities of any neighbouring uses or the character of the surrounding area. For the above reasons the proposed development would not comply with this Policy."
Policy DVS3 provides inter alia that:
"Development will not be permitted where…it would harm the amenities of any neighbouring uses or the character of the surrounding area..by virtue of any of the following:—loss of privacy or daylight, light intrusion, noise and vibration or unpleasant emissions."
ii. Submissions
Ms Colquhoun contended that the Inspector acted in an unfair manner when addressing the Claimants' noise evidence. She submitted that the only form of disturbance identified in the local authority's reasons for refusal was from traffic to Nos 36 and 38 Langleigh Park. She submitted that the Inspector drew a series of adverse inferences in relation to the Claimants' expert's assessment of the noise impact when he expressed concerns about aspects of it in part of the DL (before that quoted above), notwithstanding the fact that the local planning authority had not adduced any expert evidence on the issue. At no stage prior to cross-examination had the local planning authority suggested that the noise assessment was inadequate. As Jackson LJ put it in Secretary of State for Communities and Local Government v Hopkins Development Limited [2014] EWCA Civ 470, [2014] PTSR 1145, (" Hopkins Development") at [47], "any participant in adversarial proceedings is entitled (a) to know the case which he has to meet and (b) have a reasonable opportunity to adduce evidence and make submissions in relation to that opposing case." She submitted, therefore, that it cannot be right that an appellant understands that there may be issues relating to the expert evidence it adduces only after presenting that evidence in chief and that in this case the Claimants were materially prejudiced as a result.
Further Ms Colquhoun submitted that the Inspector's reasoning is unintelligible. Despite concluding that the level of traffic would be unlikely to significantly increase noise levels at the two relevant properties, he still concluded that the proposed access and traffic would result in significant disturbance. If ambient noise levels at the properties are not significantly increased, then, so she submitted, any disturbance to them from traffic could not be significantly increased at least not in this case.
On behalf of the Secretary of State Ms Katrina Yates submitted that the Council's reason for refusal identified as objectionable "increased disturbance due to the close proximity of the proposed access [to 36 and 38] and the associated traffic generated". The Council had called evidence to support that objection which relied on a qualitative appraisal of the impact of the traffic having regard to the existing local circumstances. There was no unfairness in the Inspector expressing the concerns that he did about the Claimants' evidence in the circumstances and he was entitled to take the view of it that he did. But, in any event, since he accepted that evidence, the Claimants have suffered no material prejudice. She further submits that the reasons given by the Inspector were intelligible given the nature of the main parties' cases before him.
iii. Consideration
The Town and...
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