R Penelope James v Dover District Council
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Lang |
| Judgment Date | 28 April 2022 |
| Neutral Citation | [2022] EWHC 961 (Admin) |
| Docket Number | Case No: CO/2446/2020 |
| Year | 2022 |
| Court | Queen's Bench Division (Administrative Court) |
[2022] EWHC 961 (Admin)
Mrs Justice Lang DBE
Case No: CO/2446/2020
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Estelle Dehon (instructed by Richard Buxton Solicitors) for the Claimant
Richard Banwell (instructed by Legal Services) for the Defendant
Kevin Leigh (instructed by Direct Access) for the Interested Party
Hearing date: 15 February 2022
Approved Judgment
The Claimant seeks judicial review of the Decision by the Defendant (“the Council”), dated 29 May 2020, to grant planning permission for development at Lydden Hill Race Circuit, Wootton, Kent CT4 6ET (“the Race Circuit”).
The Race Circuit is a motor sports venue, operated by the Interested Party (“IP”). It is located approximately one kilometre north-east of Wootton Village, in the Kent Downs Area of Outstanding Natural Beauty (“AONB”). The Claimant resides in Wootton Village, and she and other local residents are adversely affected by noise from the Race Circuit. The Council is the local planning authority for the area.
The Claimant submits that the Council erred in law in reaching its Decision on the following grounds:
i) Error of law in regarding the existing level of noise, which was a statutory nuisance and/or causing noise at a Significant Observed Adverse Effect Level (“SOAEL”), as a fallback position against which to judge the IP's application for planning permission to develop the Race Circuit;
ii) Error of law in its approach to the effect of the proposed development on the Kent Downs AONB;
iii) Failure to give adequate reasons for the decision;
iv) Failure to have regard to Article 8 of the European Convention on Human Rights (“ECHR”), and/or a breach of Article 8, contrary to the Human Rights Act 1998 (“ HRA 1998”).
Permission was initially refused on the papers, but subsequently granted by Timothy Corner QC, sitting as a Deputy Judge of the High Court, at an oral renewal hearing on 19 November 2020.
History
The Race Circuit has been in operation for over 50 years. There is a lengthy history of planning permissions at the site, and concerns about noise.
The AONB Management Plan provides that the Race Circuit and the surrounding area has a tranquillity index rating of medium to medium/low.
Permanent planning permission was first granted in 1986. Prior to the Decision, the Race Circuit operated under the limitations and conditions of planning permission DOV/14/00415, dated 11 July 2014. It maintained conditions which had previously been included in planning permission DOV/12/00589, but varied the earlier permission so as to allow several one-off events to take place in 2014.
The relevant conditions of planning permission DOV/14/00415 were as follows:
“1. Notwithstanding the provisions of the Town and Country Planning (General Permitted Development) Order 1995 (or any order revoking and re-enacting that Order with or without modification), the site shall not be used for any purpose other than motor car, motor cycle and kart racing (including practice for those purposes).
Reason: To prevent an over-intensive development and in the interests of visual and residential amenity and preserving the character of the AONB.
2. The following one-off events are permitted to be carried out on the land in 2014:
□ One additional hour of racing on Sunday 25th May 2014, between 4pm and 5pm (for the World Rallycross Championships);
□ Three consecutive weekends of two-day racing events in May 2014 (10th–11th May, 17th–18th May and 24th–25th May);
□ Three consecutive weekends of two-day racing events in June–July 2014 (21st–22nd June, 28th–29th June and 5th–6th July 2014).
Reason: To ensure that the event days comply with those permitted under this application and in the interests of sustainability and residential amenity.
3. Except for those events specifically set out in condition 2, the permitted uses shall not be carried out on the land on:
(a) More than 52 days in any calendar year;
(b) Consecutive days in excess of 12 occasions in any calendar year;
(c) More than 2 consecutive days;
(d) Two consecutive days at intervals of less than 10 clear days;
(e) Except between the hours of 9am and 6pm on weekdays and 10.30am and 4pm on Sundays.
For the purposes of this condition and condition 3, the term ‘calendar year’ means a period commencing on 1 April in one year and ending on 31 March in the succeeding year…. Reason: In the interests of residential and visual amenity.
4. A schedule of the days in which the use of the track is anticipated in the succeeding calendar year shall be submitted to the Local Planning Authority no later than 31st March each year. The Local Planning Authority shall be notified of any change in the submitted schedule prior to any change to the agreed schedule.
Reason: In the interests of residential amenity and to ensure that the track is being used in accordance with approved details.
5. The public shall not be admitted to the site other than on days when public race meetings take place.
Reason: In the interests of visual and residential amenity and preserving the character of the AONB.
6. Noise emitted from public address system on the site shall not exceed 40dB LAeq (5 minutes) at any time as measured at map grid reference points 230.465, 232.468, 240.464 and 245.466. The public address system shall, on request, be available for measuring and testing purposes by the Local Planning Authority at any reasonable time.
Reason: In the interest of residential amenity.
7. The public address system shall be used only on days on which spectators are admitted to the site, between the hours of 9am and 6pm on weekdays and 10.30am and 4pm on Sundays. Its use, except in the event of an emergency, shall be limited to the purposes of commentary on racing and race practising.
The public address system may be additionally used on the aforementioned days between the hours of 8am to 9am on weekdays and 9.30am to 10.30am on Sundays for the purpose of pre-race testing and the making of announcements to competitors.
Reason: In the interest of residential amenity and preserving the character of the AONB.
8. All vehicles operating on the track shall be fitted with noise emission control equipment in accordance with the current Technical Regulations of the RAC Motor Sports Association or, as may be appropriate, the Auto Cycle Union. For track events regulated by the RAC, MSA vehicles shall not be admitted to the track if they exceed the maximum noise limit for that class of vehicles, as set out by that organisation. Vehicles not complying with those regulations shall not be admitted to the track without the prior written consent of the Local Planning Authority. Reason: In the interest of residential amenity and preserving the character of the AONB.”
There is a history of the Council addressing noise complaints concerning the Race Circuit from 1982. From 2011 onwards, the Council's Environmental Protection Team (“EPT”) investigated whether noise from the Race Circuit was causing a statutory noise nuisance. Following a number of visits to three different residential properties, carried out in 2014, and analysis of noise recorded at those properties, the Council's Environmental Protection Officers recommended that a noise abatement notice be served under the Environmental Protection Act 1990, because noise levels from the track constituted a statutory nuisance at residential properties.
On 29 April 2015, the Council served an abatement notice on the Race Circuit, on the basis that it was satisfied that a statutory nuisance under section 79(1)(g) of the Environmental Protection Act 1990 “exists and is likely to recur”. The cause of the nuisance was “the emissions from noise from motor vehicle activities, motorsports events and associated activities on site”.
The abatement notice required the noise to be restricted by controlling the number of days on which events were allowed to take place, and stipulating a decibel level (measured at specific points) which should not be exceeded, apart from when certain exemptions applied. The Council's Head of Legal Services later described these in an email to the IP's legal representative as “the minimum that would provide the community with some relief”.
On 19 May 2015, the Race Circuit appealed against the abatement notice. At the same time, it sought to regularise the position by making a planning application to develop the Race Circuit and increase the number of days upon which it could operate.
Twenty one residents affected by the noise, including the Claimant, provided witness statements for the appeal in support of the Council. As part of the appeal process, the Council obtained an independent expert report from an acoustician and former environmental health officer, of MAS Environmental Ltd (“MAS”), dated 23 November 2015. This considered both the abatement notice appeal, and the proposed planning application and Noise Management Plan. As to the latter, the expert criticised the proposed increase in the number of days of impact from 52 to 156, stating that whilst “the maximum static noise emission level of vehicles on these extra days is lower than proposed for 52 of the days it does not equate to any meaningful known reduction in community levels as there are too many variables.” (paragraph 2.25).
The expert concluded that the Race Circuit caused substantial adverse noise, amounting to a statutory nuisance. He supported the approach adopted in the abatement notice of restricting the noise, but observed that “it may allow an excessive number of highly noisy days” and that, as “the noise intrusion is substantial, adverse impact on the use of dwellings...
To continue reading
Request your trial