R Peter Nicholson v Allerdale Borough Council M-Sport Ltd (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Mr. Justice Holgate |
| Judgment Date | 12 October 2015 |
| Neutral Citation | [2015] EWHC 2510 (Admin) |
| Docket Number | Case No: CO/941/2015 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 12 October 2015 |
and
[2015] EWHC 2510 (Admin)
Mr Justice Holgate
Case No: CO/941/2015
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
PLANNING COURT
Manchester Civil Justice Centre
1 Bridge Street, M60 9DJ
Daniel Kolinsky QC (instructed by Richard Buxton) for the Claimant
Roger Lancaster (instructed by Sharon Sewell, Allerdale Borough Council) for the Defendant
James Maurici QC (instructed by Pinsent Masons LLP) for the Interested Party
Hearing dates: 9 and 10 July and 1 September 2015
Introduction
The Dovenby Hall Estate extending to about 45 hectares in all, lies directly adjacent to the small village of Dovenby and about 4 km north-west of Cockermouth in Cumbria. The site was formerly occupied by the NHS as a hospital up until about 15 years ago. It contains a Grade II listed building, Dovenby Hall. It is enclosed by historic stone boundary walls and much of the site is screened from public view by bands of mature trees. When the hospital closed it became necessary to find a suitable use for the site.
In 1997 the Defendants, Allerdale Borough Council ("the Council") granted planning permission for the change of use of the hospital buildings to provide office and corporate accommodation and for the erection of new workshops and associated stores. The redevelopment enabled M-Sport Limited ("MSL") to locate its head office in Dovenby Hall and its business in adjacent buildings. MSL is said to have been at the forefront of world rallying since 1997. It operates a global rallying programme. It uses the site for the manufacture of performance cars.
Since moving to the site MSL's business has continued to thrive and grow. In 2002 the Council granted planning permission for a mixed use scheme changing the use of four vacant buildings to employment use, and creating a lecture theatre and multi-purpose building.
On 28 May 2014 MSL made a hybrid application to the Council for planning permission to extend the development at Dovenby Hall. The application for full or detailed permission included:-
— construction of a manufacturing and evaluation centre (use class B1) of 9735 sq m
— a testing and evaluation facility or track, 2.5 km in length with sound attenuation bunds 3 to 3.5 m in height
— parking and other ancillary developments.
That proposal is located in the more easterly part of the site, of which only a small proportion had previously been developed. The remainder comprises open parkland and grazing land, a significant number of mature trees and a cricket pitch. The application also sought outline planning permission for:-
— office space of 2450 sq m and future B1 expansion of 5000 sq m in the southern part of the estate
— a 60 bed hotel of 6000 sq m
— ancillary policy and landscaping
The object of the proposal is to sustain and expand the existing business. The existing workshop facilities are said to be over capacity. MSL's Planning Framework statement explained that testing facilities are needed in order to meet international requirements. Whereas all the major World Rally Car ("WRC") teams with whom MSL is in direct competition have testing facilities at their home base, MSL does not and is at a significant disadvantage. However, the main purpose of the evaluation facility is to enable road car equipment and systems to be tested, rather than just rally cars. MSL intends to enter the road car sector by providing research and development facilities coupled with a testing and evaluation centre so as to be able to develop new business with car manufacturers. It is also proposed that the centre and track be used for corporate days for sponsors and promoters. The new B1 building of 9735 sq m would be used not only for manufacturing but also managing and operating the track facility, including dealing with noise management data in order to comply with noise controls. It is emphasised that the track would not be used as a motorsports venue. The corporate use would be ancillary. The principal use of the track would be for testing and evaluation of rally, track and road cars and their equipment, operated in conjunction with the new manufacturing and evaluation building.
The proposal was the subject of a lengthy and detailed report by Officers to the meeting of the Council's Development Panel on 23 December 2014. The Panel resolved to grant planning permission, which was issued on 16 January 2015.
Mr. Peter Nicholson, the Claimant, lives together with his wife at Lanefoot Cottage, which is located in the village and about 350m from the proposed testing track. They have lived there for 23 years. He made detailed objections to the proposal, which included reports he had commissioned from two acoustic consultants.
On 16 April 2015 the Claimant was granted permission by Stewart J to apply for judicial review of the planning permission. In summary, the Claimant applies to have the permission quashed on three grounds:-
(1) The Council misinterpreted a policy which was central to its decision, namely policy REM10 of the Allerdale Local Plan 1999;
(2) In relation to noise issues, the Council (a) failed to grapple with substantial points raised by noise experts, (b) relied upon flawed logic in order to conclude that the levels of noise for local residents from the use of the track would maintain appropriate standards and (c) erred in law by treating noise parameters set in cases under the law of nuisance as immaterial;
(3) When assessing the impact of the development on the listed building, the Council failed to comply with section 66 of the Planning (Listed Buildings and Conservation Areas) Act 1990 ("the Listed Buildings Act 1990").
I will deal with the grounds in the following order: (1), (3) and (2). I should add that in his oral submissions Mr Kolinsky QC, who appeared on behalf of the Claimant, helpfully refined the points being taken by his client. A number of issues (e.g. the classification of the use proposed for the manufacturing and evaluation centre and whether it should be classified separately from the sui generis test track use) were not pursued and therefore have not been dealt with in this judgment.
Legal principles for reviewing decisions taken by local planning authorities
The grounds of challenge in this case primarily involve criticisms of the officer's report. The relevant principles upon which the High Court will approach a challenge of this nature have been set out in a number of cases and were summarised in R (Luton Borough Council) v Central Bedfordshire Council [2014] EWHC 4325 (Admin) at paragraphs 90 to 98.
For the purposes of the present application I would emphasise the following principles drawn from that summary:-
(i) In the absence of contrary evidence, it is a reasonable inference that members of the planning committee follow the reasoning of the officer's report, particularly where a recommendation is accepted;
(ii) The officer's report must be read as a whole and fairly, without being subjected to the kind of examination which may be applied to the interpretation of a statute or a contract;
(iii) Whereas the issue of whether a consideration is relevant is a matter of law, the weight to be given to a material consideration is a matter of planning judgment, which is a matter for the planning committee, not the court;
(iv) "An application for judicial review based on criticisms of the planning officer's report will not normally begin to merit consideration unless the overall effect of the report significantly misleads the committee about material matters which thereafter are left uncorrected at the meeting of the planning committee before the relevant decision is taken" per Lord Justice Judge (as he then was) in Samuel Smith Old Brewery (Tadcaster) v Selby District Council (18 April 1997)."
(v) "In construing reports, it has to be borne in mind that they are addressed to a "knowledgeable readership", including council members "who, by virtue of that membership, may be expected to have a substantial local and background knowledge."
( R v Mendip District Councilex parte Fabre (2000) 80 P CR 500 per Sullivan J, as he then was).
(vi) " The purpose of an officer's report is not to decide the issue, but to inform the members of the relevant considerations relating to the application. It is not addressed to the world at large, but to council members who, by virtue of that membership, may be expected to have substantial local and background knowledge. There would be no point in a planning officer's report setting out in great detail background material, for example, in respect of local topography development plan policies or matters of planning history if the members were only too familiar with that material. Part of a planning officer's expert function in reporting to the committee must be to make an assessment of how much information needs to be included in his or her report in order to avoid burdening a busy committee with excessive and unnecessary detail." (emphasis added)
(Sullivan J in the Ex parte Fabre case at page 509)
(vii) Likewise in Morge v Hampshire County Council [2011] UKSC 2 at paragraph 36, Baroness Hale of Richmond said:
"Democratically elected bodies go about their decision-making in a different way from courts. They have professional advisers who investigate and report to them. Those reports obviously have to be clear and full enough to enable them to understand the issues and make up their minds within the limits that the law allows them. But the courts...
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