R Simon Dudfield v Forest of Dean District Council Tim Shayle, T/A Countryman Sports (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Patterson |
| Judgment Date | 19 February 2016 |
| Neutral Citation | [2016] EWHC 291 (Admin) |
| Docket Number | Case No: CO/4567/2015 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 19 February 2016 |
[2016] EWHC 291 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT BIRMINGHAM
Birmingham Civil Justice Centre
Priory Courts, 33 Bull Street, Birmingham, B4 6DS
The Hon. Mrs Justice Patterson DBE
Case No: CO/4567/2015
and
Nina Pindham (instructed by Davies and Partners Solicitors) for the Claimant
James Corbet Burcher (instructed by Forest of Dean District Council) for the Defendant
Sarah Clover (instructed by TLT Solicitors) for the Interested Party
Hearing date: 10 February 2016
Introduction
On 13 August 2015 the defendant granted planning permission to the interested party for the construction of acoustic barriers, use of the land for the storage of shooting huts and associated landscaping on land at Mount Oliver Meadow, Hartpury, Gloucester.
The claimant, Simon Dudfield, lives some 2 miles from the application site. His mother lives some 450 metres from the site.
The defendant is the local planning authority for the area in which the application site is located.
The interested party was the applicant for planning permission.
The application site is located in the open countryside in the parish of Hartpury. The site lies 1.5 kilometres west of the village of Hartpury and about 8 kilometres northwest of the centre of Gloucester. The site is surrounded by a mixture of farmland and wooded areas. Mount Oliver Wood, an area of ancient semi-natural woodland, abuts part of the western boundary of the site. The nearest neighbouring property is about 250 metres to the southwest. Further properties are located over 300 metres away. The application site is part of Mount Oliver Meadow.
Lang J granted permission to bring judicial review proceedings on all four proposed grounds of challenge on 9 November 2015.
The claimant no longer pursues ground one but maintains grounds two, three and four, ground three of which has been divided into two. The four grounds of challenge as reformulated and renumbered before the court are:
i) That the Council failed to consider whether the development was of such a scale and degree as to lead to a permanent change in the use of land, which in the circumstances, was a material consideration;
ii) That the Council erred in law in failing to consider whether the development was in accordance with the Development Plan policies seeking to protect and enhance biodiversity as it was required to do by section 70(2) of the Town and Country Planning Act 1990 ("TCPA") and section 38(6) of the Planning and Compulsory Purchase Act 2004 ("PCPA");
iii) That the Council failed to take into account a material consideration, namely, the nearest "sensitive receptor", which was the Orchard Centre. Alternatively, the Council failed to give adequate reasons for not so considering;
iv) The Council irrationally based its decision on evidence that the shot noise level would be reduced to an acceptable level using low-load cartridges, but then failed to impose a condition requiring that low-load cartridges would be used.
Factual Background
The site consists of grassland and a mixture of hedges and trees. The lawful use is for agriculture.
During 2013 the interested party commenced clay pigeon shooting on the site. Local residents objected. The Environmental Health Officer ("EHO") of the defendant, Matthew Kirby, undertook noise monitoring on 11 August and 22 September 2013. From that he identified the shot noise level ("SNL") measured 76 A-weighted decibels and 84 A-weighted decibels in two locations.
The Chartered Institute of Environmental Health ("CIEH") 'Guidance on the Control of Noise – Clay Target Shooting (2003)' notes that "significant annoyance" is highly likely to occur at noise levels above 65 A-weighted decibels but that local circumstances can affect when annoyance occurs.
On 30 September 2013 the defendant issued an abatement notice in respect of statutory nuisance under section 80(1) of the Environmental Protection Act 1990 prohibiting "the use and discharge of firearms" within a designated area comprising the application site. That abatement notice remains in place.
The CIEH guidelines specify that shooting should generally not take place within 1 kilometre of a residential dwelling and that sensitive receptors should be taken into account.
Paragraph 4.5 of the guidelines is headed 'Noise sensitive premises and other noise sensitive locations'. It reads:
"Noise sensitive premises typically include residential properties, churches, offices, hospitals, nursing homes, schools and colleges. The proximity of such noise sensitive premises and any other noise sensitive areas should always be a prime concern when considering suitable site locations.
In addition, farm buildings, particularly those housing young animals, may also be considered to be noise sensitive premises in some situations. The sound of gunfire may be distressing to wild and domestic animals during certain periods (e.g. mares in foal, ewes at lambing). Alternative views have been expressed about whether or not wild birds and animals adjust to the sound of gunfire.
Given the potential sensitivity of wild and domestic animals and birds at sites adjacent to or included within shoot areas, it is advisable that shoot organisers or their representatives discuss with the owner(s) of surrounding land and with wildlife preservation bodies or nature conservation officials the particular times when animals are likely to be unusually sensitive, and arrange for a temporary suspension or reduction in activities as necessary."
There are some 20 residential properties within the recommended 1 kilometre distance.
The date for compliance with the abatement notice was 2 December 2013.
On 14 November 2014 the planning application for the development eventually permitted was submitted with an accompanying noise report from acoustic consultants, Hoare Lea.
The planning application was for two large acoustic bunds to be formed on the western boundary of the clay pigeon shooting area with two arms on each acoustic bund. The bunds were to have a maximum length of 360 metres, a width of 28 metres and a height of 3 metres above existing ground level. One firing position was proposed for the northern bund and three firing positions for the southern bund. Each firing position, when in use, would have a movable firing shed on it (to reduce the noise level).
The proposed works were to start at the northern end of the site and move southwards. 75,000 tonnes of material would be required for the construction works. Materials were to be sourced from local construction projects.
Objectors instructed and obtained a further acoustic report from consultants known as Acoustic Air.
The defendant commissioned its own independent noise assessment report, from SLR, to consider the differing conclusions of the two other consultants. SLR reported to the Council in May 2015.
By that time a further updated report had been provided by the applicant's noise consultants which SLR considered. SLR concluded that they had no reason to doubt the noise model outputs presented by Hoare Lea.
The Officer Report
Given the nature of the challenge the officer report in certain parts needs to be considered in some detail.
The report started in a conventional way with a discussion of the application and consultation responses received. The Development Plan was outlined.
The key part of the report is within section 7 entitled 'Evaluation'. That started with the background to the application which was to reduce the noise impact from clay pigeon target shooting at Mount Oliver Meadow and lift the section 80 noise abatement notice which had been served upon the applicants in September 2013 as a result of the noise survey conducted over two days taken at Windmill Cottage to the north of the site where a SNL of 76 DbA was measured. The applicant was said to want to continue clay pigeon shooting for only 28 days a year as allowed under the Town and Country Planning (General Permitted Development) (England) Order 2015 ("GPDO").
The principle of development was discussed. Clay pigeon shooting was regarded as an appropriate use within open countryside as it was outdoor recreation. It was unable to be carried out on the application site as a result of the noise abatement notice.
The site was located in open countryside where the principle of farm diversification was supported. The report made reference to paragraph 28 of the National Planning Policy Framework ("NPPF") which said that policies "should promote the development and diversification of agriculture and other land based rural businesses and support the economic growth in rural areas and sustainable rural tourism and leisure developments which respect the character of the countryside."
The report considered the impact on living conditions and noted that there were four properties within a 500 metre radius of the application site boundary which rose to 20 properties within 1,000 metres.
It continued with reference to the CIEH 'Guidance on the Control of Noise – Clay Target Shooting 2003'. That said:
"There is no fixed shooting noise level at which annoyance starts to occur. Annoyance is less likely to occur at a mean shooting noise level (mean SNL) below 55 Db(A) and highly likely to occur at a mean SNL above 65 Db(A). The likelihood of annoyance within the range will depend upon local circumstances."
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