Strongroom Ltd v London Borough of Hackney
| Jurisdiction | England & Wales |
| Judge | Timothy Corner |
| Judgment Date | 08 March 2023 |
| Neutral Citation | [2023] EWHC 488 (Admin) |
| Docket Number | Case No: CO/1759/2022 |
| Court | King's Bench Division (Administrative Court) |
and
[2023] EWHC 488 (Admin)
Mr Timothy Corner, KC
Sitting as a Deputy High Court Judge
Case No: CO/1759/2022
CO/2997/2022
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Jonathan Darby (instructed by Birketts) for the Claimant
Daisy Noble (instructed by the Solicitor to the London Borough of Hackney) for the Defendant
Matthew Reed, KC (instructed by Fladgate LLP) for the Interested Party
Hearing date: 22 nd November 2022
Approved Judgment
Timothy Corner, KC:
INTRODUCTION
The Claimant is Strongroom Limited. It owns recording studios (“the Studios”) and a bar at 120–124 Curtain Road, London EC2A 3PJ and is therefore an immediate neighbour of 118 Curtain Road (“the Site”). It is common ground that the Studios are sensitive to noise and vibration. They share a party wall with the Site. The Defendant is the local planning authority. The Interested Party (“IP”) is the applicant for the planning permissions at issue in this case.
The Claimant brought two judicial review claims against the Defendant in respect of works proposed by the Claimant. Those claims came before me on 22 nd November 2022. The settlement agreement of that date (“the Settlement Agreement”) provided that costs as between the Claimant and Defendant were to be determined by the Court in default of agreement, and that there should be no order as to costs between the Claimant and the IP.
The Claimant and Defendant have not agreed costs and have made written submissions, the last being the Claimant's Reply sent to me on 24 January 2023. This is my determination of the issue.
FACTUAL BACKGROUND
The First Permission
In 2018, the IP applied for planning permission in respect of the Site for:
“ Change of use from storage and distribution (Use Class B8) to offices (Use Class B1), including the conversion and extension of the building with the erection of three additional storeys to provide B1 office floorspace, together with the provision of associated secure cycle parking facilities and refuse and recycling storage” (the “ Proposal”).
As part of its wider objection to the Proposal, the Claimant submitted detailed evidence from a sound and vibration expert, Mr. Jim Griffiths of the music acoustic consultancy, Vanguardia. Mr. Griffiths' professional view was that unless noise and vibration levels were strictly controlled during construction, the use of the Studios would be subject to harm, impossible to use and might be compelled to close as a result. In a report dated 3 October 2018, Mr. Griffiths therefore advised on the maximum noise and vibration levels that could be tolerated during the construction phase (the “ proposed maximum levels”).
The proposed maximum levels were:
NR 15 Leq,
15min; 25 dB
LAmax;
0.5 mm/s PPV.
This led the IP to submit a revised acoustic report prepared by Bureau Veritas (“ BV”) dated November 2018, which accepted that the proposed maximum levels advised by Mr. Griffiths were reasonable and could be secured by way of condition.
The Defendant appointed its own expert acoustic consultants Gilleron Scott (“ GSAD”) to advise in respect of the suggested noise levels in the context of the application and the proposed maximum levels to be imposed as conditions. In a report dated 20 February 2019, GSAD confirmed that it was also content with the imposition of the proposed maximum levels suggested by Mr. Griffiths by way of condition and that “ these should be met at all times, unless agreed in advance with Strongroom”.
Mr. Barry Coughlan (the Defendant's planning officer) authored a report (“ OR1”) included in the papers for the 6 March 2019 meeting of the Hackney Planning Subcommittee (“the Committee”), in which he advised Members as to both the issue of noise and disturbance from the construction phase and also in respect of the proposed approach in relation to the proposed maximum levels.
In line with the agreed recommendation of all three relevant experts, OR1 included a recommendation that permission be approved with a condition reflecting the above and detailing the contents of a Demolition and Construction Management Plan (“DCMP”). In making that recommendation, Mr. Coughlan stated that:
“ the onus would be put upon the applicant to find a means of constructing the development in such a way that they would not exceed the targets which they themselves have agreed are reasonable”.
On 6 March 2019, the Committee considered the Proposal. It resolved to grant the Permission (“the First Permission”), with Condition 15 attached, embodying the three proposed maximum levels, as follows ( emphasis added):
“Notwithstanding the documents hereby approved, no development shall take place until a detailed Demolition and Construction Management Plan covering the matters set out below has been submitted to and approved in writing by the Local Planning Authority. The development shall only be carried out in accordance with the details and measures approved as part of the demolition and construction management plan, which shall be maintained throughout the entire construction period. The plan must include:
a) A demolition and construction method statement covering all phases of the development to include details of noise control measures and measures to preserve air quality (including a risk assessment of the demolition and construction phase); The statement must also include:
i. Details as to how the construction of the development can be carried out without exceeding the following noise and vibration levels at a location (or locations) to be agreed by the Local Planning Authority:
1 NR 15Leq, 15min;
2. 25dB LAmax; 3. 0.5 mm/s PPV.
ii. Details of on-site testing which demonstrates that the construction of the development can be carried out without exceeding the noise and vibration levels set out at part i above.
iii. Details of noise and vibration monitoring to be carried out in accordance with the methodology set out in the Acoustic Report by Bureau Veritas dated November 2018. This monitoring data must be made available to the Local Authority when it is requested.
iv. A liaison strategy between the applicant and adjacent businesses and property occupiers including a commitment to liaise with neighbours when particularly noisy periods of construction are likely to occur…”
The reason given for the imposition of Condition 15 was stated to be as follows:
“To avoid hazard and obstruction being caused to users of the public highway, in the interest of public safety and amenity, in order to prevent the construction of the development having an unacceptable environmental impact upon neighbouring properties and to protect air quality, human health and to contribute to National Air Quality Objectives.”
The Committee reserved the discharge of Condition 15 to come back to it for consideration and final approval.
The First Discharge Application
By application dated 9 September 2021, the IP submitted details pursuant to Condition 15 (the “ First Discharge Application”). In support of the First Discharge Application, the IP submitted a draft DCMP dated 9 September 2021 along with a BV report dated August 2021 (the “ August 21 BV Report”).
The August 21 BV Report was based on testing conducted on 14 and 15 July 2021 (the “ Initial Testing”). All the results reported in the August 21 BV Report with regards to impacts on the Studios are estimates.
On 14 October 2021, the Claimant's solicitors wrote to the Defendant saying that the August 21 BV Report and the draft DCMP were flawed on their face and inviting the Defendant to reject the First Discharge Application. Further correspondence followed between the Claimant and the Defendant in which the Claimant urged the Defendant to stand by the agreed and imposed maximum levels and sought assurances from the Defendant that it would ensure that the IP fully complied with those levels in any purported attempt to discharge Condition 15.
Injunction
In November 2021 the Defendant commenced works at the Site. The Claimant sought injunctive relief to restrain what it alleged was a noise nuisance.
The claim for an injunction was resolved by consent, with the IP agreeing to ensure it stayed within the agreed limits and the Claimant agreeing to grant the IP a licence (“ the Licence”) to carry out proper “on-site testing” in order to prepare a DCMP that showed it could properly discharge Condition 15 by complying with the agreed and imposed levels. The terms of the licence provided inter alia for the IP to i) consult with Vanguardia as to the location and nature of testing equipment; ii) for Vanguardia to be present during the testing; iii) for the IP to monitor the extent to which all the results met or exceeded the agreed noise limits; and iv) for BV to disclose all testing results to the Claimant.
On-Site Testing
On 3 December 2021, the Licence was granted by the Claimant.
Vanguardia then liaised with BV on all aspects of the proposed testing and monitoring. It was agreed between the experts that testing would monitor the noise and vibration in all three studios adjoining the Site: Studio 1 (ground floor to the rear); Studio 2 (ground floor to the front); and Studio 6 (second floor).
Pursuant to the Licence, the IP and its consultants (BV) attended the Studios over the period of 20–24 December 2021 for the purpose of taking measurements (the “ On-Site Testing”).
The results of the On-Site Testing were purportedly reported in a BV Report dated January 2022 (the “ January 22 BV Report”), which noted the likelihood of exceedances and the need to consider alternative techniques.
Further correspondence
The...
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