White Waltham Airfield Ltd v Royal Borough of Windsor and Maidenhead
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Lang |
| Judgment Date | 17 December 2021 |
| Neutral Citation | [2021] EWHC 3408 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/1138/2021 |
[2021] EWHC 3408 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Lang DBE
Case No: CO/1138/2021
The Queen on the application of
John Steel QC and Victoria Hutton (instructed by Richard Buxton Solicitors) for the Claimant
Charles Streeten (instructed by Legal Solutions) for the Defendant
Sasha White QC and Matthew Henderson (instructed by BDB Pitmans LLP) for the Interested Party
Hearing date: 30 November 2021
Approved Judgment
The Claimant seeks a judicial review of the decision of the Royal Borough of Windsor and Maidenhead (“the Council”) to grant planning permission to the Interested Party (“IP”) for the erection of up to 79 dwellings and a nursery building at Grove Park Industrial Estate, Waltham Road, White Waltham (“the Site”) on 15 February 2021.
The Claimant is the owner and operator of the White Waltham Airfield (“the Airfield”) which is adjacent to the Site.
On 21 July 2021, permission to apply for judicial review was granted on the papers by Timothy Mould QC, sitting as a Deputy High Court Judge. In his observations, he said that the Claimant's grounds, as summarised below, were arguable.
Grounds of challenge
The Claimant's grounds of challenge are as follows:
Ground 1: The Council failed to take into account of, and reach a decision on, the issues raised by the Claimant regarding deficiencies in the noise assessment, which were material considerations. In the alternative, the conclusion in the Officer's Report (“OR”) that the noise survey results were robust was irrational, and inadequate reasons were given for the conclusion.
Ground 2: Contrary to guidance set out in the Planning Practice Guidance (“PPG”), in failing to recognise the limitations of the noise assessment, the Council failed to take into account all the activities which the Airfield is permitted to carry out, as opposed to only the activities which were occurring on two days in September 2016 when the assessment took place.
Ground 3: The Council applied 66dB LAeq (16 HOURS) as a threshold above which there would be an amenity impact from the Airfield without considering the qualitative impacts together with the noise threshold of 55dB LAeq (16 HOURS), as set out in up-to-date guidance and policy and as used in the IP's own noise assessment. The lower threshold was clearly material.
The Claimant expressly stated at the hearing that the challenge only related to the external noise impact on prospective residents, for example, when sitting in their gardens. The Claimant accepted that condition 23 to the permission, which required acoustic insulation, would reduce the internal noise impact to an acceptable level, and therefore it would not give rise to a risk of restrictions being imposed on the use of the Airfield.
Facts
The Airfield is a general aviation grass aerodrome which has been in existence since 1935 and was used during World War II. It is not subject to any planning conditions or controls. The Airfield is subject to a licence issued by the Civil Aviation Authority which does not limit the intensiveness of the use. It is licensed for night flying (paragraph 6). There are three runways which can be used in either direction, depending upon the prevailing wind.
On 16 November 2016, the IP applied for outline planning permission for the proposed development, with access, layout and scale to be decided at outline stage, and all other matters to be reserved. It subsequently submitted a “Noise Assessment” (“the NA”), prepared by Acoustic Air Limited, dated May 2017.
At paragraph 1.1, the NA identified the activities at the Airfield as one of the principal sources of noise affecting the site. Other sources of noise were identified, namely, traffic noise and noise from other commercial activities.
In section 2, headed “Noise Criteria”, the NA referred to number of different publications regarding the assessment of noise impact, in force in 2017. These included: (1) at paragraphs 2.4–2.9, the 2012 edition of the National Planning Policy Framework (“NPPF 2012”); (2) at paragraph 2.10, the PPG; (3) at paragraphs. 2.11–2.13, British Standard BS8233:2014 – Guidance on sound insulation and noise reduction for buildings (“the BS”); (4) at paragraphs 2.14–19, various guidelines promulgated by the World Health Organisation (“WHO”); and (5) at paragraphs 2.20–2.28, various documents specific to road traffic or industrial noise.
Paragraph 2.10, which referred to the PPG, set out the Noise Exposure Hierarchy which applies rankings of the levels of observed adverse effect, ranging from none to low to significant. These concepts were introduced into government guidance by the Noise Policy Statement (March 2010), issued by DEFRA, and the Explanatory Note stated that they were in use by the WHO. They have since been adopted and developed in the PPG.
In regard to the BS, the NA stated:
“2.11 For steady external noise sources, BS8233:2014 states that it is generally desirable that the internal ambient noise level does not exceed the guideline values in Table 2.2.
…..
2.12 For traditional external areas that are used for amenity space, such as gardens and patios, the BS says it is desirable that “the external noise does not exceed 50 dB LAeq,T, with an upper guideline value of 55dB LAeq,T.”
2.13 However, due to the nationwide difficulty in satisfying an external noise criterion of 55 dB LAeq,T in urban areas where transportation noise is prevalent, the BS provides an over-arching consideration of how to treat outdoor garden areas in the following way:
“… it is also recognized that these guideline values are not achievable in all circumstances where development might be desirable. In higher noise areas, such as city centres or urban areas adjoining the strategic transport network, a compromise between elevated noise levels and other factors, such as the convenience of living in these locations or making efficient use of land resources to ensure development needs can be met, might be warranted. In such a situation, development should be designed to achieve the lowest practicable levels in these external amenity spaces, but should not be prohibited.
Other locations, such as balconies, roof gardens and terraces, are also important in residential buildings where normal external amenity space might be limited or not available, i.e. in flats, apartment blocks, etc. In these locations, specification of noise limits is not necessarily appropriate. Small balconies may be included for uses such as drying washing or growing pot plants, and noise limits should not be necessary for these uses.””
In regard to the WHO Guidelines, the NA stated:
“2.14 The noise guidance from the World Health Organisation (Community Noise, WHO Vol. 2, Issue 1, 1995, and Guidelines for Community Noise, 2000) is that in order to avoid sleep disturbance the period noise level (LAeq) should not exceed 30 dB internally and individual noise events should not normally exceed 45 dB LAmax. To preserve speech intelligibility during the daytime and evening, the recommended internal noise level for living rooms is 35 dB LAeq,T. These LAeq values are consistent with the latest guidance of BS8233.
2.15 The WHO noise criteria for dwellings are summarised in Table 2.3 together with the desirable noise levels for outdoor living areas, which are likewise equal to those referenced in BS8233.
Table 2.3: WHO Guideline Noise Levels for Dwellings
| Location | Critical Health Effect(s) | L Aeq dB | Time base | L Amax fast dB |
| Outdoor living area | Serious annoyance, daytime and evening | 55 | 16 hours | - |
| Moderate intelligibility & moderate annoyance, daytime & evening | 50 | 16 hours | - | |
| Dwelling, indoors | Speech intelligibility & moderate annoyance, daytime & evening | 35 | 16 hours | |
| Inside bedrooms | Sleep disturbance, night-time | 30 | 8 hours | 45 |
| Outside bedrooms | Sleep disturbance, window open (outdoor values) | 45 | 8 hours | 60 |
The NA detailed the assessment undertaken in section 3. The dates of the noise monitoring were incorrectly recorded in the report (though not in the data in Appendix 1). It took place on 14 and 15 September 2016, not 12 and 13 September 2016. On one of the days in the monitoring period (Wednesday 14 September 2016), the runway closest to the Site (runway 21) was in operation, contrary to the Claimant's assertion in its objections. Runway 03 was not in operation. The data shows regular loud noise events on the afternoon of 14 September 2016, reaching a maximum (LAMax) of 84.6, as against an average of 62.4. The data also shows noise continuing into the evening and night (including for example a recording of 81.2 at 22.44 hours).
At paragraph 3.1, the NA explained that continuous noise monitoring was undertaken at a number of locations, including at 1m from the boundary between the Site and the Airfield (Position 1).
Table 3.1 of the NA set out the noise levels measured at Position 1 and this was summarised at paragraph 3.6: “The day and night-time LAeq monitored at Position 1 was 54 dB and 39 dB respectively, with a night-time LAmax of 67 dB (rounding to the nearest whole number for assessment purposes).” Measurements were also taken at other positions.
The NA undertook a noise impact assessment in section 4 and materially stated at paragraphs 4.2 – 4.22:
“4.2 None of the noise levels [affecting the site] are considered to be high, and they were all lower than levels that are commonly encountered at approved developments adjacent to transportation routes and existing urban developments. Consequently, acceptable noise standards will...
To continue reading
Request your trial