Dovenby Village

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All content are opinions and objections that were raised as part of the response to Msport planning application to Allerdale planning ref 2/2014/0350.  If you have any comment or disagreement then first realise that opinion is just that, opinion in a public planning process.  You may email factual errors to Contact @ dovenbynoise.info

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OBJECTION TO PROPOSED NOISE MANAGEMENT PLAN  VERSION 3 SEPT 20164TH OCTOBER 2016

I object to Con4/2014/0350 Noise Management Plan version 3 especially its proposed noise levels and if they are not reduced at the planning stage then courts seem likely to impose restrictions of noise and days (see below) that would show that Allerdale BC have been incapable of protecting the amenity of its residents from noise nuisance.


Please read my April 20th 2016 and June 24th 2016 objections containing comments from noise consultants Mike Stigwood and Ed Clarke and when you consider the comments of Justice Holgate at Nicholson v Allerdale when he was asked to consider if a noise consultant’s report was relevant when a new NMP was submitted then I expect you to consider that most of the comments about NMP2f have lawful relevance to be considered against NMP3.  For further clarification I highlight some comments below; I repeat, please read and note my April and June letters that are on the same planning portal as this objection.

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My objections to noise are below; please note also my solicitor’s observations and recommendations (Oct 10th 2016) and my previous letter (Sept 28th 2016):

1) LAeq 5mins should be 3dB above LAeq 1 hour as advised by Allerdale’s own noise consultant (not 5dB).


2) LAmax should be no more than 5dB above the average noise level.  As stated in Officer Report and NPPF.  The NMP proposes a 28 decibel sudden increase in noise which would inevitably lead to noise nuisance complaints.


3) In the NMP page 12 “Definitions” LAeq 1 hour, LAeq 5mins should be clearly defined or they are not enforceable.  The proposed definition could allow for all noise and all silence in a 12 hour period to be divided by 12 to hide very noisy hours when averaged with periods of silence.  I suggest that for the purposes of planning enforcement LAeq 1 hour is to be calculated as the highest LAeq 1 hour and LAeq 5 minutes is to be calculated as the highest LAeq 5 minutes during continuous measurement of the testing day.


4) Paragraph 6.12 should state that if any control level is exceeded then “all use of the track shall immediately cease” otherwise the intention may not be enforceable, see my Sept 28th objection but repeated here:


a. The word “testing can be used ambiguously and the offender could be removed from the track to be replaced by a succession of offenders, each being removed subsequent to the next predictable offence.  If a class of vehicle all make an offending noise (eg they all have offending levels of backfire) then they could all be tested and each withdrawn after its test and after committing a predictable noise offence.


b. Para 6.12 needs first paragraph final sentence to have added “... and Allerdale BC have validated the effectiveness of remedial action” otherwise there is the potential of no enforceable assessment of a remedy.


5) Noise recording equipment should be placed between the track and all four areas of sensitive receptors and should record noise for the full duration of each day of testing.


6) Review of the NMP by Allerdale should occur at any time, not annually.  The purpose and potential outcomes of a review should be explained or “review” is meaningless.  If a review is perceived as meaningless then noise complaints are more likely to ignore the proposed complaints procedure and be directed to Environmental Health, taking their time and cost.  If a “review” is seen as incapable of dealing with noise issues then complaints using the legal process is more likely.


7) A calendar notifying the community of days of operation for each category is required so those in the community who may be disturbed by noise may take appropriate action which might reduce the likelihood of complaints from the community.


EXPLANATIONS FOR MY OBJECTIONS – NOISE LEVELS


Allerdale Council’s own noise consultant Cole Jarman states:

We would suggest LAeq 5 minute limits of 3dB above the 1 hour limits.”

[see Jan 15th 2016 email from Cole Jarman to Environmental Health Manager

FoI F16.385 Response 35]


In the same document Allerdale’s noise consultant also suggests:

Cole Jarman state: “It might be worth having a system in place M Sport to warn the local residents when they are planning a " High noise day", this should be stated in the NMP.


Mike Stigwood [MS] gave expert witness opinion in the case of Coventry v Lawrence which resulted in huge legal costs.  Ed Clarke gives advice to motor sport venues.  If their advice is acted on (not merely “noted” as previous) it may save parties from expensive processes that are likely to arise if the proposed NMP & noise limits are found to be wrong.


Mike Stigwood comments about the Supreme Court case:

“To place this [Msport NMP] all in perspective in the case of Coventry v Lawrence This site is permitted 45 days of an hourly value of 55dBA which if compressed into 15 minutes would equate to 60dBA as the maximum in any 5 minute period. ...  

Remaining days were limited to 45dB LAeq(15 minutes) = 50dBA for any 5 minute period. “    [MS]



Please, Development Officer & Panel, realise that the Supreme Court were involved in restricting motor sport noise to 45 days of MSport’s Category A.  However the only other days allowed were for Category C.  No category B days allowed.

If the community undertake noise nuisance procedures then it may be the case that the same noise limits of category A and C are imposed.


It is important that the community is not disturbed by the noise levels and the noise characteristics, so please understand that it is the sudden alarming noises of explosive backfire and the screeching of tyre skidding that may cause the greatest alarm and fright from sudden loud noises.

Some examples of how Allerdale is being asked to exceed acceptable noise levels that have been set by courts are explained by Mr Stigwood:


“Any argument this noise is less intrusive as it is not motorsport will be determined in due course but high speed, acceleration and deceleration, tyre screech and similar characteristics may be expected rendering it close to motorsport type impact.” [MS]


 “Before considering decibel levels we need to consider a range of non-acoustic factors including the message a sound imparts.  

For example you could have two equal sounds in terms of decibel level, one a child having fun or dog yapping in a friendly manner and so promoting happy connotations and imparting a message all is well.  

Conversely you could have a child wailing or dog howling in pain, producing the same decibel level as the first case but imparting a message of alarm or concern.  

Thus the same average decibel level but completely different impact.  

There are so many examples, alarms evoke alarm, one persons music is anothers annoyance.  Thus decibel level is only relevant when it is about being loud and degrading the environment.  “ [MS]


“The High Court has confirmed noise can be a nuisance even when not measurable as a decibel value, where it is incongruous and out of character in the area where it occurs.  Godfrey v Conwy CBC 2001.   This places the limited value of the decibel into context.  “[MS]


“The World Health Organisation [WHO] in their advice to local authorities 2000 make the point "the decibel level accounts for only one third of noise annoyance".  Two thirds relate to non-acoustic factors including the character of the noise.  The High Court has acknowledged this point, upheld in the CoA.  Bontoft Taylor and Others v East Lindsey DC.” [MS]


“To also place it in perspective LAeq 5 mins of 54 equates (if no other noise for the 10 minutes following) to a 15 minute value of 49dB which is 4dB higher than the nuisance limit applied in the Fen Tigers case.  It is 11dB higher than applied at Bruntingthorpe proving ground.” [MS]


Allerdale should not ignore their own noise consultant’s advice and LAeq 5 minutes should be 3dB above the one hour levels.

Allerdale Development Officer Report presented to Development Panel Dec 23rd 2014 page 26 states:

“The submitted assessment indicates that moderate adverse effects will result from an increase greater than 3dB but less than 5dbLAeq, subject to a minimum noise level of 55dB. Moderate adverse effects equate to a ‘Significant Observed Adverse Effect Level, which should be avoided’.

Major adverse effects will result from an increase greater than 5dbLAeq, subject to a minimum noise level of 55dB.

Major adverse effects are stated as equating to an ‘Unacceptable Observed Adverse Effect Level, which should be prevented’.”


No noise level above 60dB, whether measured as Laeq 5mins or LAmax should be allowed otherwise Allerdale and Msport otherwise lawfulness or noise nuisance may be found against them.


Even the Applicant’s Submission quoted in the December 23rd 2014 Officer Report page 22 states

Where noise levels are greater than 5dB above existing LAeq 1 Hour, the effects are considered to be major, with an effect level at ‘Unacceptable Observed Adverse Effect Level’.”

“Effects of ‘Moderate’ or greater are considered to be significant in EIA terms, albeit Table 2.2 states that only noise levels of 55dB or above, are considered to be moderate/major and therefore ‘significant’.”


It should be noted that in Nicholson v Allerdale the judgement sought to control peak noise and it is difficult to see how any peak noise measurement over 60dB whether measured as LAeq or LAmax can be considered to be acceptable; it is surely irrational to propose a noise level that both the applicant and the Development Officer have clearly stated is “Unacceptable” and “should be prevented”.

If any noise level over 60dB is permitted by the Development Panel then it may be found to be unlawful or found to deliberately cause a noise nuisance.  

The noise level of 60dB may be judged too high in a noise nuisance case and my reference to 60dB should not be taken as approval or acceptance of that level of noise.  I warn that the noise characteristics of explosive backfire, screeching tyres and roaring acceleration may cause a noise nuisance even if the decibel level is below that which is set by planning consent.


Maximum Noise LAmax


When the sudden alarm characteristic of bang or screech frightens us and destroys our quiet amenity, we will wonder why LAmax does not control the noise nuisance and we will take significant legal action.  Mike Stigwood explains:

“Thus following the criteria argued by the developer in their March 2016 document that the WHO had a differential between LAmax and LAeq and this can be applied, based on the most up to date criteria it gives a value of not more than 10dB difference which places the LAmax at not more than 65dB for those days where the hourly value is 55dBA and 53dBA for days when noise is limited to 43dB LAeq.  “

Please note that the noise expert has given opinion that may be repeated in other proceedings that

the hourly level of 55dB should have LAmax of 65dB.

the hourly level of 43dB should have LAmax of 53dB.


The current proposal in NMP3 is that LAMax (125ms) is to be 73dB at residences

The sudden alarming peak bang, screech and roar to LAMax would be

Cat C LAeq1hr 43dB propose a sudden increase to 73dB = 28dB increase

Cat B LAeq1hr 50dB propose a sudden increase to 73dB = 23dB increase

Cat C LAeq1hr 55dB propose a sudden increase to 73dB = 18dB increase


It is surely self evident that the proposal to allow sudden alarming noises of 18 to 28dB above the normal noise will be found to be unlawful in not protecting our amenity and in creating a noise nuisance.

LAmax should be 5dB above the hourly average noise at most.


Mr Stigwood explains:

“An interesting comparison can be drawn with Donnington Park track days which were considered to cause nuisance and an Abatement Notice was served.  Control was set at 98dB LAmax trackside which was based on a 47dBA reduction to the village of Castle Donnington = 51dB LAmax.  I believe somewhere there was a further 4dB reduction giving 47dB LAmax as a community level.  This Donnington Park activity is directly comparable to Dovenby and equates reasonably closely to the 53dB value above.  

It was derived from a detailed study by someone undertaking their pHD under the supervision of Dr Mike Fillery an acoustics specialist at Derby Uni.  Dr Fillery had a specialist interest in motorsport.  It is also instructive that Dr Fillery advised Palmer Promo Thurleigh where a site boundary LAmax limit close to the track of 65dB LAmax was set which at the nearest dwelling was similarly in the low 50s or high 40s dB Lamax. “


If the Development Officer & Panel ignore the opinion and precedent quoted above then legal judgements may impose noise limits of 50-60dB LAmax and not the 73dB LAmax proposed.

Such a ruling will lead to claims that Allerdale BC has not protected amenity, has not been competent in assessing appropriate environmental noise limits, and irresponsible in spending money pursuing justifications of recommendations that objectors and experts have warned will cause Allerdale’s limits to be found wrong in law.

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Location of monitors.  

Comments from Ed Clarke, Noise Specialist at Clarke Saunders

 “Reliance on a single trackside monitor at 10m and assuming that a fixed relationship can be established between source and receive levels based on it is naive in the extreme – different vehicles will have different noise characteristics, manifested differently around the track”  [EC]


Comment by Allerdale BC noise consultant Cole Jarman January 15th 2016

"The noise levels must be measured 10 from the trackside by permanent noise monitoring equipment. The measured noise levels at these trackside positions will be used to calculate the noise levels at the noise sensitive receptors to determine if the noise limits have been complied with. The locations of the track side monitors must ensure that the noise levels, from the track, at the noise sensitive receptors can be accurately calculated. These locations must be confirmed with ABC before the track is in operation."


Requirement / request from Allerdale Environmental Health Manager

EHM on February 15th 2016 requires in draft NMP

“29 Replace 5.4 and 5.5 with the following:

The noise levels must be measured 10 from the trackside by permanent noise monitoring equipment. The measured noise levels at these trackside positions will be used to calculate the noise levels at the noise sensitive receptors to determine if the noise limits have been complied with . The locations of the track side monitors must ensure that the noise levels, from the track, at the noise sensitive receptors can be accurately calculated. These locations must be confirmed with ABC before the track is in operation.”


It should be obvious that a car driving away from a noise monitor will become quieter to that noise monitor but will become louder to the house that it is approaching.  


The track is oval and sensitive receptors are at both ends and on both sides of the straight so noise monitors should be placed at both ends and by each of the straight sections to record noise increasing as the car approaches, not decreasing as it leaves.

The current NMP has brackets around the plural ie location(s), monitor(s), thus in law it would be difficult if not impossible for Allerdale Planning Compliance Officer to insist on extra noise monitoring points.  As a consequence of not being able to enforce multiple noise monitoring points it is likely that the time and expense of Allerdale Environmental Health Officers or the community would be required to take action against the operator in order to win a court judgement that would require extra noise monitoring points (and likely at the same time seek lower noise limits and days of operation).


The EHM had stated that LAmax and monitors should be determined after the track has been completed and before operation which the NMP should state.


REVIEWING AND IMPROVING PROTECTION OF AMENITY.


Allerdale’s own noise consultant Cole Jarman advised that

ABC need to be able to review the complaints at any time (not just yearly) .”  

“In addition to the above there needs to be the possibility of ABC taking measurements at any time in order to check that the limits are being complied with and the allowance for action to be taken at that time.”


The Noise Management Plan currently proposed could be used by Msport to insist that the only lawful period when the NMP can be reviewed is after six months or annually (NMP para 2.2).  

There could be a dramatic underestimation of the level of noise and the characteristics of the noise (bang, screech, roar) and the effect on the community.  


If the NMP cannot be reviewed at any time then the only recourse for the community is to make formal complaints of noise nuisance separate to the complaints procedure because what is the point of using MSport’s complaints procedure if nothing would be reviewed for up to 12 months.  The community are likely to take the time and cost of the Environmental Health Department to measure the noise levels and, if noise levels are exceeded, seek planning enforcement or criminal noise nuisance or civil noise nuisance remedies.  


If the review of the NMP can be initiated at any time then ABC have more opportunity to defuse community dissatisfaction and tensions between the community and its neighbour.


It should be noted that many in the community have insurance that cover noisy neighbours and ABC should seek to take all actions to reduce the likelihood of that course of action by responding to noise complaints with a review at any time and with a measures clearly explained to the community and with a measurable remedial effect.


From RICHARD BUXTON, ENVIRONMENTAL & PUBLIC LAW SOLICITORS

19B Victoria Street, Cambridge CB1 1JP


Attn. Mr Brendan Carlin


Your ref: 2/2014/0350

Our ref: NCl1-001/AC

Email: acopithorne@richardbuxton.co.uk


10 October 2016


Dear Sirs


Dovenby Hall, Msport development – Noise Management Plan – version 3

We write in response to the consultation on the third version of the Noise Management Plan (dated 7 September 2016), submitted by Msport for approval as required by condition 6 attached to planning approval 2/2014/0350.

We note the letter from Kevin Kerrigan at the Council to Northern Developments on behalf of Msport dated 25 August 2016, which states that he cannot recommend approval of the NMP in its current (ie version 2) form. Mr Kerrigan comments that this is because there is insufficient reassurance in the NMP that the controls on Laeq 5 min and LAmax will ensure that a satisfactory level of amenity will be maintained within the community.

We understand our client, Mr Peter Nicholson, and other residents of Dovenby village, have already made comments on the third version of the NMP. Without prejudice to those, we wish to make the following observations and recommendations:


As set out at paragraphs 2.2 and 2.3, Condition 6 requires a review of the approved NMP within 6 months of the start of operation of the test facility and then annually thereafter. Given that the Council cannot amend the condition unilaterally, what would a review entail and what options would the Council have if it is found to be inadequate in protecting the community from adverse noise impact?


There is no stipulation as to the period over which LAeq (1 hr) and LAeq (5 min) will be assessed. Paragraph 4.3 states that a log will be maintained each time the test track is used, which will record “actual LAeq” levels during each hour. It should be set out that the LAeq shall be calculated as the highest 1 hr or 5 min period over the duration of the testing day.


Paragraph 3.8 refers to a “log of all complaints” to be made available for viewing by interested parties and the Council, this should say “log of complaints and corrective actions” so that complainants can be assured their complaints will be addressed. The log should be continuous from the start of operations of the testing facility so the history of complaints is apparent.


Paragraph 4.3 states “Each time the MEC test track is used…” – it would be more clear to say, “Each day that the MEC test track is used a log recording the noise levels for that day…”


Paragraphs 5.2 and 5.3 refer to “sound level meter(s)”, “location(s)” and “monitor(s)”, which allow for the possibility of only one meter or monitor being placed in one location to measure to noise generated by vehicles on the test track. Monitoring at one location cannot be representative of the noise impact of a vehicle doing laps. We note from the comments on the draft NMP sent by email dated 15 February 2016 from Sian Tranter EHO to Northern Developments that this was the view of the EHO as well. The advice from noise consultants Cole Jarman to the Council dated 15 January 2016 similarly recommended more than one monitor in more than one location.


Paragraph 5.5 states that the Council will confirm the “agreed noise reduction” in writing after physical testing has taken place but before the start of operation of the test facility. It does not state what will happen if the Council cannot confirm the “agreed noise reduction” has been achieved. There must be some review mechanism by which the Council can require lower noise limits in order to ensure there is no unacceptable adverse impact on the locality.


Paragraph 6.3 has the added control of limits on LAeq (5 min), however paragraph 6.11 states only when LAeq (1 hr) is exceeded are Category A, B or C elevated. In order for the LAeq (5 min) control to be effective, exceeding the LAeq (5 min) limit should trigger an elevation of the category for that day, just as with LAeq (1 hr).


Paragraph 6.12 states that “testing shall immediately cease” in the event of any of the noise control levels are exceeded. It does not appear that use of the track has been limited to ‘testing’ and so for clarity this should state “all use of the track shall immediately cease”.


Version 3 of the Noise Management Plan represents some improvement on the previously proposed regime but nonetheless, we remain of the view, as does our client, that the proposed use of the test track facility at Dovenby Hall by Msport is likely to give rise to a nuisance to local residents.


Yours faithfully


Richard Buxton

Environmental & Public Law

cc. Northern Developments (attn. Mr Eddie Ward)



Allerdale Planning Authority gave permission for the destruction of Dovenby’s historic parkland and ancient woods and wildlife habitats.


Allerdale permitted the replacement of your historic rural setting with a factory producing racing cars that will noisily zoom around a race car testing track.


The planning permission did not require race cars to have peak noise measured!  Like a speed limit without measuring maximum speed!  Allerdale wanted noise pollution without measuring peak noise levels.


At The HIGH COURT this was found to be UNLAWFUL

Read the High Court judgement section 73 - 80  that explains what was unlawful.


The High Court requires a Noise Management Plan (NMP) to comply with an amended Noise Condition 6


The proposed NMP version 2f does not meet the High Court requirements.


Noise Consultants Mike Stigwood and Ed Clarke explain the significant and obvious defects in the proposed NMP


There are many cases of noise nuisance that have been brought with less noise intrusion than proposed here.


Mike Stigwood gave expert witness in a Supreme Court case on noise nuisance and is sure that this NMP will result in noise nuisance complaints.


The High Court judgement resulted in Allerdale paying £31,500 including VAT towards costs.  They also had to pay their own legal costs of a similar amount.


The proposed NMP is likely to result in another successful claim against Allerdale that they will act UNLAWFULLY if they do not comply with that which is required.


Objections are varied in their content and have been sent from six different villages.  Council tax payers are concerned that Allerdale Planning Officers and Development Panel Councillors are making unlawful and costly mistakes.  They demand better standards of decision making.


Objections from Peter Nicholson, JR complainant.


Objections from council tax payers.


The Environmental Health Officer’s comments explain errors and omissions that resulted in the NMP version 1


The Planning Officer’s Report explains the noise requirements



The Officer Report page 22 section “Use of the testing facility (external)” states at bullet point 3

“Where noise levels are greater than 5dB above existing LAeq 1 Hour, the effects are considered to be major, with an effect level at ‘Unacceptable Observed Adverse Effect Level’.”


However the Officer Report explains that the noise levels could be 7dB higher than predicted if the wind blows the noise to sensitive receptors (our homes) and the combination of the 5dB estimate of noise in still air added to the 7dB increased by wind carrying the noise would result in exceeding the moderate noise level and clearly entering the major Unacceptable Observed Adverse Effect Level


The Officer report helpfully explains the effect of wind on page 25

A number of concerns are noted with the Noise Technical Appendix:”

“Calculations have been based on “neutral‟ weather conditions although it is acknowledged that during varying wind conditions a +/- 7dB correction could occur.  The assessment states that noise predictions of vehicles using the testing and evaluation facility are based on a worst case scenario, but it is unclear how this can be the case if “neutral” wind conditions have been relied on. The effect of wind direction on noise has the potential to alter the noise levels experienced within the community, both in a positive and negative manner (whether upwind or downwind of the noise source). This could have implications for the achievable reduction in noise levels from trackside to the community from the testing facility and it could mean that the effects of noise within the assessment have been underestimated.


Officer Report page 25 bullet point item 3 states

“The submission states, ‘In terms of absolute noise level criteria, a noise level of 55 dBLAeq, 1hour has been applied as the threshold above which a significant effect will occur, referencing the WHO Guidelines.


However, the WHO guidelines assume a continuous noise source, the testing of vehicles proposed would not be continuous and may contain characteristics potentially harmful to amenity despite achieving the average hourly level.”


This NMP compresses the 55dBLAeq into five minutes and obviously exceeds the guidelines and will inevitably exceed the officer’s concerns and will contain characteristics potentially harmful to amenity despite achieving the average hourly level.


OBJECTION

The proposed NMP requests levels of peak noise measured in Lmax and Laeq5mins that exceed the levels that the Officer’s Report explain are unacceptable.  


The proposed NMP must add 7dB of wind blown noise that will result in unacceptable levels of noise defined in the Officer’s Report.

OBJECTIONS TO NOISE MANAGEMENT PLAN VERSION 3 SEPT 2016