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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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Professionals Comment on Judicial Review
Judicial review is at http://www.bailii.org/ew/cases/EWHC/Admin/2015/2510.html
6 November 2015 by Stephen Morgan ,
A former hospital, a grade II listed building, a sensitive landscape and nearby homes may not be the obvious setting for a 2.5-kilometre test track for performance cars.
However, a company using the site for manufacturing rally cars sought to establish such a facility, prompting extensive objections. A detailed and comprehensive officer's report recommended granting permission, and the council committee agreed.
A neighbour sought a judicial review on three grounds, two of which were rejected by Mr Justice Holgate. However, one aspect of the third troubled him. After detailed and careful analysis, he found that the council had failed to impose LAmax levels to control peak noise or variations in noise character from vehicles using the track. He rejected the council’s interpretation of the relevant condition and concluded that an assumption that LAmax would be controlled was fundamental to its willingness to grant permission.
The judge’s approach thereafter merits consideration. He held that the public interest in the development proceeding made it preferable to allow the parties to try to remedy the flawed condition, rather than quashing the permission. He therefore gave the parties his draft judgment and allowed them time to provide a mechanism to secure what the council had intended.
After an exchange of submissions and further hearings, the matter still could not be agreed. The judge then suggested using powers under section 96A of the Town and Country Planning Act 1990 to make non-material amendments. An application was made and subject to public consultation. Despite the claimant’s concerns, the judge was ultimately satisfied with the amended condition and exercised his discretion not to quash the permission, while still declaring the original condition unlawful. On that basis, he accepted the claimant’s bid for costs. The council agreed to pay £26,125 plus VAT to the claimant.
The case demonstrates a judicial determination to uphold permissions where a technical defect can be put right. This seems a sensible and practical approach. Defendants should always consider, before and throughout the judicial review process, whether they are vulnerable on any aspect that could be addressed via a section 106 obligation or a section 96A amendment. The earlier this is done, the greater the prospect of reducing costs liabilities. Perhaps more importantly, applicants may at least be able to save the planning permission.
R (Nicholson) v Allerdale Borough Council; Date: 12 October 2015; Ref:  EWHC 2510 (Admin)
Stephen Morgan is a member of Landmark Chambers
October 13th 2015
In R (Nicholson) v Allerdale BC  EWHC 2510 (Admin) Holgate J emphasized relevant principles upon which the High Court will approach a challenge to a decision taken by a local planning authority involving criticism of the officer’s report:-
(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;
(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;
(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;
(vii) 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 should not impose too demanding a standard upon such reports, for otherwise their whole purpose would be defeated.
There was also an irrationality challenge. Holgate J reiterated that an application for judicial review is not an opportunity for a review of the planning merits of the Council’s decision. Although an allegation that such a decision was perverse, or irrational, lies within the scope of proceedings under CPR Part 54, the Court must be astute to ensure that such challenges are not used as a cloak for a rerun of the arguments on the planning merits. In any case where an expert tribunal is the fact finding body, as in the case of a planning committee, the threshold for Wednesbury unreasonableness is a difficult obstacle for a Claimant to surmount, which is greatly increased in most planning cases by the need for the decision-maker to determine not simply questions of fact, but a series of planning judgments. Since a significant element of judgment is involved, there will usually be scope for a fairly broad range of possible views, none of which could be categorised as unreasonable. Moreover, the decision may also be based upon a site inspection, which may be of critical importance. Against this background, a Claimant alleging that a decision-maker has reached a Wednesbury unreasonable conclusion on matters of planning judgment faces a particularly daunting task. On the other hand, irrationality challenges are not confined to the relatively rare example of a “decision which simply defies comprehension”, but also include a decision which proceeds from flawed logic.
On policies, Holgate J reiterated that the correct interpretation of planning policy is a question of law to be determined by the Courts. But, notwithstanding its legal status and effects, a development plan is not analogous to a statute or a contract and therefore its policies must not be construed as if they were statutory or contractual provisions. That is because development plans often contain broad statements of policy, and policies of that nature may be difficult to reconcile if construed strictly. In addition, the language used to express planning policy may depend upon the exercise of judgment by the decision-maker when applied to a given set of facts. The exercise of judgment by a planning authority when applying a policy is legally distinct from the construction of that policy. Such matters of judgment fall within the jurisdiction of the planning authority and may only be challenged in the courts if irrational or perverse. When determining the extent to which a proposal conforms with a local plan, the correct focus is on the plan’s detailed policies. The supporting text consists of descriptive and explanatory material and/or reasoned justification in respect of the policies. That text is relevant to the interpretation of the policy with which it is concerned, but it does not itself constitute policy or form part of policy. Because the supporting text does not have the force of policy it cannot trump or override the policy to which it relates. So, for example, a criterion which is to be found in supporting text but not in a policy of the plan, could not affect the decision as to whether a proposal accords with the development plan.
DATE: 12 Oct 2015
The High Court today gave judgment in R (Nicholson) v Allerdale BC & M-Sport Ltd  EWHC 2510 (Admin).
The case concerns the headquarters of M-Sport Limited (“M-Sport”) at the Dovenby Hall Estate.
M-Sport operates a global rallying programme: click here for details.
M-Sport was granted planning permission by Allerdale BC (“the Council”) to expand its facilities to include, inter alia, a manufacturing and evaluation centre and a testing and evaluation facility or track, 2.5 km in length with sound attenuation bunds. The permission was challenged by the claimant, who is a local resident.
The Grounds of challenge were that:
(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”).
The Judge rejected Grounds 1 and 3, but found Ground 2 made out in one respect, namely that a condition imposed to deal with noise, when properly interpreted, did not allow for the control of maximum noise levels something which the Council intended it to do. The Judge records that:
“82. In my judgment the public interest in the proposed development proceeding is sufficiently great that it was plainly preferable for the Court to allow the parties an opportunity to seek to remedy the flaw identified above rather than for the permission to be quashed, provided that that could be achieved within a finite and reasonably short timescale.
83. In R (on the application of Midcounties Co-Operative Ltd) v Wyre Forest D.C.  J.P.L 173 the Court of Appeal accepted that a legal flaw in the drafting of a condition could be overcome by the execution of a planning obligation under section 106 of TCPA 1990 which remedied the defect in the condition, so that it became unnecessary to quash the permission. Since then, the same principle has been applied in R (Barr) v North Somerset Council  EWHC 1735 (Admin) at paragraphs 21 to 24 and 26 to 34 to remedy defective conditions by the use of section 96A of TCPA 1990 (an application for a “non-material alteration” to a planning permission). This matter was raised briefly during the main hearing.
84. If the defect in condition 6 could not be cured by a measure acceptable to the Court, then the permission would have to be quashed. The measure adopted would need to allow the Council to impose noise controls on peak noise whether by LAmax or measures such as LAeq over a much shorter duration than 1 hour.
85. On 27 August 2015 this judgment was made available to the parties in draft form …
89. At the hearing on 1 September 2015 I adjourned the delivery of a final judgment until 12 October so that the Defendant and the Interested Party could address matters raised by the Claimant. I suggested that consideration should be given to the use of section 96A of TCPA 1990 so as to amend the planning permission in order to express the Defendant’s intentions regarding the imposition of controls on peak noise levels when it decided to approve the planning application.”
A s. 96A application was thus made by M-Sport following the provision of a draft judgment and was granted. The Judge having considered submissions from the parties declined to quash the permission, albeit he granted a declaration that the claim had been successful to the extent set out in paragraphs 73 to 80 of the judgment.
Dan Kolinsky QC appeared for the Claimant instructed by Richard Buxton & Co.
James Maurici QC appeared for M-Sport instructed by Pinsent Masons LLP.