Know your past, appreciate what is special, preserve our environment
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
A rural village with a medieval heritage - but an industrial estate imposed beside it
Information & action to preserve rural tranquility
Contact DovenbyVillage.info email | Terms & conditions
Judicial Review Extract. Paragraphs refer to successes of the claim. Full judgement here
The variability of wind and weather conditions
70. Mr Kolinsky QC pointed out that paragraph 8.4.2 of the Environmental Statement accepts that the noise calculations have been based on "neutral" weather conditions, whereas it is acknowledged varying wind conditions could require a correction of +/- 7dB to be applied. He points out that the noise assessment did not consider a true "worse case" position. This point was specifically identified in the officer's report to the Development Panel as a matter raised by the EHOs.
71. Subsequently in November 2014 the Council received the first draft of the Noise Management Plan. Paragraph 4.3 makes it plain that once the track facility is constructed it will be possible to carry out physical noise testing to measure the effects on receptors of actual usage of the track by vehicles. The version of the Noise Management Plan which will be approved under condition 6 of the planning permission will be based upon these physical measurements rather than the calculated (or estimated) figures used to date. Page 26 of MSL's skeleton also relies upon paragraph 3.4 of the draft Noise Management Plan, which explains that once the track becomes operational wind direction and speed will be measured on each day of use so that adjustment can be made to trackside measurements to ensure compliance with community levels stipulated by the planning permission. There has been no response from the claimant to these points. The Council has accepted the principles of the draft Noise Management Plan. There is no material before the court to show that their stance is irrational or otherwise unlawful on this subject.
Whether trackside monitoring is a flawed method
72. Paragraph 4.2 of the draft Noise Management Plan explains that it is difficult to measure the actual contribution of a noise source to noise levels at a relatively distant point. Therefore noise levels will be measured at some 10m from the trackside, and then adjustments made based on physical measurement of noise once the track is completed, to arrive at noise levels at the receptor points which are attributable to the use of the track (paragraphs 4.3 and 5.8). The Claimant's criticism of this technique is solely based upon the variability of wind and weather conditions (paragraph 46 of the Claimant's skeleton), a point which I have addressed above. There is therefore no merit in this point as a legal basis for impugning the Council's decision.
Controls to deal with the variable character of the noise
73. Initially officers considered that MSL should carry out noise assessment under BS4142 so that controls could be applied using that standard, as well as relying upon the WHO guidelines (see the Screening Opinion in September 2011 and the views in the memorandum by the EHOs dated 10 June 2014). However, in their report to the Development Panel meeting on 23 December 2014 officers explained in very clear terms why they no longer considered that BS4142 should be used for the assessment of control of the use of the test track. No legal basis for impugning the Council's judgment on that technical matter has been put forward by the Claimant. Indeed, during oral argument this criticism evaporated.
74. However, as I have already explained, the Council has made it plain that the variability of the noise from vehicles using the test track needs to be controlled by an additional parameter, LA max, over and above the LAeq controls derived from the WHO guidelines. That was made plain to MSL in the memorandum from the EHOs dated 10 June 2014 who went on to add pithily:-
"it [the system] needs to include LAmax…As the consultant is aware in any one hour the car may be on the track for 5-10 minutes only so it is essential to control maximum noise levels. Additionally tyre squeal needs to be mentioned and how it will be controlled. This noise management plan is the most important document for Environmental Health…"
75. I therefore find it very troubling that the draft Noise Management Plan issued in November 2014 did not address these matters so plainly raised by the Council's officers. Instead, in MSL's Assessment of Community Noise Levels issued at the same time, it is asserted that it is "virtually impossible" to include in an assessment or to control LAmax levels attributable to outdoor leisure noise. "LAmax can never be used as a criteria (sic) as it is not always controllable." Plainly the Council disagrees on this subject. But even if it were to be assumed that MSL is correct, the inevitable consequence would be that some other method of providing adequate control over intrusive peak levels of noise would need to be considered and applied given the significant limitations of the LAeq 1 hour parameter to which the Council has pointed. From the evidence before the Council one obvious alternative could be to use an LAeq measure over a much shorter time period than 1 hour, say 5 or 10 minutes.
76. Accordingly, there was argument during oral submissions as to whether the conditions imposed by the Council on the planning permission enable the Council to impose controls on peak noise levels or variations in the character of the noise from cars using the test track. It was common ground that only condition 6 is relevant for this purpose. It reads as follows:-
"no operational use of the test track facility shall commence until an updated Noise Management Plan based on the principles and community noise levels set out in the Noise Management Plan Issue No 1 dated November 2014 (– excluding category 1 activity which shall not be permitted) has been submitted to and approved in writing by the Local Planning Authority and until the completion of physical testing on site in order to demonstrate compliance with agreed Community levels.
The Noise Management Plan shall include the following:
o Details of M Sport operational and management structure
o Details of how the Council will access a noise monitoring system at all times
o Details of the sound control and monitoring scheme and methodology used (including consideration of maximum noise levels) to demonstrate compliance with the community levels
o Details of the measures proposed to ensure compliance with the community levels including reference to hours of operation, number of days and sound levels and the type of vehicles and activity that will be permitted at the track
o A detailed complaints procedure
A review of the Noise Management Plan shall take place within the first six months of the operational use of the test track facility commencing and then annually thereafter. At all times the test track facility shall operate in accordance with the most recently approved Noise Management Plan. The test track shall operate at all times in accordance with the Community Levels set out in the Noise Management Plan." (emphasis added)
77. In my judgment, applying the principles of construction set out in Telford and Wrekin Council v Secretary of State for Communities and Local Government  EWHC 79 (Admin), condition 6 does not enable the Council to impose LAmax levels as a control on peak noise or variations in the character of noise emitted from vehicles in use on the test track. The condition provides that the Noise Management Plan to be approved by the Council will be based upon the principles and community noise levels set out in the draft issued in November 2014. The only control put forward in that document is expressed in terms of LAeq 1 hour.
78. Mr Lancaster submitted that the phrase "including consideration of maximum noise levels" was sufficient to enable the Council to impose additional controls by way of LAmax. Mr Maurici QC agreed. But that phrase only appears in the context of "details of sound control and monitoring scheme and methodology used" to "demonstrate compliance with the community levels". The words "the community levels" refer back to the community noise levels "set out in the Noise Management Plan Issue No 1 dated November 2014", which did not include any parameters other than LAeq 1 hour.
79. MSL, or any successor in title, would be entitled to say that, on a true construction, condition 6 accepts the principles and community noise levels in the draft Noise Management Plan and the Council is no longer entitled to require other noise parameters such as LAmax or LAeq 5 minutes to be used when approving details under condition 6. That stance would be in line with MSL's Assessment of Community Noise Levels in which they resisted the use of LAmax and simply sought to imply peak noise levels from LAeq 1 hour figures. However, I do not accept Mr Kolinsky's submission in reply that MSL's bare denial that LAmax can be used as a noise control in this case demonstrates that there was a lack of information before the Council to show that such a control could be imposed consistently with the use permitted. The Council was entitled to rely upon the expert opinion of its EHOs on this subject, which has remained constant throughout the processing of the planning application.
80. In my judgment it is plain that the Council intended to impose LAmax or similar controls when approving details under the planning permission and that this was fundamental to their willingness to grant that permission. Given that as a matter of construction the conditions imposed failed to give effect to the Council's decision, it must follow that the judicial review must succeed as regards this single, but highly important, aspect of ground 2. I reject the other arguments which have been advanced by the Claimant under ground 2
94. The Panel resolved that subject to MSL amending the application so that condition 6 would refer to the imposition of both LAmax and LAeq 1 hour controls, the decision to approve the application be delegated to the Head of Development Service. The section 96A application was so amended and on 1 October 2015 the approval of that application was granted. Accordingly, condition 6 of the permission dated 16 January 2015 now reads as follows (with tracked changes to show the alterations made to the version contained in the permission dated 16 January 2015):-
"No operational use of the test track facility shall commence until an updated Noise Management Plan (based on the principles and community noise levels set out in the Noise Management Plan Issue No 1 dated November 2014 – excluding category 1 activity which shall not be permitted), and save that the updated Plan must include maximum noise levels as provided for below, has been submitted to and approved in writing by the Local Planning Authority and until the completion of physical testing on site in order to demonstrate compliance with the agreed Community levels.
The Noise Management Plan shall include the following:
LAeq 1 hour noise levels
Maximum noise levels measured in LAeq 5 minutes and Lamax
details of M Sport operational and management structure
details of how the Council will access a noise monitoring system at all times
details of the sounds control and monitoring control and monitoring scheme and methodology used (including consideration of maximum noise levels) to demonstrate compliance with community levels
details of the measures proposed to ensure compliance with the community noise levels including reference to hours of operation, number of days and sound levels and the type of vehicles and activity that will be permitted at the track
a detailed complaints procedure
A review of the Noise Management Plan shall take place within the first six months of the operational use of the test track facility commencing and then annually thereafter, At all times the test track facility shall operate in accordance with the most recently approved Noise Management Plan. The test track shall operate at all times in accordance with the Community noise levels as set out in the Noise Management Plan".
CONDITION 6 NOISE MANAGEMENT version 2
as amended by Development Panel Non Material amendment reference AM/2014/0350 1st October 2015
Text from Judicial Review.