Dovenby Village

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

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LEGAL ISSUES

Judicial Review

Read the success section of the Judicial Review that states why Allerdale were unlawful in not requiring noise to be controlled by measuring maximum noise

Full Judicial Review Judgement


Chronology of successfully challenging Allerdale Borough Council Development & Planning Authority

-—-—– DECEMBER  2014 ------------

2014 Dec 8th I send to Allerdale Legal Officer pre Judicial Review protocol letter text written by barrister.

2014 Dec 15th Allerdale Planning Officer’s report recommending approval


2014 Dec 11th Allerdale Chief Exec tries to explain why my pre Judicial Review protocol letter text written by barrister is missing.

2014 Dec 17th I complain to Allerdale Chief Exec & Legal Officer they have not responded to pre Judicial Review protocol letter of 8 Dec


2014 Dec 17th I ask Allerdale Chief Exec etc not to hold Development Panel on December Christmas week because I cannot attend and have entered JR process.


2014 Dec 22nd Allerdale Legal Officer responds to my 8 Dec pre Judicial Review protocol letter


2014 Dec 23rd Agenda with councillors attending and Allerdale Planning Officer’s report recommending approval


2014 Dec 23rd Development Panel late list with Environmental Agency flood condition

2014 Dec 23rd 2014 12 23 Mike Fossey notes local plan sections violated


2014 Dec 23rd Development Panel transcript with personal opinion & notes


-—-—– JANUARY 2015 -------------

2015 January 12th Adrienne Copithorne of Buxton Solicitors to NPCU asking for planning decision to be called in by Secretary of State


2015 January 16th Planning Permission granted  


2015 Jan 17th  From Secretary of State Call In rejected after many people asked.


-—-—– FEBRUARY -------------

2015 February 9th Adrienne Copithorne of Buxton Solicitors to Allerdale Borough Council letter before action - pre Judicial Review Protocol letter


2015 February 17th 2015 02 17 Allerdale to Adrienne Copithorne Pre Action protocol Response

2015 February 9th Adrienne Copithorne of Buxton Solicitors to Allerdale Borough Council letter before action - pre Judicial Review Protocol letter


2015 02 26 Adrienne Copithorne of Buxton Solicitors sends claim form to High Court in London, Admin Ct with application for the Court to hear the complaint.


2015 02 27 I state my personal reason and understanding of why I am making this complaint; Witness statement in claim bundle Peter Nicholson


2015 02 27 Nicholson complaint CLAIM BUNDLE.  Buxton Solicitors put together 668 pages of evidence to support my complaint in a CLAIM BUNDLE for Nicholson v Allerdale BC.  References are now made to [CBnnn] pages.


—-—– MARCH -------------

2015 03 23 Allerdale acknowledgment of Service N462; they contest but accept it is Arhuus claim


2015 03 23 Allerdale Borough Council summary grounds of defence NICHOLSON v ALLERDALE


2015 03 24 MSport Summary grounds of defence prepared by Pinsent Masons solicitors.


2015 03 24 Malcolm Wilson’s witness statement


2015 04 17 Judge orders the complaint to be heard in July Protected Costs Order granted limiting the costs to £5k £35k

—-—– MAY -------------


2015 05 22 Judge give dates requiring arguments to be submitted


2015 05 29 Allerdale detailed grounds of defence NICHOLSON v ALLERDALE


2015 05 29 MSport as Interested Party detailed grounds of defence by Pinsent Masons


—-—– JULY -------------

2015 07 06 Allerdale Defendant skeleton argument final NICHOLSON v ALLERDALE


2015 07 06 MSport Interested Party Skeleton Argument Final


2015 07 06 Nicholson Complainant skeleton final


July 9th 10th 2015 at Manchester Civil Justice Centre, 1 Bridge Street, M60 9DJ


IN THE HIGH COURT OF JUSTICE, QUEEN'S BENCH DIVISION, ADMINISTRATIVE COURT PLANNING COURT

Case No: CO/941/2015 Mr Justice Holgate heard the complaint from Dan Kolinsky QC (instructed by Richard Buxton) for the Claimant Peter Nicholson and defence by Roger Lancaster (instructed by Sharon Sewell, Allerdale Borough Council) for the Defendant

James Maurici QC (instructed by Pinsent Masons LLP) for the Interested Party (Msport)


Justice Holgate intended to give judgement as quickly as possible, August.  Mr Maurici (for Msport) said funding element urgent.


2015 07 09 Hearing notes July 9th 10th 2015 Nicholson v Allerdale BC (not official transcript and not to be relied on in any future proceedings)

—------------

…..  I and my team wait for the judge to make judgement …….


….. Msport and Allerdale BC realise the judge made critical remarks and so Msport rush out a new Noise Management Plan (version 2e) and Allerdale Environmental Health Officer approves it with Allerdale planning officer no doubt involved in the process …


2015 07 31 Noise Management Plan NMP Version 2e submitted by MSport approved by Allerdale EHO

—-—– AUGUST —-—–

Friday August 28th Draft judgement sent to parties (in confidence) in advance of being handed down on 1 September 2015 with an invitation to parties to make submissions by 10am 31st August that might satisfy the draft judgement.


This was the weekend of the August Bank Holiday.  My solicitor Adrienne Copithorne was on annual holiday in Canada 8 hours time difference away but immediately communicated with Dan Kolinksy QC my barrister who was involved in his family holiday!  What a dedicated, committed and professional legal team!  Emails swapped versions of responses to the situation until Sunday quarter to midnight then started again at 7:30am with our final agreement sent to the judge’s clerk at one minute to the 10am cutoff!

…....................

Msport and Allerdale burned their midnight oil also and produced what they thought would satisfy the judge; a Section 106 Agreement with a new Noise Management Plan.


2015 08 30 MSport Section 106 Agreement amended 29 8 15 which contained

2015 08 30 Msport Schedule 1 Red Line Plan of Dovenby Hall Estate and

2015 08 30 MSport Appendix 1 - NMP Draft Version 2e  submitted on 31 July 15

…..................


Our response to Msport and Allerdale attempts to deal with the situation is

2015 08 31 Nicholson Claimant response to MSport Allerdale and submissions on relief


Dan Kolinsky QC makes many points why the Msport Allerdale arrangement is not appropriate.


—-—– SEPTEMBER -------------

…........September 1st 2015 at …………

The Royal Courts of Justice, The Strand, London

Mr Justice Holgate pointed out (in approximate effect and not to be quoted in proceedings) that a Section 106 agreement was a private contract between the applicant and the council and that the public would have no ability to make a claim against the contracted parties if noise limits were contravened and the only remedy would be for Allerdale Council to sue Msport.  The Section 106 was not appropriate.  A different form of remedying the situation needed to be found in order to avoid the planning permission from being quashed.  A Section 96 non material amendment was discussed in Court with Msport & Allerdale BC allowed time to explore it.


Agreed wording of Nicholson v Allerdale

"The parties have agreed the following wording for communicating the gist of the decision to interested persons. 


The planning permission granted by the Council on 16 January 2015 failed to give effect to the Council’s intention to impose noise controls on peak noise. The judge has allowed a period of time until 12 October 2015 to allow exploration of whether this defect can be cured by a measure which is acceptable to the Court in order to avoid the quashing of the planning permission."

…...........

2015 09 03 MSport apply for non material amendment for noise condition 6


Quote from the application form

Please state why you wish to make this amendment:

“It was the Council’s intention (as reflected in the officer report) to impose controls on peak noise, and there was some mention of the same in condition 6.


In the case of The Queen (on application of Peter Nicholson) [Claimant] and Allerdale Borough Council [Defendant] and MSport Limited [Interested Party] (case CO/941/2015) in the High Court of Justice Queen's Bench Division Planning Court sitting in Manchester (the Hon Mr Justice Holgate) an issue was raised as to whether condition 6 properly interpreted allowed for such controls.


The condition is being amended in order to ensure that there is no doubt that such controls are required as part of any submitted Noise Management Plan.”


There were some differences, see

2015 09 05 Non Material Change application for Condition 6 changes highlighted

but the “non material change” to attempt to satisfy the draft judgement was the addition of

“Maximum noise levels measured in LAeq5 minutes or Lamax”


Normally non material changes are decided by a planning officer under the Council’s policy for devolved decision making but public interest meant there was public participation before the Development Panel on September 29th 2015 at Allerdale BC.


Letters of objection and speeches at the DP challenged:

It Is not a non material change, it is a material change.

As a material change it requires a new Environmental Impact Assessment

Condition 6 refers to NMP November 2014 but a new NMP2e July 2015 has been approved by the EHO officer

Councillors have not seen the new NMP 2e that seems required to satisfy condition 6

The words “Community levels” have been removed from the new NMP2e and indicate the community is not being protected in the same way as the previous NMP


2015 09 17 From BUXTON Adrienne to Allerdale BC querying non material amendment for Con6 and new NMP 2e

2015 09 21 Allerdale Brendan Carlin to Adrienne replies to her letter

2015 09 24 BUXTON Adrienne to Allerdale re faults with Con6 non material amendment


2015 09 22 Mike Fossey objects to con6 non material amendment

2015 09 22 Mike Fossey objects to con6 officers report

2015 09 24 Ian Chambers objects to Con6 non material amendment

2015 09 24 Rod Coy objects to Con6 non material amendment

2015 09 24 Peter Nicholson objects to two Noise Management Plans and pre judged intention

2015 09 24 Tony Riddell objects to Con6 non material amendment

2015 09 26 Peter Nicholson con6 and NMP problem of clarity enforceable potential for JR


2015 09 21 DEVELOPMENT PANEL AGENDA PACK

2015 09 28 Development Panel Late List summary of objections

2015 09 25 Excerpts for Noise Con6 at Development Panel from permission TRANSCRIPT Dec 23 2014

2015 09 29 Peter Nicholson Speech to Development Panel for Condition 6 non material amendment


Speakers and Councillors Mark Jenkinson and Adrian Davis-Johnston stated that an average was inappropriate and the “OR” should be changed to “AND” thus maximum noise would be required in the final Noise Management Plan.  A motion was proposed to that effect.


The Chair, Peter Bales, suspended the meeting for a “rest break” and Head of Development and Planning Kevin Kerrigan phoned the applicant (Msport and or Northern Developments) to ask their permission and cooperation to replace “or” with “and”.  Msport/ND gave their permission to Allerdale BC Head of Planning and the motion was changed so that on the understanding that “and” was used (thus requiring maximum noise to be measured) then the noise Condition 6 woUld be passed, otherwise it would be refused.


Readers may wonder if Allerdale officers are acting as agents for development in general or agents for a developer, the effect of which arrangement may be for developers to tell Allerdale what must be done for the developer’s interests which may be against the interests of Allerdale’s communities.


2015 09 29 Transcript Development Panel Non Material Change to noise Condition 6


—-—– OCTOBER —-—–


2015 10 01 Head of Development Services K Kerrigan approves non material amendment.


2015 10 05 Adrienne to Pinsent Masons request clarity about grant funding and viability of MSport proposal

2015 10 07 Pinsent Masons reply to Adrienne about grant


At this stage, Msport and Allerdale Planning and Legal team have satisfied themselves that the non material amendment should satisfy the judge with the “and” instead of “or” ie requiring max noise.  We are still not convinced so we submit

2015 10 08 Dan Kolinsky QC asks judge to quash planning permission NICHOLSON RELIEF SUBMISSIONS


But of course Msport and Allerdale do not want permission quashed so they submit

2015 10 05 Allerdale  ask judge not to quash planning permission BC NICHOLSON RELIEF SUBMISSIONS

2015 10 05 MSport ask judge not to quash planning permission Pinsent Masons NICHOLSON RELIEF SUBMISSIONS

2015 10 08 Pinsent Mason Claim bundle for hearing on Oct 12 draft judgement removed


FINALLY THE JUDGEMENT Judicial Review


Read the success section of the Judicial Review that states why Allerdale were unlawful in not requiring noise to be controlled by measuring maximum noise

Full Judicial Review Judgement


—– COMMENTS —–


Allerdale & MSport nearly snatched defeat from the jaws of “victory”

Allerdale Development Officer attempted to persuade the Development Panel to permit LAmax or LAeq 5 minutes levels.


However paragraph 91 of the judgement states

Properly read, the draft judgment had not suggested that the defect in condition 6 had merely related to the ability of the Council to impose LAmax or LAeq controls as mutually exclusive alternatives


So if the Development Panel had not been persuaded by Councillors Davis-Johnston and Jenkinson to have Lamax AND Laeq then the judge may have rejected the attempted remedy and quashed the planning permission !


—-—– NOVEMBER —-—–

The situation now


A Noise Management Plan is currently being discussed between Msport / Northern Developments and Allerdale Environmental Health Officer and Development & Planning Officer.  


The NMP should be developed from both the November 2014 and the July 2015 version 2e.

Questions about Corporate Days and timing were replied by Allerdale Chief Executive here:


2015 10 26 Chief Exec to Mike Fossey re NMP timing

2015 11 06 Adrienne Buxton Solr to Allerdale BC what next questions

2015 11 19 Allerdale Chief Executive replies to Adrienne Buxton Solr explaining the next steps.  


Things to be aware of

See detailed issues to be aware of.

Noise Management Plan - Issue 1 Nov 14th 2014 should have beneficial elements of Issue 2e in the final NMP

Noise Management Plan 2e suggests a version of self policing that is designed to allow a succession of cars to operate with unlimited noise then be taken off the track as a “punishment” into the “quiet corner / sin bin” for a tune up while the next vehicle makes unlimited noise and is taken off the track to the “quiet corner / sin bin” and the “sin bin” car can return to the track to make unlimited noise before returning to the pits “sin bin” to be tuned up.  


Noisy testing followed by pit stop for tune-up is their normal mode of operation and if they try to present it as a self policing system we should be prepared to challenge the legality of this.


PERMISSION NOTICE Jan 16 2015 Condition 22 Cricket Pitch re-location may be discharge secretly.  Keep looking at www.allerdale.gov.uk