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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Nicholson v Allerdale Council

Why Allerdale lost.

Mr Justice Holgate ruled that that the grant of permission for the motorsport development at Dovenby Hall was unlawful. Allerdale and MSport tried to control noise without requiring maximum peak noise to be controlled.  Put simply, the permission only controlled noise levels averaged over a one hour period. There was no consideration of maximum noise levels.  


As one councillor said, you don’t need much maths to realise that an average over an hour can hide a huge noise.  You know that average speed cameras at Bassenthwaite do not mean that you can have unlimited maximum speed between them.  


Councillors may feel misled by planning officers whose report resulted in a permission that unlawfully ignored their own stated requirement for maximum noise.  Another councillor said that they (Development Panel) thought that they had settled the maximum noise; they hadn’t because the worst noise was uncontrolled.

 

After the High Court hearing in July Allerdale and MSport then compounded their problem by rushing out a new Noise Management Plan (NMP) that was approved by the Environmental Health Officer but not put before the Development Panel for approval. At a second hearing in September, Holgate J said that the grant of permission was unlawful because it failed to control maximum noise levels. Msport and Allerdale tried to argue that a contractual agreement that adopted the July NMP would address the illegality, the judge disagreed.

 

Allerdale and Msport then decided to use the ‘non-material amendment’ procedure to fix the unlawful condition on noise. This went before the Development Panel on 29 September.  Villagers tried to explain to the Development Panel that MSport and Allerdale had again got it wrong when interpreting that the use of the word “or” was wrong when offering to measure average noise over five minutes or maximum noise.  


Again MSport and Allerdale got it wrong and in his judgment Holgate J said that the “or” should not be exclusive ie should read “and”.  Fortunately for MSport councillors realised this and allowed the change of wording otherwise the permission could have been quashed.  However it has been disturbing to see councillors seem overwhelmed and misled by poor professional guidance and consequently seem to vote as a political block without discussion or consideration of matters.


The outcome of the claim was a victory for local residents in that there is now an opportunity to put in place proper controls on noise, which the Court recognised is essential for this development to be acceptable. The Council has had to pay a significant amount of costs to me (in addition to their own substantial costs) because of their failure to ensure the permission was lawful.  The money will be used for my legal team and noise consultants to ensure a satisfactory outcome.


Dovenby residents call on the Council and Msport to ensure that our interests are no longer ignored. Otherwise the development may result in unacceptable noise and further litigation which may limit the operation of the facility.

PN

David v Goliath wins

Letter to Times & Star Oct 16th 2015

The Judicial Review of the Allerdale Councils approval of Planning Permission for the M-Sport development at Dovenby Hall is a victory for David over Goliath.


The judge agreed with the complainant that Allerdale had failed to ensure that there was a maximum limit on noise from the proposed test track. They ignored the reasoned objections of neighbours and the expert legal and technical advice provided by objectors.


The judge was minded to quash the Planning Permission but allowed Allerdale and M-Sport to remedy the defect. They presented a form of words to the planning committee which would have allowed them to get round the need for an explicit limit on maximum noise.


Again they ignored objectors when this was pointed out and it was only when they were faced with refusal by the committee that they agreed a form of words which met the judges ruling. The power and money of M-Sport and Allerdale Council did not win the day against the nearby residents who were seeking to protect there right to live in their homes without excessive noise.


This was a costly exercise and the award of £31,000+ of costs against Allerdale does not cover the cost of bringing the Judicial Review.


Had Allerdale and M-Sport acted reasonably in the first place and listened to evidence provided by objectors a great deal of time, worry and money would have been saved.


Residents will scrutinize the actual maximum noise limit proposed by M-Sport and Allerdale who work together on these matters and will object to any unreasonable limit. They will also monitor the noise from the track if it is built to ensure that M-Sport abide by the limits set, not just at the trackside but in the homes of those who live close by.


A sad tale of attempts to steamroller the little man.


Yours sincerely


Michael Fossey


Letter to Times & Star

Oct  21st 2015

The Ombudsman found that Allerdale were in error in a planning issue and yesterday [Oct 20th] Allerdale had to make a public apology.  The Ombudsman is currently investigating another planning issue, Strawberry How housing planning permission, after many people complained.  A High Court judge found Allerdale were unlawful to permit MSport track without control of maximum noise (like an speed limit without any maximum speed!).

Allerdale Development and Planning Officers and councillors have a difficult role in balancing development with protection of community interests.  It seems that the balance has moved in favour of the developer. 

Allerdale's fear is that refusing permission will be costly for them if the developer appeals to a Planning Inspector.  Allerdale should realise that it is costly if a permission is found unlawful. 

MSport and Allerdale should realise that permitting excessive noise and a lax noise management plan may result in a successful noise nuisance claim that would make MSport's development no longer viable.  It is thus crucially important for Allerdale to pay more attention to the community's fears and adjust the balance towards fairness and sustainability.  The alternative may be another criticism by the Ombudsman of Allerdale and restrictions on MSport's operations imposed by a court.

PN