Re M-Sport 2/2014/0350
Grounds for the rejection of the above application are contained in the Appeal Court judgement by Mr Justice Simon (JS) in respect of:-
Watson, Watson and Wilson v Croft Promo-Sport Ltd dated 26 Jan 2009.
The issues raised and settled in this case are very similar to the issues raised by the M-Sport application. The claimants complained that they were subject to unacceptable noise nuisance resulting in loss of amenity and loss of value of their houses. The houses of the claimants are about 350m from the Croft race and test track. Testing of vehicles and "track days" were the main activities at the site. The proximity and activity are almost identical to those which would result from the M-Sport proposal.
For ease of reference I have directly copied the relevant sections of the judgement in the attached document "Justice Simon's Judgement" (JSJ) Appendix 1.
In para 41 -46 (JSJ 1, 2 for eg) JS establishes the grounds for the principle that "a planning authority (including a Minister and an Inspector) has no jurisdiction to authorise a nuisance, although it may have the power to permit a change in the character of a neighbourhood".
In paras 52-54 (JSJ 3-6) JS establishes that although the activity at the Croft track site changed over time it did not change the character of the neighbourhood.
In paras 62-67 (JSJ 7)JS deals with the issue of noise nuisance and refers to noise levels at Croft which are defined below.
"N1 activities (no more than 95dBA over an hour) shall not exceed 10 days a year
N2 activities (no more than 93dBA) shall not exceed 40 days a year.
N3 activities (no more than 85dBA) shall not exceed 70 days a year.
N4 activities (no more than 78dBA) may not exceed 110 days a year.
N1-N4 days therefore could take place on 230 days a year.
N5 activities (no more than 70dBA) are unlimited in number.
In all cases, the noise levels are measured at an identified point adjacent to the track."
The standard meaning of adjacent to the track is10m from the track. My italics.
The Croft trackside figures can be translated to figures at various distances from the track by using the following established calculation. The reduction in dB with doubling of distance is given by many authorities as between 3 and 6dB. Taking the generous 6dB reduction the noise levels v distance are shown in fig. 1(appendix 4). This allows the above figures to be applied to noise at receptor sites affected by the M-Sport noise proposal.
The noise levels N1-N4 at 300m and 500m from the track are shown below. Nearly all of Dovenby is within 500m of the proposed M-Sport track, the nearest dwellings are at 300m.
Noise:trackside Days dB at 300m dB at 500m
N1 93dB 10 65 62
N2 90dB 40 63 60
N3 85dB 70 55 52
N4 80dB 110 48 45
total days 240
M-Sport propose 132 days above the current 43dB level i.e. within the N1-N4 categories.
Para 63(JSJ 7) is particularly important here:-
para 63 The noise at the Claimants’ properties coming from the track during the N1-N4 events is repetitive, continuous and intrusive. In 1998 the Inspector reported at §30,
I am fully satisfied that the noise has at times been of such character, duration and intensity and tone as to seriously harm the amenity to which residents reasonably feel they are entitled.
In paras 64-66 and 107(8, 9, 10, 12JSJ) JS considers what would be a reasonable number of days for N1-N4 days and concludes that 40 days would be reasonable. He makes clear that in the absence of compensation payments the number of days would have been less. These figures also demonstrate that the request from M-Sport for noise levels from 50dB to "unlimited" would result in "serious harm to the amenity to which residents reasonably feel they are entitled." (JSJ 63) i.e. a statutory nuisance. The nature of the sound as well as its volume being an important factor in causing nuisance.
JS reduced 240 noisy days (N1-N4) to 40. M-Sport have applied for 132 days of testing which are at or above the N1-N4 levels within 500m of the track i.e. a distance which includes nearly all of Dovenby. The judgement also makes clear in para 63 that the issue is not simply of the noise level but the "character, duration and intensity and tone" also contribute to nuisance. The precedent created by JS's judgement means that M-Sport cannot not be authorised by the planning authority to generate noise levels above 40dB for more than 40 days per year at the most.
The precedent created by JS's appeal court judgement is quoted by Inspector A Fussey in his judgement in the Bruntingthorpe v Harborough District Council.
Extract from the Appeal Decision of Anthony Fussey of the Planning Inspectorate in relation to an appeal against an enforcement notice by Harborough District Council re Bruntingthorpe Proving Ground . Decision Date 8th of December 2009. APP/F2415/C/09/2096741 (see appendix 2)
para 40 I note that 40dB(A)LAeq1hr on more than 40 days per year was adopted by the Court of Appeal in relation to another motor sport venue. The parties agreed that LAeq10mins was a more easily enforceable level than LAeq 1hr.
The hearing heard from Mike Stigwood, a well known and respected acoustic consultant in relation to motor sport the criteria for deciding if a statutory nuisance was created by a particular track activity. (See appendix 3). In brief:-
Mr Stigwood explains that the precise number of days adversely affected to constitute a Statutory Nuisance is difficult to define but does make reference to the Croft case (Watson, Watson and Wilson and Croft Promo-Sport Ltd. 2008) where 40 days of noise above 40dB(A) and up to levels of about 65dB(A) was considered to form the boundary of nuisance.
Mr Stigwood sets out a background to nuisance and explains that for a
Statutory Nuisance to exist there must be exceptional impact that is
unreasonable. It needs to impact upon comfort and convenience in a material way and to meet this criteria, the adverse effects need to occur with sufficient duration and frequency such that there is an unreasonable set of circumstances or state of affairs.
M-Sports proposal envisages ~300days (6 days/wk 50 wks/ year at 8.5hrs/day in summer and 13.5hrs/day in winter) of noise at or above 43dBwith 75days at upto 50dB, 45days at upto 60dB and 12days with no limit. This is clearly beyond the Appeal Court judgement and in terms of frequency, duration and intensity could hardly get further beyond the limits of reasonableness. It would cause serious loss of amenity to nearby residents and constitute a statutory nuisance.
In the Draft Acoustic Strategy version 4, 2013. (Page 31 Further Action) contained in M-Sport's the noise consultant states:-
"The tests indicate the new silencer will allow WRC cars to be tested within the boundary noise limit of LAeq(1hr)43dB." Why then the request for nearly half a year of testing above the 43dB level?
The application speaks only of WRC cars being fitted with the new silencer hence one suspects the request for the 132 noisy days to accommodate other M-sport cars eg Bentley GT 3 and those of non M-sport origin such as other manufactures, motor club enthusiasts and performance car drivers. It is this latter use which gives rise to most complaints about track noise.
From extensive searches there appear to be no examples of other new facilities that have been granted planning permission for the testing of competition cars, other high performance vehicles, track and corporate days, within the last ten years. On the contrary existing tracks, like Croft and Elvington and those at even more remote and sparsely populated locations than the Dovenby area are facing greater restrictions on their use because of objections to noise pollution.
The proposed track is an M-Sport business aspiration and for their convenience and cost savings the “future-proofing” of their business is not dependent on a centralised operation. The additional factory and office space could be located locally elsewhere and the continued use of test tracks which have allowed the business to grow and succeed may be less convenient but is practicable. The proposed noise limits for the track would result in a significant increase in noise causing a statutory nuisance affecting a large number of Allerdale residents and would seriously damage wildlife in what is a rural residential/ farming area.
Part of M-Sports case for the facility including the test track is that it is important to their future and that there is a shortage of test facilities in the northwest. In the case of C.Walton v Harborough District Council (March 2007) Judge Richard Holland writes:-
13.13 If the Company sought to rely on the importance of the
site to the automotive industry and to the district, both as a
resource and as a contribution to road safety that would not
constitute a defence to statutory nuisance. Likewise the
scarcity of the resource nationally would also not be a
defence or of itself require neighbours of BPG to have to put
up with what would be a nuisance anywhere else.
M-Sport's application is inconsistent with JS's and other judgements and must be refused.
It may be of interest to the applicant that JS awarded the claimants compensation both for loss of value to their property and for their loss of amenity due to noise nuisance even though they purchased their houses knowing of the tracks proximity. (JSJ paras 105-110) in summary at 13,14.
It may also be of interest to ABC that failure by a planning authority to act in a timely manner to stop excessive noise can result in the local authority having to pay compensation to those affected by the noise. (Report of Local Authority Ombudsman March 2014 in respect of complaints from residents against Hinkley and Bosworth Borough Council).