England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(SIR MICHAEL HARRISON )

		Royal Courts of Justice Strand, London, WC2A 2LL
		1st December 2009

Lord Justice Sullivan:

1. This is an appeal against the order dated 19 December 2008 of Sir Michael Harrison sitting as a Deputy Judge of the Queen's Bench Division, dismissing the appellant's claim for judicial review of the respondent's decision to grant a planning permission, dated 3 September 2008, for development described as:

"Construction of new tarmac surfaced performance car motorsport circuit within boundaries of existing airfield runways. Use of circuit for up to 6 cars at any one time on a maximum of 90 days per annum. Construction of parking area for customers' cars. Amendment to permitted use of existing permitted rally course (planning permission 05/0646/P/FP) to allow use by up to 8 cars at any one time (retrospective)."

On land at Tracey Farm, Great Tew ("the site").

2. The factual background to the claim is set out in some detail in Sir Michael Harrison's judgment dated 19 December 2008, [2008] EWHC 3275 (Admin). In summary, the site is within an airfield in the open countryside; the nearest villages are Sandford St Martin, Ledwell, Gaginwell and Church Enstone. There are also other villages in the vicinity.
3. The appellant ("ENCON") is a company limited by guarantee and a registered charity; its objects include the protection of the environment of an area known as the ENCON Uplands and District and the settlements within it, including the villages referred to above and other villages in the area.
4. Planning permission had been granted on 2 November 2005 for a rally circuit on the airfield to the east of the runway, limited to the use of a maximum of five cars on the rally circuit at any one time. On 13 August 2007 planning permission was granted for the construction and use of the performance car motor sport circuit in substantially the same terms as the permission which is challenged in these proceedings together with an increase in the number of cars allowed on the rally circuit. That planning permission was challenged by ENCON in a claim for judicial review. In due course, both the respondent and the interested party accepted that the 2007 planning permission should be quashed by consent. However, the interested party had in the meantime implemented the 2007 permission. The performance car motor sport circuit had been constructed so that both it and the rally circuit were in use when the respondent was considering the merits of the interested party's application for retrospective planning permission for the development.
5. Although ENCON objected to the development on a number of other grounds, the noise impact on the use of the motor sports circuit was its principal objection. The interested party had submitted a noise report from a firm called Traffic Impact in support of its application for planning permission, ENCON had commissioned a noise report from Arup Acoustic ("Arup"). Faced with these two conflicting reports, the respondent instructed its own noise consultants Sharps Redmore ("Sharps"). Having carried out noise measurements, Sharps submitted a report dated 29 May 2008. Sharps advised that:

"5.8 Noise levels of 83 dB LAMAX at 20 metres from the circuit equate to somewhere between 40 and 45 dB LAMAX in the villages, in downwind conditions. This is indicated by the Arup models and our surveys did not show any levels higher than this which could be directly attributed to activity at the site, in the worst-case locations identified by ENCON under downwind conditions. Such peak levels are very low and would be undetectable against the existing noise climate under most normal conditions.

5.9 An issue arises with the current planning permission in that it gives consent for 6 vehicles on the performance tracks to all, in theory, generate a maximum noise level of 83 dB LAMAX at 20 metres. The Arup models show this situation albeit on the assumption that all 6 vehicles achieve this level at exactly the same point in time. Our surveys did not observe a situation where all 6 vehicles achieved that level, but certain individual vehicles did achieve that maximum level (and on rare occasion slightly higher levels).

5.10 The cars currently operated by Vision Motorsports at the site are not all capable of reaching 83 dB LAMAX at 20 metres. There are 2 Ferraris and an Aston Martin that are capable (if driven hard) of achieving the maximum level. The Subaru, Porsche and Lotus cannot, it was observed, generate peak noise levels much above 75 dB LAMAX at 20 metres, even when driven to maximum revs in low gear along the main straight.

5.11 The current consent would allow, however, Vision to obtain 2 more Ferraris and another Aston, for example, to operate at this site, giving 6 vehicles capable of achieving the maximum noise limit. It should be noted, however, that this would technically only be capable of being achieved at 2 locations on the track, not the 6 location as assumed in the Arup models. The question to be asked then is whether such a situation would tip the balance to the operation becoming harmful.

5.12 The answer is that it is unlikely to, given that the peaks of noise from individual vehicles are barely audible, if at all audible, in the surrounding villages. The fact that six vehicles operate at the maximum limit does not indicate that they will be any more audible than three, the audibility being dictated, technically, by the excess of the LAMAX level over any existing noise levels already experienced at the receiver.

5.13 It may, however, be sensible to relate a noise limit at the receivers back to the trackside based on a LAeq level, rather than LAMAX. There are several reasons for this, not least that it would allow flexibility in the operation of the site such that were there periods where cars were driven hard by instructors, a period of lower levels to follow that would allow compliance with the limit. This would also protect local villages from prolonged periods of the noisiest cars being driven at the maximum levels.

5.14 A limit of 50 dB LAeq was derived by Arup for outdoor amenity space and 45 dB LAeq for dwellings. We considered these to be too cautious and suggest a limit of 50 dB LAeq at the dwellings, the nearest of which is Gagingwell, approximately 1200 metres from the circuit. At this distance, one would expect a loss of approximately 35 dB from LAMAX levels. With ground absorption, a realistic minimum figure for the reduction in LAeq levels (which, potentially, reduce more slowly with distance from the track which becomes a finite line source at that distance), would be 25 dB, leading to a limit of 75 dB LAeq at 20 metres from the track.

5.15 For comparison, noise levels measured at 20 metres from the track on 26^th April ranged from 67 to 69 LAeq5min. During periods when all 6 cars were on the track, the levels were 60 to 69 dB LAeq5min, the highest being generated when at least one car was driven hard by an instructor. Given our observations on impact, audibility and flexibility in the noise limit, a limit of 75 dB LAeq5min would allow a certain level of activity with cars capable of achieving the 83 dB LAMAX level and a certain amount with less noisy cars, a situation which is our understanding of how Vision wish to operate the site in reality.

5.16 A typical operational 5-minute period generating 75 dB LAeq5min at 20 metres would, for example, be 2 cars at 83 dB LAMAX and 4 cars at 75 dB LAMAX all completing 5 laps in a 5-minute period would seem a convenient choice of time period for the noise limit.

5.17 Such a limit would, it is believed, provide adequate flexibility for the operator, whilst also providing an appropriate level of protection for the surrounding villages (well within a robust interpretation of World Health Organisation Guidelines)."

6. It was this advice which was endorsed by both the respondent's Head of Planning and its environmental health officers which led the respondent to impose condition 9 in the planning permission. Condition 9 is in these terms:

"The level of noise emitted by vehicles on the performance circuit, measured at a distance of 20 metres from the middle of the hard surface of the circuit hereby permitted, shall not exceed 75dB LAeq 5 min or 83 dB LAMAX [fast] at any time."

7. The reason given for the imposition of that condition was:

"To protect the amenity of the residents of nearby villages and the character and ambiance of this part of West Oxfordshire countryside. (Policies NE1, NE3 and BE19 of the West Oxfordshire Local Plan 2011)"

8. At their meeting on 7 July 2008 the members of the respondent's uplands area planning sub-committee had a lengthy report from the Head of Planning ("the report"). The report was prepared by Mr Westerman, the uplands area planning manager. The report dealt with the noise issue in great detail and in a manner which is not criticised in this appeal. The report was, however, prepared before two site visits on 27 June and 3 July 2008, at which the members of the sub-committee went to hear the circuit in operation, both at the site itself and at the noise-sensitive locations in the surrounding area that had been identified by ENCON.
9. Pausing there, it might be thought that the respondent was dealing with the noise issue in an exemplary manner. It had obtained advice from its own noise expert; it had received a comprehensive report from the Head of Planning and the views of its own environmental health officers, and it had arranged two site visits for the members.
10. Ground 1. The appellant's complaint in this ground of appeal is that, on a fair reading of the notes of the sub-committee meeting on 7 July 2008, it is apparent that the members did not realise that the planning permission they were granting would allow a noise level "about twice as loud as that heard by members". The site visits were attended not only by the members of the site committee but also by others including Mr Westerman, the respondents, environmental health officers, members of ENCON and a representative of Arup. Noise measurements were carried out on each occasion. On 4 July 2008 a short report from Arup was sent by ENCON by email to members of the sub-committee. Having noted that LAMAX levels of up to 83 dB had been reached, Arup's report made the following "observations" on the conduct of the test:

"Observations on the conduct of the test.

The manner of this test was very similar to all other tests that have been observed at this track. There were a number of vehicles circulating and they exhibited a wide range of noise levels. The level that is proposed to be attached as a planning condition was not consistently reached and it was certainly never reached as a continuous level as would be allowed by the Condition.

The consideration of this test did differ from previous tests in that an additional controlling noise level of 75 dB LAeq, 5 minute is now proposed. This method would allow cars with different noise outputs to be considered providing that the equivalent continuous noise level did not exceed 75 dB. This LAeq, T index is a common environmental metric and very useful for varying sources. However, the measurements set out in figure 1 clearly show that this Condition level is not reached. In fact the levels barely reach 65 dB. For this reason the test cannot be considered to be representative as the Permission would allow a situation that is twice as loud as the test that was observed by the Councillors to take place.

It should also be noted that the prevalent condition were such that the noise of the cars in the surrounding communities would have been masked by the wind.

Taking all these matters into consideration, in my professional opinion I consider that the tests as presented to the Councillors would not allow them to come to an informed opinion as to potential noise impact of this proposal. The source noise was half as loud as would be allowed under the Conditions and the background noise was raised by the wind, making a reliable assessment impossible."

11. Figure 1 of the Arup report showed the noise levels measured in terms of dB LAeq (5 mins) at the monitoring points in relation to the limit of 75.
12. The accompanying email sent by ENCON to the sub-committee members said inter alia:

"I draw your attention to the final section and in particular to the final sentence. In it, our consultant says: '…in my professional opinion I consider that the tests as presented to the Councillors would not allow them to come to an informed opinion as to potential noise impact of this proposal.

The source noise was half as loud as would be allowed under the Conditions and the background noise was raised by the wind, making a reliable assessment impossible.'

i.e. 65dB is half as loud as the proposed 75dB condition (due to the logarithmic nature of the dB scale).

Please be aware, therefore, that what you observed was much less noisy than the condition being put forward by consideration by your Officer."

13. The notes of Mr Bloomfield, the committee clerk of the meeting on 7 July 2008, record that Mr Westerman gave a detailed presentation to the meeting which included the following:

"He then referred to the late Arup Acoustics report which had been sent to Members and read out the conclusions. In response he commented that 83 dB LAMAX had been achieved when Members had been at the site and the Council's Environmental Health Officers had confirmed that 6 performance cars had been on the circuit and 8 rally cars had also been operating and he referred to the comments in paragraph 5.14 of the Sharps Redmore report."

It will be recalled that paragraph 5.14 of the Sharps report had explained how the 75 dB LAeq figure had been arrived at.

14. Against this background it would be surprising, to say the least, if the members had failed to appreciate that the appellant's point, whether right or wrong, was that:

"the noise source on the occasion of the site visits was half as loud as would be allowed under the conditions"

15. On behalf of the appellant, Mr Taylor submitted that the notes of the members' contributions to the debate demonstrated that they did indeed fall into this error. He accepted that it was the general tenor of the discussion rather than any particular view expressed by an individual member that had to be considered, see R v Exeter City Council, ex parte J L Thomas and Company Limited [1991] 1 QB 471, per Simon Brown J, as he then was, at pages 483H to 484C. Mr Taylor submitted that the general tenor of the discussion before the sub-committee demonstrated that the members had not understood that what they were considering would allow an increase in noise levels to occur over and above those that they had heard on their site visits.
16. He pointed in particular to a number of passages in the notes. For example, Councillor Owen had said:

"We have had technical data until we are reeling… he went on a site visit and heard nothing and for that reason so that he would support the application."

17. Councillor Cottrell said:

"He had attended the site visit and in the exposed locations he could not hear the noise of cars. He said that it was difficult to put the various readings into context."

18. Councillor Robinson agreed that the sub-committee had been "swamped with technical data" and he stated that:

"He considered that the most significant aspect was that the site had been in operation for seven months and that in that time there had only been five complaints but only one of these had occurred when the site was in operation. He felt that if the use and the impact ENCON suggests it has there would have been far more."

19. Councillor Cottrell-Dormer said:

"He had now been on three visits to the site and on each occasion the noise had been minimal. He felt that the most noise had been when the vehicles had been operated by Vision Motorsports staff. He considered that the rally cars were noisier…"

20. Councillor Stickley had referred to complaints made to him. He said that he had been on the site visit on 3 July and he "had not noticed noise from the activity".
21. Councillor Hunt said:

"On the site visit noise monitoring was being carried out but the performance cars were not noisy…. it had been very difficult to observe any noise… Local residents had been disturbed but it seems this is from other unauthorised activities."

22. Councillor Breakwell said:

"This was a difficult case technically as noise is particularly difficult to come to grips with… He had been on several site visits and he did not hear any noise at the various locations… For this reason he would support the application."

And finally Councillor Dunsmore commented that:

"When she had visited the site with Jon Westerman the performance cars were in operation and she had not heard noise in the surrounding areas."

23. Mr Taylor submitted that the references by members as to what they heard on the site visit and to the absence of complaint from the existing operations demonstrated that the members were assessing the impact of the circuit based on its current operations rather than by reference to the louder level of noise that would be permitted pursuant to the proposed condition. Not one member made a statement that demonstrated that they understood that what they were permitting would allow a greater level of noise than they had heard at the site visit. Such a greater level of noise could be produced, for example, by a different mix of cars, including more of the noisier vehicles being operated.
24. It is not suggested that anything that was said by any of the members was erroneous; the complaint is rather that they did not say that condition 9 would allow a greater level of noise than they had heard on the site visits. If one considers the tenor of the discussion as a whole it is clear that the members were much influenced by what they had heard, or had not been able to hear, at the sensitive noise locations on their site visits. They were entitled to have regard to the impressions that they had formed on their site visits, those were plainly a material consideration. However, the notes of the discussion also showed that the members were impressed by the conclusions in the Sharps report, and by the fact that there had been very few complaints while the site had been in operation.
25. There was a vigorous and lengthy debate as to the merits of ENCON's noise objection to the application. It is true that at no point in the discussion did any member say words to the effect:

"Do you realise that the notional continuous noise level (expressed in LAeq 5 minutes) we heard at the site visits was only 65 dB whereas condition 9 allows up to 75 dB which is double 65 dB."

26. However, in my judgment that is hardly surprising; much less does the members' failure to make this point indicate any misapprehension of fact on their part that might be capable of amounting to an error of law. If they had heard anything at all [and most of the members viz. Councillors Owen, Cottrell, Stickley, Breakwell and Dunsmore said that they had heard nothing] on their site visits at the noise sensitive locations, the members would have heard the sound produced by the peak noise levels of 83 dB LAMAX 20 metres from the circuit which were reached during the site visits. As Mr Gaylor, who prepared the Sharps report, explains in his witness statement for the purposes of these proceedings:

"'Audibility' is, technically (and especially where the noise is intermittent and characterised by regular peaks of noise), dictated by the level of the peaks of noise (ie the LAMAX) above the existing ambient noise environment. It is not the case that the lower LAeq levels means that the noise would be 'twice as loud' in reality, since the "loudness" of this source of noise is dictated by the peaks, not the overall energy level.

Even if the operation of the circuit was such that LAeq levels were 10 dB higher than observed, this would still equate to the level within the World Health Organisation  Guidelines and below the existing noise climate of the nearest residential properties. The condition is set at a level that is considered to be sufficient to avoid harm to the amenities surrounding residents. This is clear in the [Sharps] report and is fully explained in paragraphs 5.6 to 5.17. The condition is set at levels 'well within a robust interpretation of the World Health Organisation Guidelines'. It is not the case that the condition is intended to restrict noise levels at sensitive locations to the levels actually heard by Members."

27. A little later in his witness statement, having noted that the figure of 83 dB LAMAX had been reached at the circuit on the occasion of the second site visit, Mr Gaylor says:

"This fact is, in my opinion, the only relevant fact in terms of 'audibility' which is, technically (and especially where the noise is intermittent and characterised by regular peaks of noise), dictated by the level of the peaks of noise (ie the LAMAX) above the existing ambient noise environment.

It is not the case that the lower LAeq levels measured on the trackside during the visits mean that the noise will be 'twice as loud' in reality, since the 'loudness' of this source of noise is dictated by the peaks, not the overall energy level.

It should also be noted that the LAeq limit is an additional safeguard, over and above the LAMAX limit. This is explained in the [Sharps] report 5.11-5 17. It was recommended by me to prevent the operation of 6 vehicles at 83 dB LAMAX on a continuous basis, which the consent could allow if the additional LAeq safeguard were not in place. This is specifically to protect residents from prolonged periods of the noisiest cars being driven at highest levels."

28. The LAeq figure is an arithmetical calculation representing in a single figure:

"the notional steady noise level that would provide, over a period, the same energy as the varying noise in question" (see The Glossary of Acoustical Returns in the Sharps Report, paragraph 6).

29. It is therefore the notional "equivalent" of the varying noise levels generated by the use of the circuit over 5 minute periods. The LAeq 5 minutes measurements might have been significant if, for example, a number of the members had said of their experiences at the sensitive locations:

"We found the occasional peaks disturbing, but for most of the time, although we could hear the noise from the circuit, we did not find it unduly disturbing."

30. In those circumstances, a failure to realise that granting a permission which relies on 75 rather than 65 dB LAeq 5 minutes might well have been relevant because that would allow more of the disturbing peak levels and/or "average" noise levels higher than those which had been audible but felt not to be unduly disturbing for most of the time. Mr Taylor's principal point was that the members should have considered the possibility of more noisy operations because it would be possible to operate more of the noisiest vehicles, even though it would not be impossible of course to exceed the maximum limit of 83 DB LAMAX; thus the members should have addressed their minds to the implications of more of the peak levels of noise.
31. In my judgment, the short answer to the appellant's complaint is that most of those members who referred to what they had experienced at the site visits had heard nothing at the sensitive locations, and the two members who had heard the (peak) noise at those locations said that it was either "minimal" (Councillor Cottrell Dormer) or "not noisy" (Councillor Mrs Hunt). Mr Westerman, in his response to the point made in the Arup report following the site visits, that "the source noise was half as loud as would be allowed under the conditions" rightly drew the members' attention to the fact that the maximum of 83 dB LAMAX had been achieved at 20 metres from the circuit, and those peaks were what members would or would not have been able to hear at the sensitive locations; and he then reminded the members of the rationale set out in the Sharps report for the second limb of condition 9, that is to say the 75 dB LAeq figure.
32. If one considers only the members' experience of their site visits it could be said that the second limb of condition 9 was unnecessary, but that the members' experience of the site visits was not the whole of the picture and the Sharps report explained why it was sensible to ensure that the calculated LAeq 5 minutes was kept well within the WHO guidelines. In my judgment there is no error, and certainly no error of law in the judge's conclusion in paragraph 129 of his judgment that:

"…members of the sub-committee were made well aware from the material before them that what they were permitting would allow higher levels of noise than that generated b the mix of vehicles operating at the time of their site visit. I am not prepared to infer from the fact that a number of members remarked at the meeting that they were unable to hear any noise of the identified locations on their site visit that they thereby failed to take into account that the noise levels could be higher under the proposed planning permission. The fact that they could not hear any noise at those locations was a relevant consideration for them in any event and even more so than circumstances where the 83 LAMAX limit was being achieved."

33. Ground 2. The second ground of appeal is concerned with condition 7 in the planning permission, which is in these terms:

"The use hereby permitted shall be carried on only by Vision Motor Sport Limited and shall be for a limited period being the period of 5 years from the date of this decision letter, ending on 3^rd September 2013 or a period during which the premises are occupied by Vision Motor Sport Limited, whichever is the shorter."

34. The reason given for the imposition of that condition is to allow the council to review the environmental effects of this proposal and to protect the amenity of the residents of nearby villages in the character and ambiance of this part of the West Oxfordshire Countryside (policies NE1, NE3 and BE19 of the West Oxfordshire local plan 2011).
35. It is said that the respondent failed to take into account a material consideration, namely the advice in paragraph 93 of circular 11 of 95 "Use of conditions in planning permission" that:

"a permission personal to a company is inappropriate because its shares can be transferred to other persons without affecting the legal personality of the company."

36. When considering this ground of challenge it is important to bear in mind that circular 11/95 is not an enactment; it contains advice as to good practice. Whether the advice in the circular has or has not been followed may very well be a good indicator as to whether a condition is or is not lawful; but failure to follow the advice does not necessarily result in unlawfulness. Specifically, the fact that circular 11/95 advises that a personal condition is inappropriate if the person is a company does not mean a) that the imposition of such a condition is necessarily unlawful (rather than unwise or undesirable because it may be ineffective as a means of controlling the impact of a permitted use; or b) that, if such a condition is unlawfully imposed, the permission as a whole is unlawful since the condition may not go to the root of the permission.
37. Relying on a condition personal to a company as the sole or a substantial means of controlling the impact of a permitted use might well be so unreasonable (because the use could be pursued by anyone who purchased the company's shares) as to make both the imposition of the condition, and, because of the reliance on the condition, the entire grant of permission unlawful. However, if there are other conditions in the permission to control the impact of the permitted use, for example the hours or days of operation and numbers of vehicles, noise limits and so forth, then the imposition of a personal condition, in addition to these other conditions as a further control perhaps on a belt and braces basis, while undesirable (because circular 11 95 advises that the condition be imposed only if they are really necessary), would not necessarily be unlawful.
38. In the present case there are numerous conditions which comprehensively control the impact of the permitted use. The conditions, amongst other things, limit the number of vehicles that can be used on the performance motorcar circuit at any one time; prohibit competition racing or spectator sports; prohibit activities taking place on certain days, for example Christmas Day, Boxing Day and so forth; regulate the hours during which the permitted activities may take place; limit the number of days on which the activities can occur to 90 days per calendar year; limit the number of vehicles that may be used on the rally circuit, as well as limiting the noise that may be emitted (see condition 9 above) and imposing a five year time limit (see condition 7 above).
39. The only practical function of the personal element of condition 7 is to curtail the five-year period if the applicant company ceases to occupy the site for any reason. There is nothing in either the report or the discussion at the meeting to suggest that in imposing condition 7 the council was relying on the personal characteristics of the company -- that is to say, relying upon it to continue to carry on the use, as it had been doing in the past, as a means of controlling the impact of the use. The reason given for the imposition of the condition makes it plain that its purpose was to allow the council to review the environmental impact of the proposal. That plainly relates to the five-year time limit imposed by condition 7, and, if one looks at the report, paragraph 7.23 explains why condition 7 was imposed:

"Condition 7 requires the proposed use shall be carried out only by Vision Motor Sport Limited and be limited to a five year period. The reason for this condition is to allow the Council to review the environmental effects of this proposal and to protect the amenity of the residents of nearby villages and the character ambiance of this part of the West Oxfordshire countryside. ENCON are of the opinion that the granting of a temporary permission is not appropriate in this instance. However, having regard to paragraph 111 of Circular 11/95 your officers consider that the granting of a temporary planning permission would be entirely reasonably in this instance."

The emphasis is on the need for a temporary planning permission, and that is confirmed by the reference to paragraph 111 of circular 11 of 95, which explains the circumstances in which "trial runs" may be permitted for a temporary period.

40. Bearing all of these factors in mind, while the personal element of condition 7 may well have been unnecessary surplusage, it did not make condition 7 unlawful; and, even if that element of condition 7 was unlawful because it achieved no practical purpose, it could not conceivably be said that it went to the root of the permission, thus making the permission as a whole unlawful. The judge's decision to reject this ground of challenge to the permission was therefore correct.
41. For these reasons, for my part I would dismiss this appeal.

Lord Justice Lloyd:

42. I agree. So far as the first ground of appeal is concerned, Mr Taylor's principal point is that the notes of the committee meeting show that the relevant members of the committee failed to have proper or any regard to a material consideration concerning the terms to be imposed by the other planning condition as regards noise, and in particular that they should have considered and addressed the fact that the maximum noise might be achieved on a greater number of occasions by the use of a different mix of vehicles, including more higher performance cars. That very point is addressed at paragraphs 5.9 to 5.12 of the Sharps Redmore report, which my Lord has quoted in his judgment. It does not seem to me that it would be proper to infer from the notes of the committee meeting that members of the committee failed to have regard to that fact, bearing in mind the comment at paragraph 5.12 of the report, and bearing in mind the members' comments on their observations on the occasions of the site visits.
43. That is simply one point in support of the reasons given by my Lord, and by Sir Michael Harrison in the court below, for rejecting this ground of objection to the planning permission. I agree with my Lord, and for that matter with Sir Michael Harrison, that there is no valid objection to this planning permission on either this ground or the other ground advanced before us and I would therefore dismiss the appeal.

Lord Justice Sedley:

44. Noise is a plague which can wreck communities and ruin lives, and planning authorities are not only entitled but bound to take very seriously any land use or proposed land use which is going to add to the burden of noise to which communities, and none more than rural communities, are subjected. Bodies like the applicant conservation trust play a valuable role in monitoring threats to the environment from noise. It is unsurprising that the appellant trust should have been concerned about a circuit on which members of the public can pay to drive cars whose high performance potential is advertised by designedly loud engine noise.
45. But councillors have to form their judgments on evidence: expert evidence, their own knowledge and experience, and the evidence of their constituents' experiences and concerns. Perhaps surprisingly, but for reasons explained first by Sir Michael Harrison and now by Sullivan LJ, the evidence, including that of the committee members' own ears, did not demonstrate any appreciable noise nuisance to dwellings in the vicinity from the peak noise of the loudest of the operators' cars. This being so, there was a rational basis for the condition setting an 83 dB maximum, and that is why Mr Taylor rightly does not challenge it. His challenge is to the additional setting of a 5 minute average limit of 75 dB. For the reasons Sullivan LJ has given, I agree that this represents no increment, real or potential, in what local residents will have to put up with. It might no doubt have been set lower. Mr Taylor instances, though he does not insist upon, 65 dB, but its inclusion represents no omission, in my judgment, to take the material factor into consideration; nor, for the reasons given by my Lord, does Mr Taylor's second ground go anywhere.
46. I too would dismiss this appeal.

Order: Appeal dismissed