ON APPEAL FROM THE ADMINISTRATIVE COURT
Sir Michael Harrison
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE ETHERTON
MR JUSTICE HEDLEY
|- and -
|(1) The Secretary of State for Communities and Local Government and Anor
(2) Lambeth Borough Council
Ms Justine Thornton (instructed by Treasury Solicitor) for the Respondent
The 2nd Respondent did not appear and were not represented
Hearing dates : 24th June 2011
Crown Copyright ©
Lord Justice Etherton :
"The existing shopfront which comprises of bi-folding doors shall remain fixed shut throughout the duration of the use of the bar/restaurant."
"To protect the amenities of adjoining occupiers (Policies 7, 29, 33 and 36 of the Unitary Development Plan)."
"6.3 The data shown illustrates typical noise levels in the area in excess of 71dB at all times. I can confidently predict this continuous noise level in the area is due to traffic on Clapham High Street, and at locations where the level is significantly higher than 71dB this is due to increased patron noise associated with queuing and gathering outside premises at night."
7.1 Low-level background sound in a restaurant would typically be in the range of 55-65dB. Indeed at levels greater than this voices would need to be raised for conversation so effectively it stops being background music. Therefore it is realistic to assume a maximum sound system level of around 65dBA in the central bar area during the daytime.
7.2 Assuming simplified propagation; a point source of 65dBA would be attenuated by 14dB at a distance of 5m. Therefore at 5m from the bar area music noise levels would be 54dBA and totally masked by any traffic noise.
7.3 With a continuous "masking noise" of 71dBA in the area due to traffic any other low level noise will not lead to a change in average ambient noise level."
8.1 Based on the measurement data above and my assessment of these premises and other premises in the area, there is no reason with regard to noise, why the frontage of 68-70 Clapham High Street may not be open during the day.
8.2 However any music systems in the premises must be limited to a level so as to not cause disturbance to local residents. This effectively means that it should not be possible to hear music from Aquum at the facade of any noise sensitive premises in the area. In order to achieve this consistently and effectively the internal sound equipment should be configured to have a "doors open" setting which must be used at all times when the doors are open. It is recommended that at this operating level measurements are taken from within the bar and these measurements provided to the Environmental Protection Team at Lambeth for their records.
8.3 Additionally loudspeakers should be positioned within the premises so as not to point at the open frontage area and no loudspeakers should be placed outside.
9.1 An assessment of the ambient noise levels in the area around Aquum has been carried out and an assessment made of the potential noise impact from the premises operating with the doors open.
9.2 Measurement data indicates that the average noise levels on Clapham High Street are high due to continuous heavy traffic flow. Therefore lower level noise will effectively be masked by traffic noise.
9.3 It is recommended that if the premises are allowed to operate with doors open then the sound system should be configured with a present "doors open" mode to limit the system to low-level operation.
9.4The ultimate "safety net" with any sound system is that the system should be controlled to not exceed the level where there is no disturbance at nearby noise sensitive properties.
9.5Establishing good noise management policies and periodically verifying the sound system operating levels will ensure there is no loss of amenity to local residents by reason of music noise breakout from Aquum."
"8 … Although it [viz. Aquum] was open and had several customers, both inside and outside, my visit occurred at a relatively quiet time in its operation. From the Council's representations, I have little doubt that at other times, particularly in the late evenings and at weekends, and extending into the small hours of the morning, it would frequently be far more busy. This is borne out by representations from interested persons, objecting to the application. Noise sources would include both the customers themselves, and the internal music system.
9. It is a legitimate and commonplace objective of planning policies, including the UDP policies cited by the Council in this case, to attempt to mitigate noise nuisance coming from commercial and entertainment uses, including bar/restaurant premises. This in order to protect the residential amenity of persons living in the vicinity, including in the upper floors of the nearby buildings along Clapham High Street.
10. In my judgement, on the balance of probability there would be likely to be occasions – perhaps many occasions – when with the doors open the noise from Aquum, whether generated by the customers themselves or by the internal sound system, would not be adequately contained within the premises, but would be heard in the immediately surrounding locality, sufficient to constitute a noise nuisance. In my opinion, the doors are needed effectively to screen the interior of the premises from the exterior, and thereby to contain any noise, and that can only occur if they are kept closed. That is why I do not propose to delete condition 4.
12. I have considered all the other matters raised by the appellant, but they do not alter or outweigh my conclusions on the main planning issue. These are that, in order to mitigate actual and potential noise nuisance arising from the bar/restaurant use, and to comply with the relevant UDP policies, condition 4 should be retained. Accordingly, I dismiss the appeal."
The appeal to the High Court
"In this case, the inspector was entitled to rely on his own experience, expertise and common sense in exercising his subjective planning judgment, taking into account all the evidence, including the noise report, the residents' objections, the fact that the premises could be open until as late as 04.00 hours, and his site visit where he saw the doors being operated. In my view, the reasons that he gave in paragraphs 10 and 12 of the decision letter were adequate and sufficient and there was no need for him, in the circumstances of this case, to embark on a critique of the noise report"
"The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the "principal important controversial issues", disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon such future applications. Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision. "
"So far as that is concerned, I fully accept that this has been made clear in the case of Top Deck Holdings Limited –v- Secretary of State for the Environment that there is no obligation on an inspector, in the absence of any reference to an appropriate condition, to search for a condition which might be used to assist an applicant who is appealing against the decision of a planning authority."
"If a party to an appeal wanted the appeal to be considered on the basis that some condition could cure the planning objection put forward, then it was incumbent on [the applicant for the permission] to deal with that condition at the inquiry. Unless such condition has been canvassed the Secretary of State was not at fault in not imposing such a condition".
Mr Justice Hedley
Lord Justice Mummery