England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		3 March 2015

1. LORD JUSTICE LAWS: This is the Claimant's appeal with permission granted by Sullivan LJ on 6 November 2014 against a decision of Supperstone J given in the Administrative Court on 9 April 2014 in judicial review proceedings.
2. By his judgment, Supperstone J declined to quash (1) the screening direction made by the Secretary of State on 26 March 2013 pursuant to regulation 16 of the Town and Country Planning (Environmental Impact Assessment) Regulations 2011 ("the 2011 regulations") and (2) the grant of a planning permission the next day on 27 March 2013 by the Harborough District Council who are the Second Respondents here and below.
3. The case concerns a site called Bruntingthorpe Proving Ground (BPG). It covers some 250 hectares of Leicestershire. It was first an airfield, but from 1973 has been used as a vehicle proving and testing ground. It was one of the largest such grounds in Britain. There is an aircraft museum, but apparently it has an open day only twice a year.
4. Between May 2012 and December 2013, what is called aircraft recycling took place on site so that aircraft landed there from time to time.
5. On 22 December 2008, the Second Respondent Local Planning Authority issued an enforcement notice against a range of unauthorised activities taking place on the site.
6. The enforcement notice was appealed and the Secretary of State's Inspector who heard the appeal issued his decision on 8 December 2009. He granted a temporary planning permission for 2 years until the end of December 2011. It permitted the following activity (paragraph 8 of the judgment below):

"The use of emergency service vehicles; the use of vehicles by the media for the purpose of photography or display; the use of go-karts; vehicles being used for the tuition of drivers; vehicles operated for the purposes of corporate entertainment and which have been approved for use under the terms of the Operational Programme and the use of the site by cycling clubs."

7. The Appellant, the Claimant in the judicial review, is a local resident who with others is concerned at what is seen as an incremental and badly controlled increase in noise coming from BPG. The claim is principally directed, as I shall show, at the treatment of issues relating to noise in the Secretary of State's screening decision and the judge's approach to it.
8. As the judge pointed out at paragraph 9 of the judgment, a central issue in the appeal was noise control. The area surrounding BPG was generally quiet, (see paragraph 20 of the Inspector's decision to which Mr Harwood QC referred this morning) and the Inspector was clear that the effect of the noise from the various activities being carried on was problematic, troublesome or annoying to local residents. See in particular paragraphs 28, 31 and 34 of his decision letter.
9. The Inspector addressed the appropriate noise controls and at paragraph 57, he said this:

"The suggested and offered control mechanism is a complicated one and to a large extent depends on the regular availability of complex data and its collation with other information. This seems to me critical to the acceptability of the uses in question that the controls actually operate as envisaged, are enforceable and adequately enable identification of any breaches. In these circumstances I consider that it is necessary to have provision for the details of their operation and their effectiveness to be reviewed after a temporary period. This could identify whether additional data is needed..."

I may break off there.

10. The Inspector decided, for reasons he gave (see paragraph 59) to grant a temporary permission for 2 years. A whole series of noise control measures were imposed by conditions 3 to 18 of the permission. They are itemised by the learned judge at paragraph 13. They include, in particular, condition 16, a cap on overall noise from the motor vehicles and associated activities at the site of 40 dB(A).
11. Mr Harwood referred to paragraph 40 of the Inspector's decision letter. That refers in its turn to the level of this cap. The Inspector said this:

"The Appellant endorsed the agreement put before me and after the inquiry he reinforced it by the unilateral undertaking and MMP. In particular, he agreed that the "community noise level of 40 dB(A) LAeq 10 minutes is a reasonable one in the light of the lawful uses." It seems to me that this level would not be perceptively different from the survey background levels in the various villages."

12. The Inspector referred to condition 16, as Mr Harwood reminded us, as the overriding control. (See paragraph 61). The time limit of 2 years was imposed by condition 1.
13. On 19 December 2011, C Walton Limited, which operates BPG and was the beneficiary of the temporary permission and is the Interested Party in this litigation, applied for a planning permission to lift condition 1 and thus confer the permission into a permanent one.
14. On 25 June 2012, the LPA's environmental health officer (the EHO) published a report assessing the noise coming from BPG and the effectiveness of the conditions in the 2009 temporary permission. The EHO's report refers to the fact that noise levels above 40 dB(A) were measured on four occasions only in 2011/12. It also draws attention to:

"The difficulty that HDC [that is the planning authority] has in differentiating between uses when trying to enforce community noise limit... HDC has been unable to categorically say which use gave rise to complaint. This clearly makes it extremely difficult for HDC to fully judge the impact that the 2009 permission has upon the local community."

15. The point being made here, as I understand it and Mr Harwood confirmed, is that because the measurement of noise levels for the purpose of monitoring condition 16 does not distinguish between one source of noise and another, it is not really possible to measure levels of noise distinctly attributable to the uses allowed by the 2009 temporary permission as opposed to levels of noise occurring as a result of the pre-existing activities.
16. But the EHO did not merely deal with problems arising in relation to the applicability of condition 16.
17. On 31 July 2012, officers of the Council presented a report on Walton's application of 19 December 2011 to the Planning Committee. This report, which had been preceded on 5 January 2012 by a screening decision of the Council to the effect that an environmental impact assessment was not needed, contained a summary of the EHO's report which includes this:

"Noise monitoring undertaken through 2011 and 2012 (up to 31st May 2012) has failed to demonstrate that noise levels have increased since 2010. The evidence suggests that there has been an improvement in noise emissions from the site and this may be related to a reduction in PD [that is permitted development] days since 2010. An analysis of complaints since 2010 has shown a downward trend and it is apparent that a small minority of complainants make up the majority of complaints. In 2011, one complainant was responsible for almost 40 per cent of complaints. The conclusion on noise emissions of BPG is that a statutory nuisance does not exist. Proving and testing was identified as being the largest cause of complaint since 2010, although there are a large proportion of complaints whereby it is unclear as to which use persistently gave rise to complaints, whether it was proving and testing and/or corporate vehicle use undertaken in accordance with the 2009 planning permission. Noise monitoring undertaken on 5th April 2012 confirmed the difficulty that HDC has in being able to differentiate between the various uses taking place at BPG. This supports the fact that the community noise level (CNL) is at the present time extremely difficult to enforce. It is for these reasons that several recommendations have been made to try and address the concerns that this report has identified."

18. The themes in the EHO's report are further rehearsed in a later passage in the officer's report to the Planning Committee under the heading "residential amenity". I will just pick out these passages:

"There is no evidence to suggest that noise levels are any worse than they were in 2010 and therefore it remains the Council's view that a statutory nuisance does not exist. The evidence suggests that there is less noise intrusion from vehicular activity at BPG. There has been a steady decline in noise complaints received and an analysis of the complaints has demonstrated that the majority of complaints are made by a small proportion of complainants relative to the overall population of the local community. It is also apparent and perhaps directly related that there has been a significant reduction in PD days at BPG since 2010.

In the context of the overall operation of the site, the complaints which can be specifically attributed to the uses which are the subject of the 2009 appeal decision are much lower than those which are attributed to other uses such as proving and testing and aircraft uses. Comments received by the EHO recognise the fact that there are difficulties in directly identifying the source of the noise in all cases, which in turn results in uncertainty over whether or not the community noise level can be applied. Furthermore, it must be noted that the complaints received by the Council originate from a very small percentage of the other communities surrounding the site.

Monitoring of existing conditions has not resulted in a conclusion that the use is unacceptable and as such officers do not consider that further restrictive conditions are necessary, nor would they satisfy circular 11/95 use of conditions and paragraphs 203 and 206 of the Framework. Furthermore, as set out above there have only been four occasions in the 2 years since the granting of the appeal decision on which the community noise level has potentially been breached. As such, it is considered to be reasonable to allow the removal of condition 1 of the appeal decision, to allow permanent use of the site for the uses set out in both the recommended condition 1 and the details of consent section of this report. All other relevant conditions from the 2009 appeal decision would remain in force."

That then was on 31 July 2012.

19. On 29 November 2012, the Appellant's solicitors requested a screening direction from the Secretary of State. The purpose of such as a direction, as Moore-Bick LJ put it in Bateman [2011] EWCA Civ 157 at paragraph 20, is not to make a detailed assessment of factors relevant to the grant of planning permission, but to arrive at a decision as to whether an environmental impact assessment (an EIA) needs to be undertaken for the purposes of the 2011 regulations which give effect to directive 2011/92/EC. I need not set out the text. That is to say, the Secretary of State is to consider whether the development in question was likely to have significant environmental effects.
20. The Secretary of State in this case was supplied by the Appellant's solicitors with a screening checklist prepared by them, the planning applications of 19 December 2011, the planning authority's screening opinion of 5 January 2012, the Planning Officer's report of 31 July 2012 thus including the summary of the EHO report and relevant correspondence.
21. The Secretary of State's screening decision was issued, as I have said, on 26 March 2013. The conclusions are at paragraphs 9 and 10 as follows:

"9. Bruntingthorpe Proving Ground is not within or near to a sensitive area as defined by the EIA Regulations 2011. The motor vehicular uses permitted by the application would by their nature release emissions to the air, possibly produce solid wastes, for example damaged vehicles, and possibly result in accidents due to the nature of the activities. There is noise associated with the activities and careful consideration has been given to the representations made on the effectiveness and monitoring of the conditions imposed by the appeal in determining whether the proposals to vary condition 1 is EIA development and it is considered that significant effects on the environment are not likely.

10. On the basis of information provided, the Secretary of State is not persuaded that this is development with particularly complex and potentially hazardous effects necessitating an environmental statement. In considering the environmental effects of the proposal, the cumulative effects of the existing uses which also take place in BPG have been considered. Taking account of the nature and characteristics and location of BPG and the information before the Secretary of State, including impacts such as noise, emissions and traffic congestion, it is considered that significant effects are not likely, individually or cumulatively, giving rise to the need for an EIA."

22. The Appellant's solicitors asked for background information on the screening direction. On 22 April 2013, the Secretary of State replied to their question 6 concerning noise as follows:

"The motor vehicle element of the use will result in noise and if undertaken at night, release light. The appeal decision and the materials submitted since the decision, including monitoring and operation of conditions, recognise that there was noise associated with the activities, but felt that it was within acceptable limits. The Harborough District Council (HDC) committee report on the application states:

"The conclusion on noise emissions from BPG is that a statutory nuisance does not exist."

Likely noise impacts on the site and those on nearby areas have been considered. Taking all the representations into account, it is not considered that the project will give rise to noise and vibration or release of light, heat energy or electromagnetic radiation resulting in likely significant effects."

23. In the meantime, planning permission lifting the 2 year time limit but retaining the other conditions in the 2009 permission had been granted on 27 March 2013, the day after the screening direction.
24. The Appellant's challenge presented by Mr Harwood QC for the purposes of the appeal has been put in the form of four questions.
25. (1) did the judge err in holding that the enforceability of the noise cap was irrelevant to the screening decision? (2) did the judge err in accepting that the results of noise monitoring demonstrated that no significant environmental effects were likely? (3) did the judge err in concluding that cumulative impacts had been dealt with lawfully? (4) did the judge err in concluding that adequate reasons had been given for the screening opinion?
26. Questions (1) and (2) are an assault on the judge's reasoning at paragraph 51 and question (2) is also directed at paragraph 57. Question (3) attacks the judge's conclusions at paragraphs 53 to 58 and question (4) is directed at paragraphs 60 to 62.
27. I turn to question (1). At paragraph 51, which I shall cite directly, the judge was responding to the Claimant's submission that in making the screening direction the Secretary of State failed to give lawful effect to the precautionary principle when considering the effectiveness of the noise control regime.
28. The judge summarised his argument in this way at paragraph 39:

"In relation to ground one, Mr Pereira submits that the very same deficiencies in the operation of the noise regime which the EHO had identified were accepted in the Planning Officer's report. Against those findings, it is, he submits, quite impossible to see how the First Defendant [the Secretary of State] could have reached a lawful conclusion on the adequacy of the noise control measures so as to have ruled out the need for EIA. Given the deficiencies in the noise regime acknowledged in the evidence before the First Defendant, the First Defendant cannot have lawfully excluded the risk of significant environmental effects arising in the future, or having arisen in the past."

29. The submission was focused on the difficulties concerning the noise cap, condition 16 in the 2009 permission.
30. This is what the judge said at paragraph 51:

"The summary of the EHO report in the Planning Officer's report records concerns about the noise cap imposed in 2009 being difficult to enforce. But as Miss Thornton [who acted for the Secretary of state as she does today] submits, and I agree, concerns about enforceability of the cap did not affect the underlying measurement of noise which is relevant for the test on screening, namely whether the noise is likely to be significant. The Planning Officer attached importance to the limited number of occasions -- only four in all in two years -- on which the cap had been breached."

That last sentence goes to question (2) in Mr Harwood's grounds, to which I will come.

31. Mr Harwood says that earlier in the paragraph the judge in effect found that the enforceability of the noise cap was irrelevant to the screening decision. That, he says, was an error given (1) that the Secretary of State himself in his grounds of resistance to the claim had accepted that "the control focus of the screening assessment was a judgment about the noise control measures" and (2), and this bore the emphasis of his submissions this morning, the Inspector granting permission in 2009 had considered it critical to the acceptability of the uses in question that the controls should actually operate as envisaged, should be enforceable and should adequately enable the identification of any breaches and (3) the planning authority had accepted that after the 2 year trial period there were difficulties in enforcing the noise cap.
32. Mr Harwood submits that given all these factors, it was not open to the judge to conclude that problems over enforcing the noise cap effectively had no impact on the question whether an EIA was required.
33. However, the question for the Secretary of State as not whether condition 16 was effective. It was whether the development was likely to have significant environmental effects.
34. It is I think material to observe that the noise cap, condition 16, was only one of a whole series of measures imposed in 2009 to limit and control the levels of noise. The fact is that while fully recognising the difficulties of enforcing the noise cap, because as I have said one source of noise could not really be distinguished from another, both the EHO and the Council's officers in 2012 reached the considered conclusion that there would not be significant environmental effects and that there would not be, as it is put, a statutory nuisance.
35. That term is not really apt for this context and was apparently used at least in part because an abatement notice under the statutory nuisance regime had earlier been served in relation to this site. But it is clear that the EHO and the officers did not for their part consider that there would be significant environmental effects, notwithstanding the difficulties concerning condition 16.
36. The Secretary of State for his part had the officer's report and its summary of the EHO report before him. He concluded, and I summarise paragraph 10 of the screening decision which I have read, that understanding the reported difficulties over the noise cap, significant environmental effects were unlikely.
37. The judge was, in my view, wholly entitled to conclude at paragraph 51 that:

"concerns about enforceability of the cap did not affect the underlying measurement of noise which is relevant for the test on screening, namely whether the noise is likely to be significant."

38. The plain fact is that there had been an improvement since 2010, as was recognised and it has not been disputed both by the EHO and the Council's officers. This is not a case in which the Secretary of State was, upon being asked to make a screening direction, obliged to treat as critical the effectiveness of the noise cap condition.
39. Question (2); at paragraph 51, as I have shown, the judge noted that there had only been four occasions over 2 years in which the noise cap had been breached. The point is repeated at paragraph 57.
40. In counsel's skeleton argument for the Appellant, the submission on this question is put as follows (paragraph 15):

"There had been no continuous monitoring of compliance or breach of the noise cap over the 2 year period, so there was no evidence to support the proposition that the noise cap had only been breached four times in 2 years. For example, in the second of these 2 years, the measurements were taken on only 12 visits. See paragraph 14 of the judgment."

41. However, the fact that there had not been continuous monitoring cannot be viewed in isolation. The Secretary of State's answer to question 6 of the Appellant's solicitor's checklist questions which I have cited shows that a range of information, not least including representations that had been made, were considered. It is impossible to say that there was insufficient evidence to support the conclusion that there would not be significant environmental effects.
42. Moreover, it is to be noted, as my Lord Lewison LJ pointed out in the course of argument this morning, that exceedances of noise above the cap would not necessary demonstrate significant environmental effects in any event.
43. Question (3); this question concerns cumulative impacts. The judge recorded the Appellant's argument before him as follows:

"54. Mr Pereira points to the range of uses identified in the EIA analysis and screening document in response to question 27 and observes that there is no reference to the aircraft recycling use. He submits that there is no indication in the documentation relied upon by the First Defendant that it has considered the cumulative effect of aircraft recycling at BPG. At paragraph 39 of his skeleton argument Mr Pereira suggests that it is not clear where or how the First Defendant's assessment of cumulative impacts reached a judgment about the impacts of the baseline position namely the noise generated by activities that were lawful apart from the 2009 authorised uses."

44. But it is clear that in reaching his screening decision the Secretary of State had expressly considered cumulative effects (see paragraph 10 of the decision) and the answer to checklist question 6 already cited. Moreover, there is some reference to aircraft noise in the checklist answers.
45. Question (4) assaults the judge's conclusion that the Secretary of State gave legally adequate reasons for the screening decision.
46. It is said in counsel's skeleton (paragraphs 21 and 23c) that the screening decision includes no finding as to whether the noise mitigation measures were adequate or enforceable so that the Appellant does not know whether the Secretary of State concluded that there were unlikely to be signature environmental effects because of the measures were enforceable or that the noise levels would be acceptable whether or not the measures were enforceable. Mr Harwood has advanced the same submission in his argument this morning.
47. The judge said this at paragraph 62:

"In my view this criticism is not well founded. Paragraphs 9 and 10 of the screening decision to which I have referred set out in clear and precise terms, as required by the EIA Regulations, the reasons for the conclusion reached by the First Defendant. Those paragraphs in the screening decision must be read together with the answers in the screening checklist, in particular the answer to question 6. In my view the reasons that were given are intelligible and adequate."

48. I agree. It is plain from checklist question 6 that the Secretary of State was proceeding on the basis of what was said in the Planning Officer's report, namely that problems with the noise measures were acknowledged, but that notwithstanding such problems there would not be unacceptable levels of noise.
49. The Secretary of State was not, in my judgment, required to proffer a detailed judgment as to the extent of likely exceedances over 40 dB(A). He was required to arrive at an overall judgment as to the likelihood of significant effects. That he did.
50. For all those reasons, in my judgment, this appeal must fail and for my part, I would dismiss it.
51. I should add that there is before us an application on behalf of the Interested Party to introduce new evidence in the shape of a letter from the Local Planning Authority. In the circumstances, if my Lords agree with the conclusion to which I would arrive, it will be unnecessary to go into that.
52. LORD JUSTICE LEWISON: I agree that the appeal should be dismissed for the reasons given by Laws LJ.
53. LORD JUSTICE BEAN: I also agree.