QUEENS BENCH DIVISION
London, WC2A 2LL
B e f o r e :
| Swindon Borough Council
|- and -
|(1) First Secretary of State
(2) Hanson Quarry Products Limited
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
for the Claimant
Mr Jonathan Karas (instructed by the Treasury Solicitor) for the First Defendant
Mr Gregory Jones (instructed by TLT Solicitors) for the Second Defendant
Crown Copyright ©
Mr Justice Richards:
The decision letter
"26. There are no residential properties near the appeal site. To the south-west is the NMRC which is the public archive of English Heritage. It is of national significance and currently holds about 10 million items. The NMRC comprises 2 Grade II listed buildings and a modern extension built in about 1994 to state-of-the-art archive standards with sophisticated air conditioning comprising a 3-stage filtration system. However, the only means of ventilation and comfort cooling in the listed building is to open the mostly large, industrial-size Victorian sash windows. Even when opened slightly, these would be likely to offer little in the way of noise attenuation.
27. Staff within NMRC spend most of their time on tasks which require quiet and focussed concentration. Members of the public using the search rooms also require a quiet environment to consult archive and library sources. To my mind, therefore, the NMRC is a noise-sensitive building, albeit its requirements would be little different to a typical office environment where quiet concentration is required …."
Grounds of challenge
i) Conservation area: (a) in finding that the development would preserve the character and appearance of the conservation area the inspector failed to have regard to or to address the nature and environmental impact it would have (other than visual appearance); (b) the inspector's conclusions as to visual impact fail to have regard to the evidence as to the detail of the proposals and their impact; and (c) the inspector's conclusions as to impact on the conservation area and listed buildings are perverse.
ii) Noise: the inspector failed to have regard to BS4142 or to give any reasons for rejecting this important element of the council's case.
iii) Land use policy: the inspector acted on no evidence or made a material error of fact when concluding that the grant of a temporary planning permission would not be contrary to policy and failed to take into account the effect of a 15 year permission on adopted local plan policy; (b) when rejecting the council's case that the proposals would conflict with the SCAS and emerging local plan the inspector took into account irrelevant considerations; and (c) the inspector failed to give adequate or intelligible reasons as to whether the proposal was in accordance or in conflict with adopted local plan policy and, if in conflict, the reasons why.
"This British Standard describes methods for determining, at the outside of a building:
(a) noise levels from factories, or industrial premises …; and
(b) background noise level.
The standard also describes a method for assessing whether the noise referred to in (a) is likely to give rise to complaints from people residing in the building. The method is not suitable for assessing the noise measured inside buildings …."
"Noise-sensitive properties would normally be dwellings, but schools, hospitals, offices, some factories, livestock farms and places of recreation, among others, may also be justifiably regarded as noise-sensitive. However, it would be inappropriate to treat all these as equally noise-sensitive. For example, factories should not in general be regarded as being as sensitive to noise as dwellings. MPSs [mineral planning authorities] should take this into account when setting noise limits."
"My assessment has been based on worst-case noise propagation conditions. The assessment indicates that noise levels at the façade of the property will vary from 47 to 58 dB(A), depending upon the nature of the operation on the site. However, I anticipate this level will not exceed 55dB(A) for the majority of the time. This is in line with guidance provided by MPG11, which recommends a noise limit of 55 dB(A) Leq, 1hour at the exterior of residential spaces. MPG11 states that office accommodation should be treated as less sensitive than residential accommodation and consequently, I conclude that occasional noise levels of unto 58 dB(A) at the façade of the NMRC building should be acceptable."
"The position is therefore that there is no directly applicable standard to the present case and a judgment has to be made based on the site specific circumstances and the guidance which does exist. The NMRC is not a dwelling but is a nationally important facility which is noise sensitive. The proposed use has many features in common with industrial uses and surface mineral workings. The reason why the appeal proposal is unacceptable is because it fails every known criteria applicable to noise sensitive properties.
BS4142: the results do not merely show that the effect would be of marginal significance but that complaints would be positively likely all or most of the time a train is being unloaded or the road swept …."
"The 5dB correction factor the council has talked of is part of the rating method specific to a BS4142 assessment, and therefore does not apply.
The exterior noise levels predicted by Mr Peckham are, at a worst case scenario, well within the exterior noise limit set for open spaces used by the public for relaxation in MPG11 …."
"30. … Current Government guidance in MPG11 (1993) at paragraph 11, sets out development other than dwellings which might justifiably be regarded as noise-sensitive, including offices, but notes that it would be inappropriate to treat them all as equally noise-sensitive. It provides no specific noise limits with which to assess the appeal proposal.
31. Paragraph 34 says that during the working week the daytime nominal limit at noise-sensitive properties used as dwellings should normally be 55dB LAeq,1hr . This is generally agreed to be a tolerable noise level above which continuous noise could well cause annoyance. I note that it is also the desirable figure used by the World Health Organisation to prevent significant community annoyance. MPG11 does not suggest a suitable limit for the noise level outside an office but it suggests a limit of 65dB(A) LAeq,1hr for noise affecting open spaces used by the public for relaxation. It therefore seems to me that although it would be desirable for the noise level at the NMRC building not to exceed 55dB(A), there is no guidance to suggest that it would be essential.
32. From the evidence, the 55dB(A) limit would not be exceeded when HGVs were loading i.e. when the noise levels would be likely to be about 47-55dB(A). However, the noise levels would slightly exceed the 55dB(A) limit each time the road was being swept i.e. when the level would be 57-58dB(A) for 10 minutes. And, for about half of the time that the train was being unloaded i.e. when the level would be 52-58dB(A). This would therefore occur for about 1½-2 hours 3-5 times per week. I also note that the appellant is prepared to accept a condition requiring that noise from operations on the site shall not exceed 58dB(A) LAeq,1hr measured on the southern boundary of the site. Given that MPG11 suggests office buildings should be treated as less sensitive than dwellings, I conclude that occasional periods, as opposed to continuous noise levels, of up to 58dB(A) at the site boundary rather than at the façade of the NMRC building would be acceptable. I do not consider that noise levels would cause undue harm to the quiet concentration required in the NMRC buildings."
"15. The Swindon Works Conservation Area was designated to protect the historic core of the former Great Western Railway (GWR) Works. It is roughly rectangular in shape. The Gloucester branch line railway and the Bristol mainline railway form respectively the north-eastern and south-eastern boundaries while the south-western boundary is formed by the busy Rodbourne Road. A long retaining and boundary brick wall which is listed in Grade II defines the north-western boundary. These 4 clearly defined boundaries give the conservation area a distinct feeling of separation from its surroundings. The area was formerly a private industrial estate where security was important and the area once had a fortress-like character. Even though this has been eroded by the construction of Kemble Drive through the area once within it, one still has the sense of being on an urban island.
16. The special interest of the conservation area is twofold. First, the area has considerable historic importance as the site of a major 19th century industrial complex and its association with the early development of Britain's railways and in particular, the Great Western Railway Company. Secondly, the architectural and historic interest of the area's surviving industrial and administrative buildings which display innovatory forms of construction and exemplify the style of industrial building typical of its period (c.1840-1920). The conservation area includes 10 buildings and a wall that has been listed.
17. …. [I]n my view, the Bristol mainline and the Gloucester branch line together with the rail sidings to the east would have formed part of the original 'railway' setting to the buildings now contained within the Swindon Railway Conservation Area.
18. This once derelict private industrial site has largely been regenerated and its various listed Victorian buildings have been converted for mixed-use public urban realm. These new uses include the NMRC, a railway museum, an indoor karting centre, food and drink establishments and the largest covered retail outlet centre in Europe. Modern soft and hard landscaping have been installed around renovated buildings which has to my mind changed their immediate historic setting. As a consequence of the foregoing, the traditional character and appearance of the conservation area has changed. But, through controlled and positive management of change the Council has aimed to preserve or enhance its identity as a historic industrial site of national importance.
19. To my mind, the setting of the listed buildings within the conservation area owes its character to the harmony produced by the particular grouping of the buildings within it …."
"20. Whilst the character of both the historic core and the sidings would appear to have changed since the conservation area was designated, the proposed rail-related use would be historically appropriate and its scale and relatively open character would preserve the present character and appearance of the area. As such, I do not consider that it would harm views into or out of the conservation area."
"21. The Council is concerned that the proposal would be bounded by a 3m high close boarded fence which it considers would be an incongruous feature and that it would be likely to attract unsightly graffiti. First, I note that the presence of tall boundary walls are a feature of the historic railway area. Indeed, some of these have been listed Grade II. Therefore I do not consider that a tall fence need necessarily be an incongruous feature. And, the design and detail of this fence could be controlled by condition. Secondly, whilst I saw that the tall brick wall abutting the public footpath/cycleway is covered in graffiti, I note that the appeal fence would not abut a public footpath or other public space. Therefore, I see no reason why it would be likely to attract graffiti. Thirdly, given the relative scale of the NMRC buildings and the physical separation provided by the branch line and its associated landscaping and boundary treatment, I consider that the fence would be a subservient feature in views of the listed buildings and the 2 conservation areas. Fourthly, the proposed landscaping could soften the appearance of the proposed boundary.
22. The Council is also concerned about the appearance of the open storage of aggregates and tall lighting pylons with dust sprayers attached. However, the linear stockpiles of aggregate would not exceed a height of 4m and therefore they would be seen from limited viewpoints at low level and I am satisfied that they would be managed in an orderly manner. Whilst the proposed lighting pylons and dust sprayers are not features which could be said to enhance the area, they would have a utilitarian appearance which would be little different from the lighting standards that are on the site at present. As such, they would have a neutral effect. Whilst I am in no doubt that the site could be overlooked by the occupants of the upper floors of the NMRC building, I note that the site is currently in a derelict state and subject to fly tipping. And, as In conclude in the third main issue, the site is not yet available for redevelopment. In these circumstances, it seems to me that the present proposal would improve the current appearance of the site."
"23. My overall conclusion on the first issue is that the proposal would not cause demonstrable harm to the character or appearance of the setting of the adjoining Swindon Railway Works Conservation Area or the setting of the adjoining Grade II listed buildings. Consequently, I find no conflict with national or local policy."
Land use policy
"52. However, for the time being, Railtrack proposes to lease the land to the Appellant. The lease proposed would be for a term of 20 years and could be terminated at any time during the term by Railtrack giving 6 months written notice that it requires the land for the purposes of its undertaking. Additionally, I note that Railtrack could also terminate the lease by giving 12 months written notice if the land has not been used for trains in the preceding 12 months. I accept that the lease is an entirely private arrangement. Nevertheless, it would, in principle, serve to retain the future use of the land for operational railway requirements
53. In these circumstances, it seems to me that a situation has arisen which was not envisaged at the time Policy SEM21A was drafted. The land has not yet been formally declared as surplus to operational railway requirements, albeit that it remains vacant or unused at the present time. Therefore, the site is not technically available for redevelopment. As such, there would appear to be no policy requirement to use it for B2 or B8 use in the interim. Moreover, since the land has never been declared as surplus to operational railway requirements, the Council has not included it in any calculations of available employment land. Therefore, the proposal would not compromise any such calculations.
54. Clearly, an application for a permanent change of use of the land to anything other than a B2 or B8 use would not normally be permitted by Policy SEM21A. However, provided that the proposed development would have no adverse effect on the amenities of the area, it seems to me that in the light of paragraph 110 of Circular 11/95, a temporary permission could be justified. I note first, that the planning circumstances are expected to change at some point in the future when Railtrack requires the land for its own purposes. Or, in the alternative, if it became surplus to operational railway requirements, it would become available for re-development. Secondly, the Appellant is willing to have a condition imposed to limit the proposed use for a period of 15 years, albeit the proposed lease was intended to be for a period of 20 years."
"58. I acknowledge that there is no other site in central Swindon that would be as suitable or as big for B2/B8 use. Therefore, the appeal site adds to the quality and range of sites that would potentially make a valuable contribution to employment land supply, if it were available. Therefore, if a permanent change of use were granted for something other than Class B, it would be in conflict with Policy SEM38."
"59. The Swindon Central Area Strategy (SCAS) is part of a wider 30-year vision for Swindon Borough. Whilst this has been the subject of widespread consultation and the overwhelming response has been positive, it does not form part of the statutory development plan. And, at the Inquiry, the Council confirmed that it has not been adopted for development control purposes. The SCAS is the subject of review by consultants appointed by the URC which might result in amendments if the proposals turned out to be impractical. I am therefore unable to accord significant weight to it.
60. The SCAS aims to protect Swindon's economy through urban regeneration and renaissance initiatives which involve an improvement of Swindon's Central Area. The appeal site lies within the Hawksworth/Oasis/North Star area where SCAS envisages the appeal site being developed along with the Hawksworth industrial estate to the north as a "Digital Cluster" with land uses including B1 office use enjoying easy access to the station and town centre retail and allied facilities. In addition, there would be residential, provision for University of Bath in Swindon, a public park and a lake, improved pedestrian/cycle/public transport links to the town centre and redevelopment of the Oasis leisure centre.
61. The principles of the SCAS are now contained in the Swindon Borough Local Plan 2011 Deposit Draft but this has not yet been subject to any public consultation and has not yet been published. Therefore, in accordance with paragraph 48 of PPG1, I am unable to accord much weight to it. Nevertheless, I have been referred to Policy CA3 which will permit development proposals with the North Star Zone, as defined on the Proposals Map when they accord with a development framework that provides for, amongst other things Class B1 employment land."
"62. The south-eastern end of the appeal site would lie within the proposed "Transport Square" of SCAS, while the remainder would lie within the proposed North Star area. But, to my mind, the appeal site would occupy a very small area of both Transport Square and the North Stare area. Therefore, it need not compromise the overall development of those areas."
"64. Thirdly, the Council has placed heavy reliance upon adopted Policy SEM21A which seeks to secure a B2 or B8 use for the site while the SCAS and the SBLPDD appear to seek to use the appeal site for B1 use. Therefore, there is a conflict between the objectives of the adopted local plan and the vision in the SCAS which has been carried forward into the SBLPDD in terms of the appeal site.
65. Fourthly, I have already concluded that the proposal would not cause any demonstrable harm to the occupants of the existing neighbouring properties including the NMRC, which is a sensitive receptor. Therefore, in the absence of a masterplan showing where the proposed residential development would be located, it is difficult for me to foresee how the appeal proposal would be likely to cause harm to future neighbouring developments. In particular, I note that MPG11 suggests a limit of 65 dB(A) LAeq, 1hr for noise affecting open spaces used by the public for relaxation. So if the proposal would result in noise levels of 58dB(A) at the southern site boundary, it seems likely that the noise levels would be similar at the eastern boundary. Therefore, I do not see how it would be likely to harm the future users of the proposed urban park to the east of the site."
"69. Having regard to all of the above factors, it seems to me that the SCAS's proposals for the appeal site which has a rail link could be amongst those subject to amendment. Secondly, whilst the principles of the SCAS are now contained in the SBLPDD, I have already concluded that I am unable to give the emerging plan much weight.
70 It seems to me, that to grant a temporary planning permission for the appeal proposal would not prejudice the outcome of the plan process by predetermining decisions about the scale, location or phasing of new development which ought properly to be taken in the development plan context. First, because, given the size of the appeal site in relation to the proposed Transport Square and the proposed North Star Area, the appeal proposal would not be individually so substantial. And, secondly, because in the light of my conclusions on the effect of the proposal on the setting of the adjacent listed buildings and the conservation area; and noise and dust; its cumulative effect would not be so significant. Similarly, I do not consider that there is sufficient evidence to suggest to me that the appeal proposal would prejudice the achievement of the widely supported objectives of the Swindon Central Area Strategy."
"74. First, I note that the appeal site lies in a sustainable location, close to the town centre where there is a choice of modes of transport. The employment policies of the adopted development plan seek the long term re-use of the appeal site for industrial uses (B2 or B8 uses), while SCAS and the emerging local plan (SBLPDD) seek to use this land to expand the Swindon central business district with high quality business development (B1 use). In the light of this apparent conflict between adopted and emerging policy, and the likely change in character of the area over the next 30 years, I conclude that a temporary use would not compromise the objective of either policy.
75. Secondly, the appeal site is not yet surplus to operational railway requirements. Therefore, it is not available for long term redevelopment and cannot be counted for the purposes of employment allocation. Even though the proposal would not fall within the Use Classes Order, it seems to me that it would not be dissimilar to many of the minerals uses falling within Use Class B2. Therefore, I do not consider that the proposed use would prejudice the general objectives of the Council's employment policies in the adopted development plan. The emerging local plan is at an early stage in the process of adoption and could be subject to change. Therefore it is not a material consideration of sufficient weight to set aside the adopted policy.
76. Thirdly, I have found no harm to the setting of the adjoining conservation area or to the adjoining listed buildings. Therefore, subject to satisfactory mitigation measures to prevent any demonstrable harm by reason of noise or dust to adjoining occupiers, I do not consider that a temporary permission for the use proposed would be in conflict with the development plan. Fourthly, it seems to me that there could be considerable environmental benefits in having a rail freight interchange for aggregates in close proximity to the central regeneration area sufficient to outweigh any conflict with the Council's adopted or emerging employment policies."
MR JUSTICE RICHARDS: In this case I am handing down a judgment. It concerns a challenge under section 288 of the Town and Country Planning Act 1990, to the grant of planning permission in respect of a site in Swindon. For the reasons given in the judgment, the challenge brought by Swindon Borough Council succeeds on one of three issues raised. The decision will be quashed and the matter remitted to the Secretary of State for reconsideration.
Yes, Miss Robinson?
MISS ROBINSON: Good morning my Lord, thank you very much. My Lord, I invite the court to make an order for payment of the claimant's costs by the first defendant, the Secretary of State. I have had a word with my learned friend, Mr Karas, for the Secretary of State, who indicates that he does not object to an order being made, but is going to say that we not should not have all of our costs.
MR JUSTICE RICHARDS: Yes.
MISS ROBINSON: My Lord, I have some points to make about that. Would you like me to make them now, or would your Lordship prefer to hear from Mr Karas first?
MR JUSTICE RICHARDS: You may as well make them now that it has been signalled you lost on two out of the three issues.
MISS ROBINSON: My Lord, in my submission, it would be right in this case for the claimant to be awarded all of its costs and I have four short points to make.
My Lord, the first relates to the period up to the time of preparation for the hearing. Costs were materially increased during that period, by virtue of the fact, your Lordship may recall, that the decision letter issued by the Secretary of State's inspectorate was wrongly dated, and as a result of that my clients had to issue proceedings very quickly, then consider whether it was appropriate to bring a challenge, and amend the proceedings which they had already issued to set out the detailed grounds. That necessitated obtaining an extension of time for the service of evidence, which the second defendant, as it was entitled to do, insisted be dealt with formally by court order, and that has involved a great deal of correspondence between the parties and work by my solicitor.
Those costs have nothing to do with the fact that we have lost on two points and arise directly out of a serious failure by the inspectorate. That is the first point.
Point two relates to documentation. My Lord, in my respectful submission, if one looks at the bundles, and the authorities, the majority of the documentation was necessary, either to deal with the main issue on noise, on which the council succeeded, or was documentation put in by the second defendant, and to which the claimant had to respond. But most of that material involved long and argumentative witness statements, many documents that were never relied upon by the second defendant in its submissions to the court, and included material that was needed in order to put right the mistake relating to the lease. Your Lordship will recall that it was only because of the variation which was put in that the council do not pursue the point about the material error of fact. My Lord, that is my second point on documentation.
My Lord, the third point relates to the hearing. In my submission, even if the council had only pursued the noise issue, the hearing would have taken the best part of a day.
My Lord, point four relates to the merits of the case, and although the council succeeded in one of three areas in which the decision letter was challenged, my Lord, I invite the court to consider that it was not unreasonable of the council to pursue the other matters, and not necessary to do so, I am sure, but I just touch on one or two points your Lordship made in the judgment.
MR JUSTICE RICHARDS: Yes.
MISS ROBINSON: Your Lordship, adopting a phrase used by my learned friend in submissions, described some of the inspector's conclusions on conservation matters as surprising, and in order to --
MR JUSTICE RICHARDS: Well, one in particular I think, was it not? That was graffiti.
MISS ROBINSON: That is right. In order to make sense of what the inspector said on the main land use policy issue, I would suggest the court has, in effect, had to draw conclusions about what it was thought the inspector meant, not what she actually said, which your Lordship will recall the judgment goes on to say would have been an error.
So I would invite the court to consider that the inspector's decision letter was not actually straightforward on these matters, nor was it unreasonable of the claimant to seek to challenge it, even though, in the event, the challenge on those matter was unsuccessful.
So those are the four points I would like you to take into account.
MR JUSTICE RICHARDS: Thank you very much. Yes, Mr Karas?
MR KARAS: My Lord, I can deal with the matter briefly. I respectfully submit the Secretary of State should not bear all of the costs incurred by Swindon. Your Lordship has pointed out already that we have lost on one of a number of grounds which were taken against us. The one ground which we have lost on would have required your Lordship to look at only a small part of the documentation which has been put before the court.
It would have taken, in my respectful submission, no more than half a day of your Lordship's time, and this appeal had to come to court to deal with a case in which the bundles have exceeded 600 pages of documentation. We have had to read the whole background of the case, not simply the noise issue. The first Secretary of State should not pay for the costs of this exercise.
My learned friend, Miss Robinson, says that this documentation, in part, was generated as a result of the stance taken by the second defendant. Well, that is a matter, in my submission, between my learned friend, Miss Robinson, and the second defendant. It is not something that the first Secretary of State should pay for.
In relation to the point that Miss Robinson makes about the serious error by the Secretary of State, yes, the decision letter was misdated, those responsible admit it was sent out on the wrong date, the mistake was spotted and amended letters were sent out the moment the mistake was spotted. It is difficult to see how that mistake can have resulted in issues being taken to trial which were unsuccessful, and it is difficult to see how that mistake generated a bundle in excess of 600 pages.
This is a case which I submit, on one view of that, we would be entitled to some of our costs of dealing with these issues, but that, in my submission, may require rather too fine assessment when it comes to detailed assessment.
I respectfully submit this is a case where, doing rough and ready justice, the Secretary of State should bear only between one third and one half of Swindon's costs, and I leave where it lies within that range to your Lordship.
MR JUSTICE RICHARDS: Thank you very much. Well, plainly, there must be a costs order against the Secretary of State as it is accepted. That order should reflect the time spent arguing two issues on which the council failed, but I accept that for the reasons given by Miss Robinson, one should not focus solely on those issues, but should bear in mind that there have been substantial costs incurred by the council for which it ought to be recompensed. In my view, the just result in this case is that the Secretary of State should pay 60 per cent of the council's costs, and there will be an order accordingly.
MR KARAS: My Lord, I am obliged. There is only one further matter. I would respectfully ask for permission to appeal. The issue is a narrow one. In my respectful submission, this is one in which there is a realistic prospect of success, albeit the issues may not be of very wide public importance. I do not think I can put my case higher than that.
MR JUSTICE RICHARDS: Thank you very much. I take the view that there is no real prospect of success, that the matter is dealt with in my reasons with sufficient clarity to justify me in that view, but if you want to try to persuade the Court of Appeal otherwise then, of course, it is open to you to do so.
Thank you both very much.