England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		19th December 2008

SIR MICHAEL HARRISON:

Introduction

1. In these judicial review proceedings, the claimant seeks to challenge the defendant's decision dated 3rd September 2008 to grant planning permission for development described as:

"Construction of new tarmac surfaced performance car motor sport circuit within boundaries of existing airfield runways. Use of circuit for up to six cars at any one time on a maximum of ninety days per annum. Construction of parking area for customers' cars. Amendment to permitted use of existing permitted rally course ... to allow use by up to eight cars at any one time (retrospective)."

2. The site to which the planning permission relates is within an airfield at Tracey Farm, Great Tew, Oxfordshire in a rural area near to a number of villages. The claimant is a company limited by guarantee and it is a registered charity. It is known as "ENCON" and that is how I will refer to it. The defendant ("the Council") is the planning authority for the area. The interested party, Vision Motorsport Limited, is the applicant for planning permission. The Interested Party lodged an acknowledgment of service, but it was not represented at the hearing.
3. On 23rd October 2008, HHJ Pelling QC, sitting as a Deputy High Court Judge, ordered a "rolled up" permission and substantive hearing. Having heard the submissions of counsel for the claimant and counsel for the defendant, I am satisfied that the grounds are sufficiently arguable to justify the grant of permission. I therefore grant permission and proceed to determine the substantive case.

Planning history

4. There is a planning history in this case which can be shortly stated. On 2nd November 2005, planning permission was granted for the rally circuit on the airfield which was limited to the use of five cars at any one time. On 13th August 2007, planning permission was granted for the construction and use of the performance car motorsport circuit in almost identical terms to the permission challenged in these proceedings, together with an increase of up to eight cars allowed on the rally circuit. ENCON lodged a claim for judicial review of the planning permission dated 13th August 2007 which is not being contested by the Council. At the time of the hearing of this case, the matter was in the course of being dealt with by a consent order. The Interested Party, Vision Motorsport, has nevertheless implemented that planning permission so that both the motorsport circuit and the rally circuit were being used at the time when the Council was considering the retrospective application subsequently permitted on 3rd September 2008 which is challenged in these proceedings.

Noise

5. Noise generated by the use of the airfield, particularly by the use of the performance motor sport circuit, constituted the main objection by ENCON and others. A number of noise reports were obtained. Vision Motorsport submitted one from a firm called Traffic Impact with the planning application. ENCON obtained a report from Arup Acoustic ("Arup") which concluded that the noise likely to be experienced was different from that assessed by Traffic Impact. The Council therefore instructed its own noise consultant, Sharps Redmore ("Sharps"). Sharps carried out noise measurements of the site in operation on 5th and 26th April 2008. They submitted a report on 29th May 2008 to which it will be necessary to refer. In short, they accepted Arup's criticism of the Traffic Impact noise report but they considered that the results of Arup's modelling and consequent conclusions could not be relied upon. They recommended that permission should be granted for the proposed use of the motorsport circuit by up to six vehicles, with up to eight vehicles on the rally circuit, provided there was a condition restricting noise levels to below 75dB LAeq 5 min 20 metres from the track and a condition restricting the LAmax levels to a maximum of 83 dB. LAMax is, put shortly, the maximum noise level, and LAeq is an average noise level.
6. On 27th June and on 3rd July 2008, members of the Council's Uplands Area Planning Sub-Committee went on organised site visits to hear the circuit in operation both at the site itself and at noise sensitive locations in the surrounding area identified by ENCON. The site visits were also attended by Council officers, including Mr Westerman, the Council's planning manager, as well as by members of ENCON and a representative from Arup. Noise measurements were carried out on each occasion.
7. On Friday 4th July 2008 a report from Arup was sent by ENCON by email to members of the Council's planning sub-committee, a copy also being received by Mr Westerman on Monday morning, 7th July 2008, which was the day of the meeting of the planning sub-committee. The second page of Arup's two page report contained section 5 headed "Observations on the conduct of the test", which stated:

"The manner of operations of this test was very similar to all other tests that have been observed at this track. There were a variable 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 reached 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 [sic] 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 the potential noise impact of this proposal. The noise source 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."

Figure 1 on that page of Arup's report showed the noise levels recorded at the monitoring point in relation to the proposed maximum LAeq level of 75dB.

8. The accompanying email from ENCON to members of the planning sub-committee dated 4th July 2008 stated:

"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 the 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.'

ie, 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 for consideration by your officer."

9. Also on 4th July 2008, ENCON's solicitors wrote to Councillor Haine, chairman of the planning sub-committee, stating that the failure properly to test the cars at the maximum permitted noise levels during the tests meant that the Council had failed to take account of relevant information. They threatened that any grant of planning permission would be judicially reviewed.

Council's consideration of the application

10. I come next to the Council's consideration of the planning application on 7th July 2008. Members of the planning sub-committee had before them a report from Mr Westerman, the planning manager, which, for administrative purposes, had been completed on 23rd June 2008 and which had been publicly available from 30th June 2008.
11. The report set out the consultation replies and it summarised at some length the letters and petitions that had been received by the Council both in support of and objecting to the development. The report set out in full the objection letter from ENCON and the letter in support from the applicant's agents, as well as attaching as appendices the noise report from Traffic Impact and the first noise report from Arup. Sharps' report commissioned by the Council was also attached as an appendix and it was summarised in the officer's report. That summary included mention of the six vehicles operating on the performance circuit on 26th April 2008 as being two Ferraris, an Aston Martin, a Porsche, a Subaru and a Lotus, and it included the statement that the only vehicles capable of achieving 83dB at 20 metres were the Ferraris and the Aston Martin. The officer's report also mentioned Sharps' confirmation that noise from the site was not detectable at the locations identified by ENCON. Having referred to Sharps' conclusion that permission could be granted for up to six vehicles on the performance circuit and up to eight on the rally circuit without causing harm to amenity or disturbance in the surrounding areas, the officer's report concluded on the noise issue that officers, including the environmental health officers, fully accepted the conclusions of Sharps' report.
12. Although the meeting of the planning sub-committee is summarised formally in the minutes of the meeting, greater detail of the sub-committee's consideration of the application is given in the very useful notes of the meeting that were made by another officer.
13. Those notes record that members were told that Mr Gaylor of Sharps was in attendance to answer any technical questions members may have regarding the various noise reports. The notes show that, in his presentation to members of the sub-committee, Mr Westerman referred to the various noise reports, including the production of slides showing the noise levels from Arup's first report. When referring to Sharps' report, Mr Westerman reiterated that the only vehicles capable of achieving 83dB LAmax at 20 metres from the track were the Ferraris and the Aston Martin.
14. The notes record that Mr Westerman read out the letter of 4th July 2008 from ENCON's solicitors. The notes also show that Mr Westerman referred to Arup's report of 4th July 2008. They state:

"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 83dB Lamax had been achieved when Members had been at the site and the Council's Environmental Health Officers had confirmed that six 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."

15. The notes then record that Mr Westerman reminded members that the circuit had been operating for some time and that, to date, 5 complaints had been received. On three of the occasions referred to, the site had not been operating and on another of the occasions no performance cars had been operating.
16. The notes then record matters which were raised by members of the sub-committee. Six members of the sub-committee referred to their site visits, stating, in effect, that they were unable to hear any noise from the site at the locations they visited. Two of them stated that for that reason they would support the application. The sub-committee voted by 10 votes to 0 with one abstention that planning permission should be granted.
17. Having summarised that factual background, I turn now to the four grounds of this application for judicial review which I deal with in turn.

Ground 1

a) submissions

18. The first ground of this application is that members of the planning sub-committee failed to have regard to a material consideration, namely that the planning permission that they granted would allow the circuit to operate so as to produce a significantly greater level of noise than they had experienced on their site visit.
19. This point arises from the fact that what members heard on their site visit did not exceed 65dB LAeq whereas it was proposed to impose a maximum level of 75dB LAeq by way of a condition on the planning permission. The noise measured from the six vehicles on the performance circuit only included three vehicles capable of achieving 83dB LAmax, namely the two Ferraris and the Aston Martin, whereas with a higher mix of noisier vehicles, which would be permissible under the planning permission, it would be possible to increase the LAeq level above the level experienced by members on the site visit up to 75dB LAeq.
20. Mr Taylor, who appeared on behalf of the claimant, submitted that members were not told in the officer's report or at the meeting of the sub-committee that they would be permitting a higher level of noise than they heard on their site visit. Although the last paragraph of the Arup report of 4th July 2008 had been read to the sub-committee, that paragraph did not refer to the LAeq level, nor was there any reference to the LAeq level of 75dB in the notes of the meeting. Mr Taylor submitted that there was no evidence that members of the sub-committee understood that the planning permission they were granting would allow noise levels significantly greater than those they had experienced. He suggested that the evidence pointed to a contrary conclusion as it was clear from the notes of the meeting that members attached significant weight to what they heard on their site visit. He submitted that the sub-committee had failed to grapple with this important point and that the officer's report had seriously misled them by failing to deal with it. There was, he said, no evidence that members had read the e-mail they had been sent or that they were aware of the point. Mr Taylor suggested that, if members had appreciated the point, they might have considered whether a lower LAeq limit would be appropriate.
21. Mr Grant, who appeared on behalf of the Council, pointed out that Sharps' report was before the sub-committee and that Mr Gaylor of Sharps was in attendance to deal with any queries. I was referred to paragraphs 5.11 and 5.12 of Sharps' report, which stated:

"5.11. The current consent would allow, however, Vision to obtain 2 more Ferraris and another Aston, for example, to operate at the site, giving 6 vehicles capable of achieving the maximum noise level. 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."

22. Mr Grant submitted that the possibility of all six vehicles capable of achieving the 83dB LAmax level operating at the site at the same time was, therefore, expressly considered in the Sharps' report which also went on to consider and recommend a LAeq limit of 75dB as an additional safeguard. Mr Grant also relied on the notes of the meeting of the sub-committee which stated that Mr Westerman had referred members to paragraph 5.14 of the Sharps' report. That paragraph refers to a limit of 75db LAeq at 20 metres from the track. He contended that Mr Westerman's reference to 83dB LAmax was perfectly appropriate as demonstrating that members had experienced the site in operation at one of the two maximum permitted levels. Members were, he said, entitled to have regard to what they heard on the site visit.
23. Mr Grant relied on the fact that Arup's report was before the Committee, it had been expressly referred to by Mr Westerman, and the e-mail to members, together with ENCON's solicitors' letter, had expressly drawn attention to the aspect of it relied on by ENCON. There was, he said, no evidence that the members had misunderstood the position.

b) conclusion

24. The short issue under this ground of the application is whether members of the sub-committee failed to take into account that the planning permission they granted with a condition limiting the LAeq noise level to 75dB would enable a greater level of noise from the site than they had experienced on their site visit.
25. In my view, the claimant has not made out this ground of the application. Members of the planning sub-committee had before them both Sharps' report and Arup's report of 4th July 2008. Sharps' report made it clear that the site could be operated by six vehicles capable of achieving 83dB LAmax. Both that report and the officer's report to the sub-committee made it clear that the site was currently operating with three vehicles capable of achieving 83dB LAmax.
26. The Arup report of 4th July 2008 drew attention to the 75dB LAeq limit being proposed, which had, in fact, emanated from the recommendation in the Sharps' report. It arose from paragraph 5.14 of Sharps' report which the notes of the meeting show was expressly referred to by Mr Westerman when dealing with the Arup report. Furthermore, the 75dB LAeq limit was contained in condition 9 of the proposed planning permission which was also before members of the sub-committee.
27. The Arup report also drew attention to the fact that the recorded LAeq noise levels at the time of the members' site visit barely reached 65dB. That was starkly shown in the graph on the same page of the report. The Arup report therefore made it quite clear that the proposed 75dB LAeq limit was higher than the noise members experienced on their site visit. The Arup report was only a two page report, members had a copy of it and it was expressly referred to by Mr Westerman in his presentation to the planning sub-committee. Those notes of the meeting record that Mr Westerman read out the conclusions of the report. Even if one assumes that the reference to the conclusions of the report only relates to the last paragraph of the report rather than the whole of section 5 of the report, that paragraph states that the source noise was half as loud as would be allowed under the conditions of the permission. That point had been reiterated in ENCON's e-mail to members of the sub-committee which itself had spelt out that what members observed was much less noisy than would be permitted under the proposed condition. There is no basis for suggesting that members had not read the e-mail they had received. To the contrary, the probability is that they had read it. Furthermore, ENCON's solicitors' letter of 4th July 2008 to the chairman of the sub-committee stating that the cars had not been tested at the maximum permitted noise levels was read out to the sub-committee at the meeting.
28. In my view, 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 by 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 at 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 in circumstances where the 83 LAmax limit was being achieved.
29. I am therefore wholly unpersuaded that members of the sub-committee failed to take into consideration that the planning permission would enable higher noise levels than those they experienced on their site visit.

Ground 2

a) facts

30. The second ground of this application is that members failed to have regard to another material consideration, namely that the imposition of condition 7 of the planning permission, which made the permission personal to Vision Motorsport, was contrary to paragraph 93 of Circular 11/95.
31. Condition 7 of the planning permission states:

"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 3rd September 2013 or the period during which the premises are occupied by Vision Motorsport Limited, whichever is the shorter.

REASON: 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 and ambience of this part of the West Oxfordshire countryside. (Policies NE1, NE3 and BE19 of the West Oxfordshire Local Plan 2011)."

32. Paragraph 93 of Circular 11/95 states:

"93. Unless the permission otherwise provides, planning permission runs with the land and it is seldom desirable to provide otherwise. There are occasions, however, where it is proposed exceptionally to grant permission for the use of a building or land for some purpose which would not normally be allowed at the site, simply because there are strong compassionate or other personal grounds for doing so. In such a case the permission should normally be made subject to a condition that it shall enure only for the benefit of a named person-usually the applicant (model condition 35): 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. This condition will scarcely ever be justified in the case of a permission for the erection of a permanent building."

33. Condition 7 of the planning permission was suggested by Vision Motorsport. ENCON pointed out in its objection letter that the proposed condition was contrary to the advice in paragraph 93 of Circular 11/95.

b) submissions

34. The claimant's case is that the shares of Vision Motorsport could be transferred to anybody so that making the provision personal to Vision Motorsport does not secure that the development will be managed and operated as it currently is by those who control the company. Although ENCON raised the point that condition 7 was contrary to paragraph 93 of Circular 11/95, the Council had failed to take that into account when imposing the condition. Mr Taylor argued that the condition goes to the root of the permission because, under paragraph 15 of Circular 11/95, a condition should only be imposed when it was necessary, meaning that without the condition the permission would have to be refused. The Council must therefore have considered that condition 7 was necessary and that permission would have had to be refused without it. Mr Taylor contended that, if the Council had realised that the site may be operated in a different way by a different operator, it might have refused permission or have imposed different conditions such as controlling the types of vehicles or the maximum number of noisy vehicles.
35. Mr Grant accepted, on behalf of the Council, that the personal aspect of condition 7 does not follow the guidance in paragraph 93 of Circular 11/95. The condition had been suggested by Vision Motorsport. It was essentially in the same terms as condition 9 of the planning permission dated 13th August 2007 which had not been challenged by the claimant in the judicial review proceedings relating to that permission.
36. Mr Grant drew my attention to paragraph 7.23 of the officer's report, which stated:

"Condition 7 requires that the proposed use shall be carried out only by Vision Motorsport Limited and be limited for 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 and ambience of this part of the West Oxfordshire countryside. ENCON are of the opinion that the granting of a temporary planning permission is not appropriate in this instance. However, having regard to para 111 of Circular 11/95 your officers consider that the granting of a temporary planning permission would be entirely reasonable in this instance."

37. Mr Grant submitted that it was clear from that paragraph, and from the stated reason in the planning permission for the imposition of condition 7, that the primary reason for the condition was to impose a temporary permission to enable the Council to review the environmental effects of the proposal. That was not a matter dealt with in paragraph 93 of Circular 11/95. It was contended that the condition would be effective and enforceable against Vision Motorsport whoever controlled its shares. Mr Grant submitted that the condition was not unlawful because it met the relevant tests in Newbury District Council v Secretary of State for the Environment [1981] AC 578 in that it served the planning purpose of enabling review, it related to the proposed facility and it was not Wednesbury unreasonable to impose it. The fact that Vision Motorsport was willing to be bound by it was an indication of the reasonableness of the condition.
38. Mr Grant submitted that the personal element of condition 7 does not go to the root of the permission, it does not prejudice the claimant and, without that aspect of condition 7, the decision would have been the same.

c) conclusion

39. It is clear to me that the personal aspect of condition 7 is contrary to the advice in paragraph 93 of Circular 11/95 and that the Council failed to take that into account. In my view, the reason why the Council failed to take account of the fact that the personal aspect of the condition was contrary to the advice of the Circular was because making the condition personal to Vision Motorsport was part and parcel of the whole purpose of condition 7 which was to make the permission a temporary one to enable the Council to review the environmental effects of the proposal in order to protect residential amenity and the character of the countryside. Under condition 7, the permitted use was limited to five years or the period of Vision Motorsport's occupation of the premises, whichever was the shorter. In other words, if Vision Motorsport vacated before the end of the five year period, the permission would expire otherwise it would expire at the end of the five year period. Making the permission personal to Vision Motorsport was directly related to the temporary period of the permitted use which itself was imposed to enable a review of the environmental effects of the proposal. Therefore, although the personal aspect of condition 7 was contrary to the advice in paragraph 93 of Circular 11/95, it was imposed for a justifiable planning purpose. The fact that Vision Motorsport suggested the condition in the first place is an indication, albeit not conclusive, of the reasonableness of the condition. The claimant is not prejudiced by the condition - indeed, if the personal aspect of condition 7 were excised, the use would be permitted for five years whereas, if the personal aspect were retained, the permission would terminate earlier if Vision Motorsport's occupation ceased before the end of that period.
40. I therefore conclude that, although the Council failed to take into account that the personal aspect of condition 7 was contrary to the advice in paragraph 93 of Circular 11/95, it is not a matter which renders condition 7 unlawful and, even if that were wrong, I would not, in the exercise of my discretion, quash the planning permission on that account for the reasons that I have given when dealing with this ground of the application.

Ground 3

a) facts

41. Ground 3 of this application relates to condition 9 of the planning permission, which states at follows:

"The level of noise emitted by vehicles on the performance circuit, measured at a distance 20 metres from the middle of the hardsurface of the circuit hereby permitted, shall not exceed 75dB LAeq5min or 83 dBLAMAX (fast) at any time."

42. It is contended that condition 9 is imprecise, unintelligible and/or unenforceable on two separate grounds. I will therefore deal with each of those grounds separately.

b) first ground - submissions

43. The first ground for the unlawfulness of condition 9 is that it fails to specify the height at which the relevant noise measurements have to be taken. The claimant relies on a witness statement of Mr Greer of Arup who explains that, for the condition to be enforceable, it should define the measurement height so that tests are repeatable because intervening ground between the source and the equipment can absorb some of the noise, and the degree of absorption will increase the closer the noise is measured to the ground. He states that, without a defined measurement height, two practitioners could obtain very different results. The claimant therefore submits that, in the absence of a specified height, condition 9 is insufficiently precise and unenforceable.
44. Mr Grant explained how this condition was foreshadowed in the Sharps' report and how Vision Motorsport had introduced greater protection by requiring the noise limits to be achieved along the full length of the circuit rather than just at the midway point of the main straight. At no time had ENCON, its solicitors or Arup objected to the condition. Mr Grant submitted that the court should not condone technical attacks of this nature by a party who has employed noise consultants but who seeks to deploy an attack after the event having failed to do so beforehand.
45. The Council rely on a witness statement by Mr Gaylor of Sharps who explained that it is not necessary to specify the measurement height because there is a standard measurement practice dictated by British Standard 7445, which provides that, when not otherwise specified, the preferred measurement height is 1.2 metres to 1.5 metres above the ground, a measurement height which Mr Gaylor says is widely known and commonly used. He also drew attention to condition 10 of the planning permission which requires a noise monitoring scheme which has in fact been submitted and which specifies the height at 1.3 metres.
46. Mr Taylor, in reply, pointed out that the British Standard only provided a range of heights and that there was nothing in condition 9 which incorporated the British Standard or the height adopted under the monitoring scheme under condition 10. He submitted that an error of law was an error of law whether it has previously been raised or not and he invited me to be cautious in accepting the ex post facto evidence of Mr Gaylor.

c) first ground - conclusion

47. Whilst I would accept that I should be cautious in accepting Mr Gaylor's evidence, he is a noise expert who has been advising the Council throughout its consideration of this planning application. I see no reason to doubt his evidence that BS 7445 is widely known and commonly used. That gives a measurement height between 1.2 metres to 1.5 metres, a fact that would be widely known and commonly used by noise experts. Furthermore, it would be known that the measurement height of 1.3 metres had been adopted for the purposes of the noise monitoring scheme pursuant to condition 10 of the planning permission. There was no evidence of any difficulty in adopting a measurement height for any of the noise measurements made in April 2008 or on 27th June or on 3rd July 2008 when Arup were involved on behalf of ENCON. The fact that neither Arup or ENCON had seen fit to raise this matter until after the event suggests to me that it had not previously been seen by them as raising any particular difficulty. Whilst I would accept that it would have been better if a measurement height had been incorporated into condition 9, I do not consider that his absence invalidates the condition because the evidence suggests that there is a sufficiently commonly accepted practice to enable a measurement height to be ascertained. That is confirmed by the adoption of a height of 1.3 metres in the noise monitoring scheme under condition 10. In my view, the absence of a measurement height in condition 9 is not such as to render the condition so imprecise as to make it unlawful. The evidence in this case suggests that there should be no difficulty in ascertaining the appropriate measurement height to be adopted.

d) second ground - submissions

48. The second matter raised by the claimant under ground 3 of this application is that the use of the disjunctive word "or" in condition 9 where it states that the noise shall not exceed 75 dB LAeq "or" 83dB LAmax results in the position that there is no breach of the condition if at any point in time either one of the two noise criteria are met. In other words, the LAeq limit can be exceeded as long as the LAmax limit is not and vice versa. It was submitted that the condition is therefore unlawful because it was not what members intended to grant planning permission for and it went to the root of the decision to grant permission.
49. Mr Grant accepted that condition 9 went to the root of the permission. He explained that the two limits are in a different measurement index and are distinct from each other, and he submitted that, on a proper interpretation of condition 9, the condition requires compliance with both limits.

e) second ground - conclusion

50. This is a pure point of construction in the light of the knowledge that the condition is dealing with two noise limits which are in a different measurement index, namely LAeq, an average noise level, and LAmax, a maximum noise level. It is also important to note the words "at any time" at the end of the condition. In other words, not at any time can the LAeq or LAmax limits be exceeded. In my judgment, on a proper reading of condition 9, the condition requires compliance with both limits. It means that neither the LAeq limit nor the LAmax limit should be exceeded at any time. As I have said, it is a pure point of construction which does not require further elaboration

Ground 4

a) facts

51. Ground 4 of this application relates to the reasons given for the grant of planning permission, as required by Article 22 of the Town and Country Planning (General Development Procedure) Order 1995, as amended. There were three reasons given for the grant of permission. They related to noise, effect on the landscape and traffic. It is the reason given relating to noise that is challenged under this ground. That reason stated:

"It has been demonstrated that the development will not cause undue harm or disturbance due to the level of noise generated and as such is in accordance with policies BE2 (General Development Standards) and BE19 (Noise) of the West Oxfordshire Local Plan 2011. Conditions have been applied in order to limit the level of noise generated."

52. Article 22(1) of the Town and Country Planning (General Development Procedure) Order 1995, (as amended), provides, so far as material, as follows:

"(1) When the local planning authority give notice of a decision or determination on an application for planning permission or for approval of reserved matters and...

(b) planning permission is granted subject to conditions, the notice shall:-

(i) include a summary of their reasons for the grant together with a summary of the policies and proposals in the development plan which are relevant to the decision to grant permission; and

(ii) shall state clearly and precisely their full reasons for each condition imposed specifying all policies and proposals in the development plan which are relevant to the decision."

b) submissions

53. Mr Taylor submitted that the reasons for the grant of planning permission must deal with the main issues that have been raised and that they ought to explain why those issues have been determined in favour of the applicant (see paragraph 26 of the judgment of Collins J in R (on the application of Tratt) v Horsham District Council [2007] EWHC 1485). He submitted that the reasons given by the Council for the grant of permission failed to explain why the Council considers that the conditions will limit noise to levels that reflect the noise levels actually heard and why the imposition of a personal condition in favour of a company was justified as an exception to policy, both of which were matters raised as significant concerns by ENCON. Mr Taylor contended that the reasons given were therefore inadequate and unlawful and that the claimant had been substantially prejudiced as a result. He said that, if the decision were quashed for that reason, it could result in permission being refused or, more likely, different conditions being imposed on the permission.
54. Mr Grant submitted that, in giving the reasons for the grant of permission, the Council had correctly identified the main issue, namely whether the development would cause undue harm or disturbance from noise, and it had concluded that it had been demonstrated that there would not be undue harm or disturbance from noise. Mr Grant took me through each of the conditions of the permission and the reasons given for them, demonstrating that they were all directed to the limitation of noise in order to protect the amenity of residents. He submitted that the reasons given for the grant of permission were clear and adequate and that they complied with Article 22. In any event, he said, it would serve no useful purpose to quash the permission because no informed reader would be in any real doubt on a fair reading of the officer's report and its annexures why planning permission was granted.

c) conclusion

55. My conclusions on grounds 1 and 2 are to an extent relevant to this ground and I do not repeat them. The claimant contends that the reasons given for granting permission are defective because they fail to explain why the conditions will limit the noise to levels actually heard and why the personal condition was justified as an exception to policy. It was, however, never the Council's case that the conditions would limit the noise to levels that reflected the noise levels actually heard. Furthermore, the issue of the imposition of a condition personal to Vision Motorsport could not reasonably be described as one of the main issues in the case. In my view, the reasons given for the grant of permission, including the reason given in respect of the noise issue, which included reference to the conditions applied to limit the level of noise generated, were adequate and complied with Article 22. I would add that, even if I were wrong about that, I would not as a matter of discretion have quashed the permission on that account because nobody could be in any doubt on a fair reading of the relevant papers why permission was granted.

Overall conclusion

56. Having considered all four grounds raised by the claimant, my conclusion is that none of them provide a justifiable reason for quashing the planning permission in this case. It follows that this application for judicial review must be dismissed.
57. MR GRANT: My Lord, obviously, so far as the Council is concerned, the response to this application indicated that an application for costs would be made and an application for costs is made, my Lord. Could I hand in a costs schedule?
58. SIR MICHAEL HARRISON: Yes.
59. MR GRANT: In relation to costs, I rely on the acknowledged general principle that the unsuccessful party will generally be ordered to pay the costs of the successful party and in all respects, my Lord, your Lordship's judgment concludes that the grounds were unsuccessful and so I rely on that and, my Lord, a costs schedule has been provided to the claimant in this matter. The costs claimed on behalf of West Oxfordshire are in the sum of £12,745 but perhaps it is better to leave it to my learned friend to develop any reasons why costs should not be paid in this particular instance rather than elaborating firstly on the principle and secondly on the amount of costs.
60. SIR MICHAEL HARRISON: Yes, very well. Thank you. Is it Ms Lean?
61. MS LEAN: My Lord, I was merely going to say we do not resist costs in principle and indeed the figure of costs does appear to us to be reasonable.
62. SIR MICHAEL HARRISON: Yes. Well, that is, if I may say so, a reasonable approach to adopt as well. I will make an order that the claimant pays the defendant's costs in the sum of £12,754.
63. Are there any other matters?
64. MS LEAN: My Lord, I do have an application for permission to appeal. In the claimant's submission it is at least arguable that, on a reading of all the evidence, including what was said by the councils at the meeting, that that could be construed in that they had not fully understood the implications of what they heard and what permission was being granted for. That also raises the issue of to what extent and to what degree officers should draw the attention of members of the committee to certain important considerations which it may seem during the course of the meeting are perhaps not entirely clear, although it is at least doubtful whether or not members of the committee have fully taken into account the implication of the same. I submit for those reasons that we would ask for permission to appeal this hearing.
65. SIR MICHAEL HARRISON: Yes. No, I am afraid I am not going to grant you permission to appeal.
66. I apologise once again for the fact you were kept waiting.
67. MS LEAN: My Lord, I apologise again. Obviously, on the appeal matter, in terms of our renewed application for appeal, might it be possible for the time limit for permission to appeal to be extended from the time of transcript, given obviously the Christmas delay.
68. SIR MICHAEL HARRISON: Yes. What do you have to say about that?
69. MR GRANT: Nothing to say.
70. SIR MICHAEL HARRISON: I think that is reasonable. In view of -- what I think I will do is to extend the time for applying for permission to appeal to 28 days from today's date. That should give time, and I hope the shorthand writer will note it, for the transcript to be made available sufficiently before that for me to be able to correct it and for it to be sent to the parties.