England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		10/06/2014

1. 10 Rochester Row, SW1 is a mixed-use building in the City of Westminster. The ground floor now consists of three retail units; the upper floors are flats. The building extends back onto Greencoat Place behind. Of the retail units, Unit 1 ("the site") has planning permission for various uses including A1 retail use restricted to non-food activities.
2. Sainsbury's Supermarkets Limited, the second defendant ("Sainsbury's") sought planning permission to enable the unit to operate as a supermarket. This would involve the lifting of the restriction to non-food retailing, and building works at the back of the premises in Greencoat Place in order to provide a service entrance, at which the deliveries to the supermarket would take place. Two applications for planning permission were made, differing only in the arrangements for modification of the service entrance. Both were refused by Westminster City Council ("the Council") as the local planning authority. The grounds were in each case that the arrangements for deliveries at the rear of Unit 1 conflicted with policy in relation to the promotion of pedestrian movements and the viability of vehicular movements, and would have an unacceptable impact on the residential amenity of those living in the flats. Sainsbury's appealed against those decisions.
3. An inspector was appointed by the first defendant. He held a public enquiry on 12, 13 and 14 June and 9 September 2013, including a site visit on 14 June 2013. On 18 September 2013 he issued his decision. He allowed both appeals, granting planning permission in accordance with the applications, subject in each case to conditions. The Council as claimant now applies under s.288 of the Town & Country Planning Act 1990 for an order quashing his decision as unlawful. As nothing turns on the difference between the two applications, I treat them in the rest of this judgment as though there had been only one.

The Law

4. The legal principles applicable to a challenge under s.288 are well established. The application to the court may be brought only on normal public law grounds, and is not an opportunity for a reconsideration of arguments on the planning merits of the inspector's decision: Seddon Properties Limited v Secretary of State (1978) P&CR 26; Newsmith Stainless v Secretary of State [2001] EWCH Admin 74. The inspector must proceed on a correct understanding of any relevant development plans and of any evidence, but within that context he is entitled to reach his own planning judgment. The court provides the authoritative interpretation of the meaning of any relevant policy document (Tesco Stores Limited v Dundee City Council [2012] P&CR 9 at [19]), but will not interfere with the inspector's planning judgment which is, in a case like this, "within the exclusive province" of the inspector, to use the phrase employed by Lord Hoffman in Tesco Stores v Environment Secretary [1995] 1WLR 759 at 780.
5. The inspector responds to the materials and evidence before him. He may well be influenced by what he sees on a site visit. He is not bound to accept the opinions of experts, but reaches his own conclusion. His expression of that conclusion in his decision needs to be reasoned, but the decision letter needs to be read as a whole, and with the understanding that it is addressed to parties who are aware of what the issues are. Thus, the inspector does not need to set out matters from first principles, but only such reasons as will enable those involved to understand the way in which the inspector reached his decision on the issues that were contested. So much is clear from the often-cited speech of Lord Brown in South Bucks DC v Porter (No.2) [2001] 1WLR 1953 at [36].
6. So far as the assessment of noise evidence in particular is concerned, Ms Thornton drew my attention to the judgement of Forbes J in Westminster Renslade Limited v Secretary of State (1983) 48 P&CR 255 at [263-4]:

"There was a lot of evidence about noise. The only scientific evidence was evidence called by the appellants, although many local residents and groups voiced their apprehension about the noise. The expert evidence was, of course, necessarily based, because it was dealing with what was going to be the noise generated by the new bridge, which, ex-hypothesi (ex-hypothesis), is not there, on various assumptions.

The inspector took, one would have thought, a very sensible view about it. Having dealt with some of the technical evidence, he went on in paragraph 12 to say this:

"Nevertheless the proposed bridge would add road traffic noise into a noise environment in which traffic noise is not at present a major feature. I am therefore of the opinion that the subjective reaction of the people affected would be quite out of proportion to the increase in noise level… it seems to me important that the lives of [the] residents should not be worsened by increased noise."

One asks oneself why on earth an expert planning inspector should not have come to that conclusion perfectly properly, even if he had had every single noise expert in the country ranged on the appellants' side… [I]n my view, he was entitled to take the view that he did take."

Acoustic Measurements

7. Sound levels are measured in decibels (dB): the higher the number of decibels, the greater the perceived sound level. The scale is logarithmic: the base (or 'exchange rate') may be different according to the purpose for which figures are being used. The base is often 3; but in the measurements used in this case the base is 10. This has the effect that an increase of 10 in the number of decibels corresponds to a doubling in the perceived sound level. Thus 70dB will be perceived as twice as loud as 60dB, and 80dB will be perceived as four times as loud as 60dB (x 2 x 2). In order to produce figures within a suitable scale, the sound pressures recorded by the measuring device are weighted using one of a number of conventional systems. The system used in the present case is A-weighting, so the sound levels are expressed in dBA ('A-weighted decibels').
8. It is often of interest not merely to know the loudness of an individual sound or 'noise event', but to get an impression of the general noise level in a particular location. There are several ways of expressing this: each will need to show the period over which the level in question is measured; but this is often understood in a report so can be omitted after the first indication of it. LAeq.1hr ('A-weighted equivalent sound level over one hour', also sometimes dBA Leq) is defined as a sound level with the same energy content as the varying acoustic signal measured over the period. In other words, it is an average, smoothing periods of loud noise and lesser noise into one figure somewhere in between. LAeq is also known as the ambient sound level.
9. Where it may be of importance to see the individual effect of comparatively loud noise events, another measure may be used. LA90 is the A-weighted noise level exceeded for 90 per cent of the time in question. Thus if there are some loud noises during less than 10 per cent of the time, they will not be reflected in the LA90 assessment. The LA90 figure is for obvious reasons called the background sound level. LAmax is the level of the loudest noise during the time in question. LA90 and LAmax together will therefore give some idea of how the LAeq figure is reached, that is to say whether the environment has a low noise level with a few very loud sound events, or whether the loudest events are not very much louder than the general usual noise level.
10. SEL, or sound exposure level, which is mentioned by the Inspector, but has not otherwise featured in this case, is a measure of the exposure to sound, taking into account both the noise level and the time for which it is perceived. There are typographical conventions relating to the measurements mentioned above, in particular the use of subscripts for eq and 90; but they do not appear to be in universal use.

Policy

11. Development on the site is governed by a number of local development plans and policies. No specific issue arises on the inspector's attention to them. I do, however, need to set out extracts from a number of policy and guidance documents relating to noise. The Noise Policy Statement for England (NPSE) has as its Vision to "promote good health and a good quality of life through the effective management of noise within the context of Government policy on sustainable development". The notes to the policy contain the following passage:

"2.20 There are two established concepts from toxicology that are currently being applied to noise impacts, for example, by that World Health Organisation. They are:

NOEL – No Observed Effect Level

This is the level below which no effect can be detected. In simple terms, below this level, there is no detectable effect on health and quality of life due to the noise.

LOAEL – Lowest Observed Adverse Effect Level

This is the level above which adverse effects on health and quality of life can be detected.

2.21 Extending these concepts for the purpose of this NPSE leads to the concept of a significant observed adverse effect level.

SOAEL – Significant Observed Adverse Effect Level

This is the level above which significant adverse effects on health and quality of life occur."

12. The policy goes on to say that it is not possible to have a single objective measure of noise at each of these levels, but that it is possible to set out aims. The relevant aim for present purposes is the second:

"2.24 The second aim of the NPSE refers to the situation where the impact lies somewhere between LOAEL and SOAEL. It requires that all reasonable steps should be taken to mitigate and minimise adverse affects on health and quality of life while also taking into account the guiding principles of sustainable development (para 1.8). This does not mean that such adverse effects cannot occur."

13. The National Planning Practice Guidance (NPPG) refers to the NPSE and assists in its application with a table inserting a narrative between LOAEL and SOAEL, with action as follows:

"Perception: noticeable and intrusive

Examples of outcomes: noise can be heard and causes small changes in behaviour and/or attitude, e.g. turning up volume of television; speaking more loudly; closing windows for some of the time because of the noise. Potential for non-awakening sleep disturbance. Affects the acoustic character of the area as such that there is a perceived change in the quality of life.

Increasing effect level: observed adverse effect.

Action: mitigate and reduce to a minimum."

14. As the NPSE indicates, there is also WHO guidance. There are WHO statements on absolute noise levels, to which the inspector refers sufficiently for present purposes in his decision. He also refers to a table setting out the effects of a change in noise level, as distinct from the level itself. That table is as follows:

Change in sound level dBA	Interpretation	Interpretation
Interpretation	Subjective Impression	Human Response to changes in noise level
0 to 2	Imperceptible change in loudness	Insignificant
3 to 5	Perceptible changes in loudness	Noticeable
6 to 10	Up to doubling or halving of loudness	Significant
11 to 15	Up to a quadrupling or quartering of loudness	Substantial
16 to 20	Up to a quadrupling or quartering of loudness	Severe
21 or more	More than a quadrupling or quartering of loudness	Very severe

The inspector's decision

15. At the beginning of his decision the inspector correctly identified the issues as the effects of the proposals on highway safety and on the living conditions of nearby occupants in terms of noise. He dealt first with pedestrian safety (paras 12 to 22) before passing on to vehicular safety. He decided that the proposed development would not pose unacceptable risks under either head. He then passed to the question whether servicing the site (that is, making the necessary daily deliveries to the supermarket) would be practicable, because safety concerns are also raised by large lorries finding difficulty in parking. He noted the existing parking restrictions and made his decision on the basis of them, although recognising that such matters are subject to change. In Greencoat Place the areas with single yellow lines were essentially reserved for loading during weekday day-time hours: no space would be reserved for the site specifically, but there would be a good chance of finding a place to stop during those hours. Outside those hours, and weekends, the chances would be lower, but not so low as to make the prospect unrealistic.
16. The inspector had been reaching his conclusions based on the assumption that deliveries would be made by a rigid HGV a little over 11m long. His final observation, before his conclusion, was as follows:

"38. The chances of finding a space large enough to park would be increased by using a smaller vehicle or by using the Rochester Row double-yellow line. In practice, as with the choice of vehicle size for negotiating local streets, regular suppliers are likely to use the size of vehicle most conducive to trouble-free operation but that cannot be relied upon without a condition requiring the use of a Delivery and Servicing Plan of the kind recommended by the London Freight Plan."

17. The inspector concluded at para 39 that the proposals would not give rise to unacceptable conditions for pedestrian safety, and that:

"With conditions requiring a delivery and servicing plan that can regulate the size of vehicle used so as to be appropriate to day and time, I conclude that neither proposal would give rise to unacceptable conditions for vehicular safety…. "

18. The inspector's consideration of the noise impact of the proposed development begins at para 40. Rochester Row is clearly a noisier street than Greencoat Place, so the impact of delivery noise would be greater in Greencoat Place: for that reason both sides accepted that impact on Greencoat Place ought to be the subject of assessment, as a worst case scenario. The inspector considered the evidence of ambient noise levels in Greencoat Place. Sainsbury's and the Council had both made measurements, with different results. The Council's measurements were lower and Sainsbury's were content to adopt them, again enabling the inspector to evaluate the impact of the proposal on a worst case scenario. He set out the WHO guidelines, indicating that the LAeq measure be used to evaluate ambient noise levels where there is no reason for using any other measure, but that LA90 or LA95 had the advantage of excluding small numbers of specific noise events from the calculation, and that disturbance by such events was better measured by LAmax. He then considered the specific measurements of existing noise, as revealed by the Council's survey. In Greencoat Place the existing noise comprised a day time LA90 range from 50 to 58dBs, averaging 55 (53 at weekends); LAmax figures ranged from 62 to 97, averaging 74.4 (71.7 at weekends). There was a relatively high percentage of LAmax events above 80dbA but few at weekends.
19. Both Sainsbury's and the Council had urged that the appropriate measure of existing noise was LAeq, figures for which had been calculated with T = 1 hour. Taking those hourly units separately, the range was from 59.6 – 68.5 dbA during the week and 56.9 – 64 dbA at weekends. The parties did not agree on how these individual hourly figures should be combined in order to produce a figure properly representing the ambient noise level absent the proposed development. The inspector wrote:

"44. …[the parties] disagreed on the aggregation of these measurements. The appellant preferred a daily 12Hr aggregation producing a figure ranging between 62.5 and 63.6 on weekdays, 58.7 and 59.6 at weekends. The Council preferred an averaging of the lowest 1Hr figure for each day of the 6 weekdays and 3 weekend days surveyed, producing logarithmic averages of 60.8 and 57.7 for weekdays and weekends respectively. "

20. At para 45, the inspector noted that whatever figure is taken, the existing noise environment in Greencoat Place exceeded both the WHO's guidelines for outdoor living areas indicating serious annoyance, at an ambient noise level of 55dbA, and those for moderate annoyance at 50dbA. Greencoat Place was therefore not a quiet residential environment, but had noise levels common to a city centre location.
21. In the next passage of the decision, the inspector sets out the parties' different calculations of the impact of deliveries on the ambient noise level as they had calculated it. Both parties were using the same figures for the noise events caused by deliveries: the fullest assessment of the necessary deliveries was that contained in the Council's presentation of figures obtained from Sainsbury's measurement of the noise of similar deliveries. I need to set out the relevant paragraphs of the decision in full.

"[46] Both parties evaluate the impact of the proposal in terms of LAeq1Hr against their differing aggregations of the existing situation. The appellant goes on to evaluate their impact in terms of the consequential change to the daily 12 Hr aggregation.

[47] The Council's approach examines the impact which a delivery would have if it took place during the quietest hour of the day. As the Council's table of results summary shows, the quietest hour is generally towards the end of the day, whereas the evidence suggested that deliveries, particularly of fresh food would be likely to take place earlier in the day. There was no information to suggest that deliveries would always take place in the quietest hour. Although it is always useful to examine the worst case, it can be misleading to base a decision on the presumption that the worst case will always occur; a Delivery and Servicing Plan of the kind referred to above can be used to secure best practice.

[48] The deliveries, when they took place, would be likely to last for up to 40 minutes. That would be perceived by residents as having an effect on a single hour's period; their perception would not be of its effect on twelve-hour period. Whilst recognising the point that the effect on a one-hour period would not be replicated twelve times over in a twelve-hour period, I am not convinced that either the Council's "worst case" approach or the appellant's "12 hour day" approach would realistically reflect how the noise of deliveries would be perceived and so I prefer a more disaggregated analysis.

[49] Although both parties have used the LAeq1Hr approach to measuring the noise likely to be generated by deliveries to Greencoat Place, in fact each delivery comprises a number of discrete events. The WHO guidelines advise that the additional use of LAmax or SEL measures is recommended in these circumstances. The appellant provides data, challenged but not refuted by the Council, which indicates that some of these would add to the 17 or so instances of LAmax exceeding 80dbA experienced daily in Greencoat Place but they would, of course, be concentrated into the delivery hour, whereas existing occurrences happen throughout the day.

[50] When aggregated into LAeq1Hr measurements and combined with existing LAeq1Hr measurements, the increase in ambient noise in the worst case scenario put forward by the Council would be on the margins between significant and substantial both on weekdays and at weekends. These are the third and fourth levels in a six-level table of impact assessment ranging from insignificant to very severe, provided by the appellant and recognised by the Council as in line with recognised acoustic principles and relevant guidance and standards.

[51] So, in the worst case scenario, the impact would be almost exactly half way in the range between unnoticeable and completely unacceptable, which I therefore describe as middling or moderate. The Noise Policy Statement for England (NPSE) recognises three levels of impact; No Observed Effect Level (NOEL), Lowest Observed Adverse Effect Level (LOAEL) and Significant Observed Adverse Effect Level (SOAEL). In the situation where the impact lies somewhere between LOAEL and SOAEL, as appears to be the case with these appeal proposals, NPSE advises that all reasonable steps should be taken to mitigate and minimise adverse effects on health and quality of life whilst also taking into account the guiding principles of sustainable development. It specifically notes that this does not mean that such adverse effects cannot occur.

[52] The Council's worse case scenario would be representative only if the delivery always took place during the "worst case" hour of the day. If the delivery were to be directed (through the use of a Deliver and Servicing Plan) towards "less worse case" hours then the impact would be less. Furthermore, the impact would normally be limited to one of the twelve hours of the conventional "day" (a point made, but unconvincingly measured, by the appellant's use of LAeq12Hr figures). "

22. The inspector then noted that there was evidence that delivery and servicing plans are not always fully complied with, but that if compliance was, as estimated, at about 80% that was "a considerable mitigation of an otherwise unmanaged situation". He pointed out that although any adverse impact on the living conditions of residents would be unwelcome, the "moderate level and limited duration of the adverse impact of these proposals would not be unacceptable" within the context of the City of Westminster Core Strategy, Policy CS6 of which encourages retail floor space throughout the area; and that other relevant policies seeking to reduce noise or mitigate its effect would be complied with if the proposed development was made subject to conditions.
23. The final part of the decision deals with the conditions. So far as deliveries were concerned, the inspector declined to require them to be made within a narrow time slot, because he was convinced "by the Council's own argument that this would be unworkable in practice" and in his view it was unnecessary. The condition he imposed restricts deliveries to the daytime hours which had been the subject of the evaluation of noise impact, and required them to be in accordance with the Delivery and Servicing Plan ("DSP") which had been part of the materials he was considering. He also imposed a limit on the opening hours of the proposed shop.
24. The DSP proposes deliveries only during the hours permitted by the conditions, and requires vehicles to be no larger than 11.2m in length. The frequency of deliveries is that which the inspector had been considering. The plan itself has as its aim "to manage delivery and servicing activity to respect local servicing sensibility and in that context a maximised efficiency". It can be modified in agreement with the Council "on the basis that the purpose of the modifications is to better achieve the aims". Thus, the existing plan is itself a worst case scenario: a modification can only improve it.

The issues before the Court

25. The Council raises four grounds of challenge. The first is that, in his approach to the assessment of the noise impact of the proposed development, the inspector did not deal with the matter on the basis of the evidence and the arguments before him, but instead introduced an entirely new process of assessment, unheralded at the hearing. It is argued, on the basis of Fairmount Investments Limited v Secretary of State for the Environment [1976] 1WLR 1255 that is a breach of natural justice: the inspector should have given the parties an opportunity of dealing with any new material or arguments.
26. Secondly, the Council says that the inspector's approach is flawed. In para 50 the claimant argues that the inspector purports to use a range of LAmax figures that he did not have in order to produce LAeq figures on the basis of which he makes his judgment, and that he misunderstands the six-level table that he cites. Thirdly, the Council says that the inspector misunderstood the effect of the DSP. Although the inspector apparently thought that it would be better for deliveries to be in hours that were noisier anyway, the DSP contains no provisions to that effect, so that the DSP could not produce the effect that the inspector proposed.
27. The claimant's fourth ground is a similar argument in relation to servicing. The inspector said at para 38 that it would be easier to make deliveries with a smaller vehicle, but the DSP, to which the inspector specifically referred as regulating the size of the vehicle "so as to be appropriate to day and time" imposes no restriction other that the vehicle should be no longer than 11.2m.
28. The response of both defendants is that the inspector was working on the material before him, that he correctly interpreted it, did nothing in relation to the figures that he was not entitled to do, and that he properly exercised his judgment in deciding whether the noise impact would be unacceptable. Ms Thornton tellingly points out that, whereas the Council had described Greencoat Place as "a quiet road" in "a quiet hinterland" with "low ambient noise levels", the figures produced even by the Council entirely failed to demonstrate that. In truth the inspector was dealing with a further series of noisy events in what was already a quite noisy street, which, during the day time, had a considerable number of very loud noise events already. He observed the policies on noise, but noted that they did not prevent further noise in a city centre area zoned for retail development. So far as concerns the DSP, he had not misunderstood its impact: on the contrary, he had decided, as a matter of judgment, that no restrictive condition was necessary beyond those imposed by the DSP. Both defendants therefore argued that there was no basis for the court to quash the inspector's decision.

Discussions and conclusions

29. I have considered the relevant parts of the inspector's decision with great care, in the context of the submissions, particularly those of Ms Sheikh. By concentrating on certain passages in isolation it is, I think, just possible to read parts of the decision in the way the claimant urges; I am, however, perfectly confident that that is not the way in which it ought to be read. When it is read as a whole, the decision shows a properly balanced approach both to the evidence and to the arguments that were before the inspector. The inspector's task was to evaluate the impact of adding the noise of deliveries to the existing noise in Greencoat Place. In order to do that he had, first of all, to decide how the baseline of existing noise was to be established; then he had to see how appropriately to add the extra noise of deliveries to that base in order to discover the impact of the proposed development. For both existing noise and delivery noise he had a number of measurements available including LAeq.1Hr and LAmax.1Hr, showing the ambient noise averaged over one hour and the maximum noise experienced in an hour, together with indications of how many loud noise events there were in the existing situation, and how many loud noise events would be created by delivery.
30. Recognising that the LAeq figure is already an average of the noise over the hour in which it is measured, his first concern was to decide whether, for the purposes of the assessment he had to make, the ambient noise level should be further averaged, and if so how. No doubt in order not to confuse this process with the derivation of the LAeq figure, he consistently describes this process as aggregation. Sainsbury's proposed that the LAeq figures be aggregated across a 12-hour day. That would have given an average ambient noise figure for an entire day but, as the inspector noted, failed to recognise that some hours were noticeably quieter than others. The Council wanted to average all the quietest hours, which might well have given a fair indication of the ambient noise in the quietest hour of the day, but failed to recognise that for the rest of the day the ambient noise was louder, so that the impact of a delivery would be less. Further, the information was that a delivery would take about 40 minutes. The noise of the delivery would therefore be concentrated in a period of that length; and four deliveries would therefore be in four periods of noise events so circumscribed, not spread over the day as a whole. Residents would experience a period of increased noise followed by a return to the existing noise levels. That consideration occupies paras 46 – 48. At para 49, the inspector turns to another issue. That is that a delivery does not merely raise the ambient or average noise for the period during which it takes place: it does so largely by adding a number of short but loud noise events. These are best measured by looking at LAmax figures as well as (not instead of): he uses the word "additional" in order to assess their impact on the existing noise levels. As the inspector points out, on the figures available, a delivery incorporates a number of noises over 80dBA, concentrated into the delivery periods; but there are already an average of 17 such loud noises in Greencoat Place every day.
31. Those are the groundwork considerations which the inspector applies to his task. He essentially rejects both the aggregation schemes proposed to him. As he says at the end of para 48, "I prefer a more disaggregated analysis". At para 50, having alluded to the use of LAmax figures for a delivery and their comparison with LAmax figures of the existing noise level, he decides to proceed on a comparison between LAeq.1Hr for existing noise and LAeq.1Hr for an hour containing a delivery. This is the disaggregated process, that is to say without averaging the 1Hr LAeq figures into larger units. He uses the word aggregation at the beginning of para 50 not to indicate an aggregation of LAmax figures with LAeq figures but in order to indicate that the aggregation he has selected for the LAeq figures is essentially to leave them as they are, aggregated or averaged into one hour periods but not further smoothed by averaging. The two figures mentioned in the first sentence of para 50 are quite clearly first the LAeq.1Hr figures for deliveries and then the "existing LAeq.1Hr figures". That is confirmed by the rest of that paragraph. Reference to the material before him, which he did not need to set out, because it was known to all parties, shows that the increase in ambient noise measured in that way if a delivery took place in the quietest hour of the day during the week would be 10.6dBA, and at weekends 10.8dBA. In the "six-level table", to which he refers, and which I have set out above, figures between 10 and 11 are between levels 3 and 4, that is to say exactly in the middle of the table. Thus the impact of the increase in noise falls in the middle of the table. The inspector has not introduced any new measures or new methods: he has simply reached a conclusion on the material before him.
32. What he has done at that stage, however, is to adopt an extreme version of the Council's position, a moderate version of which he rejected as not being appropriate. The Council proposed to average the quietest hours of day and weekend, in order to produce a base figure of existing ambient noise. The inspector's process so far has measured the impact not against an average of quiet hours, but against the quietest hour. That process has produced a figure in the middle of the table, but, as the inspector points out in para 52, in order to achieve a realistic assessment of what the noise impact of deliveries would actually be, it is necessary to take into account that they would not always (and in any event, could not all) occur during the quietest hour of the day. That factor, as para 52 demonstrates, he takes into account in his general planning judgment as to the acceptability of the proposal. The same applies to the observations he has made in para 49 about the actual incidents of noisy events during a delivery and (on the other hand) apart from the proposal.
33. In my judgment nothing in this passage of the decision gives the slightest cause for the concerns expressed by the claimant's first ground. That ground may possibly have been provoked by the inspector's mention of the LAmax measurements immediately before his conclusion as to the impact of a rise in LAeq measurements, but to draw from that the conclusion that the inspector had bizarrely decided to combine LAmax measurements with LAeq measurements while calling them both LAeq measurements is entirely unmerited. The truth of the matter is that his judgment was an entirely proper one.
34. In order to deal with the claimant's second ground, it is necessary to consider the six-level table again, and compare it with the levels specified in the NPSE, which the inspector refers to in the passage after the first sentence of para 51.
35. That first sentence is a further comment on the placing of the proposed development in the six-level table, but the rest of para 51 deals with the noise levels by reference to the levels identified by the NPSE. Miss Sheikh made a number of submissions designed to show that the inspector had not properly drawn a parallel from the findings he had made in relation to the six-level table into the appropriate action specified by the NPSE. Those submissions are, however, misplaced. Although some of the words used in the NPSE are the same as those used in the six-level table, the two are measuring entirely different things. The six-level table measures the impact of a change in noise levels. That is clear both from its language of observation and from the fact that all its levels apply equally to a reduction ("or halving", "or quartering") in noise levels as they do to an increase in noise levels. The levels in the NPSE (and, by derivation, the table in the NPPG) relate not to changes in noise level but to absolute noise levels. Further, as both of those documents essentially admit, theirs is a very broad brush approach, without any of the detailed refinement of the six-level table of changes in noise level. To put that another way, assessing where an existing or new noise level is to be fitted into the NPSE framework requires a larger measure of pure judgment than the attribution of a specified change in noise level to the appropriate place on the six-level table. In para 51 the inspector was not saying that because he has identified the change in noise level as falling in the middle of the six-level table, the actual noise level falls in the middle of the NPSE scheme: he was saying that the change in noise level falls in the middle of the six-level table and in addition, in his judgment, the resulting noise levels would be in the middle of the NPSE scheme. As he points out, there is no prohibition on such noise levels. Whether they should be allowed in any particular circumstances is, therefore, a matter of planning judgment.
36. I therefore do not accept the challenges posed by the first and second grounds of the Council's claims. As the inspector remarked, any increase in noise levels is undesirable, but he had to judge whether the proposed increase was unacceptable in what was, as he had found (and is not uncontested) not the quiet backwater described by the Council but already a noisy city street.
37. The third and fourth grounds may be taken together. Both of them assert that the inspector's reasoning leads one to suppose that he thought that there should be, by the imposition of conditions or by means of the DSP, a restriction on delivery hours and a restriction on the size of delivery vehicles to be used. Again, as it seems to me, it is only possible to read the inspector's decision in that way if the sentences upon which Ms Sheikh relied for the purpose are taken out of context. It is true that the inspector did say that the deliveries would have less impact at noisier hours of the day, and he also said that deliveries would be easier (particularly at weekends when the single yellow line may be occupied by parked cars) if smaller lorries were used. But that is very different from saying that he thought that it was necessary to oblige Sainsbury's either to deliver during noisier hours or to use smaller vehicles. In fact it is clear that he rejected both those ideas.
38. So far as hours are concerned, at para 58 he considered and rejected a proposal that the allowable hours be less than those set out in the condition he eventually approved. Para 58 itself is entirely inconsistent with the suggestion that he intended that delivery should be restricted, either by condition or by the DSP, to a period other than that specified. So far as the size of the delivery vehicles is concerned, I have some difficulty in seeing that the words that the inspector used in para 38 can readily be read as suggesting that a tightening up of the DSP that was before him was necessary, particularly in the light of his conclusion at the end of the previous paragraph that parking a large vehicle outside working hours was a realistic prospect. In fact, however, the position is that in presenting the DSP Sainsbury's specifically indicated that, if the inspector thought it necessary, they would readily accept a condition limiting the size of delivery vehicles. That the inspector did not impose such restriction is in my judgment, a clear indication that he did not regard it as necessary.
39. The truth of the matter in relation to both these factors is that the inspector properly took into account both what was necessary by way of condition and what was realistically likely to happen. The latter tempers the former. The inspector's judgement was that given what was likely to happen, the less restrictive terms of the conditions and the DSP were sufficient to meet the needs of the case.
40. It follows that I reject the Council's attack on the inspector's decision. It is a decision that he was entitled to make in the exercise of his planning judgment, on the material before him. There is no discernable defect of a natural justice, nor are there reasons given by the inspector insufficient to enable those concerned to understand why he came to the decision that he did. This claim will therefore be dismissed. The inspector's grant of planning permission in respect of both applications stands.