England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT IN BIRMINGHAM

		Birmingham Civil Justice Centre Priory Courts 33 Bull Street Birmingham
		05/12/14

Mr Justice Hickinbottom :

Introduction

1. This is an application under Section 288 of the Town and Country Planning Act 1990 ("the 1990 Act"), in which the Claimant seeks to quash a decision dated 25 March 2014 of an inspector appointed by the First Defendant Secretary of State, namely Jennifer Vyse Dip TP DipPBM MRTPI ("the Inspector"), to allow an appeal against the decision of the Second Defendant local planning authority ("the Council") dated 21 May 2013 and to grant planning permission to extend a motor repair garage and retrospectively to extend rear parking at 22 New Street, Upton upon Severn, Worcestershire ("the Site").
2. Before me, Satnam Choongh has appeared for the Claimant, and Andrew Deakin for the Secretary of State; and I thank them at the outset for their assistance.

The Background

3. The Site falls within the Upton upon Severn Conservation Area, which forms the historic core of the town and comprises four distinct character areas of which the Site lies in the most central, Character Area 1. In paragraph 6 of her decision, the Inspector describes this area as "an eclectic mix of historic buildings dating from the Tudor period to modern day infill". "As a consequence", she continues, "the streetscape contains a wide variety in terms of design and scale which gives the area its unique character".
4. The Claimant lives at 18 New Street. 18 and 20 New Street are Grade II listed 17th century buildings, refronted in red brick in the 18th century. They lie close to the Site, separated from it by 20A New Street, a lower building which is not listed. The garden of the Claimant's property extends behind 20 and 20A New Street, and thus adjoins the side boundary of the Site.
5. The premises on the Site were formerly a Wesleyan Methodist Chapel, but, since 1926, they have been used as a motor repair garage trading as "Shipps Garage". The Third Defendant ("Mr Perry") is the current owner and operator of the garage. The building, which is not listed, lies towards the front of the plot and there is access to the garage workshops via double doors at the front, direct onto New Street. There is no vehicular access to the building from the rear; although there is some car parking space for the garage there, accessible by a lane to the west of the Site. Some of that space is authorised for parking; but some that has in fact been used for parking – the part behind 26 New Street – is not.
6. The premises have been altered significantly to facilitate the current use, including the addition of a lean-to extension at the back. That authorised extension, which is wider than the main building and abuts the boundary with the Site behind 20A New Street, has a depth of approximately 4m with a monopitch roof for the most part. There was also an unauthorised wooden workshop at the back of the extension; but that was demolished prior to the planning application with which this claim is concerned.
7. Mr Perry wishes to replace the existing extension with a new extension, some 7m deep – i.e. 3m deeper than currently – but, unlike the current extension, it would be offset from the boundary by 2m. It too would have a monopitch roof, slightly higher than the current extension roof. It would allow access to the workshops in the building from the rear, by way of new double doors in the rear elevation. It is proposed that, rather than direct access from New Street at the front, that would be the preferred access route.
8. On 7 December 2012, Mr Perry applied to the Council for planning permission for the new extension, and retrospectively for the additional parking space at the rear. Upon being notified of the application, the Claimant wrote an eight-page letter of objection dated 22 January 2013, in which he set out various points concerning the physical impact of the proposal; parking and access (i.e. increased business at the garage will result in an increased level of traffic and parking); and the environmental impact, including noise. As to noise, the Claimant said:

"This is an unrestricted B2 use with no controls over hours of operation or modern sound attenuation. To allow a significant extension which would dramatically increase the capacity of the garage to undertake work would be harmful to the residential amenity of surrounding occupiers."

9. He said that the increase in traffic at the rear of the Site would give rise to additional vehicles and noise there, and the rear doors would allow noise to break out from the building itself. He continued:

"In addition to the increased noise pollution resulting from additional traffic movements, I already experience unacceptable levels of noise pollution from the use of the unauthorised wooden 'work space'"

That is a reference to the unauthorised and now demolished wooden workshop to which I have already referred. He went on:

"I do not accept that the proposal with its 'cavity wall' build will adequately contain noise generated by this unrestricted B2 use – as the current working practice operates with the double doors open onto New Street throughout the year. Noise break-out will occur through the metal roller shutter door (irrespective of the wall construction) all year round, this will be exasperated in the summer when the roller door is more likely to be left open. There is also the noise that will come from the opening and shutting of the automated steel shutter doors together with the additional vehicle movements in and out of the new workshop. Not only would that disturbance harm the living conditions of neighbours, but will also harm the character of the Conservation Area.

… The new workshop will allow a significant increase in operations at the site and this will result in an increase in noise and disturbance from the building and from the use of the area at the rear."

So, the focus of these comments was upon the additional noise and disturbance to which the proposed development would give rise. The only reference to unacceptable current noise – indeed, the only reference to any current noise – was to that resulting from use of the unauthorised wooden extension at the very back, now demolished.

10. On 25 February and 8 May 2013, a Chartered Town Planner on behalf of the Claimant wrote to the Council making further points, as did the Claimant himself on 10 May 2013; but none concerning noise or other issues in this claim, except to reiterate the concern about noise emanating from the proposed doors at the rear of the proposed extension and the adverse impact it was said that would have on the surrounding premises. Similar points were made by the Claimant in further emails sent to the individual members of the Council's relevant planning committee, the Southern Area Development Control Committee ("the Planning Committee"), and in telephone conversations with Planning Officers on 14 and 15 May 2013, the focus of those again being upon "the increase in noise and disturbance" that would occur as a result of the proposed rear double garage doors and use of the rear of the Site for access. The Claimant raised concerns about the two new service bays being serviced by air compressors "which", he said, "we do not hear at the moment". It was proposed that at least one of those two new bays would be nearer the Claimant's property than the current bays.
11. On 12 May 2013, a few days before those final communications, the Claimant sent an email in response to a post on the website of Worcestershire Regulatory Services ("WRS") which deals with environmental complaints on behalf of the Council at a county level. The web posting, which I have not seen, apparently reflected an email sent by WRS to the Council on 26 February 2013 in response to Mr Parry's application for planning permission, which said:

"Although it is quite common to find small vehicle establishments in residential areas it is unusual to receive nuisance complaints regarding this type of establishment. With regard to this application the design and access statement says that the premises have been used as a garage repair facility since 1926. I am not aware of any complaints received by this department regarding noise from operations at this site.

It is also understood that the same operations have been taking place in the existing buildings (Chapel, lean to and light timbered area) and also outside the rear car park will be undertaken in the new proposed brick building.

Should you be minded to grant permission for this extension than we would have no objection."

12. The Claimant accepts that his email of 12 May 2013 was primarily directed to WRS, although a copy was sent to the Council's Planning Case Officer, Gillian McDermott (see the Claimant's Statement of 9 June 2014, paragraph 11). It referred to a complaint he had made to WRS on 7 February 2013, the details of which are not set out but which clearly related to noise from the Site. In the email, he also said:

"When I phoned I made it clear that we have complained on many occasions BUT directly to the Shipps Garage relating to the noise pollution and the unsightly parking of large commercial vehicles. We have tried to be neighbourly – as Stuart who works at the garage has said to us 'please do not complain as you will ruin my business'. It seems that we should have been less neighbourly and complained directly to [WRS] on the many occasions that we have had to put up with obtrusive noise disturbance in our Grade 2 listed house and garden that adjoins the rear of Shipps garage.

I am also appalled that the wooden lean to that is mentioned, which has an enforcement notice over it, is being used to justify that noise has not been a problem as works have been carried out in the wooden lean to for 6 years. What relevance is it given the building in question has an enforcement notice on it to have it removed and given that as we have pointed out to Dave Atwood – the noise of Air Guns, Air Compressors, all general engine, metal on metal noises, & verbal banter from those working on the cars without any noise abatement measures in place has blighted out residential space for more than 6 years?

Our strategic error to be neighbourly in reporting the noise pollution just to Shipps garage will be rectified – and we will immediately phone your officers when we experience any noise pollution that damages out right to the enjoyment of our property from the expansion of the B2 noisy and obtrusive business…".

It is to be noted that, whilst some of the comments are more general, the second paragraph quoted again appears to refer to noise resulting from use of the unauthorised, and now demolished, wooden extension at the rear.

13. The Planning Committee met on the evening of 15 May 2013 to consider the application. As usual, they were assisted by an Officers' Report, prepared by Mrs McDermott. That said that WRS had responded to the application saying they were unaware of any complaints of noise to them. The report also summarised the points made in various other representations received, including those of the Claimant, particularly that there would be increased noise pollution with the rear roller door access; but also the comment of an unidentified supporter of the proposal that "there is some noise from the existing garage but it is not untoward or excessive in a built-up area". The report commented:

"Concern with regard to noise pollution is raised by local residents. The proposed extension would be of cavity wall construction and noise emanating from the site would therefore be contained to a certain extent. There is no control over opening hours of the existing motor repair business, most likely due to its long established use. The existing floor space of the garage including the brick lean-to element amounts to 130.32 square metres and the proposed floor space in total would amount to 144.30 square metres, the difference being 13.98 square metres. Your officers consider that it would be unreasonable to impose restrictions to opening hours given the modest size of the proposed increase in floor space that would be taken up by the extension compared with the existing building plus brick lean-to element which would be demolished."

There was no reference to any complaints about the current level of noise.

14. The report considered the application complied with the relevant policies, and recommended approval.
15. A supplementary report, again authored by Mrs McDermott, indicated that further representations had been received from (amongst others) the Claimant, including the comment from one of those who had made submissions, "The noise will worsen…". That report too recommended approval.
16. The Claimant was provided with those two Officers' Reports; and, at the meeting of 15 May 2013, amongst others, he spoke, stressing the increase in noise and disturbance from the proposed extension.
17. The Planning Committee refused the application on the grounds that, first, the scale etc of the extension would harm the character of existing buildings and the Conservation Area; and, second:

"The increase in use of the existing motor repair business, as a result of the proposed extension, would cause an unacceptable increase in noise pollution and disruption, causing demonstrable harm to the residential amenity currently enjoyed by the occupiers of the neighbouring property, No 18 New Street contrary to Policy DS3 of the Malvern Hills District Local Plan and paragraph 123 of the National Planning Policy Framework ['the NPPF']…".

The Inspector's Decision

18. Mr Perry appealed to the Secretary of State under section 78 of the 1990 Act, and the Inspector was appointed to determine the appeal, which was decided under the written procedure. There was therefore no hearing – the appeal was determined on the basis of written representations – but the Council indicated to the Claimant that it had "forwarded all the representations made to [it]… and these will be considered by the Inspector when deciding the appeal". In addition to the earlier documents, Mrs McDermott prepared a statement of the Council's case for the refusal of permission. The Council suggested conditions to be imposed if, contrary to its conclusion, the Inspector considered permission should be granted; but it was the Council's view that a condition requiring the proposed rear doors to be closed when there was any noise-provoking work in the workshop was unenforceable in practice, and therefore could not be imposed.
19. The Claimant also emailed the Inspector on 23 October 2013, on behalf of his wife and himself, saying they confirmed their opposition to the application, and:

"We would ask that you take into account all the comments submitted to the Council in response to the application.

…

When you visit you will see how [the proposed extension] will be overbearing and that the noise and increase in traffic will spoil the tranquil area of historic Upton."

20. The Inspector duly made a site visit, attended by the Claimant, on 14 March 2014.
21. She issued her decision on 25 March 2014. In it (at paragraph 5), she set out the main issues as:

"… the effect of the development on the character and appearance of the Upton upon Severn Conservation Area and the setting of nearby listed buildings; and its effect on the living conditions of local residents in terms of overshadowing, visual impact and noise and disturbance."

22. Under the heading "Living Conditions", she said (at paragraphs 16-19):

"16. In coming to a view on the extension proposed, I am mindful that the overall increase in floor space would be limited – approximately 14 square metres in total. Moreover, the extension would be set some 2 metres off the side boundary with No 20A and the garden to No 18 New Street, whereas the existing extension abuts this boundary. In addition, the submitted plans indicate cavity walling for the new structure, and show the only openings would be garage doors to the rear elevation. The small car park extension, already in use, is part and parcel of the existing parking area at the rear here and the whole of the area at the back of the chapel building is enclosed by brick walling.

17. As a long established use, the existing business is not subject to any condition controlling hours of operation. However, there is nothing to suggest that this small scale use causes any problems in terms of noise and disturbance for local residents. Moreover, the extended parking 'compensates' for the loss of parking that would be occasioned by the proposed extension. As a consequence, I am satisfied that there would be no material increase in activity in this rear area. All in all, given the existing arrangements and activities on the site, and the limited scale of the development the subject of the appeal, I am satisfied that any material increase in noise and disturbance for adjoining residents would be unlikely.

…

19. The absence of material harm to the living conditions of local residents means that there would be no conflict in this regard, with Local Plan polic[y] DS3… , and emerging Policy SWDP 31, which, amongst other things, seek to ensure that new development would not have any adverse impact on the amenity of nearby residents."

23. She found that there was no material harm in this, or any other, regard; and duly allowed the appeal, granting planning permission on various conditions, including (i) the new walls should be of cavity construction (condition 4), and (ii) there should be no doors, windows or other openings in the rear or side elevation unless expressly authorised in the permission, i.e. double garage doors at the rear (condition 9). Both of those conditions had been proposed by the Council in its statement of case in the event that planning permission be granted.
24. It is of course that decision of the Inspector that the Claimant now challenges.

The Legal Principles

25. I can deal with the relevant legal principles relatively shortly. They are uncontroversial and well-trodden.
26. Three broad propositions will be sufficient in this case.

i) A planning decision-maker must take into account all material considerations. Relevant national or local policies, including the NPPF and development plan, are material. However, the weight to be given to each such consideration is exclusively a matter of planning judgment for the decision-maker, who is entitled to give a material consideration whatever weight, if any, he considers appropriate. That discretion is subject only to express statutory provision, and the decision not being irrational in the sense of Wednesbury unreasonable, i.e. a decision to which no person in the position of the decision-maker and on the evidence before him could reasonably come (Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759 at page 780F-G). Because the exercise of discretion involves a series of planning judgments, in respect of which an inspector or other planning decision-maker has particular experience and expertise, anyone who challenges a planning decision on Wednesbury grounds, faces "a particularly daunting task" (Newsmith v Secretary of State for the Environment, Transport and the Regions [2001] EWHC 75 (Admin) at [8] per Sullivan J, as he then was).

ii) An inspector's decision letter cannot be subjected to the exegesis that might be appropriate for a statute or a deed. It must be read as a whole, and in a practical and common sense way, in the knowledge that it is addressed to the persons who will be well aware of the issues and the arguments deployed at the inspector's enquiry, so that it is not necessary to rehearse every argument but only the principal controversial issues. As Cranston J recently emphasised in Arsenal Football Club plc v Secretary of State for Communities and Local Government [2014] EWHC 2620 (Admin) at [34], an inspector is only required to deal with and give reasons in respect of the main issues in dispute before him, not every material consideration. Reasons for a decision must be sufficient to enable a party to understand how any such issue, of fact or law, has been resolved. In any event, a reasons challenge will only succeed if the aggrieved party has been substantially prejudiced by the failure to provide an adequately reasoned decision (see Seddon Properties v Secretary of State for the Environment (1981) 42 P&CR 26 at page 28 per Forbes J; South Somerset District Council v Secretary of State for the Environment [1993] 1 PLR 80 at pages 82H, 83F-G per Hoffman LJ); and South Bucks District Council v Porter (No 2) [2004] UKHL 33 at [36] per Lord Brown).

iii) Although an application under section 288 is by way of statutory appeal, it is determined on traditional judicial review grounds.

27. As I have indicated, relevant policies are material considerations. I can again deal with policies that are relevant to this claim shortly. Policy DS3(c) of the Malvern Hills District Local Plan requires development proposals have no significant adverse effect on the amenity of occupiers of residential property, or on neighbouring buildings and land uses. Paragraph 123 of the NPPF states that the aim of planning decisions is to avoid noise that would case significant adverse impacts on health and quality of life. There is similar wording in Policy SWDP 31 in the currently emerging South Worcestershire Development Plan.

Grounds of Challenge

28. Mr Choongh relied upon four grounds of challenge, with which, for convenience, if I may, I will deal in a different order from that in which he made his submissions.

Ground 1

29. Mr Choongh submitted that it was irrational of the Inspector to require, as conditions of the grant, cavity walling as noise insulation and there be no other openings in the rear and side elevation, whilst allowing the double doors in the rear elevation without any restriction (e.g.) in the work that could be undertaken with those doors open. Having recognised that leaking noise was an issue, it made no sense and was irrational (he said) to require cavity walling and forbid all other openings, but at the same time to allow such doors in the rear elevation. If condition 9 was there to ensure containment of noise, then the Inspector should have imposed a further condition that there should be no noise-producing work done in the proposed extension whilst the doors were open, grappling with the Council's point that such a condition would be impossible to enforce.
30. However, I am entirely unpersuaded by this submission. Mr Choongh rightly conceded that more noise would escape from the building if there were additional openings or if there was no cavity wall insulation. It was a matter of planning judgment for the Inspector as to what openings etc were acceptable. There is no arguable illogicality or irrationality in her concluding that large double doors in the rear would be acceptable in planning terms, but only if there were no other openings in the rear and side elevations, and if those elevations were cavity insulated.
31. Mr Deakin submitted that this challenge was, in substance, simply an impermissible attack on the merits of the Inspector's decision. I agree.

Ground 2

32. As I have indicated (see paragraph 22 above), the Inspector found in paragraph 17 of her decision that "there would be no material increase in activity in the rear area". Mr Choongh submitted that this was an illogical and legally perverse finding, given that she found – inevitably on the evidence – that traffic movements would be taken from the front of the property (where they currently occur) to the rear (where there are is currently no access to the buildings on the Site). The point was compounded, said Mr Choongh, because the proposed extension would increase the capacity of the workshop, and so the overall vehicular traffic was intended to – and, inevitably, would in fact – increase. This finding – crucial to her later conclusion that the environmental harm that would be caused by the new extension would be immaterial – was therefore fundamentally flawed.
33. However, in my view, that is not so. As Mr Deakin stressed, the Inspector did not find that there would be no increase in activity at the rear of the Site – there clearly would be such an increase – she found that there would be no material increase. Mr Choongh, again readily and properly, conceded that materiality was essentially a matter for the Inspector. Whether there would be a material increase in activity was an evaluative judgment which the Inspector was entitled to make upon all the evidence before her, including the site visit. The Inspector was patently aware that, on the basis of the proposal, access was to be gained through the rear doors of the premises, rather than (as at present) through the front: that was made very clear in paragraph 5.13 of the Council's statement of case to the Inspector, and expressly referred to by her at paragraph 16 (in the section she devoted to living conditions including noise) and paragraph 21 of her decision. There is no basis for saying that she failed to take that material consideration into account; and her conclusion that the increase in activity was not material was not arguably outside the range of legitimate conclusions to which she was entitled to come.
34. Mr Choongh sought to use the facts and matters upon which he relied on Ground 1 in support also of this ground. However, unfortunately, they do not assist his cause on this ground any more than they did in respect of Ground 1.
35. This ground must fail.

Ground 3

36. Article 31(1)(a)(iii) of the Town & Country Planning (Development Management Procedure) (England) Order 2010 provides that, where planning decision-makers grant planning permission subject to conditions, he must "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."
37. Mr Choongh submitted that the Inspector failed to comply with this requirement in this case, because she did not give any reason for the imposition of condition 9, i.e. that there should be no doors, windows or other openings in the rear or side elevation unless expressly authorised in the permission (see paragraph 23 above). Had she brought her mind to bear on the reasons for that condition, the irrationality inherent in her analysis would have been apparent to her.
38. But her reason for considering that condition necessary is clear from her decision, when read as whole. As I have indicated (see paragraph 23 above), the Council's statement of case recommended condition 9 as a condition if the appeal were allowed, stating that it was required "to safeguard the residential amenity of the neighbouring property, No 18 New Street in accordance with Policy DS3 of the Malvern District Local Plan". In paragraph 16 of her decision, the Inspector notes that "the submitted plans indicate cavity walling for the new structure, and show that the only openings would be the garage doors to the rear elevation". Whilst paragraph 23 of her decision expressly states that cavity walling is necessary to protect the living conditions of neighbouring residents, and does not expressly refer to other openings than the proposed rear doors, when her decision is looked at fairly and as a whole, it is abundantly clear that condition 9 was imposed to protect the living conditions of the Site's neighbours, particularly the Claimant and others who live at 18 New Street.
39. It is noteworthy that (i) condition 9 was not, in itself, in issue before the Inspector; and (ii) the Claimant has not suffered any conceivable prejudice by the absence of more detailed reasons. But, in any event, for the reasons I have given, this ground fails.

Ground 4

40. Finally, Mr Choongh submitted that the Inspector proceeded on a false premise, namely that "there is nothing to suggest that this small scale use [as an existing garage] causes any problems in terms of noise and disturbance for local residents" (paragraph 17 of her decision, quoted in full at paragraph 22 above). That was incorrect, he says, because there was evidence to suggest that it did cause such problems, namely his email of 12 March 2013. Unfortunately, although the Council confirmed to the Claimant that all representations made to the Council in respect of the application would be sent to the Inspector and the Claimant's other representations (including those of 22 January 2013) were forwarded to the Inspector, his email of 12 March 2013 was not. Thus, Mr Choongh submits, the Inspector failed to have regard to important evidence, and fell into error by proceeding on the basis that there was no evidence that the garage operation from the Site had, in the past, caused any noise problems for the neighbours. That was unfair to the Claimant, whose full case had not been considered by the Inspector.
41. In support, Mr Choongh relied upon the well-known citation from the judgment of Carnwath LJ (as he then was) in E v Secretary of State for the Home Department [2004] EWCA Civ 49 at [66], where he set out the requirements for a mistake of fact to amount to an error of law for public law purposes:

"First, there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter. Secondly, the fact or evidence must have been 'established', in the sense that it was uncontentious and objectively verifiable. Thirdly, the appellant (or his advisers) must not have been responsible for the mistake. Fourthly, the mistake must have played a material (not necessarily decisive) part in the tribunal's reasoning." (emphasis added).

In Chalfont St Peter Parish Council v Chiltern District Council [2014] EWCA Civ 1393 at [96]-[97], Beatson LJ explained that this ground is not in substance a separate ground of review, but can be analysed in terms of forming part of the established ground of breach of the rules of natural justice and procedural fairness.

42. Mr Deakin submitted that the Inspector did not err by failing to take into account important evidence, because a decision-maker cannot be criticised for not taking into account evidence that was not before him or her. That is true so far as it goes; but, as Mr Deakin readily accepted, it is not a complete answer to the ground of challenge, because it is arguable that the process was fundamentally flawed because the Council did not (as it said it would) send the Claimant's 12 March 2013 email to the Inspector, and thus the procedure was unfair to the Claimant and the case he was putting.
43. That is an arguable but, in my view, not a good ground.
44. It appears to me possibly debatable whether the email amounted to representations in relation to the application, because it was directed to WRS as the relevant environmental health authority with only a copy sent to the Planning Officer. However, I need not dwell on that point; because the Council accepts that it was sent to the Planning Committee when they were considering the application and Mr Deakin concedes that, in those circumstances, it must be treated as a representation. I agree.
45. However, the real question is whether it was material. As Carnwath LJ indicated in E, it is not sufficient for there to be a mistake by which the decision-maker is deprived of evidence: the mistake must be material, in the sense that, had it been available to the decision-maker it would or could have played a material part in his or her thinking.
46. The issue before the Inspector did not directly concern the noise from the Site as currently and lawfully used. The issue before the Inspector concerned the noise and disturbance that would be caused by the proposed development, e.g. because of the additional activity at the rear of the premises including through the proposed double doors at the back, the additional activity that could be expected as a result on the increase in workshop floorspace, and positioning of the main workshop areas. From the Claimant's representations, it is clear that he understood that. There was nothing of any significance about the current level of noise in the lengthy representations of 22 January 2013, or in the flurry of further representations before the Planning Committee meeting, or in the shorter submission by the Claimant to the Inspector herself.
47. There is no evidence to suggest that the assurance of the individual who prepared the email of WRS in response to the application – that he was unaware of any noise complaints about the Site – was incorrect; and the evidence now is that, at the time of the original consideration of the application by the Council, WRS had only received a single complaint about the noise from the Site (namely that made by the Claimant on 7 February 2013). There is thin evidence of further complaints by the Claimant to WRS, despite his indication in the 12 March 2103 email that he would report all noise from the Site that he considered unacceptable: there was perhaps only one further complaint, and at most very few, prior to the Inspector's decision. No one else had, or has, made any complaint. Mr Choongh tells me on instructions – and I accept – that, prior to the Inspector's decision, WRS set up equipment to monitor the levels of noise coming from the Site; but that did not result in any steps being taken against Mr Perry or the Site. Indeed, there is no evidence that the noise from the Site has ever amounted to a nuisance in legal terms.
48. None of that suggests that the Inspector's judgment on the issue before her – whether the noise and disturbance from the proposed development would be materially greater that currently experienced, or would otherwise be unacceptable in planning terms – would have been any different had she had the Claimant's email of 12 March 2013 before her. Indeed, in my view, it would clearly have been the same.
49. This ground too therefore fails.

Conclusion

50. For those reasons, despite Mr Choongh's valiant efforts, none of the grounds upon which the Claimant relies is made good; and I consequently dismiss this application.