England and Wales High Court (Administrative Court) Decisions

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

		Birmingham Civil Justice Centre Administration Court Priory Courts 33 Bull Street Birmingham
		17th October 2016

APPROVED JUDGMENT

THE HONOURABLE MR. JUSTICE GREEN:

A. Introduction

1. There is before the court today a renewed application for permission to apply for judicial review. The claimant owns Plestowes (a farm) at Barford, Warwick. The farm is a mixed organic farm. The claimant's application for permission to apply for judicial review was refused on paper by His Honour Judge Cooke on 15^th July 2016.
2. The application is against a decision of 26^th April 2016 granting planning permission for conversation of a barn at Plestowes House, Barford from office to residential use (this is known as 'Barn 1'). The decision of approval of Barn 1 was taken at the same time as the refusal of an application for permission for development of another unit, the details of which I do not specifically need to go into. Barn 1 is approximately 30 or 40 metres away from a cattle shed on a farm. The shed has capacity for up to 120 head of cattle. I was instructed today that in the near future, a significant number of cattle will be introduced into that shed. There is a further building on the claimant's farm which is used for grain storage and grain drying. There are, in fact, two dryers: one internally; one externally.
3. The concern of the claimant is that if the property at Barn 1 is converted to residential use as presently contemplated any new owner or occupier would, or could, object to noise and/or odour emanating from the farm and seek to curtail or restrain otherwise perfectly normal and legal farming operations. I will return very briefly to that concern at the end of this ruling.
4. A fair amount of disputed expert evidence was prepared and tendered to the planning authority. Somewhat unusually, the purpose of that served on behalf of the claimant was to show that the normal use of his farm would in fact create an unacceptable level of noise and odour pollution. That served by the interested party (the developer) was to show that any nuisance was not as great as that alleged by the claimant, or in any event could be mitigated. In the light of these conflicting reports, the environmental health officer (the EHO) visited the site and, in consequence in a report suggested various mitigation measures which he considered were capable of overcoming to a sufficient degree any amenity objections in relation to the application.
5. In the light of that report, the claimant submitted further representations for the planning committee's consideration. These included additional information from the claimant's air quality and noise consultants. The upshot of these new representations were designed to undermine the EHO's conclusion. In the event, the EHO did not change his mind in the light of these representations. The officer's report to the Defendant's planning committee was based upon the EHO report and final conclusions, and it is apparent that the defendant accepted these recommendations and advice.
6. The claimant now challenges the decision on two discrete grounds relating to noise and odour. Mr Choongh today has argued that these are not to be construed as rationality challenges. The case is put in terms of failure to address relevant and material considerations; and a failure to give adequate reasons. In particular, as became clear as the argument evolved, it is said that there is no adequate explanation of how or why the mitigating conditions accepted by the Defendant would suffice to overcome the problems identified.

B. Noise

7. I start with a consideration of issues relating to noise. In relation to noise, the gravamen of the objection is that the defendant has failed to take account of the risk of noise amounting to a significant harm to amenity. The position of the claimant is that no noise mitigation measures would suffice to cure the noise problem. This was initially accepted in relation to a closely proximate barn which was the subject of an earlier application, but it has not now been accepted in relation to Barn 1. It is said that there is no logical distinction between the two situations which could justify different analysis or different results.
8. Formally, the claimant relies upon the principle in paragraph 123 of the NPPF, which states that decisions should aim to avoid giving rise to a significant adverse effect on noise and quality of life. The claimant in this respect refers to a number of reports indicating that when the dryers are running, they will create a noise which materially exceeds the threshold set out in relevant assessment standards, which is in fact ten decibels above the background level. It is recognised that by their very nature, dryers operate sporadically, at certain times of the year and dependent upon the level of precipitation in the ground and in a crop.
9. The defendant's decision takes a number of points into consideration. It is important when considering the decision of a defendant, and the reports which give rise to it, to not treat them as if they were statutory documents. In accordance with well known principles they must be read pragmatically and in the round; undue weight must not be given to infelicities of language or stray inconsistencies. It is necessary for the court to look at the document in its totality to understand the real pith and substance of the decision.
10. The relevant reasoning in the EHO's report is brief. It is therefore necessary to consider the document as a whole in order to discern the reasoning for the conclusion in relation to noise. A brief summary of the reasons is as follows: First, the dryers will be used periodically – i.e. most intensively after a wet harvest. Second, in practice, driving hours are daytime hours, although in theory it is recognised that the dryers may be used at night time. This is not explicitly recorded in the reasons, but it is set out elsewhere in the EHO report and clearly was in the mind of the EHO and the defendant. Third, there will be a cloaking or shielding effect protecting the residents of the conversion from noise caused by the location of so called Barn 2 by the dryers and the development of Barn 1. Fourth, there is no history of complaints from "Stable Cottages" which is sufficiently proximate to the dryers for it to be a reasonable comparable. Stable Cottage backs onto the Dutch barn located on the claimant's farm which currently is used for sheep. It is recognised that it is further away from the cattle yard and the grain dryers than Barn 1, which are more likely to be a source of high levels of noise. It is also orientated with its back adjacent to the barn and it has a high boundary wall and hedge. It is thus a comparable, but it is acknowledged that there are limitations. Fifth, the EHO relies upon first-hand experience from a site visit in 2011 when he listened to the dryers whilst they were operating from the development at Barn1 through an open window on the first floor. He concluded that the noise was not so significant that, with mitigation, it would amount to either a statutory nuisance, or would cause amenity to fall below an acceptable level.
11. In coming to the conclusion that permission should be granted, notwithstanding issues relating to noise, the defendant decided therefore to impose a condition. Condition 3 attached to the planning consent was in the following terms:

"Prior to the commencement of development, a scheme shall be submitted to, and approved in writing by, the local planning authority, providing full details and specification of the acoustic fencing (the location of which is shown on the approved plans). The approved scheme shall be implemented in full prior to first occupation of the dwelling house, hereby approved and retained in perpetuity thereafter. Reason: To ensure that an unacceptable disturbance is not created to the detriment of the amenities of the future occupiers of the property in accordance with policy DP2 of the Warwick District Local Plan 1996 to 2011."

The EHO report makes clear that any plan so submitted will be subject to a fresh approval process and that Environmental Health would be consulted. It should go without saying that the authority will need to address its mind afresh to the issue when it arises. They cannot go into the process with a fixed predetermined mindset.

12. The claimant's expert has, in a letter dated 21^st April 2016, expressed the view that a 3.3 metre height acoustic fence is highly unlikely to achieve a satisfactory end result. On the third page of that letter, Mr Gayler, the expert in question, states as follows:

"It is my view that in reality, as the EHO previously advised, the screening effect from a barrier of finite length and 3.3 metres in height are highly unlikely to achieve a satisfactory end result, with a 17 to 22 DB screening effect being very difficult to achieve (losses of 10 to 15 DB being typical maximum losses). This means that significant adverse effects from noise will still be caused to future residents of Barn 1 from the legitimate operation of farm machinery at Plestowes Farm."

13. The authority will unquestionably need to address this issue carefully when the plans for the acoustic fence are submitted in order to form a considered view of the appropriate height. I recognise and emphasise, of course, that the final decision of the authority may involve an issue of judgment and there may not be a black and white cut off. Nonetheless, on balance, I am clear that the defendant's position and the reasoning in the decision, which includes the imposition of the condition that I have just considered, is a proper conclusion to arrive at. The claimant's present criticisms assume that a fence of 3.3 metres will be approved and will not suffice, and they criticise the absence of reasons which underpin that premise. With respect, that criticism is premature; it remains to be seen what will or will not be accepted. As matters stand, I conclude that on this ground the defendant's judgment and reasoning in its decision is entirely lawful.

C. Odour

14. With regard to odour, the EHO did not accept the conclusion of the claimant's expert, which was that odour could be sufficient to lead to a loss of amenity and the generation of complaints. In his assessment, the position was more nuanced. He criticised the claimant's analysis as being based on a worst case analysis and not consistent with practical reality or best or normal practice. The claimant responds by arguing that the failure to consider a worst case analysis or scenario was indeed a material error of law, and that in any event the approach was warranted because the EHO himself considered that a cautious approach was needed.
15. The concept of a worst case scenario, in my view, only has credibility if it is properly connected to the issue of probability. If the worst case scenario is probable, then plainly it needs to be considered. However, if it is improbable, say, because it is an eventuality reflective of a one in a thousand chance, then its relevance is greatly diminished or it is indeed irrelevant. In the present case, the EHO considered that there was uncertainty over the actual level of odour pollution upon the basis that odour annoyance was not an exact science and was conditional upon the assumptions used in order to predict its incidence.
16. The EHO identified a series of factors which he ultimately considered were relevant to his recommendation to the defendant that the development be approved. The considerations were as follows.
17. First, he concluded that the maps showed predictions of perceived or relative "smelliness", rather than actual concentrations of a given chemical, or chemicals. The EHO concluded therefore that the issue was to be classified as one of potential annoyance, which was subjective, rather than an ill-health effect associated with dangerous concentration levels of specified chemicals. And as to this, the Claimant's report was silent as to the chemicals in issue. The EHO stated:

"The report does not say what chemical is actually being modelled. Different chemicals will move around in different ways, so the blend or the pure odour at the receiver will vary with the environmental conditions."

18. Second, the EHO considered the environmental conditions. He concluded that variability in wind direction, temperatures and effects of intervening buildings all amounted to additional potential sources of uncertainty. He observed that the wind rose presented showed that, for most of the time, the prevailing wind would tend to blow smells off yard and cattle sheds and away from Barn 1. Dispersion on still days would be more affected by the relative temperature of the ground and the air at various heights and the temperature of the substances emitted.
19. Third, he considered the issue of the diffusion of odour sources. He stated that the report neglected to mention the slatted walls which were incorporated for ventilation when the doors were closed which, he acknowledged, was a further source of possible fugitive emissions. He then stated that the consultants had used the ADMS5 dispersion model which incorporated wind direction, temperature and so forth. ADMS5 can be operated to consider diffuse area sources, as opposed to emission from a point source (such as a chimney). However, he observed that the Environment Agency review of dispersion modelling for odour predictions recorded that for diffuse fugitive area sources, the use of such dispersion modelling as an odour assessment tool was "to be questioned".
20. Fourth, he observed that the report did not fully describe the process of modelling adopted and the assumptions made. The assumed odour emission – or the "smelliness" as he put it – of the source was expressed in odour units, and the end result of the receptor was expressed in units, but nothing was said of the assumed chemical constituents of the smell. The dispersion model was based on dispersion for particular chemicals to give chemical concentration, which then had to be converted back to odour units of smelliness at a given point. In this regard, the EHO stated:

"Different assumptions for much information about the source is assumed and a different approach to assessment of dispersion could result in different maps of odour concentrations, or indeed maps expressed as concentrations of a particular chemical rather than intensity of odour."

21. Fifth, he stated that odour concentration as a prediction of annoyance or nuisance was not an exact science. He observed that the report started from an assumed odour emission per cow. The authors of the assessment relied on a cow's smelliness data expressed in odour units rather than concentration of known malodorous chemical substances. He observed that there was no odour meter that could be used to measure odour with any degree of specificity. An air sample captured and then smelt by a panel of human beings who rated how smelly it was was not the same as an assessment of how offensive it was. His view was that a panel of humans could come to inconsistent results and conclusions. How and where a sample was taken and matters such as the ventilation of cowsheds, temperature and cow diet could also affect what was offered to the panel to sniff. The Environment Agency review quoted above questioned whether samples obtained in cowsheds would be representative of cowsheds elsewhere or on other occasions.
22. Sixth and finally (and somewhat generally) he observed that the degree of annoyance did not neatly correlate with a particular odour level, because it was also a function of the duration of the smell and how long the smell lasted. He observed that people can become inured to continuous, low-level odours, in the same way they can become used to background noises. He also accepted that people living next to a farm would, to a degree, be accepting of smells in keeping with the character of that area.
23. In the light of these six considerations, he came to the following conclusion:

"My conclusion is that, whilst I accept that there may be occasional periods of unpleasant odour, on balance, I do not feel that there will be a serious adverse effect on the amenity of occupiers of Barn 1. To address the uncertainty, I would recommend that a condition is imposed to reposition the Velux roof lights to the pitch facing away from the farm in order to reduce the likelihood of high concentrations of odour entering the building."

24. In my view, the EHO clearly addressed the evidence which was submitted to him. He plainly did not agree with it in its entirety. He considered that there were many uncertainties which flowed out of the situation and he plainly concluded that the worst case scenario was too remote a possibility to be decisive. Although the claimant, through Mr Choongh in his attractive submissions this afternoon, says otherwise, the point ultimately boils down to a rationality assessment.
25. In my judgment, the defendant was acting within the realms of his discretion to come to the conclusion he did about the level of harm to amenity, but also as to the efficacy of the mitigation measures. I do not think it is suggested by anyone that the mitigation measures are complete or total, and therefore provide a comprehensive solution. Part of the assessment of the defendant is that an occupier will necessarily have to accept a degree of odour. In the round, and on the premise that the Defendant accepted the analysis of the EHO, the decision was proper, rational and lawful. For these reasons, I do not accept that the second ground of objection succeeds.

D. Postscript

26. I complete my ruling with one observation: The claimant is concerned, understandably and reasonably, that in the future, when perhaps the identity of officers has changed, the authority might change its mind and commence statutory nuisance proceedings, or that private proceedings might be commenced. It is certainly not my function to express any firm view on this entirely hypothetical situation. I will nonetheless say, so that it is recorded in judgment for future reference, that the basis of the Defendant's decision to refuse the Claimant's complaints is that they have decided that neither noise nor odour pollution would amount to an actionable statutory nuisance or otherwise significantly impact upon amenity. They came to this conclusion in full knowledge of the Claimant's case as to the maximum potential for odour and noise pollution. The authority might, in the event, be hard pressed to resile from its present stance. Nonetheless, for the reasons I have given, the renewed application does not succeed.
(End of judgment) (Discussions as to permission to appeal followed)