QUEEN'S BENCH DIVISION
BIRMINGHAM DISTRICT REGISTRY
PLANNING COURT
Bull Street, Birmingham B4 6DS |
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B e f o r e :
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R (oao Ornua Ingredients Ltd) |
Claimant |
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- and - |
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Herefordshire Council | Defendant | |
Barratt Homes | Interested Party |
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Hugh Richards (instructed by internal solicitors ) for the Defendant
Peter Goatley (instructed by Shakespeare Martineau LLP) for the Interested Party
Hearing date: 5 July 2018
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Crown Copyright ©
HHJ David Cooke :
"Dominant noise sources likely to affect future occupiers are the adjacent industrial units and traffic on Leadon Way and Dymock Road. The appellant's noise report sets out various mitigation measures that could be secured by condition. The measures that provide the baseline for the conclusions in the report do not, it transpires, take account of the proposed roundabout on Leadon Way which would, potentially, introduce noise from vehicles braking on approach, and accelerating away from it. I have no reason to suppose, however, that associated noise would preclude development on the appeal site and am satisfied that an appropriately worded condition would deal with the matter and would ensure that acceptable living conditions were provided for future occupiers.
… As referred to earlier, a scheme of noise attenuation is necessary to ensure acceptable living conditions for future occupiers "
i) drawing attention to the fact that in its calculations of noise impact the latest Wardell Armstrong report had dropped a 6 dB "tonal penalty" that had been applied in its 2014 and 2015 reports, and stated that in their opinion further measurements showed that the sound from the cheese factory was not tonal in quality. However Hayes McKenzie had performed their own measurements which, in their view, showed a distinct tonal quality as a result of which the relevant British standard required a tonal penalty to be applied.
ii) Referring to further background noise data collected by Hayes McKenzie, including measurements for evening and night periods that had not previously been assessed.
iii) Stating that Hayes McKenzie's opinion was that in light of these factors the proposed mitigation measures would not prevent a significant adverse impact on residents likely to give rise to complaints, and that with the layout proposed, it would not be possible to achieve suitable mitigation.
""material considerations"
121 In my judgment a consideration is "material", in this context, if it is relevant to the question whether the application should be granted or refused; that is to say if it is a factor which, when placed in the decision-maker's scales, would tip the balance to some extent, one way or the other. In other words, it must be a factor which has some weight in the decision-making process, although plainly it may not be determinative. The test must, of course, be an objective one in the sense that the choice of material considerations must be a rational one, and the considerations chosen must be rationally related to land use issues.
"have regard to"
122 In my judgment, an authority's duty to "have regard to" material considerations is not to be elevated into a formal requirement that in every case where a new material consideration arises after the passing of a resolution (in principle) to grant planning permission but before the issue of the decision notice there has to be a specific referral of the application back to committee. In my judgment the duty is discharged if, as at the date at which the decision notice is issued, the authority has considered all material considerations affecting the application, and has done so with the application in mind – albeit that the application was not specifically placed before it for reconsideration.
123 The matter cannot be left there, however, since it is necessary to consider what is the position where a material consideration arises for the first time immediately before the delegated officer signs the decision notice.
124 At one extreme, it cannot be a sensible interpretation of section 70(2) to conclude that an authority is in breach of duty in failing to have regard to a material consideration the existence of which it (or its officers) did not discover or anticipate, and could not reasonably have discovered or anticipated, prior to the issue of the decision notice. So there has to be some practical flexibility in excluding from the duty material considerations to which the authority did not and could not have regard prior to the issue of the decision notice.
125 On the other hand, where the delegated officer who is about to sign the decision notice becomes aware (or ought reasonably to have become aware) of a new material consideration, section 70(2) requires that the authority have regard to that consideration before finally determining the application. In such a situation, therefore, the authority of the delegated officer must be such as to require him to refer the matter back to committee for reconsideration in the light of the new consideration. If he fails to do so, the authority will be in breach of its statutory duty.
126 In practical terms, therefore, where since the passing of the resolution some new factor has arisen of which the delegated officer is aware, and which might rationally be regarded as a "material consideration" for the purposes of section 70(2), it must be a counsel of prudence for the delegated officer to err on the side of caution and refer the application back to the authority for specific reconsideration in the light of that new factor. In such circumstances the delegated officer can only safely proceed to issue the decision notice if he is satisfied (a) that the authority is aware of the new factor, (b) that it has considered it with the application in mind, and (c) that on a reconsideration the authority would reach (not might reach) the same decision."