QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
(Sitting as a Deputy Judge of the High Court)
-on the application of
|- and -
|EAST SUFFOLK COUNCIL
(1) PGL TRAVEL LIMITED
(2) HB PGL HOLDING LIMITED
Mr Josef Cannon (instructed by East Suffolk Council) for the Defendant
Hearing dates: 15th and 16th July 2020
Crown Copyright ©
James Strachan QC:
"Creation of a lake for recreational activities such as raft building and canoeing, including excavation the re-use of excavated materials onsite, and the re-organisation of consented Activity Structures within the Bawdsey Manor Estate".
i) the advice and comments from the Council's Environmental Health Officer ("the EHO") about the noise effects of the development – Ground 1;
ii) the heritage benefits said to be secured by way of enabling development, but which were not in fact secured by the conditions imposed on the grant of planning permission – Ground 2.
Bawdsey Manor Estate
The Outdoor Activity Structures & River Jordan Planning Permission
"The continued use of this historic estate as a single entity by PGL is welcome because the proposed use appears a reasonably good fit in terms of re-use of existing buildings and utilisation of the landscape for educational and activity purposes. Having a viable business operating from the site will be beneficial in seeking to preserve the historic structures, buildings and parkland and the restoration of the buildings at risk."
"Both H[istoric] E[ngland]and the Council's Principal Design and Conservation Officer and Arboricultural and Landscape Manager, welcome the restoration of the River Jordan as it will provide a significant enhancement to the setting of the Manor on approach. All agree that the majority of the activity equipment/structures are located in the less sensitive areas of the landscape and that their design and position will not adversely impact on the setting of the listed buildings/structures. The removal of the rifle range from the cliff garden and the removal of the archery from the front lawn of the manor is welcome. HE regard their re-positioning within the walled garden will cause some harm to its character but that the harm may be acceptable when balanced against the wider benefits of partial restoration of the axial paths and central water feature, repairs to the walls and gates and restoration of the Lemonary. The applicant has agreed to submit a restoration scheme for the lemonary and the walls and gates within 6 months of the structures in the walled garden being bought into use. The re-location of one of the abseil tower further from the listed buildings to a less sensitive area of the landscape is also welcome. Seeking a viable use for the site in its entirety is also a public benefit that out-weighs the harm caused by the proposals.
HE have concerns to the lack of a detailed landscape strategy as this is critical to minimising the harm associated with the development and recommends that any consent should be conditional on the submission of a detailed landscape plan and its timely implementation. The applicant has agreed to the submission of a landscape scheme to maintain and further screen the structures within 3 months, and implementation by the end of the 2018/19 planting season. A wider detailed landscape strategy would be sought within 6 months. With such conditions in place it is considered the proposals will not have a significant materially adverse impact on the character and setting of the historic park and garden in line with policy SSP37."
"Two objections have been received from nearby residents on the grounds of undue noise disturbance from the use of the various activity structures. The application is supported by a noise assessment which the Council's Environmental Protection Team have assessed, having been made aware of the objections raised. They have undertaken a site visit and are satisfied, subject to a condition requiring the submission of a Noise Management Plan, that the proposals will not cause undue noise disturbance to nearby residents.
There is no doubt that the use will generate some levels of noise as it probably did when in operation as a school. The activity structures will not be used during the evening and all children will be supervised. There will be thus some controlled management by staff.
Having regard to all these factors it is not considered the proposal will cause undue noise disturbance to justify a refusal of planning permission on these grounds.
It is considered the visual impact of the structures could be reduced for residents in Kennelmans Cottage by undertaking some additional planting in the vicinity of this property, which is positioned quite close to one of the pieces of equipment. This would be sought as part of the landscape condition."
"7. Within 3 months of commencement of development, a landscape scheme (including maintenance and management details) that seeks to strengthen the existing woodland structure and provide additional planting to ensure the appropriate screening of the activity structures, shall be submitted to and approved in writing by the local planning authority. Within 6 months of commencement of development a landscape strategy shall be submitted or the remaining parkland including the north of the mansion, the Terraces, Italian Garden, Sunken Garden and the Cliff Garden area.
Reasons: To ensure that there is a well laid out landscaping scheme that will provide appropriate mitigation to reduce the harm caused by the activity structures, in the interests of visual amenity, and to ensure the preservation and enhancement of the Historic Park and Garden.
8. The approved scheme of landscape works shall be implemented by the end of the 2018/19 planting season (or within such extended period as the local planning authority may allow) and shall thereafter be retained and maintained for a period of five years. Any plant material removed, dying or becoming seriously damaged or diseased within five years of planting shall be replaced within the first available planting season thereafter and shall be retained and maintained.
Reason: To ensure the timely implementation of a landscape scheme that will seek to mitigate harm to the Historic Park and Garden.
11. Within 6 months of the structures in the walled garden being brought into use a restoration scheme for the lemonery [sic], axial paths and central water feature and flower beds together with a schedule of repairs to the walled garden walls, gates and the stonework to the entrance surrounds, shall be submitted to and approved in writing by the local planning authority, along with a time scale to complete the works. The works shall be completed in accordance with the approved details and within the time frame agreed.
Reason: To ensure the implementation of works that would provide benefits to outweigh the harm to designated heritage assets caused by the proposals.
12. Prior to the equipment first being used a Noise Management Plan shall be submitted to and agreed in writing with the Local Planning Authority.
Reason: To provide a framework to assist in the prevention of nuisance to neighbouring properties in the interests of residential amenity."
The First Lake Planning Application
"This proposal has the potential to cause noise nuisance to occupiers of neighbouring properties. The potential noise sources are from the children calling out, singing, screaming and laughing while using the lake for the proposed use of kayaking and raft building, along with the 'leaders' shouts of encouragement, support or instruction to the children.
The site is located on marsh land between two sets of residential properties and would lie within direct line of sight of the windows of the properties. Subjectively the properties appear to be relatively close to this proposed use, when compared to the distance to the others uses at the PGL site.
Unfortunately I have not had adequate time to discuss the application with the noise consultant or applicant, and would request an extension of time to do so.
If this is not possible then whilst I acknowledge receipt of the noise assessment as produced by SLR (Ref: 406.06654.00005v1; dated June 2018) which concludes that the predicted noise levels are acceptable when compared to the guideline limits, I would have to object to the application due to a lack of information as currently submitted and due to the noise assessment being an objective assessment against guidance that is not appropriate given the type of noise under consideration and the existing noise climate of the area. It should be noted that this was informally discussed during a site visit prior to the application, with the emphasis placed on a noise management plan rather than an objective noise assessment.
The noise assessment is very much an objective assessment based on two sets of guidance which were intended to be used where the noise is from a steady source and where noise does not have a specific character. Noise from children and leaders using the proposed PGL lake is unpredictable and could be considered to be of far more potential to cause a nuisance to neighbours than a steady continuous sound. There is no obvious guidance to compare an objective noise assessment to, and as such it is my opinion that an assessment based on the likelihood of nuisance and the management of the potential for nuisance would be more appropriate.
In summary my initial concerns are as follows:
- the sheer number of people using the lake (up to 80 children plus instructors at any one time) is excessive and increases the potential for nuisance;
- the number of hours the lake could be used (up to 6 hours per day, 7 days per week) is excessive and has the potential to cause nuisance to neighbours using their gardens in summer or wanting to live with windows wide open or patio doors wide open in the warmer months (which is when use of the lake would be at its peak);
- The use of an Leq does not consider the potential nuisance from this type of proposal. It is not obvious from the noise report what time periods are covered by the Leq.
- The use of BS8233:2014 is inappropriate given the noise source of human voice. This is not a steady source of noise without character;
- WHO guidelines are again generally aimed at steady continuous noise sources, and there is recognition that lower noise levels (than those specified in the document) may be disturbing depending on the nature of the noise.
- It is likely that residents in the area of the proposed lake, will notice noise of this type as being more obvious based on the fact that this piece of land has not historically been used in conjunction with the school use/children playing etc. During a visit to the site it was noticeable that whilst children and instructors could be heard on the main body of the PGL land, it was a more distant sound and use of this part of the site would be more direct."
"1. The submitted document is Version 3 of a Noise Management Plan for the site. It is important that we are made aware of Version 2 and that a clear list of changes for both versions are submitted to us to enable us to fully comment on the document;
2. It appears that in addition to information on the use of the lake, activity times have been changed in Version 3 when compared to the first version – namely a finish time of 17.30 rather than 17.00. This needs an explanation and agreement;
3. Very little information is in the Noise Management Plan on how noise from the use of the Lake will be controlled. As such our previous comments still stand, and we would stress that we are still of the opinion that the proposed use of the lake is excessive and that it has the potential to cause noise nuisance to occupiers of neighbouring properties. The proposal is to use the lake 7 days a week – 5 days of which will see up to 80 participants at any one time. Even with a 75% reduction on a Saturday there would be up to 60 participants, and a 50% reduction in use on a Sunday would still involve up to 40 participants at any one time. It is our opinion that this is excessive and when combined with noise from the other uses of the PGL site, would be unreasonable;
4. The noise and disturbance from this type of activity cannot be assessed purely on decibel levels. The duration, frequency and type of noise should be considered, as it would be when assessing statutory nuisance;
5. The Noise Management Plan commits to 'no activity sessions on the Lake after 17.30pm – staff coaching and development only. To further safeguard the noise environment of the nearby residential properties there will be no activity sessions on the Lake out of the operating season'. Use of the lake by staff for coaching and development could also be intrusive with instructors shouting, people laughing and screaming etc. in the same way as that during the day;
6. It is likely that residents in the area of the proposed lake will notice noise from the lake as being more obvious based on the fact that this area of land has not historically been used in conjunction with the school use/children playing etc.
In conclusion, the Noise Management Plan does not provide us with enough information to be confident that noise from the use of the lake for canoeing and raft building will not cause nuisance to occupiers of neighbouring properties."
The Second Lake Planning Application
"In terms of the amendments to the activity stations other than the lake I have no adverse comments.
In terms of the lake I continue to have concerns in respect of its location and implementation particularly as the noise management plan submitted with this application appears to be the same as that already commented on in DC/18/3160/FUL, therefore our comments will remain the same and are repeated below for consistency;
" …" [The contents of the 6 numbered paragraphs of the consultation response of November 2018 were then repeated, before the EHO continued as follows:]
However I note the planning statement makes significant further reference to the use of the lake and I would have the following comments in that respect;
The planning statement puts significant emphasis on the previous use of the site as a school and military installation, particularly the former in the context of this application and to some degree this is accepted.
The site currently has C2 use and there is an expectation that a reasonable amount of noise will be produced from the site under that use. There has been significant cooperation from the site manager since the centre has been open to make concessions in respect of noise and to fine tune the management of noise on site to ensure that it stays within the bounds of what is reasonable. We have received complaints about noise from the site but have so far not substantiated them. We have previously identified areas where we have considered a problem could exist which have been addressed by the site.
That said noise currently comes from the parts of the site where these historic uses have always been taking place and therefore the precedent has been set that there will be a reasonable level of noise in the context of the lawful activity being undertaken. The area where the lake is proposed has not historically been used as part of the school activities and therefore the addition of the lake, and the significant use of it, represents a new noise source where one previously did not exist, therefore it is difficult to reconcile this reasonable C2 associated noise argument.
Further to this having now seen the raft building activity in action on the River Jordan it appeared to me to be probably the noisiest activity I have witnessed on the site and very little in the way of instructor intervention was noted in terms of noise reduction as claimed will occur in the planning statement. It is entirely accepted that children make noise when enjoying an activity and particularly water based activities but this only makes it more important when considering a new site for this activity type especially where that noise has not previously existed.
It is noted that comment has been made in terms of the noise impact assessment and that this state's only minor impacts on neighbouring properties. As has been discussed at length in the past with PGL and their consultants it is important to understand the use of averaged noise levels (LAeq) does not accurately portray the potential for nuisance from the sounds of people screaming and shouting and cannot be relied upon as a way of mitigating for disturbance.
Ultimately we have made comments and concerns known on the noise management plan in respect of previous applications, this application has not addressed those concerns and I remain unconvinced that the addition of the lake will not be a source of significant disturbance in its currently suggested form."
"4. In relation to the proposed activities planned for the Lake it is stated in your response that "…this type of activity cannot be assessed purely on decibel levels and that the duration, frequency and type of noise should be considered, as it would be when assessing statutory nuisance." However in SLR's opinion, it is most appropriate that we present our findings via a quantitative approach and an analysis of the decibel levels, as this is concordant with the guidance that we have previously stated, such as: BS8233:2014, WHO Guidelines and Sport England Guidance. We have no knowledge of any guidance that states that we should assess the impact based on your proposed methodology, however if there is relevant guidance that you are aware of which implements your suggested methodologies could you please direct us to this so that we can base any reassessment on the stated criteria. Therefore, in this Letter, we have not assessed noise nuisance; rather SLR has based the assessment on the predicted LAmax sound levels[] at the nearest noise sensitive receptors due to the raft building activities on the Lake, and compared them to the existing baseline LAmax sound levels for these receptors.
5. PGL have agreed to operating a "no using the lake after 17:30 rule". This concession would restrict the use of the lake for staff development time and alternative arrangements for staff training will be made.
6. Further to your comment on whether the report will "…consider the impacts of noise on the nearest noise sensitive receptors from the activities considering the area of land has not historically been used in conjunction with the school use/children playing". Again, there is no guidance that we are aware of which would specifically allow for the assessment of a noise sensitive receptor based on the fact that historically adjacent land had not been used for school use/children playing and any associated noise impact. Therefore in SLRs professional opinion it is appropriate that we assess the noise impact based upon nationally recognised guidance by the analysis of the measured and predicted LAmax sound levels at the proposed development."
"These comments relate to the additional noise information recently submitted, and our previous comments should still be taken into consideration.
Amendments to Activity Stations
In terms of the amendments to the activity stations, other than the lake, I have no adverse comments.
Position and Use of the Proposed Lake
In terms of the lake I continue to have concerns in respect of noise from its location and use. Whilst the proposed lake itself is not noisy, the use of the lake for raft building and canoeing introduces a significant new noise source into an area currently relatively unaffected by the noise from PGL. By introducing the lake onto the marsh area, this has the potential to cause nuisance to residents of houses that are currently either a little affected by the existing noise from PGL, or not affected at all due to the distance to the existing PGL use area. Some of the residential properties in the middle complex of houses are currently likely to be screened from the existing noise by the neighbouring buildings (Farm Cottages, The Old Laundry). If the lake is given permission, the new noise source is placed in a direct line of sight to the properties or their gardens, and as such has the potential to be more of a nuisance than the existing noise from PGL. Marsh Cottages will have a new noise source directly placed beside them, where they are relatively unaffected at the moment, and it will be closer to the cottage at the first entrance to the park.
We are concerned that the lake is very close to Marsh Cottages and the middle complex of cottages (Farm Cottages, The Old Laundry etc.), with the raft building area and canoeing jetties being very close to Marsh Cottages. As we have said previously, noise and disturbance from this type of activity cannot be purely judged on decibel levels, and particularly not as an LAeq. The duration, frequency and type of noise should be considered, as it would be when assessing Statutory Nuisance. Although activity use of the existing equipment has been submitted showing that the equipment is not used to full capacity, and in some cases for a low percentage of the time, PGL have admitted that water sports are a very popular activity and it is likely that the raft building and canoeing will be extremely popular with visitors when choosing their list of activities for their stay. As such we feel that it is difficult to predict the likely activity levels of the lake and our comments must be based on use up to that being applied for unless PGL wish to commit to a lower level of use in line with that they currently predict. It is our opinion that the proposed use of the lake is excessive and that there is a need for residents of the houses to have 'days off' from the noise, particularly some time at weekends.
It is likely that residents in the area of the proposed lake will notice noise from the lake as being more obvious based on the fact that this area of land has not historically been used in conjunction with the school use/children playing etc. We feel that alternative positions for a lake should be further considered in locations where the noise from use of the lake will not significantly impact on private residents of neighbouring properties. We recognise that some locations have already been discounted in terms of heritage but these locations may be more appropriate in terms of impact on amenity. The lake could be linked to the existing River Jordan and potentially be smaller in size so that the existing water course can be utilised in the activities.
The Noise Management Plan identifies 'noise sensitive areas' which are shown on figure 02-2 where noise control measures are in place. The proposed raft building area and canoe jetties seem to be within the noise sensitive area surrounding Marsh Cottages.
Noise Management Plan
It appears that in addition to information on the use of the lake, activity times have been changed when compared to the first version – namely a finish time of 17.30 rather than 17.00. Whilst we have concerns about this, and received a number of complaints about noise from the activities at PGL in 2018, we have not witnessed Statutory Nuisance and as such cannot object to this change.
The Noise Management Plan commits to: 'no activity sessions on the Lake after 17.30pm. To further safeguard the noise environment of the nearby residential properties there will be no activity sessions on the Lake out of the operating season'. Restricting activity sessions on the lake does not automatically restrict staff use in the evening or early morning. As previously commented, use of the lake by staff could also be intrusive in the same way as that during the day.
While we feel that use of objective noise levels in the assessment of the potential for nuisance from this type of activity is of limited use, it should be noted that the Raft Building and Canoeing noise levels used in Table 1.3 of the NMP use the low figures as measured at Bawdsey PGL as opposed to the arguably more relevant but higher figures from Caythorpe. Bawdsey raft building is currently low key, whereas Caythorpe may be seen as more representative of what is proposed at Bawdsey.
We are unclear at what distance the noise levels in Table 1.2 for Marchants Hills and Caythorpe were measured. It is therefore difficult to compare with that is stated for Bawdsey. The sentence from the previous version of the NMP 'There would certainly be no further activity taking place in outside areas after 21.30 hours' should be left in the document in section 2.1.
At the end of Table 2.1 a commitment is in place for East Suffolk Council to review the control measures on an annual basis. This should be removed, but could be replaced with a commitment for PGL to submit their review to us for comments, or to discuss a review with us.
Within the Noise Management Plan there is reference to 'Noise monitoring protocol and Significance of Impacts'. It should be noted that the Council would not use objective noise measurements to investigate or determine Statutory Nuisance and as such this section of the Noise Management Plan is very much for PGLs internal use and in our opinion is of limited benefit.
The planning statement puts significant emphasis on the previous use of the site as a school and military installation, particularly the former in the context of this application and to some degree this is accepted.
The existing activity area of the site currently has C2 use and there is an expectation that a reasonable amount of noise will be produced from the site under that use. There has been significant cooperation from the site manager since the centre has been open to make concessions in respect of noise and to fine tune the management of noise on site to ensure that it stays within the bounds of what is reasonable. We received complaints about noise from the site in 2018 but they were not substantiated. So far during 2019 we have been made aware of a few concerns from residents that have been submitted to planning, but we have not received any direct noise complaints to environmental health. We have previously identified areas where we have considered a problem could exist which have been addressed by the site.
That said noise currently comes from the parts of the site where these historic uses have always been taking place and therefore the precedent has been set that there will be a reasonable level of noise in the context of the lawful activity being undertaken. The area where the lake is proposed has not historically been used as part of the school activities and therefore the addition of the lake, and the significant use of it, represents a new noise source where one previously did not exist, therefore it is difficult to reconcile the reasonable C2 associated noise argument.
Further to this having now seen the raft building activity in action on the River Jordan it appeared to me to be probably the noisiest activity I have witnessed on the site and very little in the way of instructor intervention was noted in terms of noise reduction as claimed will occur in the planning statement. It is entirely accepted that children make noise when enjoying an activity and particularly water based activities but this only makes it more important when considering a new site for this activity type especially where that noise has not previously existed.
In the noise submissions from the applicant, both activity levels and noise management are influenced by use of figures from the quiet season or out of season commitments (such as no use of the lake out of season). The likely noise nuisance from the use of the lake is of most relevance in the summer months when residents want to use their outdoor space and to have windows and doors open for ventilation. The cold winter months when windows and doors are shut, and residents are not likely to be resting or enjoying their gardens is of less relevance when considering the potential for nuisance from the site.
In conclusion we have made our comments and concerns known on the noise management plan in respect of previous applications, and the recently submitted information has not significantly reduced those concerns and I remain unconvinced that the addition of the lake will not be a source of disturbance in its currently suggested form."
"We have seen the attached documents and even though raft building has been placed in a less obtrusive area we still believe that use of the activity lake in it's [sic] current form has the potential to unreasonably disturb neighbours.
We have assessed the application as submitted and considered information provided by PGL post submission as a result of our discussions with them. PGL have been made aware of our concerns and have had ample opportunity to suggest amendments to the management and operation of the site in the vein that you suggest but have not done so, if they wish to alter their submission in this respect we will of course give it due consideration.
We would not dismiss the northern part of the lawns in front of the manor, this has been disregarded purely on the grounds of heritage and has not been assessed for it's [sic] appropriateness in terms of impact on people. Furthermore this area is part of the already operational site where noise of this nature is generated as part of the already granted C2 use, the current proposal represents extension of the sites activities beyond that which has previously occurred and thus extends the sites impact on neighbours accordingly [sic]. I should say we are not proposing any particular area as appropriate for this activity only that the currently proposed location is the only one that has been assessed and that there may be other locations subject to assessment.
Statutory nuisance is determined by subjective assessment of the noise taking into account such factors as the nature of the noise, the nature of the area, the frequency, duration and volume of the noise as well as the actual material impact of that noise on residents. This is the crux of our concern, that is to say the belief that, subjectively, exposure to this type of noise in an area where previously this noise did not exist (although we appreciate that it does at the neighbouring site) on a daily basis for the entire duration of the summer months where people will be outside or have windows and doors open will have a significant potential to have a negative material impact on residents use of their properties, whether this would be a matter of statutory nuisance is not possible to say at this point.
I would say at this point it is the nature of the noise that is likely to be the most significant factor in impact, that being children screaming and shouting, this type of noise is very intrusive particularly when adding the frequency and duration factors. It is interesting to note that the noise consultants are comparing the noise climate in 2017 (pre-children) to the predicted noise climate and suggest that the LAmax (maximum noise level) for the 2 periods are broadly the same which is why there will be no impact. If working on a purely objective noise level basis this appears quite true until you add the subjective factors in to the consideration of this potential impact. For example, the predicted max levels have been stated in the assessment as being things as Coaches shouting, Groups shouting and singing, Kicking of barrels, Whistles being blown and equipment being dropped (measured at bawdsey from the river Jordan). However, these noises did not exist in 2017 so the max noise levels are likely to have [b]een generated by such things as Traffic, Farm activity (machinery, shooting, bird scarers etc), Boat noise, Wildlife (birds calling, deer barking etc) and the Sea, so whilst the Max levels appear similar the noise climate will be very different. This is why we have not been satisfied by a purely objective argument of impact and why we consider the use of objective assessment inappropriate for this matter (which is supported by the guidance used as it is out of scope for this situation), although I appreciate subjectivity is difficult to quantify.
Ultimately our comments are based on subjective assessment of the noise in this location which has been undertaken based on our professional experience, presumably in a similar way to how you will have assessed any impact on amenity. We do not believe objective assessment is appropriate and there is no guidance available for the objective assessment of this type of noise in this type of situation which supports our approach. That said we have had no complaints this year and the complaints we received last year were not substantiated by officers of this team, the site management has been receptive to our suggestions where issues have been identified and currently we have no evidence to suggest the site in its current form is being managed poorly or causing levels of noise beyond that which you would expect from it's lawful C2 use [sic].
There are obviously many other aspects that have to be considered in the decision to grant or refuse this planning application and we appreciate if some of those are further up the hierarchy than our subjective concerns in respect of noise."
"Finally, the proposed activities lake is presented within this application as an important part of the applicant's overall strategy to provide a sustainable use for the whole estate and to substantially improve the historic buildings and landscape, essentially by ensuring a solid business model that allows continued investment in the management of the site and restoration of its key features. While the supporting information includes some description to this effect, it also makes clear that this is to be set out in a Landscape Strategy for the site -- as required to discharge condition 7b of the development consented under planning application for the activities structures (planning application reference DC/17/4910/FUL). The Planning Statement indicates (on page 17) that this Landscape Strategy 'will be submitted shortly for consideration alongside this planning application'; however, it does not appear to be included within any of the information supporting this application made available as part of this consultation. The Landscape Strategy is an essential part of the justification, demonstrating how the activities lake will contribute to implementation of the CMP and future investment in restoring, sustaining and/or enhancing the significance of the various heritage assets across the site."
"… I have not been able to review in detail, but a quick look at Appendix B. It certainly seems to be a step in the right direction, presenting a clear list of deliverables and timeframes for their progress and implementation. Item xi looks like the catch-all for elements like the Sunken Garden, Italian Garden, Terraces, etc. not specifically mentioned in any of the other actions. Appendix B proposes to deliver all 11 of the strategies and detailed schemes prior to the proposed activities lake being used for any recreation or other uses by PGL. Using this as the basis for a Condition attached to the activities lake application should help to address our concerns for all three applications (DC/17/4908/FUL, DC/17/4910FUL and DC/19/1022/FUL)."
The Officer's Report for the Second Lake Planning Application
"The application seeks planning permission to provide a lake within the grounds of Bawdsey Manor Estate for use by the applicant (PGL) who run a children's outdoor activity/educational centre on the site. The lake would provide opportunities for canoeing and raft building by guests. The material excavated for the lake is proposed be re-used on the estate. It is also proposed to re-position activity equipment previously consented within the grounds.
The application has been referred to Planning Committee because of the sensitive nature of the site, the finely balanced nature of the recommendation and level of public interest.
The recommendation is Authority to Determine with Approval being recommended subject to the satisfactory resolution of ecological impacts, noise impact and ensuring that the heritage benefits that form part of the justification are implemented within a reasonable time frame."
"3.2 The applicant has explained, in their letter of 8 March 2019, that these activities are attractive and expected by guests and are an essential element if PGL is to remain competitive in the market."
"3.7 The applicants have explained they consider the proposed lake as the only safe option to provide canoeing and raft building activities to guests. The proposed siting of the lake is on grazing marsh in the north western part of the parkland. It would lie between Ferry Road and properties that adjoin the northern drive, which currently have a rear outlook over the grazing marsh. These properties, known as the Manor Dairy complex, were formally ancillary estate building and cottages, comprising a Dairy, Byre, Laundry and Stables. They were sold off from the estate by the previous owners and are now in residential use independent from the Bawdsey Manor Estate. A pair of cottages on Ferry Road (Marsh Cottages) adjoin the north west corner of the site. Woodland tree belts separate the lake site from the more formal gardens around the Manor."
"ii. Noise and Loss of Amenity for residents
The [parish] council appreciates PGL's recognition that noise is a major factor in the opposition to this planning application. Its noise-monitoring protocol and prevention data is particularly welcome although definitions of "time on the water" might be more flexible in practice than is stated.
The East Suffolk Council Environmental Health Officer has already posted her consultation response on the website objecting to the application on the basis that it will create a statutory noise nuisance from day one of use. This will lead to considerable loss of amenity on behalf of the residents in addition to the loss of their open views across marshland as a result of the proposal to plant trees around the lake.
It should be stressed this is a unique site quite different from other PGL sites in having private freeholds within the site rather than outside where residents are naturally more distant from the source of noise. The activities of PGL have already had a major impact on residents' lives because of the contrast before the arrival of PGL and planners may not have appreciated the full extent of the disruption. Noise factors have led to lower house valuations for residents as well as serious health implications.
There is no doubt that this development will cause an incremental spread of noise over the whole area, causing a loss of wider amenity for private residents. Raft building and canoeing are inherently noisy activities due to interactions between children and between children and their instructors.
As stated in our original submission, the issue of loss of amenity has featured in all of the letters from residents objecting to this proposal. We refer planners to NPPF, DM 123 which requires that planning policies and decisions should identify areas of tranquillity which have remained undisturbed by noise and are prized for their amenity value for this very reason.
Both the elements of tranquillity and the uninterrupted views across the marshes to the estuary and beyond are the elements which residents have identified as being most precious to them, not to mention the natural habitat of the marshland."
"4.4 East Suffolk Council Head of Environmental Health are not convinced from the information submitted that the lake will not be a source of significant disturbance to neighbours given the extent of activity proposed (up to 80 participants) and the inevitable noise that children will make when enjoying the water based activities. There is insufficient detail in the submitted Noise Management Plan to how the noise from the lake will be controlled.
Whilst acknowledging the permitted use of the site is a school so there is an expectation that a reasonable amount of noise will be produced, the area in which the lake is sited has not historically been used by the previous school. It is noted that there has been significant co-operation from the site manager since the centre has been open, to make concessions in respect of noise and to fine tune the management of noise on site to ensure it stays within the bounds of what is reasonable. Noise complaints have been received but these have not been substantiated to date."
"• Noise and Disturbance:
- Cause intolerable noise nuisance from guests and instructors shouting, particularly at weekends when most residents will be in their properties all day, causing severe loss of amenity. Noise from the existing occupation of the site (hysterical screaming and chanting) has caused health problems to some residents.
- The path to the lake is at the bottom of adjacent properties gardens.
- More of the existing equipment should be removed to avoid overlooking and loss of privacy to neighbours. The zip wire was not installed in accordance with the approved drawings
- The submitted noise assessment is flawed and the Noise Management Plan useless.
- If noise nuisance claims are made and private nuisance claims against PGL will inevitably follow the costs to PGL could be significant and "eat up quite a bit of heritage asset restoration funding."
"8.6 Other significant work is required to maintain and protect the Estate include urgent repairs to the coastal defences, including the replacement of corroded sheet piling, the restoration of the Pulhamite cliffs (Grade II listed structure), replacement of a water supply pipe and replacement of outdated electrical supply."
"8.7 All these works are at a substantial cost to the applicant, particularly the works required to prevent the estate being destroyed by coastal erosion. It is recognised that the lake is an important component to deliver its business objectives by providing water based activities to guests allowing the business to remain competitive in the market. The ability to provide water based activities by other means and elsewhere on the estate has been ruled out for a number of reasons as stated elsewhere the report and in the applicants letter appended to the report. These reasons are not considered unreasonable. Retaining a viable use for the Estate is imperative to securing its use and long term preservation of the designated heritage assets. This is one of a number of material considerations that needs to be weighed in the balance having regard to other issues raised below."
"8.12 Whilst Historic England note that the submitted supporting information has provided some further justification for the lake as part of an overall strategy to provide a sustainable use for the whole estate and describes how ensuring a solid business model allows continued investment in the management of the site and restoration of key features, but they consider that the justification put forward has failed to adequately address how this will be done.
8.13 The applicants confirm how the lake will form part of an overall strategy for the whole estate, will be set out within the Landscape Strategy that has been submitted under the discharge of conditions for the activity structures. However, the Strategy so far submitted does not sufficiently set out a clear action plan of what will be done and when. This needs to done before issuing any planning consent for the lake is issued, so that planning conditions can be added requiring key restoration work to be done within a certain time frame. Whilst it has been raised by some objectors, such work should be secured by a S106 agreement, officers are satisfied conditions would be appropriate given the applicants have already commenced restoration of the Lemonary and walled garden and given that the restoration of the River Jordan, one of the objectives of the CMP, has been done.
8.14 Therefore in the absence of an agreed Landscape Strategy demonstrating how the activities lake will contribute to the implementation of the CMP and future investment in restoring, sustaining and/or enhancing the significance of the various heritage assets across the site the proposal would not meet paragraphs 194 and 196 of the NPPF. The applicants are currently in the process of amending the Landscape Strategy to reflect the requirements of Historic England and members will be updated on this matter …"
"8.17 Thus in the event that an appropriate soft and hard Landscape Strategy can be agreed and its implementation controlled by condition, it is considered the harm caused to the historic parkland by the lake would be outweighed by the public benefits of securing the preservation of heritage assets, in accordance with the NPPF. The proposals would also accord with Development Plan policy SSP37 and supplementary planning guidance relating to Historic Parklands. It would also fulfil the requirements of the Act, in that it would form part of an ongoing program of works, which seek to preserve and enhance the heritage assets within the wider site."
"Impact on residential amenity
8.32 Paragraph 127, adopted Local Plan Policy DM23 and emerging Planning Policy SCLP11.2, seek to ensure all new development does not result in significant harm to the amenity of residents living nearby.
8.33 There have been a considerable number of objections raised from those living in and around the estate. A key concern raised is the potential noise and disturbance from the activities on the lake and the change in character of this part of the estate, which has always been in agricultural use, and never been used by the former school use.
8.34 There are also concerns from Environmental Services on the issue of noise in that insufficient information has been submitted to be confident that nuisance to neighbouring residents would not occur. Last year there was some complaints made by nearby residents to the noise generated by the guests on site and when using the activity equipment. None of these complaints were substantiated and there has been significant cooperation from the site manager to fine tune the management of noise.
8.35 The applicant is collating more information on this aspect which will be submitted for review by Environmental Services, the outcome of which will be confirmed on the Members update sheet.
8.36 At the closest point, the boundary of the curtilages of residential properties closest to the lake would be approximately 13-15m away. Therefore there would be potential for noise generated by activities on the lake to be heard within the gardens of nearby residential properties. However, in determining this application, the Local Planning Authority must consider whether the potential levels of noise and disturbance would be of significant to cause sufficient material harm or otherwise.
8.37 The applicants in an attempt to address potential noise problems have sought to limit the number of participants on the lake to 80 at any one time, and to limit this by half on Sundays and 75% on Saturdays. Use of the lake will be restricted to daytime (9am to 5pm) and there would be a maximum of four sessions a day. The morning sessions are between 9am and midday and the afternoon sessions are between 2pm and 5pm. The number of sessions will drop outside peak periods, which total 13 weeks of the year. Access to the lake will be restricted to prevent use beyond the periods specified. Furthermore around half of the raft building sessions will take place on the River Jordan to reduce the amount of activity taking place on the lake.
8.38 The applicant has submitted details of a noise management plan setting out how noise on the site will be managed and monitored by staff. When the lake is being used staff will be on the lake with the guests so will not be shouting instructions from the banks of the lake. Access to the lake from the rest of the site will be routed away from the residential properties and singing restricted. Staff will make participants aware of noise sensitive zones.
8.39 As explained in the applicant's letter of 8 March 2019, given the need for a certain amount of instruction on canoeing, teaching the technique of paddling and basics of canoeing as well as the safety aspects, to be given my instructors on the water rather than the banks, the potential for noise is not as great as some of the other activities on offer. With raft building a significant proportion of the time on the activity is spent constructing the rafts on land, with only 15minutes spent on the water.
8.40 Whilst acknowledging that this proposal will no doubt cause some noise intrusion the level of disturbance can hopefully be further assessed on receipt of the additional information, and having regard to the level of usage and the nature and timing of the noise. The applicants intentions to re-position some of the activity structures already consented, but not yet installed, further from residents properties is to try and distance potential noise disturbance to neighbouring residents. They will also mean the structures are less visible to neighbours.
8.41 In terms of residential amenity issues such as outlook and visual impact, it is considered the proposed lake, given it is low lying nature, will not cause harm to residents amenity, as it will not block any outlook currently experienced, some of which are already filtered by existing trees.
8.42 Therefore, subject to the additional noise information being considered acceptable by the Head of Environmental Services, and the inclusion of appropriate conditions to control the use of the lake, the scheme would accord with the NPPF, adopted and emerging planning policy in terms of residential amenity."
9.1 The purchase of the Bawdsey Manor Estate by the applicant has protected it from piecemeal disposal. The fact that the owner is putting most of the buildings to a beneficial use is fundamentally positive. The application provides the context for PGL's ongoing investment and justification for the lake proposals. Providing the benefits accruing from the commercial success of the business is linked to actual restoration projects and implementation of the CMP set out in an agreed Landscape Strategy it is considered the heritage benefits would outweigh the harm that would be caused by the lake.
9.2 It is important to ensure that the proposals will not cause a direct or indirect affect on the integrity of European sites and priority habitat. Clarification of this is still outstanding until further assessment is made of the additional ecological reports and shadow HRA.
9.3 The impact on the amenity of neighbours is also an important consideration. Further noise assessments have been submitted and are currently under review. Planning conditions controlling the numbers using the lake and timing will also help to address amenity issues."
Subsequent Events and The Update Sheet
"Friday 19th July I went to the planning office and found REDACTED and discussed bawdsey Manor in particular the application to construct the lake
REDACTED had told me earlier in the day that REDACTED had exchanged words with him which appeared to indicate they were still wanting some conditions from us to enable the application to be considered positively by members at the committee meeting next week and REDACTED had interpreted REDACTED demeanor as as quite insistent that we should be doing this to assist the approval of the proposed development
I explained to REDACTED that I did not know of any conditions which could be drafted in a sensible practical reasonable and enforceable way which could control the noise that would arise from children indulging in activities such as raft building canoeing etc. at a facility such as this
I said that I was not aware of any specific accepted standards we could rely on to control noise arising frm such activities
I told that that we had discussed PGL's own acoustic consultant's assessment of the impact and methods to quantify it but did not agree with their methodology
We had a brief discussion abotu nuisance and the difference between this and detriment to the amneity. REDACTED said she had been researching nuisance online and had come to realise that it was very subjective I explained that assessment of nuisance was based on
several factors including
time of day
type of noise
nature and character of the location
how it affected the people it affected
whether there was any Malice involved
I also explained that a nuisance could exist without the noise being quantifiable by conventional measurement techniques
I also said that REDACTED and REDACTED had discussed noise levels with PGL and their consultants and we disagreed with their approach of applying certain standards which we believe to be inappropriate and these circumstances and incapable of of assessing or preventing statutory nuisance
I told her that our view had not changed at all on this point and was unlikely to however if she wanted conditions she could always write down in the form of conditions the limitations on these activities which the applicants themselves were suggesting
In other words PGL had suggested that they were not going to have amplified music or public address systems or to carry out activities on Sundays etc and it might be that she could achieve some control over creep beyond the limits of the application in its current form by documenting those promises by applying conditions
I said again that we had not changed our position and we felt that nuisance legislation would be an unreliable method of controlling perceived transgressions in the future aince the approval of this with the granting of planning consent would change the character of that part of the site thus changing the character of the location and thus the determination of nuisance
It would also be difficult to use nuisance law since the noise would be arising from lawful activities carried out in pursuance of a trade or business hence they would have available to them the best practicable means defence
I do not know of any best practicable means to control noise from children enjoying themselves in these circumstances
REDACTED made one or two notes while I was speaking and seems content with what I had said and I left her to ponder on these points"
"8.17. An amended Landscape Strategy (LS) has been submitted that provides confirmation of the works to be undertaken to deliver the discussed landscape enhancements. The LS also outlines the next phase of detailed documents/plans for matters such as the Estate Fencing etc. It offers a commitment to submit for approval of this series of detailed documents prior to the proposed lake being used for any recreation or other purposes by PGL.
Historic England have commented that whilst they have not been able to review the additional information in detail they confirm it:-
"… certainly seems to be a step in the right direction, presenting a clear list of deliverables and timeframes for their progress and implementation. Item xi looks like the catch-all for elements like the Sunken Garden, Italian Garden, Terraces, etc. not specifically mentioned in any of the other actions. Appendix B proposes to deliver all 11 of the strategies and detailed schemes prior to the proposed activities lake being used for any recreation or other uses by PGL. Using this as the basis for a Condition attached to the activities lake application should help to address our concerns"
"8.35 To try and address the concerns of the Environmental Protection Team the applicant has provided operational noise survey measurements at a raft building session in April this year and from canoeing activities at another site where the characteristic were similar to this proposal, to try and quantify the noise impacts, (having regard to BS 8233:2014; WHO guidelines and Sport England advice). They have based their assessment on predicated [sic] LAmax sound levels at nearest noise sensitive receptors from the proposed use of the lake and compared it to baseline LAmax sound levels in 2017 (pre-children) for these receptors and conclude they are broadly the same so no impact.
To address potential noise impacts on residents from raft building, activity stations furthest from residential properties have been identified solely for this purpose.
Head of Environmental Health confirm if working on a purely objective noise level basis the applicants results appears quite true until you add the subjective factors into the consideration of potential impact. Regard has to be given to the nature of the noise, which in the case of the predicated LA max is coaches shouting, groups shouting and singing, kicking of barrels, whistles blown. These noise types did not exist in 2017 when maximum noise levels were likely to have been traffic, boat noise, farming activity, wildlife. It is therefore considered basing noise impacts on purely objective assessment is inappropriate, although it is accepted subjective assessment is difficult to quantify.
Statutory nuisance is determined by subjective assessment of the noise taking into account such factors as the nature of the noise, the nature of the area, the frequency, duration and volume of the noise as well as the actual material impact of that noise on residents. Based on the level of activity proposed on the lake on a daily basis (with no "days off") for the entirety of the summer, when residents are most likely to use their gardens and have windows open, will have the potential to have a negative material impact on residents use of their property, whether this would be a matter of statutory nuisance is difficult to say.
It is noted no complaints have been received by Environmental Services this year and complaints received last year were not substantiated by officers. The site management has been receptive to suggestions where issues have been identified and currently no evidence to suggest site in its current form is being managed poorly and causing levels of noise beyond which would be expected for its lawful C2 use.
8.42 Whilst acknowledging the potential concerns of Environmental Services, it is considered, on balance, that with appropriate conditions, controlling hours of use (daytime only), no use of the lake out of the operating season, restrictions on numbers using the lake, the implementation of the Noise Management Plan (NMP), (submitted as part of the proposals and which sets out a series of practices staff will use to minimize noise disturbance to residents), the applicants management of noise issues to date, and a condition restricting the use of megaphones, sirens of any kind and any electronic speakers or PA system etc., that the proposal would not be contrary to adopted and emerging policy in terms of residential amenity. The NMP includes identifying Noise Sensitive Zones close to residential properties where further restrictions on certain activities are prohibited (e.g. singing) and includes a complaints procedure. Whilst acknowledging that during the summer residents will be using their garden more it is also noted that the area around Bawdsey Quay and beach attracts many visitors and the use of the River Deben for various sailing activities is also poplar during the summer months, and thus be part of the noise environment."
"4.13 Three further letters have been received from one objector re-iterating concerns previously made regarding the need for a viability assessment and adverse landscape/ ecological impacts. The new noise analysis is flawed and misleading focusing on highest sounds. Ridiculous to say screaming and shouting at 70-80 dBs from some 50- 80m away will be reduced to 40-45dBs by the time it reaches residential properties. This is not the case for the abseil tower. Head of Environmental Health will be unable to say with any certainty that the lake will not cause noise nuisance or that any noise disruption can be controlled by the Noise Management Plan."
The Council's Determination
"The objections to the application on the grounds of noise were referenced. The Committee was informed that PGL had taken into account these objections and would implement restrictions on the number of children on the lake at any one time, and the operating times of the lake. The applicant had also produced an assessment that suggested noise levels would be broadly the same as the levels measured at the River Jordan site when raft-buildings takes place. The Senior Planning and Enforcement Officer noted the comments of Environmental Health regarding the subjective factors that should be taken into consideration"
"A member of the Committee queried the lack of noise level assessment information in the report. The work undertaken by the applicant to measure the sound of raft-building at the River Jordan site was reiterated as were the comments of Environmental Health regarding the subjective factors of any noise made by the activities. The Senior Planning and Enforcement Officer noted that the applicant had agreed to controlling factors to minimise the noise produced."
"Mr Block said that the Parish Council had looked at the application in detail and that he would concentrate on three key issues; the impact on residents, the impact on the grassland, and the consideration of an alternative location for the lake.
Mr Block noted the concerns raised by local residents who had bought homes that had previously been part of the estate. He considered that the concern regarding loss of amenity was supported by the comments of Environmental Health and that the noise would be continuous, irregular, difficult to control and monitor, and would be every day. Mr Block said that tranquility was an important part of the Deben Estuary; he agreed that Bawdsey Quay was not a tranquil area but considered the area abutting the application site was. He referred to the NPPF supporting this factor for an AONB. …
"It was appreciated by Mr Cass that noise remained a concern. She highlighted that PGL has made changes to the application in response to comments including changing the position of the lake and the positions of the launch stations around it. Ms Cass said that this demonstrated PGL quickly responding to concerns and that the company had kept the Council up to date at all times. She considered that the noise management plan in place and the site manager's approach to concerns had addressed concerns raised to date."
"Mr Zinns invited the Committee to ask him questions regarding noise concerns, as he considered that there had been significant misrepresentation on the issue. He was representing neighbouring residents who objected to the application and had concerns regarding it. He noted that the CMP had suggested the sell-off of buildings to support the restoration of the estate.
Mr Zinns explained that most residents were retirees or individuals that worked from home. He was of the opinion that a lake would reduce residential amenity and also property value. He highlighted the comments of Environmental Health regarding noise and said that a noise management plan would not resolve the issue.
Mr Zinns said that should the lake be approved he and other residents would pursue private claims against the applicant and considered that this would then cause the lake to be abandoned. He was also concerned regarding the impact of the lake on the drainage of the site and stated that the harm to the parkland would not be realised until it was too late. He outlined the recent profits of PGL and weighed this against its statement that the lake was vital in order to fund restoration works."
The Grant of Planning Permission
"… 'Prior to the lake first being used the detailed documents list i)-xi) in Appendix B of the Landscape Strategy received 10/07/19 shall have been submitted to and approved in writing by the local planning authority. The detailed schemes shall be implemented in accordance with the timescales identified in Appendix B. For the avoidance of doubt, with regard to item xi) these include the Sunken Garden, Italian Garden, and Terraces and the works identified in the plan shall be completed by the end of winter 2020/21'
Do you think we should seek clarification what key feature item xi) is referring to, and is the fact that they state works will commence in Winter 2020/21 rather than completed acceptable to you?"
"As discussed, Appendix B does not include timeframes for implementation of the works to improve historic views and address detractive elements under items v) and viii) respectively. Furthermore the wording of item x) is unclear about what is being commenced within Winter 2019/20 – just the scheme for the works to the Pulhamite Cliffs or the actual works themselves? Indeed, given the cost and complexity of the cliffs work (which will likely require engagement with the Environment Agency), it may be difficult to set and enforce strict timeframe for implementation of this element. It may be that you feel that agreeing scope and timeframe for programmes of work is inherent in discharge of the individual items captured within this Condition and does not need to be stated explicitly. If not, then you may wish to consider including additional text, such as the following:
"Prior to the lake first being used the detailed documents list i)-xi) in Appendix B of the Landscape Strategy received 10/07/19 shall have been submitted to and approved in writing by the local planning authority. The detailed schemes shall be implemented in accordance with the timescales identified in Appendix B. For the avoidance of doubt, with regard to item xi) these include the Sunken Garden, Italian Garden, and Terraces and the works identified in the plan shall be completed by the end of winter 2020/2. For items v), viii) and x), the plans/surveys/schemes identified for delivery must included recommended programmes for implementation to be agreed with the Council."
Legal Framework and Principles
"41. The Planning Court – and this court too – must always be vigilant against excessive legalism infecting the planning system. A planning decision is not akin to an adjudication made by a court (see paragraph 50 of my judgment in Barwood v East Staffordshire Borough Council). The courts must keep in mind that the function of planning decision-making has been assigned by Parliament, not to judges, but – at local level – to elected councillors with the benefit of advice given to them by planning officers, most of whom are professional planners, and – on appeal – to the Secretary of State and his inspectors. …
42. The principles on which the court will act when criticism is made of a planning officer's report to committee are well settled. To summarise the law as it stands:
(1) The essential principles are as stated by the Court of Appeal in R. v Selby District Council, ex parte Oxton Farms  E.G.C.S. 60 (see, in particular, the judgment of Judge L.J., as he then was). They have since been confirmed several times by this court, notably by Sullivan L.J. in R. (on the application of Siraj) v Kirklees Metropolitan Borough Council  EWCA Civ 1286, at paragraph 19, and applied in many cases at first instance (see, for example, the judgment of Hickinbottom J., as he then was, in R. (on the application of Zurich Assurance Ltd., t/a Threadneedle Property Investments) v North Lincolnshire Council  EWHC 3708 (Admin), at paragraph 15).
(2) The principles are not complicated. Planning officers' reports to committee are not to be read with undue rigour, but with reasonable benevolence, and bearing in mind that they are written for councillors with local knowledge (see the judgment of Baroness Hale of Richmond in R. (on the application of Morge) v Hampshire County Council  UKSC 2, at paragraph 36, and the judgment of Sullivan J., as he then was, in R. v Mendip District Council, ex parte Fabre (2000) 80 P. & C.R. 500, at p.509). Unless there is evidence to suggest otherwise, it may reasonably be assumed that, if the members followed the officer's recommendation, they did so on the basis of the advice that he or she gave (see the judgment of Lewison L.J. in Palmer v Herefordshire Council [2016 EWCA Civ 1061 , at paragraph 7). The question for the court will always be whether, on a fair reading of the report as a whole, the officer has materially misled the members on a matter bearing upon their decision, and the error has gone uncorrected before the decision was made. Minor or inconsequential errors may be excused. It is only if the advice in the officer's report is such as to misdirect the members in a material way – so that, but for the flawed advice it was given, the committee's decision would or might have been different – that the court will be able to conclude that the decision itself was rendered unlawful by that advice.
(3) Where the line is drawn between an officer's advice that is significantly or seriously misleading – misleading in a material way – and advice that is misleading but not significantly so will always depend on the context and circumstances in which the advice was given, and on the possible consequences of it. There will be cases in which a planning officer has inadvertently led a committee astray by making some significant error of fact (see, for example R. (on the application of Loader) v Rother District Council  EWCA Civ 795), or has plainly misdirected the members as to the meaning of a relevant policy (see, for example, Watermead Parish Council v Aylesbury Vale District Council  EWCA Civ 152). There will be others where the officer has simply failed to deal with a matter on which the committee ought to receive explicit advice if the local planning authority is to be seen to have performed its decision-making duties in accordance with the law (see, for example, R. (on the application of Williams) v Powys County Council  EWCA Civ 427). But unless there is some distinct and material defect in the officer's advice, the court will not interfere."
Ground 1 - Noise
i) Paragraph 4.4 of the Report to Committee was not based on the EHO's April 2019 comments.
ii) Paragraph 8.34 of the Report portrayed the issue of noise as simply one of further information being required, giving the impression that the EHO had advised the noise issue could be managed out.
iii) Paragraph 8.36 of the Report was misleading as there was not just the potential for noise to be heard in the gardens but an inevitability of significant noise peaks being experienced there.
iv) No attempt was made to set out the EHO's clear position on the nature of the noise, its intrusiveness, the fact that the Lake would bring higher and much more intrusive noise sources much closer to residents than even the Activity Structures which themselves had led to multiple complaints and the whole gist of the EHO's clear and repeated position was missed out and thus a distorted position presented
v) Paragraph 8.38 addressed PGL's attempts to mitigate the noise, but was silent on the EHO's advice as to the innate inability reasonably to control it given the nature of the activities, and the real world experience of lack of actual effective interventions.
vi) Paragraph 8.39 was simply wrong and seriously misleading as to the noise "not being as great" as some other activities on offer. Nobody was contending that the residents would not be exposed to a higher noise levels than previously.
vii) Paragraph 8.40 expressed a hope that the noise environment could be "further assessed" but that was by reference to mitigation already taken into account by the EHO. Changes to the proposed location of further activity structures to mitigate the harm caused by the Lake were highlighted, even though there was no claim of such an offsetting effect in the PGL material.
viii) Paragraph 8.42 reached a pre-conclusion which was inexplicable – on the EHO's analysis which the Committee was not informed of there would be a clear breach of policy to put into the balance. There was no attempt to explain why the EHO's views were wrong and the impression given was that the EHO's concerns were matters of detail to be overcome by further detail.
i) Paragraph 8.35 of the Update Sheet said that the further information had been to try and address the concerns of the EHO, but the gist of those fundamental concerns was not set out, having previously been omitted from the Report.
ii) Paragraph 8.35 stated by reference to LAmax levels that the noise environment was "broadly the same so no impact", which was intended to give the impression that using what was portrayed as an acceptable methodology there would be no impact.
iii) When reporting the EHO's concerns the Update Sheet "cherry-picked" from the final email received from the EHO and missed out the full consultation response and thus the thrust of the EHO's case. It omitted the EHO advice that:
a) "… this type of noise is very intrusive particularly when adding the frequency and duration factors";
b) the EHO's basic locational point;
c) it inexplicably removed the important word "significant" from the sentence "will have a significant potential to have a negative material impact on residents uses of their properties" thus breaching the policy;
d) "whilst the LA max levels appear similar the noise climate will be very different" [Appendix F, p3];
e) the use of LAmax was inappropriate at all [Appendix F, p4] (not just inappropriate by itself as the word "purely" used by the officer suggested); and
f) the fact that the EHO's subjectivity assessment was based on the EHO's expertise ("professional experience") – as was the standard way of assessing noise nuisance and thus not surprising or objectionable – instead implying that there was something wrong with subjective assessment.
iv) It did not address the basic locational point that this was an intense use for "probably the noisiest activity" with "very intrusive" noise being brought much closer to residences into an area which did not previously experience even school noise, with significant potential for nuisance which could not be mitigated;
v) it did not address the fact that noise issues from existing activities further afield consistent with a C2 use had been addressed by the EHO, but the EHO's point was that this was simply the wrong location into which to extend those uses;
vi) it did not address or resolve whether the applicant's approach could "accurately portray the potential for noise nuisance";
vii) it did not mention the EHO had witnessed the inability to control the noise from raft building on site;
viii) it did not report the EHO's view that the proposed use of the Lake was excessive and unreasonable;
ix) it used the lack of complaints for other quieter uses further away as somehow showing that the noise at the Lake could or would be appropriately controlled when the EHO's point was the opposite – the noise from other uses may have been controlled but this was a much more difficult location and use;
x) the lack of substantiated complaints was portrayed as somehow demonstrating that there was no noise problem even with the existing uses when that was not what the EHO was saying and it wrongly gave the impression they were unjustified;
xi) it failed to identify that the planning team was aware of multiple complaints through the logs and otherwise and that, even from use of the activity structures, PGL had accepted there was a noise issue which needed to be addressed.
xii) paragraph 8.42 claimed that the EHO's potential concerns had been acknowledged but this was wrong as the summary of the concerns was wrong and the concerns were not "potential" concerns at all, but concerns of the "potential for significant disturbance and noise nuisance".
xiii) wrongly claimed that, on balance, the measures proposed would avoid the harm to which the EHO referred, even though the EHO had taken those measures into account and wrong suggested that they would overcome the EHO's concerns when the EHO made clear that they would not.
xiv) failed to tell members that the report was going against the clear and repeated advice of the EHO and that his advice was that there remained a significant potential for a breach of policy.
xv) inexplicably relied upon noise at Bawdsey Quay as part of the relevant noise environment, with no evidence to justify that conclusion.
"…there is no reason to impose a legal duty on the responsible officer to identify differences of view within the planning department. It is the role of the planning officer to distil in a clear fashion the issues for members to determine. Of course, if they omit a material consideration, then the report is vulnerable to challenge. However, in the instant case it was an overall planning judgment that was material."
i) The EHO considered PGL's use of objective measures in the form of LAeq and then LAmax to be inappropriate, given the nature of the noise concerned. That was adequately communicated to members in the Update Sheet in reporting the EHO's response to "purely objective" assessment, then pointing out the importance of a subjective assessment, and identifying that a purely objective assessment was inappropriate. Moreover, I do not consider it was the EHO's advice that an objective assessment was entirely irrelevant, and that would have been a surprising contention in any event.
ii) The EHO considered that it was important to carry out a subjective assessment of noise in this case. This was communicated to members in reporting (amongst other things) that the noise and disturbance from this type of activity cannot be assessed purely on decibel levels, but that the duration, frequency and type of noise should be considered, as it would be when assessing statutory nuisance.
iii) The EHO considered that the nature of the noise was likely to the most significant factor in impact. This is clear from paragraph 8.35 of the Update Sheet.
iv) The EHO did not consider that the noise about which he was concerned was going to be adequately controlled by the measures in the Noise Management Plan. This again is clear from the paragraphs read as a whole and is inherent in the planning officer's acknowledgement of the EHO's concerns, but her expression of a different view.
v) The EHO's position that this particular location was inappropriate as it did not have a previous noise source when the Manor was being used as a boarding school, it was not a noisy place and the C2 use did not assist PGL. This is clear from the original Report and the Update Sheet.
vi) There had been noise complaints, albeit they had not been substantiated by the EHO. This was clear from the entirety of the Report and the Update Sheet. The fact that the complaints had not been substantiated is a faithful reporting of what the EHO had said. I also do not consider that the Report had to provide further detail of complaints that had been made of which the planning department was aware. The fact that such complaints had been made was clear from the Report as a whole and was not in dispute.
vii) There was a significant potential for the Lake to impact materially on residential amenity. Again, I consider this to be clear from all of the material before the Committee and the EHO's concerns about what was proposed. Whilst it would have been better not to have omitted the adjective "significant" in this regard, I do not regard the overall effect of doing so as materially misleading the committee (for the reasons already identified).
viii) The EHO ultimately did not consider the proposals to be acceptable from a noise perspective. Again, I consider this to be clear from the Update Sheet read as a whole.
Ground 2 - Heritage
Note 1 LAeq is defined in the Noise Management Plan as the notional steady sound level which, over a stated period of time, would contain the same amount of acoustical energy as the A-weighted fluctuated sound measured over that period. [Back] Note 2 LAmax was defined in the Glossary to the Noise Management Plan as “the maximum A-weighted sound pressure level recorded over the period state. LAmax is sometimes used in assessing environmental noise where occasional loud noises occur, which my have little effect on the overall LAeq noise level but will still affect the noise environment. Unless described otherwise, it is measured using the ‘fast’ sound level meter response.” [Back]
Note 1 LAeq is defined in the Noise Management Plan as the notional steady sound level which, over a stated period of time, would contain the same amount of acoustical energy as the A-weighted fluctuated sound measured over that period. [Back]
Note 2 LAmax was defined in the Glossary to the Noise Management Plan as “the maximum A-weighted sound pressure level recorded over the period state. LAmax is sometimes used in assessing environmental noise where occasional loud noises occur, which my have little effect on the overall LAeq noise level but will still affect the noise environment. Unless described otherwise, it is measured using the ‘fast’ sound level meter response.” [Back]