Update: planning and environment

Planning for noise is not easy. Noise issues are rarely used to determine the pattern of land use other than simply in the mitigation of its effects while the government has yet to issue a document entitled Planning Out Noise.

Policy requirements for higher density urban living sit uneasily with the adverse amenity impacts that arise by mixing residential with other uses in a high density environment. People ensconced in a city centre pied a terre want to be within walking distance but not hearing distance from the smart restaurants and bars.

Furthermore, current technical noise guidance in its various forms is less than satisfactory. Measures to mitigate the impact of impact of sound may not be entirely successful.

The planning policy regime has found it difficult to take a lead in the noise environment. General government guidance on noise and planning in England is given by PPG 24, which gives guidance to local planning authority in the preparation of development plan policies.

PPG 24 existed for many years in draft as PPG XX. The replacement PPS for PPG 24 is likely to have a similarly long gestation.

Nonetheless, as paragraph 21.9 of the Unitary Development Plan (UDP) for Wirral council notes: 'Noise can cause considerable disturbance especially when a noisy activity is introduced into an area where the normal noise levels are low. While statutory provisions for the control of noise exist within legislation outside the Town and Country Planning Acts (TCPA), the planning system is still the most appropriate mechanisms for tackling potential noise problems from new development, at the outset, by ensuring that noise-generating proposals are located and designed to prevent conflict with neighbouring land uses.'

Role of development plans: planning decisions

PPG24 advises that:

• 'Plans should contain policies designed to ensure, as far as is practicable, that noise-sensitive developments are located away from existing sources of significant noise (or programmed development such as new roads) and that potentially noisy developments are located in areas where noise will not be such an important consideration or where its impact can be minimised. It may also be appropriate for local planning authorities to adopt policies to avoid potentially noisy developments in areas, which have remained relatively undisturbed by noise nuisance and are prized for their recreational and amenity value for this reason.
• 'The secretary of state considers that housing, hospitals and schools should generally be regarded as noise-sensitive development, but planning authorities may wish to include other developments or uses within this definition, depending on local circumstances and priorities and, if so, these should be explained in the development plan.
• 'Where it is particularly difficult to separate noise-sensitive development from noisy activities, plans should contain an indication of any general policies which the local planning authority propose to apply in respect of conditions or planning obligations.'

In the case of residential developments, the guidance note sets out noise exposure categories ranging from A to D, which are designed to help local planning authorities in their consideration of applications for development near transport-related noise sources. Category A represents the circumstances in which noise is unlikely to be a determining factor, while Category D relates to the situation in which development should normally be refused. Categories B and C deal with situations where noise mitigation measures may make development acceptable.

In terms of development the focus may vary from policies designed to ensure that a development will not cause an adverse noise impact upon surrounding development.

Development plan policy can take a proactive approach to the control of noise. For example, Policy R3 Assessment of food and drink uses and licensed entertainment '“ Camden council's UDP provides that planning permission will not be granted for such uses where it 'would cause individual or cumulative harm to an area'.

Detailed design planning guidance can also be used to set the principles that will be applied when applying the relevant planning policies. For example, paragraph 1.3.1 of Bexley council's UDP sets out detailed guidance on such matters as how external traffic noise should be measured, the noise levels at various times of the day that should not be exceeded within any habitable room within the proposed development, and levels for proposed industrial and commercial noise experienced at the boundary of the site.

However, such design guidance needs to be considered carefully. Paragraph 1.3.1 of the Bexley UDP states that: 'the development should accord with the guidance in Planning Policy Guidance Note and British Standard 4142'. The apparent blanket application of the principles of other guidance notes is not altogether satisfactory. BS4142 applies to mixed residential industrial areas and therefore by definition it is not intended to apply to all development.

Development planning may have an important role in the determination of the character of a location for the purpose of nuisance actions. A development plan may provide a formal framework for determining the character of the local in which to judge whether a particular type of noise amounts to a nuisance, for the grant of planning permission may be relevant to the assessment of the character of an area.

Advice on conditions

General advice on conditions is contained in DoE Circular 1/85. Specific guidance is given by PPG 24 on the types of conditions that may be imposed. In particular example conditions are given at Annex 4. Setting noise limits creates particular problems further guidance is given at Annex 5. Drafting conditions that will satisfy the requirements set out at Circular 1/85 may be challenging. Making conditions practically enforceable may be difficult. The result may sometimes be conditions which would require intensive officer hours to monitor. Applying the principle that the 'polluter pays' conditions should be drafted in such a way so as to place the burden of monitoring and reporting upon the applicant rather than the LPA. Thought should also be given to the use of section 106 agreements in order to provide greater flexibility.

The enforceability of noise conditions can in practice involve a lengthy process. A breach of condition notice followed by a criminal prosecution can be a lengthy process where the ultimate fine is so low it may not provide an effective remedy. An injunction may be obtained under s1897b under the TCPA 1990. Such a remedy is discretionary. It is not necessary that the Local Planning Authority (LPA) must have exhausted other remedies. However, simply because an operator is in breach of a condition does not mean that the court will necessarily grant an injunction. In Aylesbury Vale DC v Florent [2007] EWHC 724 (QB) the court granted an injunction to enforce the noise limits of one condition but declined to enforce a condition that would have closed down the clay pigeon shoot until noise mitigation measures were completed.

Relationship with other regimes

PPS 23 on Pollution and Planning Control gives guidance on the overlap between planning and other regimes (see especially para 9-11). The impression may be given by the guidance for a light touch must be taken by LPAs '“ leaving matter of environmental control of 'installations' if they may be regulated by other regimes. One problem is that the planning unit and the installation may not always be exactly the same. The recent case of Cox Skips v First Secretary of State [2006] EWHC 2626 indicates that planning authorities need to give very careful consideration to ensuring appropriate conditions are imposed. The case supports the approach that applying the precautionary approach the planning authority is entitled to impose conditions to regulate matters which may (even if only in part) be regulated by another regime.

Historically, the principal case law on the relationship between the respective regulatory regimes is to be found in the Newport and Gateshead judgments of the Court of Appeal.

Newport Metropolitan Borough Council v Secretary of State for Wales [1998] J.P.L. 377 involved an appeal against an inspector's decision in a public inquiry to award costs against the planning authority for refusing planning permission for a chemical waste treatment plant on the grounds that it was perceived by the public to pose a danger to public health despite expert opinion to the contrary. The Court confirmed that public perception, even if not objectively justified, is a material consideration to be taken into account on the issue of costs. A public inquiry had been held into the refusal of planning permission for the construction of a chemical waste treatment plant. The inspector concluded that there was no evidence to support two of the reasons for refusal namely, that major waste treatment plants should not be located within urban communities and further there was no valid basis for the local community's perception that the proposal was contrary to the public interest. An award of costs was granted against the planning authority for acting unreasonably.

The basis for the award of costs had been that the statutory consultees had not recommended refusal and the experts had confirmed that in land-use terms there would be no significant environmental impact. The planning authority's appeal to the Court of Appeal to quash the award of costs was successful. The court confirmed that public perception, even if not objectively justified, is a material consideration to be taken into account. The court accepted that genuine fears on the part of the public could in rare cases justify refusal even if this was the only reason for refusal and the fears were not soundly based upon scientific or logical fact. The key issue appears to be whether the public fear is genuine. In this particular case there are references in the judgment to the fear being genuine and the inspector did refer to the public's sensitivity being justifiable. The court's judgment in this case can be distinguished from cases where fears are unreasonable and unjustified and would not be a material consideration. The judgment also confirmed that while planning authorities are not bound to follow advice from statutory bodies they must be able to demonstrate reasonable planning grounds for a decision taken against such advice to minimise the risk of an award of costs being made against them.

Gateshead Metropolitan Borough Council v Secretary of State for the Environment [1995] Env. L. R. 37 involved a planning application for a clinical waste incinerator which also required an IPC authorisation for its operation. The Court of Appeal held that planning permission should be granted for this incinerator. Although it acknowledged that there was no clear evidence about the local air quality at the time when the planning application decision was made, the court confirmed that once such information was available then it would be a matter for Her Majesty's Inspectorate of Pollution (HMIP) to determine whether it could be controlled by IPC and not the planning authority. The court stated that it was open for the HMIP to refuse an IPC authorisation for the process even if planning permission has been granted. This case illustrated that there is no clear division between planning controls and a pollution control licensing system such as Integrated Pollution Control (IPC).

However, in effect the granting of planning permission tends to shift the burden of responsibility in respect of whether the process can become operational over to the environmental regulator. Moreover, the grant of planning permission will not automatically result in an IPC authorisation being granted.

Planning and licensing relationship

Put simply the case law upon the interrelationship between planning and licensing is as follows: Lethem v Secretary of State for Transport Local Government and the Regions [2002] WL 1446134 concerned an appeal against the refusal of planning permission from a change of use of premises to a café bar.

The application had been dismissed on the ground that it could add to disorder and crime in the area. The court dismissed the appellant's submission that the inspector's concerns could have been addressed under the Licensing Act 1964 and as such was not material to the planning decision. The Court referred to the Gateshead case and confirmed that the fact the issues raised could be dealt with under more than one statutory scheme did not mean that one scheme had to be applied to the exclusion of the other. Although this case considers the overlap of planning and licensing controls the Court did refer to Gateshead and the principles can be applied to cases involving the overlap of planning and environmental controls.

Statutory nuisance

The relationship between planning and statutory nuisance was however considered in the case of R v Kennet District Council Ex p. Somerfield Property Co Ltd [1999] J.P.L. 361. The case considered whether the planning authority was entitled to impose a condition in the grant of planning permission which was more onerous than an abatement notice served under the Environment Act 1990 or agreement reached between the relevant parties.

The Court distinguished between environmental protection legislation and legislation in the planning field and the different considerations and consequences which arose in each. An abatement notice under the Environmental Protection Act 1990 which was served on a company in relation to noise emitted from its refrigeration units.

The case related to a noise nuisance arising from refrigeration equipment installed within the shop premises (without the benefit of the necessary planning or listed building consent '“ the shop being listed). Agreement was reached as part of a settlement of the appeal against the abatement notice between the local authority and the company regarding a condition in the notice regulating the noise level from the premises.

The company subsequently submitted a retrospective planning and listed building application in connection with its premises. When this was considered by the authority (in its capacity as planning authority) the planning committee imposed an even more onerous condition than that agreed. The company applied for leave to judicially review the planning authority's decision.

The High Court dismissed the application on the ground that there was a clear distinction between environmental protection legislation and planning legislation, which had different considerations and consequences and that the planning authority was not bound therefore by the agreement reached earlier.

While the service of an abatement notice is a material planning consideration, in determining a planning application the planning authority has discretion to impose conditions and these may be stricter than those needed to abate the statutory nuisance if necessary in terms of the amenities of the area.