R v Warwick District Council

Factual and Procedural Background

This judicial review application was brought by the Plaintiff, with permission from Judge Cooke, challenging the decision of the Defendant given on 14 February 2018 to discharge condition 3 attached to a planning permission granted on 26 April 2016 for the conversion of a building known as Barn one from office to residential use. The Plaintiff owns an organic mixed farm adjacent to the property including cattle sheds and grain drying facilities that generate noise. The interested party owns the property containing Barn one and Barn two, with planning permission to convert Barn one to residential use subject to conditions including condition 3, which required approval of an acoustic fence scheme prior to development commencement.

The Plaintiff was concerned that noise from grain dryers and cattle on the farm would cause nuisance to future residents of Barn one, potentially leading to noise abatement notices. Expert evidence presented conflicting information on the frequency and impact of noise from the dryers. The Defendant’s Environmental Health Officer (EHO) had assessed the noise impact and recommended conditions, including maintaining Barn two as a noise screen and installing acoustic fencing.

Planning permission was granted with several conditions, including condition 3 requiring submission and approval of an acoustic fencing scheme to prevent unacceptable disturbance. The Plaintiff initially sought judicial review of the planning permission grant, which was refused permission but later renewed orally before Green J, who emphasized the need for the Defendant to consider the acoustic fence scheme with an open mind.

In late 2017 and early 2018, the interested party submitted details of a proposed 3.3m high wooden acoustic fence to discharge condition 3. The Defendant’s EHO and case officer reviewed the submissions and concluded that the proposed fence would reduce noise levels sufficiently to discharge the condition. The Defendant discharged condition 3 on 14 February 2018, prompting this judicial review challenge by the Plaintiff.

Legal Issues Presented

1. Whether the Defendant failed to have regard to relevant considerations, specifically that applicable objective noise standards would be breached even with the acoustic fence in place.
2. Whether the Defendant failed to consider relevant policy, including DP2 of the Warwick District Local Plan, the National Planning Policy Framework (NPPF), and the Noise Policy Statement for England (NPSE).
3. Whether the Defendant’s decision to discharge condition 3 was inadequately reasoned.

Arguments of the Parties

Appellant's Arguments

• The Defendant ignored relevant considerations by approving a fence scheme that would not prevent breaches of objective noise standards.
• The Defendant failed to properly consider relevant planning policies, including DP2, NPPF, and NPSE.
• Condition 3 required that the acoustic fence scheme ensure no unacceptable disturbance, which the proposed fence did not achieve.
• The Defendant’s decision was inadequately reasoned, lacking proper explanation for approving the fence despite noise exceedances.

Respondent's Arguments

• Conditions 2, 3, and 6 should be read holistically, with condition 2 governing the overall form of development, including the fence specification.
• The 3.3m wooden fence specified in condition 2 was intended to secure compliance with DP2, and the Defendant was entitled to assume its adequacy at the discharge stage.
• Condition 3 was limited to approving the fence’s detailed specification, not re-examining its principle or effectiveness.
• The Defendant relied on the EHO’s expert advice that the proposed fence constituted appropriate mitigation, and the planning permission grant was lawful and binding.
• The Plaintiff had not mounted a challenge based on irrationality to the discharge decision.

Table of Precedents Cited

Court's Reasoning and Analysis

The court focused on two central issues: the proper interpretation of conditions 2, 3, and 6 (including note 2) attached to the planning permission, and the lawfulness of the Defendant’s decision to discharge condition 3 in February 2018.

The court applied an objective, purposive approach to interpreting the conditions, guided by established case law. Condition 2 was found to be a general condition requiring adherence to approved plans, including the specification of a 3.3m wooden acoustic fence, but it did not address unacceptable disturbance. Condition 3, by contrast, was more specific and required approval of a scheme for the acoustic fence before development could commence, with the stated reason to prevent unacceptable disturbance contrary to policy DP2. Note 2 further required evidence demonstrating that the fence would provide adequate noise mitigation.

The court rejected the Respondent’s submission that condition 3 was limited to technical details of the fence and did not allow reconsideration of its effectiveness. Instead, the court held that condition 3 required an open-minded assessment of whether the proposed scheme complied with DP2 by preventing unacceptable disturbance.

The court determined that noise levels and their impact were relevant considerations at both the grant and discharge stages. The Defendant’s EHO had requested evidence on noise mitigation and considered the proposed fence would reduce noise levels sufficiently to avoid unacceptable disturbance, despite noise levels exceeding some objective standards like the SOAEL.

The court acknowledged that the Defendant’s decision was not challenged on irrationality grounds and that the EHO’s expert judgment was entitled to deference. While the reference to living near a main road as a comparator was unfortunate, it was not central to the decision.

Accordingly, the court found that the Defendant had considered relevant matters with an open mind and had not unlawfully discharged condition 3.

Holding and Implications

The court’s final decision was to DISMISS the application for judicial review.

The direct effect of this decision is that the Defendant’s discharge of condition 3 of the April 2016 planning permission stands as lawful. The Plaintiff’s challenge that the acoustic fence scheme was inadequate to prevent unacceptable noise disturbance was rejected. The decision does not set new precedent but confirms the established principles that planning conditions must be interpreted purposively and that decision-makers are entitled to rely on expert assessments when discharging conditions, provided relevant considerations are taken into account with an open mind.