Neutral Citation Number:  EWHC 2237 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
London WC2A 2LL
Friday, 14 June 2013
B e f o r e:
MR JUSTICE JEREMY BAKER
BOSTON BOROUGH COUNCIL
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Mr R Buxton (of Richard Buxton Solicitors) appeared on behalf of the Claimant
Mr J Smyth (instructed by Boston Borough Council) appeared on behalf of the Defendant
J U D G M E N T
(As Approved by the Court)
- MR JUSTICE JEREMY BAKER: On 10 July 2012 the interested party, Carole Goodson, applied to the Boston Borough Council for planning permission to erect a wind turbine at her property at Fenn Cottage, Midgate Lane, Old Leake, Boston. On 8 August 2012, the defendant carried out a site visit in respect of that application.
- On 21 August 2012, the applicants, who reside at Chiltern Lodge, Midgate Lane, Old Leake, Boston, wrote to the defendant, setting out their objections to the proposed development. Those objections were, firstly, that the wind turbine would cause excessive noise. In this regard, it was said that the noise assessment which had been carried out on behalf of the interested party by Windcrop Limited was flawed, because it assumed a quiet ambient noise, whereas, because the interested party kept dogs, this assumption was incorrect.
- Secondly, it was contended that the keeping of dogs by the interested party was, in fact, a business being operated without appropriate planning permission, such that the interested party was already in breach of planning regulations. Thirdly, the development would be detrimental to the ecology of the area, and, fourthly, that the development would be detrimental to the applicant's visual amenity.
- The defendant produced a report in writing concerning the application, which is to be found between pages 191 and 194 of the claim bundle, together with an assessment made by the defendant's environmental health officer that the turbine was unlikely to generate unacceptable noise levels. He noted that the Windcrop Limited report assumed a minimum background level which he considered was fairly representative for the location.
- The defendants granted the planning permission to the interested party by way of a written notice, dated 5 September 2012, on the basis that:
- "The proposed wind turbine will not cause any significant detrimental harm in terms of noise impact, visual impact or impact on residential amenity and, therefore, accords with the aims and objectives of policy G1 of the Adopted Plan (1999) and policies G1 and G9 of the Interim Local Plan (2006). "
- By condition 3 of that permission the interested party was required to ensure that:
- "Noise arising from the wind turbine shall not exceed LA90 5 min (As heard) of 35 decibels or the background level of 5 decibels, whichever is the greater, at 1 metre from the facade of the nearest residential property with different ownership from the wind turbine. In the event of audible tones being generated by the wind turbine of 5 decibels, the penalty for tonal noise shall be added to the measured noise level."
- On 12 September 2012, the defendant notified the applicants of the grant of the planning permission for the wind turbine on the neighbouring land. Between 26 and 28 September 2012, the interested party erected the wind turbine.
- On 26 November 2012, a letter written by the applicants to the defendants raising concerns about the decision to grant planning permission, was sent. On 5 December 2012, a claim form was submitted on behalf of the applicant, seeking permission to apply for judicial review of the defendant's decision to grant planning permission, on 5 September 2012.
- On 19 December 2012, the claimant's solicitors sent to the defendants a letter setting out the grounds upon which judicial review was sought, namely:
- Ground 1:
- "The Council acted contrary to its policy G1 of the Adopted Local Plan (1999) to the effect that permission would not be granted for development which would 'not substantially harm the amenities of other land users or residents (without indicating the material considerations were such that the policy could be departed from)' and permitting the erection of a turbine which plainly has a serious detrimental impact on the claimant's property. The Council's decision was accordingly unlawful for failure to comply with policy."
- Ground 2:
- "Condition 3 in relation to noise impact is ineffective, thus the Council had acted unlawfully in approving a condition which appears incapable of being controlled and/or effective."
- On 14 January 2013, the solicitors on behalf of the defendant set out their detailed response to those grounds, and also indicated that, in view of the nature of the decision sought to be impugned and the history of the steps which the applicant had taken to seek to challenge the decision, judicial review should not be available to the applicants, by reason of their delay. Thereafter, there was a series of correspondence, passing between the solicitors acting on behalf of the applicant and the defendant.
- On 30 January 2013, the claimants' solicitors wrote to the defendant's, seeking their agreement for judicial review proceedings to be discontinued on the basis that the defendants would not seek an order for costs. On 31 January 2013, that was accepted by the defendants. Further correspondence passed between the parties, in which the claimants stated that the proceedings were still ongoing. However, on 14 February 2013, solicitors acting on behalf of the applicants once again wrote to the defendant suggesting that the proceedings would be discontinued. Against this background of the correspondence, the claim for judicial review has continued.
- On 22 February 2013, the defendants submitted their acknowledgement of service. On 18 March 2013, the application for permission to apply for judicial review was considered on the papers by Lord Carlile QC sitting as a Deputy High Court Judge. He refused permission, indicating that there had been significant delay by the applicants, that the defendants had acted lawfully in granting planning permission, and there were other alternative remedies available to the applicants in relation to the noise nuisance which they claim had been caused by the wind turbine. The applicants today renew their application for permission to apply for judicial review at this oral hearing.
- Bearing in mind the nature of the decision which is sought to be impugned, namely the grant of planning permission, I take the view that there has been significant delay by the applicants in applying for judicial review of that decision. As the case of R (on the application of) Finn‑Kelcey v Milton Keynes Borough Council  EWCA Civ 1067 stressed, in relation to the grant of planning permission, it is particularly important for applications to be made with all due expedition. In the present case, the applicants were well aware of the decision to grant planning permission by 12 September 2012. The interested party had erected the wind turbine by 28 September 2012, yet the claim form was not lodged until 5 December 2012.
- I have considered the explanation very recently provided by Nigel Greaves in a witness statement stated dated 8 June 2012, in relation to the issue of delay, and do not consider that in any way a sufficient justification for the delay that has arisen in this case. It would appear from the correspondence that he is well versed in matters relating to planning, and the matters of complaint do not, as is alleged, arise from any late acquired knowledge. In my judgment, the delay in this case would in itself be sufficient for this court to exercise its discretion to refuse the applicants permission to apply for judicial review. However, I have considered the application on its merits.
- Turning to the grounds themselves, ground 1 is a claim that the defendant has acted unlawfully in failing to follow its policy G1 of the Adopted Local Plan in circumstances where it is contended that the erection of the wind turbine will substantially harm the applicants' amenities. In order to successfully challenge the defendant's decision on that basis, the applicants would have to be in a position to establish that the decision of the defendants was Wednesbury unreasonable. Unsurprisingly, Mr Buxton on behalf of the applicants concedes that that is an insurmountable hill for him to be able to climb on the evidence available in this case, and withdraws that particular ground.
- However, he pursues ground 2. Initially, when this was being advanced by the applicants, it was suggested that as the site specific assessment was based on an assumption that the ambient noise level was quiet, whereas it was contended that there was significant dog noise, the assessment was thereby rendered nugatory. In this regard, I note that in recent witness statements of Nigel Greaves the noise emanating from the neighbouring dogs appears to have abated. However, as the application became refined, the point that is now taken on behalf of the claimant is that the unlawfulness of the decision has arisen from the contention that condition 3 of the planning permission is unenforceable. It is submitted that because the condition is expressed in the alternative, and the background noise level has not been surveyed, an overall noise level significantly above that provided in the first part of condition 3 is permissible. Therefore, it is submitted that the condition is either nugatory or unenforceable.
- This argument, as is pointed out by Mr Smyth on behalf of the defendants, fails to take into account the matter of complaint that was originally made by the applicants, namely that the original site assessment was based on a particular assumption: that being the matter set out in Windcrop Limited's assessment and report:
- "The site is a very quiet rural one with a baseline background noise of 26 decibels."
- Clearly, condition 3 is not to be considered in a vacuum, such that if enforcement of its provisions is sought, the Council would be entitled to do so on the basis of the context out of which it arose, namely, Windcrop Limited's assumption as to the ambient noise levels at that time; it being upon this basis which the defendant granted the interested party's planning permission on 5 September 2012. In these circumstances, condition 3 is not one that is unenforceable or indeed rendered nugatory.
- Recently, points have sought to have been taken on behalf of the claimants that, effectively, what should have occurred here is that only the first part of condition 3 should have been provided as a condition, in the absence of an actual noise survey which was taken at the time. It is pointed out on behalf of the defendants that that is not necessary and that indeed the assumption being a known one is one that can be relied upon in the future subject, of course, to any alteration in noise that has come from other sources. Indeed, it has also been suggested on behalf of the claimant that it would not now be possible for the defendant to enforce this particular condition because it would not be able to carry out a noise test. That too is not something that it is accepted by the defendant. They rely upon their powers under section 196 of the Town and Country Planning Act.
- In my judgment, this submission that the planning permission was unlawful on the basis that the condition 3 was unenforceable is not one that is susceptible to argument and, accordingly, on this occasion, the renewed application for judicial review is refused.
- MR SMYTH: My Lord, there is just the issue of costs.
- MR JUSTICE JEREMY BAKER: Yes. Was any costs order made at the paper permission stage?
- MR SMYTH: Yes, my Lord, at a sum of just over £2,500. The only other claim is the claim for my counsel's fee for attendance. May I make submissions on that?
- MR JUSTICE JEREMY BAKER: Yes.
- MR SMYTH: My Lord, in the short submissions I made, it was felt necessary to send me along today because, firstly, a protected costs order is being sought and, secondly, the skeleton argument revealed that this claimants seemed to be expanding their grounds beyond that which was contained on the face of the claim form. In those circumstances, I submit that it was reasonable for me to attend this hearing.
- To give one specific example, I hope, my Lord, I was able to help, for example, on the issue about the power under section 196 of the Town and Country Planning Act and, in the absence of my attendance, it may well be that my learned friend's submission that the local authority had no power to right of entry may not have gone unchallenged.
- In those circumstances, my Lord, I invite your Lordship to allow counsel's fee of £600. Unless I can assist your Lordship further.
- MR JUSTICE JEREMY BAKER: No. Thank you very much, Mr Smyth.
- MR BUXTON: My Lord, it was made clear in our skeleton argument that there is no dispute, if permission is refused, about the paper permission order. And, so far as the protective costs order is concerned, again, that was made quite clear in the skeleton argument. This is quite common in these types of cases: that there is no need for attendance for that purpose only because that could have been resolved by written submissions.
- In terms of his turning up today, he has suggested that the only merit has been to point out the local authority's power under section 196 ‑‑
- MR JUSTICE JEREMY BAKER: Well, I don't think he was limiting to that. He was perhaps being modest in his contribution.
- MR BUXTON: Obviously he has made a valuable contribution, but, as any defendant will make on these occasions. But the normal order, as your Lordship is aware, is that at renewal hearings, the defendant doesn't get his costs, unless the circumstances are ‑‑ normally doesn't get their costs, unless the matter ‑‑
- MR JUSTICE JEREMY BAKER: Just remind me of the costs order made by the single judge at permission.
- MR SMYTH: It is at £2,589.40, my Lord.
- MR JUSTICE JEREMY BAKER: All right, I don't think you need to trouble me any further, thank you, Mr Buxton. I will confirm the costs order of £2,589.40 and, in my discretion, I do not consider that there should be any further order for costs.
- Mr Buxton, Mr Smyth, thank you very much indeed.