Neutral Citation Number:  EWCA Civ 1156
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(MR JUSTICE RICHARDS)
Royal Courts of Justice
Monday, 25th July 2005
B E F O R E:
LORD JUSTICE MAURICE KAY
- - - - - - -
THE QUEEN ON THE APPLICATION OF HERBERT HARLOW
SOUTH CAMBRIDGESHIRE DISTRICT COUNCIL
- - - - - - -
(Computer-Aided Transcript of the Palantype Notes of
Smith Bernal Wordwave Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
- - - - - - -
MR PAUL BROWN (instructed by Messrs Richard Buxton, Cambridge CB1 1JP) appeared on behalf of the Applicant
MR JAMES FINDLAY (instructed by South Cambridgeshire District Council, 9-11 Hills Road, Cambridge CB2 1PB) appeared on behalf of the Respondent
- - - - - - -
J U D G M E N T
(As approved by the Court)
- - - - - - -
1. LORD JUSTICE MAURICE KAY: This is an application for permission to appeal an order of Richards J made on 17th February 2005. He had heard an application for judicial review in which the then claimant, now applicant, Mr Harlow was seeking to quash a planning decision of the local planning authority, which was the South Cambridgeshire District Council.
2. Mr Harlow and other members of his family occupy houses close to Riverview Farm in Over, Cambridgeshire. In recent years planning permission has been given for a degree of industrial use at Riverview Farm. What became the present matter of controversy was an application to alter the conditions relating to the consent for industrial use, so that instead of being limited to the hours 8.00am to 6.30pm on week days, the planning condition would permit such use from 7.30am until 6.30pm.
3. I do not propose to deal with the complete history. It is sufficient to record this. The environmental health officer, who at one time had been opposed to the extension of hours, later took a different view and expressed it following an assessment of the situation which included noise assessments said to be in accordance with BS4142, which were undertaken on the 8th, 10th and 15th July 2003. His final view as expressed to the decision-makers was that light traffic flows in and out of the site between 7.30 and 8.00am had "a marginal effect on the noise climate". He also referred to "low background noise levels". That environmental health officer, Mr Lavender, in addition to advising the decision-makers, also produced evidence in two stages for the hearing before Richards J. I say "two stages" in the sense that he made two witness statements, the second of which was to an extent corrective of the first.
4. The present application for permission to appeal is to the effect that Richards J in dismissing the application for judicial review was misled or misled himself as to the evidence of noise that would emanate from the extended user. On behalf of the applicant, Mr Brown seeks to criticise the judgment below on two grounds, the first of which is confined to a reading of the judgment below and the evidence that was before the judge, but the second of which he submits can only be made good if fresh evidence is permitted to be adduced in this court.
5. The first point relates to Mr Lavender's calculations as to the increase in noise that would result from the increased user. There had been a temporary permission for the extended hours for 12 months, and therefore it had been possible to monitor the adverse consequences of the increased user as temporarily permitted. The point which Mr Brown seeks to make is that Mr Lavender worked on a reading or readings for background noise which existed in any event in the bracket of 43 to 46 decibels. Such a figure was much higher than those obtained by the expert instructed on behalf of the applicant, and much higher than one would expect in a rural location. This much seems to be common ground. In paragraphs 37 to 40 of the judgment, the learned judge refers to this aspect of the case. He observes in paragraph 38:
"There is an oddity about Mr Lavender's background noise readings, in that they do appear to have been high readings for this rural locality."
6. He then suggests that the explanation is that the readings were being taken close to a boundary hedge, which was affected by bird noise and the rustling of leaves which went to increase the background noise figure. There is a further explanation, in the sense that the reason for that precise location is that it was a discreet location, chosen so as to not to alert the users of the industrial site to the fact that their practices were being monitored.
7. Plainly if there is fed into a calculation a high base figure for background noise and there is then taken a figure in respect of actual noise generated by the increased user, the implications will be very different than if the figure initially fed in had been the one which apparently it was common ground would be more expected in that particular location. The use of BS4142 is a scientifically-based method which ultimately is designed to enable a judgment to be made as to the implications of increased noise, so that if the increase is greater than 10 decibels it is such as would be likely in normal circumstances to attract complaints.
8. Using the high base figure of 44 or thereabouts, the threshold increase figure of 10 decibels was not reached. Using the lower figure of the kind obtained by the applicant's expert and considered by everybody to be more usual in a rural location, it would have been reached with ease. Indeed, it would have been reached had Mr Lavender's figure been only slightly lower.
9. The question that arises is whether the judge failed to appreciate the implications of all that. Plainly in paragraphs 37 to 40 he was addressing the fact that the reading of 43 to 46 decibels was an abnormal one and was explaining why that was so. He went on to quote Mr Lavender himself as saying:
"However, I am satisfied that the measurements and conclusions I recorded are in line with my own subjective assessment of the traffic noise at the site, in that it was audible in the property of Greenfields but not intrusively so."
10. Mr Brown submits that that is all very well, but if one conscientiously uses a scientifically-based method, then it is inappropriate to rely wholly on a subjective assessment, in disregard of what that scientifically-based method would have produced if it had been correctly deployed.
11. Mr Findlay on behalf of the planning authority says that in paragraphs 37 to 40 the judge was really dealing with a different argument, namely that on the basis that the 44-decibel reading was correct, there had arisen the argument that it was already a noisy area and this would not make very much difference to an area that could already be characterised in this way.
12. In my judgment, Mr Brown has at least an arguable point about this aspect of the case. It seems to me that reading not only paragraphs 37 to 41, but the passage of the judgment beginning at paragraph 30 setting out a ground of application based on the contention that the judge had taken into account irrelevant considerations, through to the part of the judgment at paragraphs 41 to 43, the judge was concerned to satisfy himself that calculations, as well as subjective impressions, were what they were presented to be. It may be, and I put it no higher than that, that the point made by Mr Brown shows that the factual basis upon which the judge decided the case was vitiated by the implications of taking the 44-decibel figure as the background noise figure in a case in which it seems everybody agreed that in reality the background noise level was low, and to take a figure that was more appropriate to a suburban area rather than a rural area was or may have been an unfortunate mistake of fact.
13. That would dispose me to grant permission to appeal on that basis alone. However, it is necessary to address the second point made by Mr Brown. It is connected with the assumptions that were made about the number of vehicle movements between 7.30 and 8.00 o'clock in the morning which had taken place on the days when Mr Lavender had been monitoring the situation under the existing temporary consent.
14. This has something of a curious history. Initially Mr Lavender was saying that his personal observation on those days was in the region of four to six vehicles per day, but that he would contemplate a worst case scenario of 13 per day. On the day of the hearing before Richards J he produced a second witness statement, pointing out certain errors in his first witness statement (for example, that he had taken an inappropriate distance figure), but also stating that his calculations were based, not on the four to six figure of actual movements that he had seen, but on the figure of 13 which he had postulated as a worst case scenario.
15. The fact that the second statement was produced on the day of hearing caused some problem. Counsel then representing the applicant asked for time to consider it. She was given half an hour, which she appears gratefully to have accepted. Having availed herself of that facility, she did not seek a further adjournment. The case was heard, Mr Lavender's evidence was considered and the judge's findings were made accordingly.
16. If that were the only material, Mr Brown accepts that he would not be in a position to advance this second ground of appeal for which he now seeks permission. However, subsequent to the hearing, and I am now told subsequent to the handing down of the judgment a fortnight or so later, Mrs Turner, a daughter of the applicant who lives in one of the three properties in question, returned to view video tapes that had been accumulated as a result of a closed-circuit television facility which had been installed as a result of complaints that the applicant and his family had been making about excessive user pursuant to the earlier and existing permissions. When she did so, she observed, according to her witness statement made for this court, that on 8th July 2003, the first of the three days upon which Mr Lavender had been monitoring the situation, the actual number of vehicles between 7.30 and 8.00 was not between 4 and 6 but was 13. In other words, according to Mrs Turner, the actual figure on one of the three days equalled the worst case scenario that Mr Lavender had made the subject of a hypothesis but no actual observation.
17. Inevitably, if that is fed into the overall calculation, it makes a difference. It made no difference for as long as Mr Lavender was contending that his final view was the result of reading in the worst case scenario figure. But if, as he later contended, his final view was the result of using his actual observation of four to six vehicles per day, then obviously that view is, at the very least, put under question by evidence that on one of the days the actual figure was 13. For what it is worth, Mrs Turner goes on to say that on the other two days there were only six movements each day, which she attributes to the fact that one of the people who stood to gain from increased hours had become aware of the monitoring and had as a result taken steps to ensure that the number of vehicles was not as great. She goes on to give some evidence about vehicle movements taken from the CCTV on other days, by which I mean days on which Mr Lavender was not monitoring the situation. Again, they are suggestive of higher figures.
18. Richards J did not have the benefit of that evidence. The question that now arises is whether this court ought to receive that evidence. On behalf of the respondents, South Cambridgeshire District Council, Mr Findlay submits that in the light of the tests set out in Ladd v Marshall  1 WLR 1489, the applicant is unable to surmount the first two of the three tests. The first test is whether the evidence could have been obtained with reasonable diligence for use at the hearing. In one sense of course it could. It was in the possession of Mrs Turner throughout. She retrieved it from her own belongings. It is her CCTV system which has given rise to the evidence. What is said by Mr Brown is that the case which the applicant and his family thought they were confronting at the time of the hearing before Richards J was one that included the worst case scenario as an input into the calculation and it was only on the day, when Mr Lavender's second statement was produced, that things came to be seen in a different light. It is therefore suggested that the applicant and his family were not remiss and had not failed to exercise reasonable diligence when not producing this evidence before the hearing conducted by Richards J.
19. It seems to me that that may be the case. Matters are complicated by the fact that the current witness statement from Mrs Turner suggests that she went to retrieve the CCTV material after the hearing before Richards J, but before he had given judgment in the case. Mr Findlay makes the point that after the hearing and before the judgment Mrs Turner could still have retrieved the material and it could still have been submitted to the judge, with a request that he consider it, obviously having provided copies of it to the local planning authority. That may be so, but it is an unusual situation where the point sought to be made relates not to the run-up to the hearing, but to the period of the adjournment pending judgment. In any event, the point is lessened if, as Mrs Turner now says in instructions to Mr Brown, she only sought the material or indeed had reason to do so following the date when judgment was handed down.
20. The second Ladd v Marshall test is whether the material if adduced would probably have an important influence on the result, though such an influence need not be proved to be decisive. It seems to me that it is at least arguable that it would have had such an important influence. This is a difficult matter and it seems to me that it really ought not to be decided conclusively in favour of the applicant at this stage, in view of the fact that the witness statement itself is said not to reflect the reality as to when and how Mrs Turner returned to the CCTV material. It is an important part of the case because, as Mr Brown concedes, without the fresh evidence he would be unable to sustain his proposed second ground of appeal.
21. What I propose to do, therefore, is to grant permission to appeal on the first ground, the one that is not in any way dependent upon fresh evidence, but to adjourn the question of permission to appeal and permission to adduce further evidence to the court hearing the appeal and to give leave to the appellant (as he will now become) to submit a further witness statement from Mrs Turner within the next 14 days, stating when and how she reverted to the CCTV material and offering her explanation as to why she did not do so earlier, in light of the fact that it is now said that it was only after judgment was handed down that she did so.
22. All that leaves the ultimate listing of the hearing in a slight state of uncertainty. However, it seems to me that one way or another this is an appeal which ought not to exceed half a day. That will be the estimate that I put on it, unless I am encouraged to say anything different. It will be heard by three members of the court, one of whom may be a High Court judge, and on that occasion the court will decide whether to admit the evidence and, if it does so decide, whether to grant permission, which if it has granted permission to adduce the evidence seems to me to be the likely consequence.
ORDER: Application for permission to appeal granted on the first ground, but adjourn on the second ground to the court hearing the appeal; the appellant to have leave to submit a further witness statement from Mrs Turner within the next 14 days; constitution of the court for the appeal to consist of three Lords Justices, one of whom may be a High Court judge, with a time estimate of half a day; detailed assessment of the applicant's Community Legal Service funding certificate.
(Order not part of approved judgment)