0
Cemex (UK) Operations Limited operates a limestone quarry and asphalt road stone coating plant near Leyburn, North Yorkshire, some 60 metres from a barn, for which retrospective planning permission had been granted regularising its change of use to a house. The operations at the plant are very noisy. During the determination of the planning application a noise assessment was undertaken at the barn conversion, and the results showed levels of noise far exceeding the threshold for the ‘significant observed adverse effect level’ as contained in the Noise Policy Statement for England. This is the level of noise exposure above which significant adverse effects on health and quality of life occur and the policy aim is to avoid such levels. Notwithstanding this, Richmondshire District Council granted the planning permission regularising the unlawful change of use. The Council relied on windows being kept closed to ensure a satisfactory noise environment and failed to require all the mitigation measures recommended in the noise assessment. The Claimant was successful in persuading the High Court to quash the planning permission on two main grounds: First, the Council failed to have regard to policy guidance in the PPG relating to the undesirability of relying on keeping windows closed as part of a noise mitigation strategy. Second, the Council’s Environmental Health Officer (and, through her, the Council) failed to consider the likelihood of restrictive conditions being placed on Cemex’s operations as part of a future ROMP review. This was crucial given that there was an existing condition on Cemex’s minerals planning permission limiting noise levels experienced at residential premises much further away than the barn conversion under consideration. It was therefore not outlandish speculation that a similar condition could be imposed in relation to the barn conversion. If such a condition were imposed, it would be immediately breached by the noise from the asphalt plant and so would likely lead to severe restrictions on Cemex’s operations. The case follows the successful claim by a cheese factory in R (oao Ornua Ingredients Ltd) v. Herefordshire Council ([2018] EWHC 2239) and is another victory for noisy industrial premises seeking to protect their ongoing operations from the effects of planning permission granted to noise sensitive residential development nearby. It is a salutary reminder to decision makers to properly take into account relevant parts of the PPG and to ensure that the impacts of granting permission for noise sensitive uses are properly considered in relation to potential restrictions on nearby noisy industrial premises. Jenny Wigley represented the successful Claimant. The full Judgment can be read here. She also represented the successful claimant in Ornua Ingredients, (click here for more details).
