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R (May) v Rother District Council [2015] L.L.R. 853

DATE: 22 Jun 2015

In this case, the Court of Appeal (Lord Dyson MR; Lewison & Sales LJJ) considered a challenge to a planning permission granted by Rother District Council in which the claimant/appellant alleged that, in considering the potential noise impact by reference to Policy GD1 of the Rother Local Plan, which required that development “is in keeping with and does not unreasonably harm the amenities of adjoining properties”, the Council had failed to take into account para. 123 of the NPPF (to which its decision documentation had not referred) which provides that planning decisions should “avoid noise from giving rise to significant adverse impacts on health and quality of life as a result of new development [and] mitigate and reduce to a minimum other adverse impacts on health and quality of life arising from noise from new developments, including through the use of conditions.”

The Court held that, having regard to the Noise Policy Statement for England, which was incorporated by reference in a footnote to NPPF para. 123, it was clear that NPPF para. 123 “is to be interpreted as minimising noise as far as reasonably possible”, which required “that ‘all reasonable steps’ should be taken to minimise noise” and “does not mean that adverse effects from noise cannot occur”: see para. 17 of the judgment of Lewison LJ (with whom Lord Dyson MR and Sales LJ agreed). At para. 18 Lewison LJ continued:

“Whether the imposition of a condition is a “reasonable step” is, in my judgment, one of planning judgment for the planning authority. As the history of this case shows it is a judgment on which reasonable people can disagree. I also consider that whether a step is a reasonable step is a judgment which may take into account both the position of the would-be developer and also the position of those who would be affected by the development. I do not, therefore,   consider   that NPPF [123] prohibits the decision maker from balancing conflicting considerations.”

The Court accordingly concluded that para. 123 did not impose a different test to that posed and applied by the Council in Policy GD1 of the Local Plan, and therefore dismissed the appeal.

Charles Banner appeared for the successful respondent, Rother District Council.