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The High Court today gave judgment in R (Nicholson) v Allerdale BC & M-Sport Ltd [2015] EWHC 2510 (Admin). The case concerns the headquarters of M-Sport Limited (“M-Sport”) at the Dovenby Hall Estate. M-Sport operates a global rallying programme: click here for details. M-Sport was granted planning permission by Allerdale BC (“the Council”) to expand its facilities to include, inter alia, a manufacturing and evaluation centre and a testing and evaluation facility or track, 2.5 km in length with sound attenuation bunds. The permission was challenged by the claimant, who is a local resident. The Grounds of challenge were that: (1) The Council misinterpreted a policy which was central to its decision, namely policy REM10 of the Allerdale Local Plan 1999; (2) In relation to noise issues, the Council (a) failed to grapple with substantial points raised by noise experts, (b) relied upon flawed logic in order to conclude that the levels of noise for local residents from the use of the track would maintain appropriate standards and (c) erred in law by treating noise parameters set in cases under the law of nuisance as immaterial; (3) When assessing the impact of the development on the listed building, the Council failed to comply with section 66 of the Planning (Listed Buildings and Conservation Areas) Act 1990 (“the Listed Buildings Act 1990”). The Judge rejected Grounds 1 and 3, but found Ground 2 made out in one respect, namely that a condition imposed to deal with noise, when properly interpreted, did not allow for the control of maximum noise levels something which the Council intended it to do. The Judge records that: “82. In my judgment the public interest in the proposed development proceeding is sufficiently great that it was plainly preferable for the Court to allow the parties an opportunity to seek to remedy the flaw identified above rather than for the permission to be quashed, provided that that could be achieved within a finite and reasonably short timescale. 83. In R (on the application of Midcounties Co-Operative Ltd) v Wyre Forest D.C. [2011] J.P.L 173 the Court of Appeal accepted that a legal flaw in the drafting of a condition could be overcome by the execution of a planning obligation under section 106 of TCPA 1990 which remedied the defect in the condition, so that it became unnecessary to quash the permission. Since then, the same principle has been applied in R (Barr) v North Somerset Council [2015] EWHC 1735 (Admin) at paragraphs 21 to 24 and 26 to 34 to remedy defective conditions by the use of section 96A of TCPA 1990 (an application for a “non-material alteration” to a planning permission). This matter was raised briefly during the main hearing. 84. If the defect in condition 6 could not be cured by a measure acceptable to the Court, then the permission would have to be quashed. The measure adopted would need to allow the Council to impose noise controls on peak noise whether by LAmax or measures such as LAeq over a much shorter duration than 1 hour. 85. On 27 August 2015 this judgment was made available to the parties in draft form … 89. At the hearing on 1 September 2015 I adjourned the delivery of a final judgment until 12 October so that the Defendant and the Interested Party could address matters raised by the Claimant. I suggested that consideration should be given to the use of section 96A of TCPA 1990 so as to amend the planning permission in order to express the Defendant’s intentions regarding the imposition of controls on peak noise levels when it decided to approve the planning application.” A s. 96A application was thus made by M-Sport following the provision of a draft judgment and was granted. The Judge having considered submissions from the parties declined to quash the permission, albeit he granted a declaration that the claim had been successful to the extent set out in paragraphs 73 to 80 of the judgment. Dan Kolinsky QC appeared for the Claimant instructed by Richard Buxton & Co James Maurici QC appeared for M-Sport instructed by Pinsent Masons LLP.
