Ornua Ingredients Ltd, the owner of a cheese factory adjacent to a site with outline planning permission for 321 houses, has successfully argued that Herefordshire Council was wrong to issue an approval of reserved matters without considering Ornua’s representations and acoustic report as to the effects of noise from the factory on the living conditions of the future residents. That information casted doubt on a conclusion previously reached by the Council that it would in principle be possible to produce an acceptable scheme for mitigation of noise emitted by the factory within the parameters of the proposed layout.
The Court was clear that the Council was entitled to take into account the noise implications at the reserved matters stage (notwithstanding that there was a separate noise condition). And the Council had in fact considered the noise issue as material to its reserved matters decision at the Committee meeting. Because of this, the Council could not then lawfully ignore related information received from Ornua after the Committee meeting but prior to the issue of the decision.
Because Ornua were successful on this point, the Court did not consider that it needed to determine whether or not the Council was obliged to take into account the noise issue when determining layout. However, HHJ David Cooke saw force in the Claimant’s submission that the Council should be obliged to ensure that the reserved matters details would not preclude a satisfactory mitigation scheme within the parameters of the proposed layout. He was not attracted by the argument put forward by both the Council and Barratts that it would be open to the Council to require the submission of a revised layout if necessary when considering the discharge of the noise mitigation scheme condition at a later stage.
This latter point concerns the relative status of reserved matters approvals as compared with the discharge of other conditions, something on which there is very little previous authority.
It is not yet known whether there will be an application for permission to appeal.