Bryant Homes Ltd. v First Secretary of State

In assessing a planning proposal affected by industrial noise, an inspector must judge the acceptability of the particular scheme before him. Compliance with internal noise standards when windows are closed does not necessarily make a development acceptable. The assessment may consider whether residents would realistically need to keep windows closed, the character of the location, and the nature of the noise. An inspector may mention possible design solutions without determining the appeal by reference to an alternative scheme. A decision is adequately reasoned if it explains why the proposal is unacceptable; the inspector need not identify the precise features of a hypothetical acceptable scheme.

The claimant challenged under section 288 of the Town and Country Planning 1990 an inspector’s decision dismissing its section 78 appeal against refusal of planning permission for 42 dwellings near existing industrial premises.

The inspector accepted that the site was suitable for residential development in principle and that acceptable internal sound levels could be achieved with windows closed. He nevertheless found the scheme over-dependent on closed windows, double glazing and ventilation, and unacceptable because of intrusive and distinctive industrial noise. The claimant alleged that he had assessed an alternative scheme, applied an undisclosed test, failed to give adequate reasons, and ignored benefits to existing properties.

1. The application was dismissed. The claimant was ordered to pay the first defendant’s costs, summarily assessed at £2,991.75. Permission to appeal was refused.
2. The inspector’s decision letter had to be read as a whole. His finding that the land was suitable for residential development in principle was subject to detailed consideration of access and noise. It did not amount to a finding that every residential proposal on the site was acceptable.
3. The inspector was entitled to assess the noise issue using technical evidence informed by subjective judgment and common sense. Compliance with BS8233 with windows closed was not decisive. In the particular rural-village setting, the sudden and startling character of metal clanging and revving HGV engines justified considering the consequences of residents opening or leaving windows ajar.
4. The inspector determined the merits of the scheme actually submitted. His reference to courtyards and other possible design solutions did not mean that he devised or assessed a preferable alternative scheme. The conclusion that the proposal was over-dependent on closed windows explained why the submitted design produced an unacceptable noise climate.
5. The claimant had a fair opportunity to address noise at the inquiry and called expert evidence. The reasons were clear and intelligible. The inspector was not required to specify precisely how much reliance on closed windows would be acceptable or to explain the prospects of a hypothetical alternative development.
6. An inspector must address the principal points advanced, but need not mention every matter separately. The inspector had regard to the general effect of the proposed acoustic barrier, and was not legally required specifically to mention an asserted benefit to existing houses which had not been advanced as a major point.

The judgment describes the earlier planning process:

• Castle Morpeth District Council refused planning permission on 15 March 2002.
• Planning inspector dismissed the claimant’s appeal under section 78 of the Town and Country Planning 1990 in a decision letter dated 2 October 2002.
• High Court (Administrative Court) dismissed the statutory challenge under section 288 and refused permission to appeal.