O'Dwyer, R (on the application of) v City of Westminster & Anor

In a planning challenge involving noise-sensitive residential development, the decision-maker must address material noise considerations and impose conditions capable of securing the required protection. The existence of an alternative site is ordinarily relevant only in exceptional circumstances, particularly where the proposed development would otherwise have conspicuous adverse effects and an alternative site could avoid them. Where a scheme provides openable windows in a location exposed to substantial noise, the practical likelihood that they will be opened, and the resulting nuisance risk, may be a material consideration. A planning committee must receive sufficiently explicit advice on that risk. A limited procedural defect may be remedied without quashing the permission if an enforceable undertaking or agreement removes the relevant risk.

The claimant operated licensed businesses next to a proposed mixed office and residential development in Westminster. The residential element was exposed to substantial noise from nearby bars, clubs, restaurants, traffic and a postal depot. A previous planning permission had been quashed by Collins J because the noise condition was inadequate and the committee had not been properly directed to the issue.

Westminster subsequently granted permission subject to a revised condition requiring extensive sound insulation, secondary glazing, acoustic ventilators and mechanical ventilation. The claimant sought judicial review on five grounds, including failure to consider locating the residential accommodation elsewhere, failure to apply policies concerning alternative sites, irrational treatment of noise evidence, and failure to assess the consequences of openable windows.

1. Alternative sites. The existence of an alternative site is not generally a material consideration in every planning application. The formulation in McCarthy was consistent with the broader approach stated by the Court of Appeal in Scott v North Warwickshire Borough Council [2001] EWCA Civ 315: alternative-site considerations arise particularly in exceptional circumstances where a desirable development would cause conspicuous adverse effects on the proposed site and an alternative might avoid them. On the facts, the committee was entitled to conclude that the mitigation measures made the proposed site acceptable, so it was not required to consider the alternative arrangement.
2. Development plan policies. Policy COM 3 did not apply. The proposal concerned one site rather than relocation between sites, and policy COM 2 governed the provision of residential accommodation associated with increased office floorspace.
3. Noise assessment. The committee had received the relevant policy material, competing acoustic evidence and advice from environmental health officers. Its conclusions on the acceptability of the internal environment were not irrational, despite some optimistic language in the reports. The court could not substitute its own planning judgment.
4. Openable windows. The treatment of openable windows was materially deficient. It was common ground that noise levels with the windows open would be unacceptable. The practical likelihood that residents would open them, and the consequent risk of nuisance complaints or litigation, required more explicit and vigorous consideration than the general advice supplied to the committee. The committee had therefore failed to give sufficient or correct regard to a material consideration.
5. The claim was upheld to that limited extent. The court indicated that quashing might be avoided if the interested party gave an enforceable undertaking, capable of being reflected in a section 106 agreement, that the windows would not be openable and would be maintained in that condition. The matter was adjourned for an agreed form of relief, with time for permission to appeal extended.

The judgment records that an earlier planning permission for the development was quashed by Collins J on 14 November 2006 because of defects concerning the noise condition and the committee’s consideration of noise. The present judicial review challenged the subsequent permission granted on 30 August 2007. No citation for the earlier decision is stated in the judgment.