Lord Mayor And Citizens of the City of Westminster v The Secretary of State for Communities And Local Government & Anor

A challenge under section 288 of the Town & Country Planning Act 1990 is confined to ordinary public law grounds. It is not an appeal on the planning merits. The court interprets relevant policy, but leaves the resulting planning judgment to the inspector unless there is legal error. A decision letter must be read fairly and as a whole. It need give only sufficient reasons to explain the outcome on the contested issues. An inspector may evaluate noise evidence using the material before him, distinguish changes in noise level from absolute noise levels, and make the required planning judgment about acceptability. Conditions need not impose every restriction that might improve the position where the inspector reasonably concludes that less restrictive measures are sufficient.

Sainsbury’s sought planning permission to operate a supermarket at Unit 1, 10 Rochester Row, Westminster. Westminster City Council refused two applications, principally because of delivery arrangements, highway considerations and noise affecting nearby residents. A planning inspector allowed both appeals subject to conditions, including a delivery and servicing plan.

The Council applied under section 288 of the Town & Country Planning Act 1990 to quash the inspector’s decision. It alleged procedural unfairness, errors in the assessment of noise evidence, misunderstanding of the delivery and servicing plan, and failure to restrict delivery hours and vehicle size.

1. Outcome. The claim was dismissed. The inspector’s grant of planning permission for both applications stood.
2. Applicable approach. A section 288 challenge is confined to ordinary public law grounds and does not permit reconsideration of the planning merits. The court interprets relevant policy documents, but the planning judgment is within the inspector’s province. The decision letter must be read as a whole and in context. It need contain only reasons sufficient to enable those concerned to understand how the contested issues were resolved.
3. Noise assessment. The inspector was entitled to reject both parties’ proposed methods of aggregating noise measurements and adopt a more disaggregated analysis. He properly compared hourly LAeq figures and used LAmax figures additionally to recognise discrete loud events. He did not combine LAmax and LAeq figures improperly or introduce a new method of assessment.
4. The six-level table measured changes in noise level, whereas the Noise Policy Statement for England and the National Planning Practice Guidance addressed absolute noise levels. The inspector was entitled to use judgment in applying those distinct frameworks. The policies did not prohibit further noise in an already noisy city-centre location. Whether the resulting moderate adverse impact was unacceptable remained a matter of planning judgment.
5. Conditions and delivery arrangements. The inspector considered the likely operation of the delivery and servicing plan and the restrictions that might be imposed. His conclusion that the less restrictive conditions were sufficient was lawful. Observations that noisier delivery times or smaller vehicles might reduce impact did not require him to impose those restrictions.
6. There was no procedural unfairness, inadequate reasoning or other public law error. The inspector had reached a decision open to him on the evidence.

Sainsbury’s appealed the Council’s refusals to a planning inspector appointed by the Secretary of State. The inspector allowed both appeals on 18 September 2013, subject to conditions. The Council then brought this first-instance statutory challenge under section 288 of the Town & Country Planning Act 1990. The High Court dismissed the claim.