May v Rother District Council

In determining a planning application, the authority must apply the development plan properly, consider all material planning considerations and adopt a rational planning judgment. Technical environmental advice may carry significant weight, but it does not necessarily determine the outcome where the issue involves the reasonable extent of harm to residential amenity. Planning policies directed to avoiding unreasonable harm to amenity and reducing noise impacts to a minimum may pose the same practical question. The absence of an express reference to the latter policy is not an error of law where no meaningful difference exists between the policies. Noise may materially affect residential amenity below the threshold of a statutory nuisance. Committee reasons should be read as a whole and in their planning context, without inappropriate forensic analysis.

The claimant challenged Rother District Council’s decision to remove restrictions on the hours of use of a multi-use games area near her home. The restrictions had previously been imposed because of concerns about noise and disturbance. Following a temporary unrestricted trial, environmental health officers continued to recommend a curfew, supported by CCTV and sound recordings. The planning committee nevertheless concluded that the use caused no substantial or unreasonable noise nuisance and that the condition was no longer required.

The claimant alleged irrationality, failure to consider the National Planning Policy Framework, application of the wrong noise standard, and failure to summarise all relevant policies in the decision notice. The central issues were whether the committee’s planning judgment was legally irrational and whether it had misunderstood the applicable amenity and noise policies.

1. Claim dismissed. The committee’s decision to remove the hours-of-use condition was not irrational. Although the question was narrow and the environmental health officer had consistently advised retaining the condition, the issue was not governed exclusively by technical advice or objective noise standards. It involved a planning judgment about the reasonable extent to which residential amenity could be harmed.
2. The committee was entitled to consider the trial-period evidence, the actual extent and nature of use outside the restricted hours, the absence of objections from some nearby residents, and its own site observations. Different reasonable decision-makers could reach different conclusions as the available evidence changed.
3. The duty under section 38(6) of the Planning and Compulsory Purchase Act 2004 required the committee to determine the application in accordance with the development plan unless material considerations indicated otherwise. The meaning of planning policy was a question of law, but the ultimate evaluation of amenity was a matter of planning judgment.
4. Policy GD1(ii), requiring development not unreasonably to harm adjoining properties’ amenities, and paragraph 123 of the National Planning Policy Framework were materially and practically equivalent in the circumstances. The omission of an express reference to paragraph 123 therefore did not show that the committee had failed to consider a material consideration.
5. The committee did not apply the wrong statutory-nuisance test. Noise capable of affecting residential amenity may justify planning control even though it falls below the threshold of a statutory nuisance. Read as a whole, the committee’s reference to no substantial or unreasonable noise nuisance was synonymous with its conclusion that there was no unacceptable impact on residential amenity.
6. The requirement in article 31(1)(a)(ii) of the Town and Country Planning (Development Management Procedure) Order 2010 to summarise relevant development-plan policies did not justify a declaration. The principal policy was identified, and no prejudice or disadvantage had been shown.