May, R (On the Application Of) v Rother District Council & Ors

Planning policies are to be read in their practical and wider policy context, rather than as statutory language. The requirement in NPPF paragraph 123 to mitigate and minimise noise requires reasonable steps within the context of sustainable development. It does not require a noise-free outcome or prevent the balancing of competing planning considerations.

Where a local-plan amenity policy has the same practical effect, a planning authority which addresses that policy has addressed the substance of NPPF paragraph 123. Whether a condition is a reasonable step, and whether it remains necessary, are ordinarily matters of planning judgment.

Mrs May lived beside a multi-use games area whose planning permission had formerly restricted its operating hours. Rother District Council removed the restriction after a trial period of unrestricted use, despite contrary officer advice. It concluded that the noise was neither substantial nor unreasonable and that the condition no longer served a useful purpose.

Mrs May’s judicial-review challenge was dismissed by Mr Ian Dove QC in the Administrative Court. She appealed, contending that the Council had failed to consider NPPF paragraph 123, particularly its requirement to mitigate and minimise noise impacts. The central issue was whether that policy materially differed from policy GD1(ii) of the local plan, which the Council had considered.

1. Appeal dismissed. Lord Justice Lewison, with whom Lord Justice Sales and the Master of the Rolls agreed, held that the Council had not failed to take account of a material consideration.

2. NPPF paragraph 123 had to be read as planning policy and in the context of the Noise Policy Statement for England and sustainable development. Its direction to mitigate and minimise noise did not impose a free-standing or literal requirement to eliminate noise. It required reasonable steps to reduce adverse effects, while permitting adverse effects and a balance between the interests of the developer and those affected.

3. Whether a condition is a reasonable step is a matter of planning judgment. The court applied the approach in Tesco Stores Ltd v Dundee City Council [2012] UKSC 13: broad planning policies commonly require evaluative judgment, subject to challenge only for legal error, irrationality or perversity.

4. Properly construed, NPPF paragraph 123 and policy GD1(ii), which prohibited unreasonable harm to neighbouring amenity, had no material difference in practical effect. The Council’s finding that the noise was neither unreasonable nor substantial therefore addressed the substance of the national policy. It was difficult to identify further reasonable mitigating steps requiring consideration.

5. Additionally, a planning condition may be imposed only where it is necessary, relevant to planning, enforceable, precise and reasonable. The committee was entitled to conclude that an hours restriction which did not solve the problem and served no useful purpose was no longer necessary. The proposal accorded with the development plan; NPPF paragraph 12 reflected section 38(6) of the Planning and Compulsory Purchase Act 2004.

• Court of Appeal (Civil Division): dismissed Mrs May’s appeal in [2015] EWCA Civ 610.
• Administrative Court, Queen’s Bench Division: Mr Ian Dove QC dismissed Mrs May’s judicial-review challenge to the Council’s decision to remove the operating-hours condition.