Nicholson, R (on the application of) v Allerdale Borough Council & Ors

A planning policy may operate both as a positive presumption in favour of permission and as a framework for assessing other proposals on their merits. A proposal which does not qualify for the presumption is not necessarily in breach of the policy. It must be assessed with the policy’s criteria and other relevant development-plan policies, allowing competing considerations to be weighed according to the planning authority’s judgment.

Judicial review does not permit the court to re-run technical planning judgments. However, a permission may be unlawful where its conditions fail to give effect to the decision actually taken. A defect in a condition may be remedied before relief is determined, so that quashing becomes unnecessary.

The claimant sought judicial review of the Council’s grant of planning permission to M-Sport Limited for an expanded manufacturing and evaluation centre, including a vehicle testing track at Dovenby Hall Estate.

He alleged that the Council had misconstrued saved policy REM10 of the Allerdale Local Plan 1999, failed to comply with the statutory duty concerning the setting of the listed building, and acted unlawfully in assessing and controlling noise. The central issues were the meaning and operation of policy REM10, the adequacy of the officer’s report, and whether condition 6 lawfully enabled controls over peak noise.

1. Ground 1 dismissed. Policy REM10 had a dual operation. Proposals satisfying its listed uses and criteria benefited from a positive presumption in favour of permission. Other proposals, including uses outside the list or proposals failing one or more criteria, were to be assessed on their merits in accordance with the criteria and other relevant development-plan policies. The Council was therefore entitled to weigh the economic benefits of the scheme against heritage harm under the applicable policies, and to take proposed noise mitigation into account.

2. The officer’s report was to be read fairly and as a whole. The court could not substitute its view for the Council’s planning judgment on matters such as noise, background conditions, weather, monitoring methodology or the relevance of comparisons with motorsport venues. The report adequately addressed the material technical objections.

3. Ground 3 dismissed. The Council had complied with section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990. It gave considerable importance and weight to preserving the listed building’s setting, but was entitled to conclude that the considerable economic benefits outweighed the less than substantial harm.

4. Ground 2 succeeded in part. The Council intended condition 6 to permit controls over peak and intermittent noise, including LAmax or equivalent short-period controls. Properly construed, however, the condition adopted the November 2014 community levels, expressed only by reference to LAeq over one hour, and did not empower the Council to impose LAmax or LAeq five-minute limits. The condition therefore failed to give effect to a fundamental aspect of the Council’s decision.

5. The defect was subsequently cured by a non-material amendment under section 96A of the Town and Country Planning Act 1990, following public consultation and consideration by the Development Panel. The permission was consequently not quashed. A declaration was made that the claim had succeeded to the extent identified in the judgment. The Council was ordered to pay the claimant’s agreed costs.