Smith-Ryland v Warwick District Council

In judicial review of a planning decision, an authority’s report and reasons must be read pragmatically and as a whole. The court should not treat them as statutory documents or focus on isolated defects of language. A mitigation condition may lawfully address a potential noise or odour impact where its precise effectiveness remains to be assessed, provided the authority has considered the relevant evidence. A worst-case scenario is material according to its probability; a highly improbable possibility may have greatly reduced or no relevance. The authority may reach a rational planning judgment that some residual odour or noise is acceptable.

The claimant, who operated a mixed organic farm, sought permission to apply for judicial review of the defendant council’s grant of planning permission for conversion of a nearby barn to residential use. The claimant alleged that the council had failed to consider material noise and odour impacts and had failed to give adequate reasons for relying on mitigation measures.

Permission had previously been refused on paper. The renewed application concerned whether the council’s treatment of expert evidence, the environmental health officer’s advice and the proposed mitigation was lawful.

1. Renewed application refused. The council’s decision was lawful and the claimant’s objections did not succeed.
2. Planning reports and reasons must be read pragmatically and in the round. They are not to be treated as statutory documents. The court must consider the document as a whole and identify its real substance, without giving undue weight to infelicities of language or isolated inconsistencies.
3. On noise, the council was entitled to rely on the environmental health officer’s assessment of periodic dryer use, likely daytime operation, shielding effects, the absence of complaints from a nearby property and his site experience. Condition 3 required a detailed acoustic-fencing scheme to be submitted for approval before development commenced. The claimant’s criticism assumed that a 3.3-metre fence would be approved and would be ineffective. That issue was premature. The authority would have to consider the submitted scheme afresh and could not approach that process with a fixed view.
4. On odour, a worst-case scenario is relevant according to its probability. If probable, it must be considered; if highly improbable, its relevance may be greatly diminished or absent. The environmental health officer was entitled to take account of uncertainty in odour modelling, environmental conditions, diffuse sources, modelling assumptions, the non-exact relationship between odour concentration and annoyance, duration, and the character of the locality.
5. The council was acting within its discretion in accepting that occasional unpleasant odour might remain, while concluding that the impact would not seriously harm amenity and that repositioning roof lights would reduce the likelihood of high concentrations entering the dwelling. On the accepted evidence, that was a proper, rational and lawful planning judgment.
6. The postscript concerning possible future statutory nuisance or private proceedings was hypothetical and did not determine the application. The authority might be hard pressed to resile from its present stance, but the observation did not alter the refusal of permission.

The judgment records that permission to apply for judicial review had previously been refused on paper by His Honour Judge Cooke on 15 July 2016. The renewed application was refused by the High Court (Administrative Court).