The Shore Ltd v Secretary of State for Communities and Local Government & Anor

In assessing noise from proposed development, national planning policy does not prescribe a single method of measurement or require reliance on average noise levels over a specified period. The decision-maker must assess the likely average response in context, considering the source, frequency, pattern and character of the noise, its location and its relationship to surrounding uses.

Noise which is significant and is therefore to be avoided may amount to unacceptable harm even though it does not fall within the most extreme category of very disruptive or unacceptable adverse effect. A planning inspector may form his own judgment, informed by technical evidence and site inspection, and need not accept expert opinion.

The applicant sought under section 288 of the Town and Country Planning Act 1990 to quash an inspector’s dismissal of two appeals against refusals of planning permission. The proposals involved 16 surface parking spaces and associated works, accessed through a narrow track between residential properties.

The inspector concluded that intermittent vehicle movements would cause unacceptable harm to neighbouring living conditions. The applicant alleged failure to apply national noise policy, misapplication of the policy, inadequate reasons, irrationality, unfairness and breach of legitimate expectation. The central issues were whether the inspector had applied the correct noise-assessment approach and whether his conclusion involved an impermissible burden of proof.

1. The application was dismissed. The inspector’s decision was not unlawful and the application for reconsideration of the refused grounds was also dismissed.
2. The national noise policy framework, comprising the NPPF, the NPSE and the PPG, is not prescriptive as to the method for determining the likely average response to noise. It does not require comparison of existing and predicted L_Aeq,T levels over a 16-hour period. The World Health Organisation Guidelines were not incorporated wholesale into that framework and did not impose specific noise standards or SOAEL values.
3. The relevant assessment is contextual. The decision-maker may consider whether noise will be perceived as distinct intermittent events, together with the source, frequency, pattern and character of the noise, the acoustic character of the area, the location of windows and outdoor spaces, and the proximity of receptors. The inspector was entitled to regard intermittent vehicle movements on a quiet, lightly used track as more irritating and intrusive than regular traffic.
4. The inspector’s references to the noise’s potential to be disturbing did not show that he had applied an uncertainty-based test. Read fairly and in context, he had found that the noise would have a significant adverse effect without acoustic protection. The conclusion that the applicant had not demonstrated removal of that effect by fencing did not impose a legal burden of proof.
5. A significant adverse effect which national policy requires to be avoided may constitute unacceptable harm even though the noise does not reach the PPG Table’s most extreme category of an unacceptable adverse effect. The inspector was entitled to form his own planning judgment after considering the technical evidence and visiting the site. He was not required to accept the applicant’s experts’ conclusions or refer expressly to the local authority’s environmental health officers’ withdrawn objection.
6. The inspector’s conclusion was consistent with the development plan policies. No material social or economic benefits had been advanced which required permission to be granted contrary to the development plan and the policy requirement to avoid the significant adverse noise effect.