R v Warwick District Council

Planning conditions must be interpreted objectively and purposively, by reference to their natural and ordinary meaning, the consent as a whole, related conditions and common sense. A condition requiring approval of an acoustic mitigation scheme may require the local planning authority to assess afresh whether the scheme will prevent unacceptable disturbance under the relevant planning policy. The authority must approach that assessment with an open mind and without assuming that the proposed measure will be effective. Noise data and applicable policy thresholds are relevant considerations at the discharge stage, although the ultimate question of acceptability involves planning judgment and is not determined mechanically by numerical limits. The court will not substitute its own planning assessment where the authority considered the relevant material and reached a rational conclusion.

The claimant sought judicial review of the defendant local planning authority’s decision to discharge condition 3 attached to planning permission for the conversion of Barn one from offices to residential use. The condition required prior approval of details and specification for acoustic fencing, and its stated purpose was to prevent unacceptable disturbance to future residents. The claimant operated a farm nearby and relied on evidence that noise levels would remain above relevant thresholds despite the proposed fence.

The central issues were the proper construction of conditions 2 and 3, read with note 2 and condition 6, and whether the authority lawfully considered noise levels, planning policy and the adequacy of the proposed mitigation when discharging condition 3.

1. The application was dismissed. The decision to discharge condition 3 was lawful.
2. Planning conditions are interpreted objectively and purposively. The court asks what a reasonable reader would understand the words to mean in the context of the other conditions and the consent as a whole, having regard to natural and ordinary meaning, overall purpose and common sense. The approach stated by Lord Hodge in Trump International Golf Club Scotland Ltd v Scottish Ministers [2016] 1 WLR 85 was applied.
3. Condition 2 was general. It required development in accordance with the approved plans, including a 3.3 metre wooden fence. Condition 3 was more specific and governed the issue. It prevented construction and commencement until the fencing scheme had been approved. Note 2 properly illuminated condition 3 and required evidence demonstrating adequate mitigation.
4. The authority therefore had to consider the proposed fence on an untrammelled basis, with an open mind. It could not assume that the fence would be effective subject only to matters of specification. The authorities concerning strict loyalty to an outline permission at a subsequent approval stage, including London Borough of Camden v SSE [1993] JPL 466 and Medina BC v Proberun Ltd [1990] 61 P & CR 77, did not govern this case because condition 3 required a further exercise of planning judgment.
5. Noise levels were relevant considerations at the discharge stage. The distinction between potentially relevant and necessarily relevant considerations was context-specific, as explained in Derbyshire Dales DC v SSCLG [2009] EWHC 1729 (Admin). The EHO had considered the noise data, including the 4 dB reduction and the resulting 50–54 dB levels, together with the contextual factors bearing on amenity. The weight given to those matters was for the authority, and the court could not substitute its own planning judgment.
6. The reference to noise comparable with a main road was unfortunate but was not central to the decision. The claim accordingly failed.

Not stated in the judgment. The judgment records an earlier renewed permission application before Green J, but no appeal from that decision is described.