When neighbouring land is developed landowners are often concerned that the development might have an adverse effect on their enjoyment of the land or disrupt their operations.
Whilst less common, concerns that landowners’ own operations may disrupt the new use of the neighbouring land and open the landowner up to liability are equally legitimate. This was the concern in R (Smith-Ryland) v Warwick District Council and Alan Murdoch , a recent judicial review case concerning the discharge of a planning permission.
Mr Smith-Ryland owned a mixed organic farm in Warwickshire. The farm operated both internal and external grain dryers. Mr Smith-Ryland’s neighbour, Mr Murdoch applied for planning permission to convert one of his barns to residential use. Mr Smith-Ryland was concerned that future residents of the barn might complain about the noise of the dryers and bring noise nuisance claims against him and/or that the Local Authority (“LA”) might serve noise abatement notices on him requiring him to cease use of the dryers.
Following noise surveys, permission was granted to Mr Murdoch subject to conditions, including the installation of an LA approved acoustic fence before the barn was occupied. The condition stated that this was “to ensure that an unacceptable disturbance is not created to the detriment of the amenities of the future occupiers”. Evidence was to be submitted demonstrating that the proposed fence achieved adequate mitigation at the time the discharge of the condition was considered.
Mr Murdoch’s proposed fence was 3.3 metres high and made of wood. The LA’s Environmental Health Officer considered that, with such a fence in place, the noise levels would be no worse than living next to a main road. The LA consequently discharged the condition on the basis that the fence would achieve “an acceptable acoustic environment”.
Mr Smith-Ryland applied for judicial review of the LA’s decision, claiming that the LA had failed to have regard to the fact that the applicable objective noise standards would be breached, even with the fence in place.
The Judge acknowledged that the fence only achieved a noise reduction of 4 dB and that even with the fence in place, the noise from the dryers would exceed the “Significant Observed Adverse Effect Level” (SOAEL). Pursuant to the Noise Policy Statement for England, the SOAEL is the level above which significant adverse effects on health and quality of life occur. However, the Judge did not agree with Mr Smith-Ryland’s argument that the LA had ignored a relevant consideration, finding that the planning condition did not specify any particular
noise limits and the question of whether the noise would be acceptable was “a contextual issue involving the application of a planning judgment which cannot be conceptualised in purely mechanistic or numerical terms.”
The Judge considered that the LA had considered all the evidence on noise levels with an open mind and had reached a conclusion that the construction of the fence would avoid unacceptable disturbance. Accordingly, the application was dismissed.
This case reminds us of what can be the loose relationship between the quantitative measurement of noise and the often vague, qualitative descriptions of noise usually contained in requirements, such as that it should not cause “unacceptable disturbance” or that mitigation be “adequate”. Landowners should be aware of this relationship when dealing with public authority noise requirements, whether this be in order to have planning conditions discharged, to object to inadequate noise mitigation on neighbouring land or to defend a claim for statutory or private nuisance.
The case also demonstrates the High Court’s reluctance to interfere with the LA’s decision process and that it is for the decision-maker, not the courts to decide on the weight to be given to the relevant considerations.
The implications for Mr Smith-Ryland are serious, and go beyond the issues directly considered in the unsuccessful Judicial Review. Planning permission is not a defence to a noise abatement notice or a claim in common law nuisance. Likewise, the fact that noise was considered as part of Mr Murdoch’s planning application is not a defence either. As such, Mr Smith-Ryland will no doubt be concerned that the eventual occupier or owner of Mr Murdoch’s new dwelling may take action against him.