Judge rules against council in noise dispute (Local Government Lawyer)
“Herefordshire Council committed a legal error by failing to consider new evidence about the noise made by a cheese factory adjacent to a proposed housing development, the High Court has ruled.
Ornua Ingredients challenged in the High Court a decision by officers under delegated authority to approve reserved matters for a 321-homes development at Ledbury.
HHJ David Cooke said the council failed to take into account representations made by the Ornua in December 2017 including a report by acoustic engineers which it said cast doubt on a previous conclusion that it would in principle be possible to provide acceptable noise mitigation for the homes.
The judge said it was not disputed that the council received the representations and that no consideration was given to them.
He noted Herefordshire argued that no error arose because the outline permission was subject to a condition that the council must first approve "a scheme of noise mitigation”.
“[Ornua’s] commercial concern of course is that it should not be at risk in future of claims for noise nuisance by occupiers of the houses that might cause it to have to curtail its operations or pay for noise mitigation measures of its own.,” the judge said.
He concluded in his judgment that further information coming to light about noise from the factory and casting significant doubt on the validity of earlier advice, “amounted to a material consideration”.
“It would…have been bound to tip the balance of consideration to some extent…it is not realistic to say this would not have been considered relevant.”
He said the error of law was “either as a failure by the planning authority to consider, either at the level of members or officers, a material factor…or as a failure by officers properly to exercise the delegated power they had been given by evaluating and coming to a conclusion on that information.
“In either case, the result is the same and the decision taken must be quashed and remitted to the authority for redetermination.””
Mock medieval castle deemed ‘obtrusive’ by inspector (The Planner – Requires Log-In)
“Described by the Yorkshire Dales National Park Authority (YDNPA) as a “mock medieval castle”, the building in question is located at the Forbidden Corner, Tupgill, in Richmondshire.
Initially created as a private folly garden within the garden area to the west of Tupgill House at Tupgill Park, it remains a private residence but courtyard buildings are used commercially in association with the folly garden as a tourist destination.
Inspector Anthony J Wharton noted that the building has three recognisable elements - the gatehouse tower, the spiral staircase and the rectangular tower.
The enforcement notice was issued because the YDNPA was concerned about the effect the building has on the landscape, and that it “differs significantly” from other historic structures in the area. Further, the building extends too high (between six and nine metres) above the adjoining structure known as ‘the Long Walk” (a paved level walking surface across the full width of the garden).
The appellant was asked to reduce the height of the building so that it is no more than three metres above the Long Walk. The appeal proceeded on the grounds that planning permission should be granted for the building in question (a); the steps required to comply with the enforcement notice are excessive (f); and that the time given to comply with the notice is too short (three months) (g).
Wharton said the appeal building cannot be considered part of the cultural heritage of the park, and “it is certainly not a heritage building”. He doesn’t consider it to affect the cultural heritage significance of the distant historic buildings, but said that the Long Walk itself appears as a major noticeable built form and the appeal building is "clearly" a structure that is noticeable and, “in my view, obtrusive, when seen in the context of the pastureland to the west of the house”.
The inspector added that the plastic ivy does to some extent soften the appearance of the building but does nothing to reduce its appearance in terms of scale, bulk and height.
Wharton said he took into consideration relevant policies in the NPPF and the adopted Yorkshire Dales Local Plan - 2015-2030, and the Sandford Principle when making his decision. In conclusion, the enforcement appeal failed on grounds (a) and (f). Wharton however said that the three-month compliance period was too short, and extended it to nine months.”
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