Judge rules against council in noise dispute
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.”
