Planning - Impact of possible noise nuisance claims on viability of a business

The owner of an East London tavern recently lost a High Court challenge against a planning inspector's approval for a block of flats neighbouring her premises which it was claimed might put her out of business.

She owned a tavern which was used for live music events, film-making and photographic shoots. A developer applied for planning permission to demolish the building next door and replace it with a mixed use three-storey building, including commercial uses and flats. Objection was made to the proposal on the grounds that the development might jeopardise her business as there was a risk that residents of the flats would complain about noise from the tavern.

The Authority refused permission for the development, but that decision was overturned on appeal by an Inspector appointed by the Secretary of State. In reaching his decision the inspector considered an acoustic report submitted by the developer on noise levels and the effectiveness of proposed sound insulation measures and concluded that permission should be granted subject to a condition requiring the developer to obtain the Authority’s approval to a scheme to protect the residents of the flats from noise and prohibiting their occupation until it was shown that suitable sound insulation had been achieved.

The Inspector’s decision was appealed to the High Court where it was argued that the Inspector had erred in his consideration of the noise issue and that the conditions attached to the permission were inadequate to deal with it. He had failed to have regard to the harm that the development might cause to the operation of her established business as noise complaints from residents could result in enforcement action from the council or revocation of the tavern’s late night music licence.

It was decided that the Inspector had not erred in his consideration of the noise issue. He had exercised his own judgment on the issues and correctly identified the main one which was whether residents of the new building would be subjected to unreasonable levels of noise. He had taken into account the pub operator’s concern about the effect of possible complaints on the operation of her business. The conclusions he had reached were open to him on the evidence and the conditions attached to the grant of permission were adequate. It was also determined that he had not erred in his consideration of the effects of the development on the viability of the tavern or failed to grasp the true nature of the objection to the proposal. He could not be criticized for not considering the law of nuisance as his remit was to decide on the planning merits of the application, having regard to the public interest, and he had done this. He had correctly exercised his planning judgment.

FORSTER V SEC OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT [2015] PLSCS 254 – Decision given 06.08.15

We are grateful to Gerald Eve for alerting us to this decision.