R (on the application of O'Dwyer) v Westminster City Council

Queen's Bench Division (Administrative Court)

Collins J

14 November 2006

Town and country planning - Permission for development - Condition - Condition requiring scheme for noise insulation - Whether condition enabling scheme to comply with government guidance and local development policy. 

The interested party, a development company, made an application for planning permission for a mixed development, comprising an office block and residential accommodation. The defendant local authority granted permission subject to a condition. That condition required the interested party to devise a suitable scheme for noise insulation to be approved by the authority before any development could be commenced. The authority envisaged that the condition would enable the interested party to take steps to ensure that the noise levels generated from the area of the proposed development and consequently experienced by prospective residents would fall within the acceptable limits as were recommended by government guidance and local development policy. The claimant, an owner of a restaurant and nightclub premises adjacent to the proposed development, expressed a concern as to whether if the development went ahead, and the intended insulation proved to be inadequate, a flood of complaints and actions in nuisance from residents would result. In the prospect of such an event, the claimant applied to the High Court for judicial review of the authority's decision.

An issue arose as to whether the condition imposed by the authority would enable the provision of a suitable scheme of noise insulation in compliance with levels recommended in government guidance and local development policy. 
The application would be allowed. In the circumstances, it was clear that the decision taken by the authority was unlawful, as the condition that it had imposed was wholly defective and incapable of achieving the result that was required by the relevant government guidance and local development policy. Accordingly, the decision to grant planning permission would be quashed.

Robert McCracken QC and Meyric Lewis (instructed by RadcliffesLeBrasseur) for the claimant.

Hereward Phillpot (instructed by Colin Wilson) for the authority.

Anthony Porten QC (instructed by Slaughter & May) for the interested party.                                Close Window