Judge dismisses challenge to planning permission for school redevelopment amid noise concerns
Residents who claimed councillors at the Royal Borough of Kensington and Chelsea were given "significantly misleading" advice from a planning officer before approving planning permission for the redevelopment of a site for a school have failed in a judicial review bid of the decision.
In Cook & Anor v Royal Borough of Kensington and Chelsea [2024] EWHC 42 (Admin), the claimants challenged the local authority's decision to grant planning permission for the site, which the Interested Party has been looking to redevelop for its Kensington school for children aged 4 to 11 years old.
Both claimants live near the Atlantic House site and objected to the planning application over concerns about how noise from the school's playgrounds would affect their enjoyment of their properties.
The school's application was supported by an acoustic report from Bickerdike Allen Partners (BAP) that concluded noise levels were generally below the Significant Observed Adverse Effect Level (SOAEL) guideline for all neighbouring properties except for one where the predicted noise levels exceeded the SOAEL guideline by a significant margin.
However, the report said it was reasonably practicable to mitigate the level of noise at the property by replacing the windows with high acoustic replacement glazing.
A later report from acoustic consultants commissioned by one of the claimants disagreed with the initial consultant and recommended permission be refused due to the noise impact of students departing the school.
In a report to the council's Planning Committee, the planning officer concluded that in light of mitigation and management measures, the level of noise and disturbance to neighbours would be "reasonably minimised and mitigated", and the harm caused would be outweighed by the provision of the school.
The officer's recommendations were accepted, and the council approved the planning application in May 2023.
At the High Court, the claimants advanced the following three grounds:
- The council misinterpreted local and national noise policies, and the planning officer gave significantly misleading advice to the Planning Committee in the Officer's Report.
- The council acted irrationally in failing to secure mitigation, by way of additional double or triple glazing, for the property that would be subject to noise levels exceeding SOAEL. Further, the council acted irrationally in failing to make sufficient enquiries as to whether additional double or triple glazing could mitigate the SOAEL noise affecting other properties near Atlantic House.
- The council acted irrationally by granting planning permission without securing a school street, which would restrict vehicle access during school opening and closing times.
The claimants were granted permission to proceed on the papers on ground one and were refused permission on grounds two and three.
A renewed application for permission for grounds two and three was made, and Lang J ordered that the applications be heard on the same occasion as the substantive hearing on ground one. But permission was again refused for the two grounds.
In handing down her decision on ground one, which did not succeed, Lang J said: "My conclusion is that the planning officer and the Planning Committee lawfully applied the relevant policies and made a series of planning judgments, evaluating the noise impacts on the Claimants and other neighbours, and the likely effect of the mitigating measures, and balancing them against the benefits of the School."
She did not accept the claimants' allegation that advice given by the planning officer during the decision process was "seriously misleading".
The judge said: "There was conflicting expert evidence before them, which they had to assess. The only empirical evidence before the council which set out predicted noise levels was in the BAP report, which found SOAEL at only one property.
"The claimants clearly disagree with the planning judgments that the council made, but in my judgment, they have not been able to establish any error of law in the council's decision."
Adam Carey
