Planning Appeals Hearing - Wednesday 23 July 2025, 9:00am - Cotswold District Council Webcasting

Planning Appeals Hearing
Wednesday, 23rd July 2025 at 9:00am

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Disclaimer: This transcript was automatically generated, so it may contain errors. Please view the webcast to confirm whether the content is accurate.

Officer - 0:00:00

Officer - 0:00:04

Good morning everyone. It is 10 o 'clock and time for me to open this hearing.

My name is Rachel Pipkin. I am the Inspector appointed by the Secretary of State to conduct this hearing

and to determine the appeal made by Carbide Properties under Section 78 of the Town and Country Planning Act.

Officer - 0:00:27

This appeal results from the refusal of an application for the approval of reserved matters by Cotswold District Council.

The appeal results from the refusal of an application for the approval of

reserved matters by Cotswold District Council for approval of appearance,

landscaping, layout and scale of the employment area to the east of

Sprat's Gate Lane at Employment Land, East of Sprat's Gate Lane,

Sire ancestor GL76DF.

This would be a good time for anyone to switch off their

mobile phones or put them to silent and quieten down their

email software as well.

So I've not been made aware of any fire alarm tests

scheduled for today.

Could I ask the council to briefly outline what to do

in the event of a fire or the alarm going off?

and the sound of the alarm will be capable of the fire stairs

out of the entrance of the bed and to be able to look up.

Thank you.

And I hope everyone has found all the facilities.

The council has provided refreshments out in the foyer

and the ladies and gents are also accessed from there.

So today's hearing will be a structured discussion which I

shall lead based on the agreed agenda which I have sent out.

The purpose is to enable all of you to put forward your points of view and to help me to get the information that I need in order to make my decision.

Before we start, I have a few formalities that I need to go through.

So first of all, I would like to just cheque who is here from both parties.

If I could start with the appellant, please.

Indeed. My name is Adrian Krasik.

Would you like me to start?

No, I've been provided with a list of names, so I have those all written down, so hopefully

all spelled correctly.

Thank you, though.

From the four of you, key sticks.

Thank you.

Robert Walton, W .E .B. on TLA.

Maris Hunter.

Thank you.

James Clark, associate panellist at the group.

Can I just ask, should they be pushing those buttons too when they are saying their names

so everyone knows who is here?

Jenny Clark, I am from Tungsten Properties which is the trading name of Carbide Properties.

Thank you. And is that everyone there for the appellant? One of them.

Thank you.

And to the Council.

Yes. Thank you.

Anthony from AKU for the council.

Okay. Does anyone know if we're expecting anyone else today?

No registrations for today's event. Okay.

Excuse me, could you just ask, when you stop talking you need to switch your mic.

Oh do I need to switch it on? Otherwise the camera will stay on.

Okay, I'll happily switch it off then.

So is there anyone here from the press? I'm guessing not because we're all accounted for in the room.

So yes, just briefly to touch on the fact that the Council is

live streaming the event and that was referred to in the

notification letters, which I have had copies of.

I've had a copy of the letter dated the 15th of April 2025,

confirming the notification of the appeal and inviting

representations within five weeks of the start date of the

appeal. I have a copy of the letter dated the 8th of July,

notifying the date, time and venue of this hearing.

So I'm satisfied that all notifications are in order.

I've also had copies of all representations made in response

to the original planning application consultation,

and no representations have been received in response

to the appeal notification.

So coming on to evidence.

All documents and evidence should have already

been provided.

Having said that, yesterday I was sent a letter from Mr Keown

on behalf of the Council,

alerting me to potential amendments to the scheme being put forward by the appellant,

followed by the said amendments which comprised a scheme of noise mitigation dated the 16th of July 25,

a revised drawing P406 revision L, boundary treatments,

a design note setting out alternative barrier height attenuation calculations from Hawley dated 9th of June 2025,

and a resubmission of the Hawley comparison note and appendix 1 of that document which included a draught noise management plan.

Could I just confirm that is exactly the same document, no changes made?

Yeah.

So the council has indicated that the amendments can be accepted, but that does not indicate that they are in agreement with them.

So I'm not inviting any more, but has the appellant got any further evidence it intends to submit?

Officer - 0:07:22

I don't have a copy of it, so I think that probably would be helpful.

I'll try and remind everyone to press the buttons when they're talking.

Thank you very much.

You may not need it.

Just the button.

No, it will be helpful even if not discussed today when I'm writing up and making my decision.

So I'm going to give that number, hearing document one.

Madam, were you numbering the updated noise mitigations

actually in Mr Keown's letter or just treating them as inquiry?

Hearing.

Cabinet Member - 0:08:25

Officer - 0:08:26

Sorry, hearing evidence.

They came in before today's event, so I'm happy to just

accept those and for the Council to upload them to their website.

Thank you.

Officer - 0:08:39

So, same question to the Council.

Officer - 0:08:47

Do you intend to submit any additional evidence or documents?

Officer - 0:08:50

No, it's back there.

So coming onto the site visit, I've briefly been to the area and sort of viewed the site

from the surrounding streets, but I will need to make a site inspection later today, and

I will need to be accompanied by representatives from both parties.

I'll make arrangements for that later on as I see how things proceed through today.

But just a reminder that I don't intend to have any discussions at the site visit.

It's purely to let me see what's what when I get there.

So I'm keen that all discussions complete here while we're in this room where everyone has the benefit of hearing what we're talking about.

So a little later today I shall have a discussion on what

conditions might be appropriate were I to allow the appeal.

This is standard procedure.

It does not indicate that I have made up my mind on the case and

nor will the discussion affect the council's position

in relation to the proposal.

There's an agenda item, as I say, later on for that.

I have no planning obligations or legal agreements having been

submitted as part of this appeal, so that is the correct

position as far as I understand it. Yes, nods all around. And may I just draw the

main party's attention to the planning practise guidance dealing with the award

of costs. If any applications for costs are to be made I will need to be aware

of it before I finish today's hearing. If anyone is planning to make any costs

whatever you might say to me it's also helpful if that could be written out for

Cabinet Member - 0:10:48

me as well and sent to me. Madam I've got instructions to apply for a partial

award of costs in relation to the highways reason for refusal. It would

take me about 30 seconds to make it to you I can certainly type it up as well

Officer - 0:11:02

but I can do that today. I'll let you know if I need it typed if it's very

twenty

in relation to that partial claim for cost.

So we're happy to submit that to you as well and to the appellants.

That would be helpful. So you've seen what's being...

No, it's a sort of a preemptive explanation as to what has happened with the highway evidence

and really a request from CDC that any award of costs, if you feel that an award of costs is appropriate,

that that be directed towards the Highway Authority as the statutory consortee as opposed to CDC as the planning authority.

Okay, I shall take a look at that and it may be that if it were to be directed towards

the highway authority they would need an opportunity to respond potentially.

I will take a look at that later on.

So I have an agreed statement of common ground dated the 16th of May 2025.

In addition, I have an updated statement of common ground dated the 14th of July 2025,

which updated sections 8 and 9 of that earlier statement of common ground in respect of highway

matters, confirming that that reason for refusal had been withdrawn.

I've also been sent a topic -based statement of common ground relating to noise, which

I requested, and that was submitted on the 17th of July, 2025.

In view of the matters raised, I have identified the main issues

for this appeal as the effect on neighbouring occupiers,

both existing and future, with particular regard,

on their living conditions, with particular regard

to noise arising from the employment area,

and the effect on the character and appearance of the area,

with particular regard to landscaping

between the employment buildings and Wilkinson Road and Spratt's Gate Lane.

Are there any comments about this? Nope?

So during the discussions today I will invite contributions from one side and

then the other. I ask that you could please answer my questions as clearly

and concisely as you can. It's not an inquiry so there's no need for

cross -examination or calling of witnesses.

And please note, I have read all the written statements

and will take them into account in reaching my decision

so there's no need to sort of repeat everything

that they're saying.

Although, obviously, do draw my attention

to anything specific if you think that would be helpful.

If at any point you think you want to make a point,

and I'm moving on before you have had the opportunity

to do so, please let me know.

or wave your hand or interrupt me even.

It's important that by the end of today,

everyone said what they feel they need to say to me,

and you feel you've been able to put that point across to me.

But I will be guiding the discussions.

Right.

A few procedural matters.

Just briefly, I raised a matter with the parties in respect

of the outline planning permission and the requirement

for subsequent reserve matters applications to be accompanied

by certain sort of condition -related matters.

And I just seek clarity because obviously this appeal,

whilst I'm focusing on noise, because there's noise

and landscaping, this is the reserve matters

for this phase of development.

So could I seek clarification on those matters?

Officer - 0:15:40

Specifically on what, Inspector?

So I emailed out, well my case officer emailed out and referred to the conditions

setting requirements for reserved matters applications.

These are condition 48 requiring provision of electric vehicle charging infrastructure,

condition 49 waste minimisation and soil management

and condition 66 requiring a scheme for treating fumes, emissions and odours.

Officer - 0:16:23

I just need some clarity as to the status of these conditions and whether they are matters which should be part of the Reserve Mass Application that is the subject of this appeal.

That's fine, thank you. Okay, so I'll go through them all in that case.

If we start with the question relating to hours of operation,

that was highlighted in the first paragraph of the email,

just the hours of operation and noise management plans.

We'll come on to this in more detail, I think.

I'm happy to leave that bit, because that form is passed

to our later on discussions.

I specifically want to pick up these three conditions

that are in the outline planning permission

that I'm not clear how it all fits together.

Okay, that's fine. Okay. Shall I start them with with condition 48 the EV charging space?

From from the council's perspective they the layout drawing submitted with the reserve matters application

which is is listed among the

Drawings that were considered when the application was considered

that includes the parking arrangements and it does identify a number of

EV charging

spaces

We have then proposed a condition to be attached to any approval of the reserve matters, that's possible condition 5.

That requires the implementation of the approved parking arrangements prior to occupation.

So we think that EV charging point is covered off by that plan and that possible condition.

If there were any doubt about whether or not the plan is clear enough, there is another drawing amongst the drawings listed in the statement of common ground, which is a further explanation of the proposed parking arrangements.

and if the appellants were in agreement that drawing could be referred to as well within

condition 5 and that would perhaps add a little bit more clarity to the requirements for EV

charging. So that was the Council's thinking on 48.

Officer - 0:18:42

sorry it's p4 0 7 revision you and it's it's entitled the proposed site plan

the supplementary drawing is is number 13 in the list at appendix a in the

statement of common ground and it's entitled the Park and Information sketch and the drawing

number is PSK 112.

Officer - 0:20:04

So just briefly before I leave electric vehicle charging infrastructure.

So do those drawings identify everything that's required in this condition,

Officer - 0:20:19

which is for public and private electric vehicle charging?

We're satisfied that it does, yes.

Cabinet Member - 0:20:26

Any comments from the appellant?

No, not at all.

That sort of sounds correct.

So that would be looking to amend condition number five to add in the parking information sketch?

I think is it not in there already? It's in the approved documents condition.

In the plan yeah in the in the drawings. In the state in the statement of common ground

there's a list of possible planning conditions and yeah under condition yes I have this for the

possibly the last time too.

Condition 8 has a list of various documents

that would be referred to, and one of those

is the parking information sketch,

but the principle is agreed between us

that if we need to get down to that level of detail,

there it is.

Officer - 0:21:20

Thank you.

OK, so condition 49.

49. So on 49, there are two parts to the requirements

of the outline permission condition 49. One was that a schedule be approved and that was

a site -wide schedule and that has been approved, that is in place. And then the second is that

as a follow -up to that, that the details for each element or sub -area of the site be approved.

approved at subsequent stages. That part of the condition does bite on this site. When

this reserve matters application was originally submitted, it was accompanied by a construction

and environmental management plan that ranged over, in terms of the outlying conditions,

ranged over a number of conditions, including information that would be relevant to this

one plus information that would be relevant to outline condition 44, the construction

management plan requirement which also binds on this site.

That document was unnecessary in the sense that it was touching on things that should

have been the subjects of a separate discharge of conditions application and that was agreed

between ourselves and the applicants at the time.

And it was also causing some difficulties with the processing of the application in terms of the consultation feedback on it.

So it was agreed between the council and the applicants that those matters would be subdivided and dealt with by discharge of conditions applications.

Some of them already have been, two that relate to environmental or ecology related conditions.

But the construction management and the waste management ones have not been dealt with yet.

But they could be dealt with through a subsequent discharge of condition application that would deal with all of that information.

So from the Council's perspective, the fact that that's not included in the material supporting

this reserve matters application is not a difficulty for us.

It can be dealt with by a subsequent discharge of condition application.

Officer - 0:24:11

Town/Parish Council - 0:24:16

Any comments from the parents on that? No, they all agree I think that the principles

in that initial discharge of condition are in there for this site and so it just requires

us to go in and provide the additional bit of detail on top following any RM approval.

Officer - 0:24:30

Okay, and just reading the wording, it does say,

in conjunction with applications, so that sort of

seems, appears to allow a little bit of separation.

Officer - 0:24:47

Coming on then to condition number 66.

Condition 66, the original outline condition 66 has been

amended through a non -material amendment application,

which has been approved.

And the wording of that has been slightly changed so that it can

be dealt with by discharge of condition application.

So the same applies to that one.

Officer - 0:25:15

Anything from you?

Yeah?

Okay, okay, that's fine.

That's helpful.

I just needed to clarify those points and make sure I understood

how it all fitted together.

Okay, the other procedural matter is I note that there's

agreement that this is EIA development and that sort

of parameters were set sort of at outline stage, and my question

is just are those parameters the same?

Officer - 0:25:55

Has anything new come in since the sort of process started?

The environmental information that would be relevant to this

application was updated when the Reserve Matters application was

submitted.

We're certainly not aware of anything that has changed in the

interim.

Officer - 0:26:19

Town/Parish Council - 0:26:22

Any comment from the appellant on that?

No, agreed.

The ecological report and the ARP reports were updated at the RM submission time and

Officer - 0:26:28

we're not aware of any further changes.

That's fine and obviously I will be taking that into account in reaching my decision.

Okay, moving on then to plans.

I have a list of plans and drawings included with the

application, and they're set out in the statement of

common ground, as we have just touched upon.

I don't intend to read them all out.

Just to note the update to the boundary treatments to revision

L as an update to that.

And I just need some clarity about landscape plans,

which were submitted and they don't feature in this list,

but they were submitted with the reserve matters application,

as far as I can tell.

Do you need references for those landscape plans,

or are you familiar with what I'm talking about?

We are familiar with what you are talking about.

Thank you. We have not included the landscape drawings within this list of drawings to be approved.

Because the Council has concerns about the landscaping scheme that go beyond the issue that we are dealing with here today in terms of landscaping.

The additional tree planting issue.

Those concerns involve some of the material that's included in the plant and schedule,

some things relating to the design of the pond, some of the boundary treatments that are non -acoustic fencing.

The Council didn't cite those concerns as a reason for refusal,

because it's confident that they can all be dealt with through a landscaping scheme condition.

So we haven't identified the existing or the submitted landscaping drawings as potentially drawings for approval

because we don't think they should be approved.

But equally we're not raising that as a reason for refusal

because with an appropriate landscaping scheme as we've indicated or suggested, proposed,

we think those matters could be dealt with in that way.

The tree planting issue that we're going to talk about today is separate from that and needs to be dealt with in another way in our view.

Town/Parish Council - 0:29:12

Thank you Mr Keirn. Any comments from the appellant?

Yeah, obviously we kind of disagree on the landscaping point, as you may have noted through the documentation.

Officer - 0:29:21

They think they should be a part of the approved plans.

Thank you, and we will come on to that later on today.

But that's helpful clarification for now.

Officer - 0:29:53

Okay, so that sort of takes me through all the procedural

matters and points of clarification that I needed.

So just a brief word on timing.

So at this stage, I will take a break mid -morning and for lunch

and mid -afternoon if we're still sitting and aim to finish

no later than 5 p .m.

So are there any questions at this stage about procedural

side of the hearing?

No?

Officer - 0:30:54

Okay, so I'm going to now move on to the main issues for discussion.

Just a little bit by way of background to make sure that I've understood everything

correctly.

So this was an appeal, it relates to reserve matters in respect of an outline planning permission,

which was granted for an urban extension comprising some 2 ,350 residential dwellings,

plus student accommodation, homes of the elderly, and 9 .1 hectares of employment land,

primary school, and neighbourhood centre, as well as community facilities, public open space allotments, I summarise.

The outline permission is coming forward on a phased basis,

and this phase of development is for an employment area where

the principles of Class B2 and or Class B8 employment use

of the site have already been established through

that outline planning permission.

The site in question is referred to as Employment Area A.

The site itself is located to the east of Spracksgate Lane and to the south of the Love

Lane industrial estate on the southern side of Sarensestor and it's approximately 2 .9

hectares in size.

So my understanding is the application for reserve matters was initially approved by

Planning Committee on the 13th of March 2024, subject to agreement on a number of points

which were not subsequently agreed, resulting in the reserve masses being refused on 17 July 2024.

Essentially that related to being unable to reach a satisfactory scheme for controlling noise

emission development and for the completion of a unilateral undertaking to secure a financial

contribution to enable local highway authority to progress and implement parking restrictions

to prevent overspill parking on the local road network and to secure additional tree

planting between the development and Wilkinson Road to soften the development edge.

And that needed to accord with the detailed design code.

The parties have now reached agreement in respect of parking associated with the proposal

and the council has confirmed it's not defending that part of the reason for refusal.

So coming on to noise, two conditions were attached to the

outline permission to address the Council's concerns in

respect of noise.

They were condition number 68, which essentially required a

scheme of mitigation to be, noise mitigation to be provided

and to ensure that noise levels in nearest gardens and public

open spaces did not exceed 50 decibels.

I'm going to try and get all these terminology things right.

Just bear with me.

A weighted equivalent continuous sound levels over an hour.

Is that correct?

As I've said it.

Applicant/Agent - 0:34:00

Officer - 0:34:02

So I believe the level was 55 decibels.

I don't know what I said.

Officer - 0:34:14

So my understanding of that condition is that it firstly

requires adverse impacts to be avoided and adverse impacts

arising from noise are considered to be plus five

decibels would cause adverse effects and plus 10 decibels

would cause significant adverse effects, and that comes from

the British standards.

So I understand there's dispute about how that condition

operates, because there's two different elements, which

seemingly require two slightly different things.

But just as a sort of starting point to the apparent sort of

basics around where we are with the 55 decibels.

If the existing daytime noise is 37 decibels,

as the evidence says, and that would increase to 55 decibels,

Applicant/Agent - 0:35:24

that would be an 18 decibel increase in noise levels.

Is that correct?

If I may clarify the point.

So the 37 decibels, that's a description of the lowest

typical background noise levels. Effectively the underlying noise level

that is not normally lower than those levels. So what we're talking about is so

there are several numbers being banded around so not to compare apples with

oranges but the 55 decibels is an ambient noise level. If we were to

measure in this room it would be ourselves talking as an average. The

background noise level, the 37 dB, if everyone's quiet, it'd probably be the mechanical ventilation

that's rumbling in the background that we wouldn't normally hear.

So at the moment, the ambient noise levels are above the background noise levels.

We are exceeding 37 decibels at the moment, just as a result of everything else that's

occurring at the side, the vehicles at the side, the industrial estate.

So really that's why I just want to clarify, no, it wouldn't be as simple as saying there's

an 18 dB increase, it would be more a case of these are two standards that are to effectively

be applied separately.

One that's an absolute noise level and then another one that takes into account that's

relative compared to that background level that's been previously established.

Officer - 0:36:55

So I do understand that, but if it's at 37 and it rises to 55,

Applicant/Agent - 0:37:13

that 18 decibel increase, would it be a noticeable increase?

So the way that, so it's British Standard 4142,

it's the rating of industrial noise.

So it takes into account the absolute noise level.

In this case it would be the HGVs reversing and everything else that goes on.

But then it takes into consideration other aspects such as on time, how long will that

activity occur within any assessment period.

So it may be very, very noisy but only occur for several minutes at a time, for example.

So that's one of the elements where it's then a rating level is applied to those levels as well.

Is the noise likely to be tonal? Is it likely to be impulsive or intermittent, noticeable because it's turning on and off all of the time?

So it's all of those elements that are taken into consideration.

And normally the biggest part of it is the on time that can bring those levels significantly lower.

That would mean that it's below that 37 decibels that's measured during the daytime.

In terms of the 55 decibels, this really came as a part from a separate standard again,

and maybe directed, but wasn't involved with the condition how it was written,

but BS 8233, which describes that a noise level, a desirable noise level in gardens would be 50 decibels, typically,

but 55 would not be considered unreasonable.

So I believe that's where that figure came from, and they're effectively put together into a single condition.

Officer - 0:39:01

I hope that helps.

Yes, I do understand that.

I understand how sort of noise is put together having read

through the evidence at length.

But just to help me understand, the British standard says a plus

five decibels causes an adverse effect and plus ten decibels

causes a significant adverse effect.

So between 37 and 55 it seems to me there's 18 and then at night time it's 23.

Applicant/Agent - 0:39:37

So what would that be like for residents?

If it was purely that simple then a plus 18 dB would be significant.

It would be noticeable.

It would have an effect.

Our findings, we've effectively taken it, you know, split the two elements.

We can readily achieve the 55 decibels, but equally, the more stringent approach is the 4142 assessment.

And we have demonstrated that a level of low impact can be achieved.

Officer - 0:40:16

And I shall come on to all that sort of first part of the

condition.

I'm just trying to sort of mop up, if you like, the second

part so we can get on to that discussion.

Could I hear from the council on that?

Yeah, I think, I suppose because the wording of the condition,

that second part talks about a level of 55 dB LAQ one hour.

If the site was to operate at that level, based on the background sound levels that have been measured,

we would be thinking it would be significant adverse impact.

Because we are so high above, as you were saying, plus 18,

and that would be an unrated level as well, so there could be ratings on top of that to take it above 20 decibels above the background sound level.

So we would really be focusing on the 4 and 4 -2 element, based on the levels that we've measured at the site.

And I read in your submissions that you're treating as a sort

of absolute backstop as what would be an acceptable level?

Yeah, I think we'll probably possibly come on to this in

discussing the condition, but that's how we interpret that

part of the condition, that that's an absolute backstop.

collect.

Officer - 0:41:28

Applicant/Agent - 0:41:32

Just one part to raise it, if we are to compare apples with apples, in terms of ambient noise levels at the moment,

we are measuring ambient noise levels during the day of 48 decibels.

So at the moment, even with a, you know, a do -nothing approach,

the ambient noise levels are already high at the site or higher than the 37 that's being used for the purposes of the assessment.

Officer - 0:42:04

Applicant/Agent - 0:42:08

Are you currently monitoring the site then?

Officer - 0:42:15

No, sorry. Based on our, the 2022 noise levels.

Okay, so can I just be clear and I'm going to come onto this.

Why has 37 been selected as the daytime ambient noise level and 32 at night if you're telling

Applicant/Agent - 0:42:33

me it's 48?

No, again, sorry for confused matters.

The 48 decibels is the ambient average noise levels at the moment.

This is assumed that the noise levels haven't changed since the 2022 assessment, but the 37 decibels, that is the background, the levels of background noise at the side.

Officer - 0:43:03

And that is what the 4142 assessment has been based upon, as well as the setting of appropriate plant noise levels at the side.

Applicant/Agent - 0:43:11

And just so I'm clear, the 37, is that the lowest measurement

that you've taken at the site?

So it's the typical lowest.

It's, unfortunately, I believe we are in agreement in terms

of the appropriate level.

Technically, it's the 90th percentile of the noise levels

measured at the time.

90 % of the time during an hour it would be at that sort

of level, yeah?

Is that correct?

Officer - 0:43:33

90 % of the time it will be louder.

The lowest 10%.

Sorry, so the LAEQ that we're talking about, this 55, and the ambient noise level that's been referred to,

that's effective like your average noise level.

The LA90 is a parameter which is what used in Form 4 -2 to it,

that's what your kind of background sound level is and the base of the assessment.

That is the lowest 10 % measured over that period.

So it's a lot more robust to fluctuations, whereas the average might change

if there's a bus going by or a few cars it can kind of fluctuate because the LA90

is much more stable in that sense that you are looking at the lowest 10 %

it's it kind of is the underlying level that's what it's effectively doing

that's kind of that would be in the area.

Officer - 0:44:22

So could the council then just clarify, and I know you sort of talked about it being an absolute backstop,

but if you've already required the assessment to take into account BS 4142,

Why did you need to put this other sort of part of the condition in play?

I'd have to speculate on that because I didn't, wasn't involved in the drafting of the condition,

but I suspect what was going on there is that the, and the appellants have referred to this in their evidence,

that there were comments from the environmental health officer at the time on the outline

application referring to a target, if you like, in terms of protection for residents

from future noise levels. And they referenced the 50, 55 dB target from the British standard

that Adrian refers to and we have described that in our evidence. I suspect that the two

were melded together in the condition, in condition 68 by the officer who drafted the

conditions, possibly without necessarily a clear understanding of how those two British

standards relate to each other and what they were designed to do and what their response

sort of objectives were about. So the way we've approached the condition, given that,

is that the BS 4142 is the appropriate standard to use. The condition does require the scheme

to be based on that. So we've taken that as one of the requirements of the condition.

But we accept that there's a second requirement in that condition to stay within that backstop,

if you like, and that's how we've described it in our evidence.

But the point that we've made is that we don't think it's

appropriate to rely on one or the other.

We think that an acceptable scheme of noise mitigation has

to address both elements of the condition.

Officer - 0:46:52

Thank you.

And I mean, one has to go to the reason for the condition is to protect the living conditions

of those people who live there now and are going to be living there.

So, okay, I sort of understand the position on that.

Is there anything else the appellant wishes to say about this particular condition, how

Officer - 0:47:16

it's put together.

So I'm just going to now run through, sort of before I sort

of delve right into the noise matters, just to make sure that

I have the position of both parties correct.

So do stop me, correct me if I've got this wrong.

So the use, as I said, has been established through the outline

planning permission and the site will be operational 24 hours a

day, 365 days a year, which has been agreed by the council for

uses following within Class B2 and B8.

But the use of the service yards and deliveries to the site need

to be restricted to prevent harm to existing

and proposed neighbours.

Mitigation is required to make this acceptable,

and this includes construction of the buildings

to prevent noise breakout, and the condition is proposed

to secure this.

Well, it was.

It was in condition 10.

It's now in the new scheme of noise mitigation.

So just briefly on that.

Has the appellant's position on that changed at all?

Because you were not in agreement to condition 10

Town/Parish Council - 0:48:44

originally.

I think initially we weren't in agreement with condition 10,

but then the inclusion of those details, which are originally

details that were included within the Hawley noise

report in terms of building breakout and material

insulation levels, if we put that within the statement,

scheme of noise mitigation, sorry, then that's agreed.

Officer - 0:49:20

The second part of mitigation is for the installation of acoustic fencing.

This is now shown on Boundary Treatments Plan P406,

Revision L. And that mitigation would need to achieve a density

of 10 kilogrammes per metre square with no gaps

and will fully enclose the service areas.

That fence under Revision L is to be three metres tall.

Again, that was in condition 11.

It was not agreed, but has now been included in the noise,

the scheme of noise mitigation.

So I'm assuming the same sort of position is taken

by the appellant.

Town/Parish Council - 0:50:16

Sorry, don't let me put words in your mouth.

Yes, similar, but it was included in our previous scheme

of noise mitigation in terms of the provision

of acoustic fencing.

Officer - 0:50:25

all we've done is increase it by a metre in height. You are correct, yes. But the

council doesn't agree to that plan because you have concerns about the

post and rail fence and boundary treatments, is that correct? That's

correct. So we're happy with the locations of the acoustic fencing, we

want to see it on a separate drawing.

And I shall come back to that.

So broadly speaking, though, that mitigation

is agreed with a few bits.

According to the council, and this

is the documents which were helpfully listed

and sort of given a name in the noise statement

to Common Ground.

So this is the NA memo, Nova Acoustics,

So for the for the council other mitigation is also required

and that includes no deliveries or use of the service yard

between 2300 and 0700 hours, which is not agreed by the

appellant. Yes, you're from 6 a .m.

And a noise management plan was not agreed by the appellant,

but in your July scheme of noise mitigation, you have provided

a draught noise management plan to be distributed to occupiers.

I'm going to come back to this, but I understand that isn't

satisfactory for the council.

And then prior application for fixed plant for use within the

units, and you disagree on the level that that should be

limited to.

You're at 25 decibels LAEQ?

Yeah, and yours is to not exceed background noise levels,

Applicant/Agent - 0:52:25

so 37 and 32 respectively, I believe.

That is correct.

I believe that the 25 decibels is on a per unit basis.

That's my understanding anyway, whereas ours is a cumulative

Officer - 0:52:39

noise level to be achieved by the site as a whole.

Okay, we'll come back to that.

So, going on, according to the council, the NA memo, with this

mitigation in place and provided there are no deliveries and use

of the service yard before 7 a .m., then there will be no harm

during the night time to any nearby neighbours.

But harm would still occur in relation to the use of surfs

yards to units two and three, which would impact dwellers

to the east at Orchard Field during daytime hours,

where based on the revised acoustic fencing,

that would be an exceedance of eight decibels.

As mitigation for that, the council would require

internal loading bays to units two and three.

So it's a full enclosure of the service yard,

and that is not agreed by the appellant.

Yeah.

And the appellant, as we just said,

is seeking to use all service yards from 6 a .m.

Yeah.

So this sort of leads me to the various questions that I'm going

to need to answer for myself before I can reach a decision,

So one of them is whether or not the use of the service yards

for units two and three would give rise to unacceptable noise

impacts on living conditions of occupants of Orchard Field

and whether that could actually be mitigated.

And then in addition to that sort of agreed mitigation

on the fabric of the building and the acoustic fencing,

what other mitigation is actually going to be required?

So whether that is restriction on the use of service yards.

better noise management plans and what the council considers

being submitted and control the fixed plant.

And I'll need to look at the use of the service yards between

six and seven in the morning.

Okay, I think those are all the points I need to address

within noise.

Is there anything anyone feels I have missed?

No?

Okay.

Right.

I'm going to start then with some basics on the methodology

in measurements.

I understand the monitoring of the site was undertaken

between Friday the 29th of April and Tuesday the 3rd of May 2022,

so it covered weekends and weekday noise.

And it established the background noise levels,

the ambient noise levels that are agreed between the parties,

37 and 32 decibels.

However, the noise logging metre is positioned about 50 metres

back from Sprat's Gate Lane.

It's shown as position L in the noise impact assessment,

the Hawley one.

But the council has made a comment, even though it's

accepted the ambient that those background noise levels, that it

would have been prudent to also undertake measurements

at additional receptors.

What's the council's sort of thinking on that?

Officer - 0:55:53

I think, and it's mentioned in the Hawley assessment, obviously that location has really

been chosen to look at the closest receptors which are north west.

But actually, obviously when we're doing, when nobody's taken their assessment, you've

the residential receptors to the east, they're actually showing more impact. Obviously we

haven't got anything that's dedicated just to those receptors to the east. I don't, it's

one of those that particularly during the night time, that discrepancies probably would

be less between those two. They know the background noise levels but that was I think where that's

maybe come from just to have a bit of an understanding what it might be like to the east.

Officer - 0:56:40

Applicant/Agent - 0:56:48

Can I ask why the opponent didn't do that noise monitoring facing towards the east?

Absolutely. One of the terms that got used previously was the use of the background noise level because it is a robust figure.

My explanation earlier about the underlying levels of noise at the side.

So not when you've got vehicles thundering past the site, but everything else that's going on in the local area.

We're talking birdsong, we're talking everything else that occurs naturally across the site, regardless of your position on site.

In our experience, a level of 32 decibels as a background level is not untypical for a site of this location.

But we would not expect that noise levels, if we were to measure further to the north, further to the south, further to the east,

there would be a significant variance in the level of background noise, because everything else that's going on,

as I say, bird song and distant noise levels, would be exactly the same around the site.

Again, you know, the level of 32 decibels as a background figure is on the low side anyway.

And for those reasons, we didn't feel it was prudent to take any additional noise measurements.

We were certainly not asked to at the time.

Officer - 0:58:15

Cabinet Member - 0:58:25

No, I recognise you weren't asked to. It's just this comment made by the Council, so I just want to understand their position on that.

And importantly, Madam, as you say, it's not a point that goes anywhere because the levels are agreed.

Officer - 0:58:33

But I'll just remind everyone that I'm interested in the living conditions of the people living nearby and now and in the future.

So, yeah, I just want to be sure.

Officer - 0:58:57

So just help me understand, I'll go to you Mr. McCordick first, what would it be like

to have a sort of five decibel increase, how would that affect me if I was living somewhere,

Applicant/Agent - 0:59:18

what would it be like?

Well, typically to put into context noise in general terms,

normally we would say if you perceive a doubling of noise

level, that would be equivalent to a 10 decibel increase

in noise level.

It's normally said that outside of a laboratory that anything

less than a three decibel change would not normally

be perceptible.

Under perfect conditions in a lab, you might notice

a decibel change, but what we're saying, as a result of that,

we're saying a five decibel change in noise level would not

be something that's a doubling of noise level,

but it would be perceptible.

Perceptible enough to be adverse, though?

Only adverse in respect to the wording of BS 4140.

It's effectively saying that it's what you would call,

It would be on the level of noticeably.

And so you would be aware of that noise if it was plus five.

It would be distinguishable against the background noise levels when noise levels were at their quietest.

The reason I'm adding that context is, again, the background noise levels are based on the typical lowest times of the day.

You could say it to other parts of the day, peak hours for example, background noise levels would be higher

and there are elements that you wouldn't be at plus five, it would be lower and then you wouldn't get that noticeability.

But plus five you would expect to notice, yes.

And plus ten?

Officer - 1:01:03

Significant as per the standard.

Significant, but if you're living somewhere, I kind of want to change the wording.

Scale of annoyance, if you like.

Applicant/Agent - 1:01:19

How much would it impinge upon your enjoyment of living where you live?

Well, this is where context comes into it all.

It certainly says that significant seems to indicate that it would be very definitely audible

if you were in those living conditions.

It may be that the context of the site is that if there's already noisy activities occurring,

such as if there were already vehicles passing by generating high levels of noise, say from

an industrial estate, it may be that it's noticeable, but the context of the site may

mean that it's less intrusive because it's not introducing a new noise source to the

site.

That is why, you know, quite often there'll be not just the numbers alone, but also the

Officer - 1:02:14

context of the site and how it sits in a particular area and what you're introducing to a new

site.

So I suppose if you're talking context, and I have only been there very briefly, but it

seem quite quiet around Orchard Field to me.

You go off into that housing estate from a little road

and there's nothing around it at the moment.

Applicant/Agent - 1:02:33

So their context presumably is quiet at the moment.

And that's reflected in the background noise level that's

there.

I mean, there are changes in terms

of the new dwellings going in with their associated vehicle

movements that will be occurring. But that's why, no, absolutely, you know, the background

noise level as a level to be achieved helps us in this context. As you move around the

site, absolutely there's changes in ambient noise level and indeed maximum noise levels.

But I think in that terms, I believe that's why we are in agreement in terms of an appropriate

background noise level but it wouldn't be uncommon and from my time on site

that I've gone the wrong way I would expect that occasionally you would hear

other activities on the site because of the and it was noticed by myself just

Officer - 1:03:36

because of the local road network and because of the the industrial estate to

north. Thank you that that's helpful. Mr. Chesney I wonder if I could just sort of

get you to cover the same point as a fellow noise, another noise expert. I'm

Officer - 1:03:50

not a noise expert. Yeah I think one of the key things is the character of the

noise in the area and how that sits. So when we're doing predict the following

methodology of 4 -4 -2, establish the background style level, we're also

predicting from the site what is this equivalent noise level again we were

talking about. However, as you can probably imagine, if there are something

like deliveries that might be quite impulsive, there might be peaks that are

much higher. So the audibility of this site could be also on that side if

something's quite impulsive, higher than what we might anticipate. But this is

kind of covered in Form 4 -2 with adding ratings to that. So in terms of what we

would be suggesting, yes, well and following the standard and kind of what

Adrian's been saying as well, that if we're plus five and above we'd be looking at

adverse impacts, 10 and above we would be looking at significant and it probably would

change your behaviour kind of you know as a resident there and it would I think you

would notice it.

Sorry so as a resident I think that's sort of a helpful way to look at it so as a resident

so what you're saying is plus five would be noticeable or?

Yeah, typically that would be classes like the point where you're starting to get adverse impact, really.

So we would probably say between five and ten you'd be above the lowest observed adverse effect level,

but below the significant observed adverse effect level.

So that would, in the MPSE, that would usually be described as it's audible,

it can cause a change in behaviour, physiological response to kind of noise at that level.

change in behaviour in what way? There could be a few different things if it

was depending on the level of where that's at as an overall level that could

be enjoyment in your garden space that could be if it was very loud in it said

you know it could be that you're watching TV you want to turn it the TV

up you might want to speak louder when you're having conversations to ensure

that you're above that that level really.

Officer - 1:05:53

Applicant/Agent - 1:05:58

Thank you. Anything from you Mr. McCordick? I was just going to add in

there in addition to everything that's being said there's nothing in the

British standards that state audibility or inaudibility so the

condition itself well you know it sets limits what it doesn't do is is state

that the site should be but it should be inaudible so you know we would accept

that yes, under certain situations, the quietest time of the day, an unusually high level of

Officer - 1:06:37

activity on the site, yes, that could be noticeable, but that's not a requirement of 4140.

Yeah, I understand that.

So, staying with the noise modelling, I appreciate at the moment the precise use of those five units is not known.

Assumptions have been made, but as far as I can tell from what I've read, the sort of agreed position is that noise sources are your HGV movements, reversing alarms, loading and unloading, and deliveries, and then building noise breakouts.

There's sort of four main areas, and so within that, I suppose, you've got the plant and machinery that might be brought on site, depending who's operating from there.

But both parties have taken a slightly different approach to this.

The council has approached it cautiously, but described as a reasonable worst -case scenario

to ensure that any mitigation measures are adequate.

And you have taken it as typical as opposed to absolute highest noise levels.

And I understand there's sort of different ratings,

sort of noise levels applied to different sort of aspects of this.

So I think you have noisier HGV vehicles than the appellant does,

but I think you might have come up with a few more vehicle movements

at different times of day than the council.

So I will dig into that.

But I suppose what I really want to just understand is how

different is sort of the typical from the, you know, describe it

to me to your worst case scenario.

So I can just really understand what that difference is in how

you've approached this.

So what do you mean by typical?

Applicant/Agent - 1:08:45

I shall start with you, Mr. McQuarthick.

No, absolutely.

So the noise levels that we've used in this instance, I mean, it's really ones that have

been used many, many times on many, many previous sites by ourselves.

Well, by myself particularly anyway.

You know, if I may try to provide some reassurance, you know, we've done many, many sites for

on behalf of tungsten, on behalf of carbide, using the values that have been used in these

particular assessments, we have not previously been challenged on the levels of source noise

that have been used.

I'm certainly not aware of any complaints that have arisen from the noise levels, from

you know subsequent operations of these units. I forget the numbers

that have been used. Certainly in terms of what we would say would be typical,

we've made, I don't want to use assumptions, but you know we've based it on the

number of loading bays there are at the side, the number of maximum vehicles that

could be processed in any one particular assessment period.

And I believe what we've taken is something that would be realistic.

Absolutely, that doesn't prevent everybody doing everything all at once.

But we would, that's not our experience of how these sites get used, how they operate.

and our interpretation of the standard is much more of a typical approach.

It may be that somebody from the team may wish to provide more information about how the odds are more likely to be used, but that is our experience.

Officer - 1:10:45

Do you sort of put a percentage, I think the council did put a percentage on sort of what

level of, you know, activity might be occurring.

Applicant/Agent - 1:10:57

I think you're at 66 percent, I think.

It was.

I mean, we've based it on one HGV per loading bay per hour.

It works pretty well because quite often we'll get a traffic assessment further down the

when we've already done the calculations.

It's in every single situation we've seen that actually

that our levels overestimate the usage of the site

and brings it down.

The way that, again, we don't know whether this is going

to be B2 or B8, the simple way around that is noise breakout.

There will be high levels of internal noise if it's B2

So that has been assumed.

There will be much more use of the service yard if it's B8.

And so we've taken that assumption as well.

So we haven't assumed a drop forge inside.

We haven't assumed that people are going to be sat revving engines in the middle of the service yard 24 -7.

However, I do believe what we've taken is reasonable.

And that seems to be backed up with our experience from previous sides.

Officer - 1:12:14

Officer - 1:12:25

Thank you, Mr. McQuarlin. I'll go to the council for your approach.

Yeah, sure. So the levels we've used, as I say, for something like HDV moons, I think

that was one of the key ones. It is a higher level than what's been used in the Horn -Lee

report. Again, this is based on measurements that NOFA have done. We've kind of cross -referenced

that as well with other applications that we've seen from other consultancies using

levels that are very similar to what we've used. I think actually the same in one of

them that was for, again it was a measured level done by a different consultancy but

it was for, I think it was for LIDL and again it was loading and unloading activities. So

we've kind of got a bit of confidence with that. And I do note that there has been on

other applications from Haul -A maybe in the past very similar levels to what we've used

as well in this assessment we've done,

closer to the 98 that we've used than the, I think,

86 that's been used in this assessment.

Officer - 1:13:22

So just to ask, does the fact that sort of the need to

understand the environmental impact assessment lead you to

sort of take a more harsh approach to the sort of worst

case scenario, or would you just do that anyway?

So I would say that what we would,

And it's kind of in our note as well that we would usually try and employ this Rochdale envelope where you're looking at a reasonable worst case.

And that's obviously so that we've got confidence that any kind of measures we're going to put in, because it's so speculative at this stage, we don't know who's going to be taking that.

I mean, I'm sure you can appreciate the noise from HGVs. That could vary massively depending on what load they can carry or what kind of engine they might have or something like that.

So with that uncertainty, we would probably take a more cautious approach.

Officer - 1:14:07

Inspector, if I could just clarify as well that just in case there's any doubt, the Council

commissioned Nova Acoustics because the environmental, the advice we were getting from the ERS team

within the Council, firstly that team was stretched and secondly the person who had

been dealing with the application, left the council just before the application was to

be referred to the London committee. The other thing, and this is drawn out in the

appellant's evidence, is that they were concerned that some of the advice they were getting

through us from the ERS team wasn't as thorough as they wanted to see. They felt it wasn't

as rigorous in terms of giving them a technical response to their submissions and their evidence.

When the council appointed Nova, we didn't provide them with any brief. We didn't ask

them to adopt a particular approach to the assessment. We didn't ask them to adopt the

approach that Sebastian has described. The brief to Nova was simply to review the

work and that led on to Nova undertaking their own assessment, B4142 assessment.

They weren't operating under a brief from the council.

Officer - 1:15:46

Thank you, that's helpful.

Mr Mcaulig, did you wish to say something?

Applicant/Agent - 1:15:54

No, I believe that we've been.

For ease of, I would hope that the report is open,

that we've listed our assumptions.

Our calculations, we've listed all of the assumptions

made within those.

Hopefully, anybody can read through and there should be,

you know, a question about the source noise levels, distances,

you know, that can be picked apart in, we've deliberately

presented it that way so that we can have discussions

Officer - 1:16:33

such as this.

So that's helpful and I'm going to come on now to sort of the

HLA comparison just because it sort of seemed like an attempt

to try and make sense of it all and enable some form

of comparison.

And I have to say, you know, I'm not an acoustic expert.

And sort of having different ways of measuring some of this

stuff, sound power, sound pressure, whatever,

it does make it more difficult to sort of compare them.

So thank you for doing that.

It still wasn't, you know, totally comparable,

but it's helpful.

But I would ask the council, because I know you have concerns

about that comparison, so I'm certainly not putting any words

in your mouth or anything about this, but just in terms

of the sort of figures and how they've been corrected

to sort of make them comparable, sort of the conversion

from sound power to pressure.

Are those accurate or are those...

Do you agree with the figures in the report?

Was that the...

When you say the figures, is it the source noise levels or...?

One minute.

I know in terms of...

I'm not sure if this is something I was going to get onto later,

but in terms of overall impact,

I think there are differences in the approach there anyway,

and kind of how to come to that final figure.

So if I could just take us to page one of that comparison

report, your HGV movement figures have been converted

to a figure that Hawley consider makes it comparable.

Are those figures accurate or should I be treating them with caution?

Officer - 1:18:35

No, I don't think there's anything that we would...

No, that would be typical for that conversion.

So essentially if I look down like the notes at the side,

building noise breakout both passed in agreement,

HGV movements

plus nine decibels

for the council's position,

reversing alarms plus three decibels, loading and unloading your plus eight decibels.

Yeah

there might be one, I think they might, I'm not sure if a couple of them

that were listed in here was slightly different to what was in the

noise report that we had, but that conversion,

if we're assuming 75 would go to, would be nine less

than what we've used.

I just think, from memory, there might have been one

of those that was slightly different to what was

actually in the report that was submitted.

So I suppose from my perspective,

there are bound to be little bits of difference.

It's like how material are they, how important are they

in terms of sort of the assessment.

But broadly speaking, are those, could I use those, could I rely

on those to make a comparison or not?

Yes, yeah, yeah, you could, yeah.

I could. Thank you.

So, I have two acoustic experts sitting in front of me.

They're both coming up with sort of different views on how noisy it's going to be or not.

Hawley derived their sort of knowledge of HD movements from their archive.

I don't know what your archive is.

I don't know what it looks like.

I don't know how robust it is, how old is it, how many things

are in it, I don't know.

And you've based yours on speculative applications, which

equally I don't know anything really about.

So it's quite hard for me based on that because I don't have the

evidence that sort of sits behind the figures you've come

up with on your, you know, HGV movements and noise.

So, what would you do if you were me?

Applicant/Agent - 1:21:21

First.

So, I suppose to explain the origin of these figures,

they are a cumulative, you know, we've taken noise levels

at other distribution centres of various sizes.

we've taken noise levels and within a few decibels either side the noise levels do come

out very, very similar. The reasoning behind that, if you double the amount of energy you

get a three decibel difference. Well, the effect of one HGV versus, you'd have to go

to two HDVs to get a three decibel difference.

So certainly within the figures previously,

you would expect variance, certainly,

but not a massive difference.

So the noise levels we've taken are from several distribution

centres in the past.

There are British standards from the 1980s

that present noise levels of HGVs which are in the order of 8, 9 decibels higher.

A lot of those are based on much more construction activity, noisy sites with gravel paths,

with less efficient engines and consequently noise levels which are higher compared to

what we have in these situations where you have very, very flat service yards.

you have engines which are significantly quieter it's that drive for more

efficient engines which work better and to be honest you know drivers who are

very very good at getting in and out you know with the least amount of fuss

really so on that point does that not rely on the sort of management plan that

the council have raised in order to achieve those levels? It's in your

submission. Well not necessarily and I think we you know if we were going to

come on to say on time for example a chap who comes on to site very very

quickly revving his engines all throughout the whole process in terms of

noise in terms of noise terms somebody who creeps along at the absolute

minimum but perhaps would be generating noise for four times the length of time.

The way that 4142 assesses those effectively comes out as the same level

Officer - 1:24:09

of noise generated. So it kind of comes out in the wash in that particular instance.

Thank you. I should go to Mr Chesney now. Yeah so I think we have

highlighted this or this has been mentioned previously that I don't think that the levels

that have been used in the Horley Report are not attainable, but I think that would be,

from our experience, quieter HGVs, which again, it's speculative at this stage, we don't know

who's going to be taking over those units and whether that, as you mentioned, could

be something that's taken into a kind of a management plan. I think the other key difference

where with the values that we are getting though, deriving on times, looking at anything,

is the approach that we have taken to the calculations in general. Because Nova have

modelled this site, we are looking at noise from units one, two, three, four, all simultaneously.

In addition to in those noise levels, that is including noise that is breaking out of

building that is including the HGVs entering the site whereas I would say

that on the Haul -E assessment things are kind of assessed in isolation. Typically

for Form 42 you would be looking at a cumulative level so when we are the

differences in the levels that we're presenting we've done everything

accumulatively which is probably more akin to what you would get in real life

and even to some point when we I know we're probably getting on to this noise

levels from units two and three there could be houses that are kind of equal

distance to both of those, you would be getting noise from both of those, you could be hearing

noise from either of those service yards rather than just one in isolation. So we would typically

suggest or the way we would undertake this and kind of how we have done that is to look

at everything cumulatively and what is the total noise emanating from that site rather

than here's unit three, here's an arbitrary distance from this screen that's x metres

high. It's, you know, with modelling it, I think you probably, we would argue that you

Officer - 1:26:11

get a slightly more accurate representation of cumulative effects.

Mr McChordick.

My comment on that would be that the reason we presented this memo was because we hadn't

seen a full assessment being presented. We have had the memo that gives the overall levels

that have been derived from this noise model, but we have not seen any details of the noise

model, we have not seen any of the calculations that we used within that noise model, all

that we have seen are the overall, the resultant noise levels.

So as a result, we have had to produce this memo based on the limited amount of information

that we did have.

Applicant/Agent - 1:27:01

Officer - 1:27:01

Just when you're saying you haven't seen the calculations,

is this when you're saying, for instance, how you get to the

specific sound level in the NOVA acoustics report,

which is just a figure?

That's correct, yes.

It did take me a while to figure out how that had been put

together, if I'm...

Yeah, because there's no workings behind it.

But what you're telling me, Mr. Chesney, is that is a cumulative

Correct, yeah, I suppose on that you won't see the detailed calculations because it's

done within the noise model. It doesn't kind of spread it out like that.

You're looking at each of these individual sources kind of cumulatively.

Officer - 1:27:48

So can I just cheque with you Mr. McCordick though, sort of in terms of

your calculations, do you agree that they're not presented

Applicant/Agent - 1:28:06

cumulatively or not?

So we've broken them down individually, primarily so that

the contribution from each of the noise sources can

be established.

I think it makes it very clear that, for example, the level of

noise breakout from the buildings is significantly lower

than activities within the service yard, for example.

These aren't activities that all happen simultaneously.

You know, they are different activities which can be mitigated against in different ways.

and for that reason we chose to look at them individually.

Applicant/Agent - 1:28:53

What I did do, and this hasn't been presented as evidence, but last night I did sit down

and have a look at the cumulative levels of noise.

levels of noise were presented within our memo in terms of overall noise levels.

My apologies, bear with me. My computer has unfortunately gone to sleep at the wrong moment.

So in the noise report of April 2024, the Rev 6, there is an overall cumulative level

of overall noise levels.

What page are we on?

This is on section 8 .4, which is on page 20.

I believe that's both presented and in the PDF as well.

Officer - 1:30:13

Applicant/Agent - 1:30:20

Just to clarify, is that from the dwellings to the east?

I believe that's the case.

Actually no, that would be North West because you've said those are the closest dwellings.

Officer - 1:30:32

It's just taken the highest level in each of the instances.

Sorry, I'm just not following exactly.

These are cumulative noise from all the different elements that contribute to the sound arising from the site.

That's correct.

and how they're going to be experienced at the nearest dwelling?

Based on the highest levels, that's correct, assuming that everything happens simultaneously.

Applicant/Agent - 1:31:04

And would that be different if it was from the east?

It may be marginally lower, but the point being I've taken the highest regardless of whether it's from the north or from the east,

just to take a worse case of the worst case effectively.

What's the worst impact you could find on a dwelling?

Correct, yes.

Cabinet Member - 1:31:33

In short, this is the worst impact that would arise on any dwelling,

so any other dwellings would be not worse than this or less.

So this could happen at the east, as I think we've established that seems to be where the

Applicant/Agent - 1:31:49

most noise is arising, is that correct?

Officer - 1:31:51

Correct, yes.

Thank you.

Officer - 1:32:15

Applicant/Agent - 1:32:26

Would that, with the screening, change now because you've changed the acoustic fencing?

Correct.

There'd be a one decibel reduction on that level going from two metres to three metres.

Town/Parish Council - 1:32:35

And that's in the new scheme of noise mitigation, it's got the comparison and impacts and effects

Officer - 1:32:43

of the increased fencing in the set -out.

Officer - 1:32:53

Mr Chesney, is that a reasonable set of figures in your view?

I think again this is where it I think that even the way that cumulative level

has been derived it can it feels like it can be confusing and slightly misleading

but that's partly because if you imagine a lot of this or a lot of the even

something like screening it's all to do with the geometry of where the source is

versus where the receiver is if we're just picking one receptor you increase

the height of that fence the effect of that might be very different to

something that is further away, typically with something like screening, it's not just

due to the height of the barrier, it's to do with the distance from the screen as well

and how effective it is. So if you're picking the closest receptor as one, that difference

could be more significant than if there was a receptor further away. Again, if you're

looking at the cumulative effects, because obviously the way that when we've modelled

it, we're looking at all those houses along that road, rather than one in particular,

and I suppose the way that those cumulative effects could happen might be

very different at those different houses along. If one's more

exposed to the access roads well they might pick up a bit more of that in

addition to they might get less benefit screening benefit from any increase

increase fencing anyway. The other thing that I think is something that we were

we had a bit of concern over is when we've done the modelling we've used LIDAR

data from the DEFRA website, so basically ground elevation data, those houses to the

east seem like they are at a higher elevation than the site anyway. So again, when we're

looking at screening effects, that plays such a big part that if you're looking at a source

that's at one level but actually the receptors are maybe up to two metres in some locations

higher than that, well you're already at a disadvantage in terms of can you overlook

that screen in the first place, which is something that seems to be the case from LIDAR data

and had a look at Google Earth as well,

that there seems to be a discrepancy in ground

heights between the site and those dwellings to the east

as well, which probably also would affect our modelling,

why we would be coming out with high values.

So that's not in the modelling, though, at the moment?

No, no, it's in the modelling because we've

used ground elevation data that's

available on the DEFRA website.

But it's something that might not be on the calculations.

that if they're done by hand or, you know, it's a bit more difficult to account for.

Even the way that might change across that residential development or the residential

receptors, you know, all of these relationships are based on the geometry between the source

and the receiver. So it can get quite complex when you've got quite a large site and quite

Officer - 1:35:48

a lot of receptors in very different locations, which is why we've taken this modelling approach

on this. Mr. McCordick, has your modelling taken into account? I suppose it's topography

Applicant/Agent - 1:36:01

really isn't it? The topography of the site has been based on my observations on site.

It didn't appear to me that there was the difference of two metres difference across

there but you know I walked the site I walked the adjacent site and it didn't

seem clear to me that there was that level of difference. Spatula is

absolutely correct that there is various bits you can do these days on Google

Earth and it will show the the ground heights. I did cheque that up I can only

say I didn't see that that level of variance between the two. We have done it

The hand calcs have been based on a level site.

And again, I believe that the barrier calcs in both documents, all of our assumptions

have been laid out in there.

There was a point about the modelling of the site.

And again, I've not seen any noise models, so I cannot make any comment on the appropriateness

or the robustness of that, I'm afraid.

We have taken what we take to be a worst -case position, i .e. the position of the nearest

dwellings.

It is acknowledged that the effect of the barrier will change.

However, what would happen is that as you step further away

from the site, you will get distance attenuation,

which is broadly in line with the, any reduction

in the effectiveness of the barrier screen.

Officer - 1:37:51

Yeah, that makes sense.

Applicant/Agent - 1:38:03

Just on the barrier screen, have you made the assumption then

that it's all on one level? We have yes.

Officer - 1:38:10

Sorry just quick to clarify we're not talking about the difference like across

the application site it's there's potential difference I think it was up

to about a metre from this level of the site versus the level at the receptors

to the east might be those receptors. You're saying those houses might be at a

I might be sitting higher anyway.

No, I understand that.

Officer - 1:38:59

Mr. McChordick.

Applicant/Agent - 1:39:06

If there is a difference of say a metre difference between the two sites, we would acknowledge

that that would render the barrier slightly less effective.

I would, from previous sites where I have done these sorts of things, there may be a

decibel difference going back to our previous ones.

we wouldn't expect that there would be a significant difference

should that be the case.

So there may be, again, you know, a slight variance there,

Officer - 1:39:35

but not something that we would say would be significant in terms

of the overall results.

Thank you.

That's helpful.

And presumably the acoustic fencing anyway,

if the land is higher, is going to appear lower from that land

if the acoustic fencing was to be raised in height

to be more effective.

So...

Cabinet Member - 1:39:56

And, Madam, just to say, the point about topography is, I think, a relatively new one.

And so what we'll do is we're just checking some plans and if we can, in the adjournment or over lunch,

Officer - 1:40:10

we'll see whether we can't at least sit down with the council and try and work out what the correct position is.

That would be really helpful. I was looking at the clock and we've done about an hour and a half anyway,

so we've done over an hour and a half, so I'm quite keen for a brief break myself.

So if there's nothing actually on this point, I'm going to

suggest a quick sort of 10 minutes adjournment even,

just because we're sort of progressing reasonably slowly,

I think, at the moment.

And there's lots to talk about.

Is 10 minutes okay for people?

Is that fine?

So if we come back, that clock's wrong, so let me just look

on this one.

Let's come back at 5 to 12.

Let's have a little bit longer.

Okay, so the hearing is adjourned.

Officer - 1:41:19

So the hearing is resumed.

Just before I sort of go on any further, any points sort of from

what we've been discussing prior to the break that anyone wishes

Officer - 1:41:35

to raise?

Yes, so I've just been looking at the levels plan for the

adjacent residential, incomparable to sort of the top

O that was submitted as part of the existing site plan.

There are some instances in the residential units sort of a bit

further down to the side near service yard two where the residentariness are 119

finished floor level and the top shows around 119 as well so that part there is

relatively level so on the assumption that there would need to be a bit of

raising and lowering of the levels that one metre discrepancy is probably not

going to be one metre and so it would be sort of contrary to the noise model that

that we haven't seen. The dwellings a bit further north which would be towards

unit two. Oh sorry well I just referred to unit two service element, unit three

service yard. The service yard for unit two currently on the topo is

around 118 .7, disappearing low as you go further north at the site and

where that compares to the adjacent residential,

they're about 119 .3, 119 .45.

But again, that doesn't take into account

that there should be roughly a raising or lowering

of levels to accommodate obviously a flat level site.

And then further as well, there would be a three metre fence

in the new boundary treatment's plan there

around the service yards.

And so with that raising of the service yard as well,

that one metre again, is probably not one metre

in practise in real life.

So...

So, on the back of all that, what do you think the difference might be, if anything?

Ward Member - 1:43:29

Yeah, we won't have done the full cut and fill exercise yet, so it's very difficult to say what the exact finish level is going to be,

but from what you've suggested there, it's going to be not a huge significant difference.

Officer - 1:43:40

not going to be the one metre I don't believe. And would that be something that

could be conditioned? Anyway, there's the soil waste management bit there

condition 49 I think it was in terms of the levels.

Officer - 1:43:57

Officer - 1:44:05

Mr. Keiran do you have any comments on that or Mr. Chesney? I think it could be

conditioned if there's a need to do that.

So that would ensure that it's sort of B level with the

acoustic fence.

Would that be another condition to be added or are you satisfied

that that's already contained within condition number 49 of

the outline planning permission?

I think it would be better to deal with it as part of this

to preserve matters of application.

Officer - 1:44:48

So if that is to be the case, I'm going to ask that the parties talk to each other

in the lunch break and see what the wording of that condition might look like

and provide me with a copy.

Thank you.

That's fine.

Thank you.

Officer - 1:45:24

Just to pick up on this cumulative figure again, could I just clarify then with our

you Mr. Chesney on the figures in your memo. So when you've put the figures at

each of the dwelling, the sound level, specific sound level and set those

figures, just so I'm really clear what different things are fed into that.

a lot of the contributions would change across the site, across these different sectors.

But that would be assuming deliveries at, basically, assumptions would be outlined at all of the units.

That would be H and E, which go to, kind of, respectively, to those in the areas that we need.

That would be noise breakdown.

Officer - 1:47:04

Does start again.

But we'd, yeah, we typically would say because it's easy to control fixed plan, we would

give a lower allocation to that because what we're trying to control is the overall noise

emissions from the site as a whole.

And that's kind of in line with the methodology in BS 4 and 4 .2.

The way you, we would usually do it and it's kind of implied within the standard is you

look at the cumulative level and you rate that level rather than doing each individual

component and rating that separately.

you want to get what is the kind of cumulative and I appreciate there might be things that

aren't going on all at the same time but that's already dealt with by on -time corrections

that are assumed in both of these, the calculations for both Nova and Horley. But it is quite

likely that if there's a delivery that there will be noise inside whichever one of those

units is going on as well. If you say it was something that was manufacturing, they're

not going to stop manufacturing as soon as the delivery comes. There will be cumulative

effects from both of those processes.

Officer - 1:48:01

That is helpful.

Officer - 1:48:05

Anything from you, Mr McCordick, on that?

Certainly, the nuance would be if they are manufacturing inside, the level of external

activity would normally be lower.

So, just that trade -off really, again, by doing everything into its constitutional bits,

at least we can see where the noise is being driven from.

Officer - 1:48:40

Okay, and just none of the calculations have broken it down unit by unit, have they?

Which is fine.

I don't particularly want you to.

Only in terms of we've taken it to the Northwest,

unit one will be the significant dominator to the east.

It will be two and three.

So that's been the approach there.

We haven't broken it down by unit two, unit three.

But to the east, yes, it does include both occurring.

I think it's five loading bays at the same time.

Officer - 1:49:15

No, that's fine.

So, okay, just to kind of look at some of those assumptions in

a bit more detail then, we did touch on sort of HGV movements

and sort of noise from those earlier and it seems to me there

are many, many factors that could contribute to the noise

coming out of an HGV, the age of the vehicle, how well it's

maintained, as well as its size and its load and all the rest

of it.

So I understand that.

So I don't particularly want to go over that, but again,

but there are discrepancies or disagreements between the

parties on the duration of sort of HGV movements

and noise arising from that.

The council suggested it could be up to three minutes,

assuming a two -way journey along a 185 -metre haul route

travelling at five miles per hour.

That was in your report.

And the appellate, you've taken much more specific

that time of exposure to the dwellings.

Is that right?

Have I got that?

Have I interpreted that correctly?

That's correct.

It does acknowledge that sometimes the vehicles

will be screened, naturally screened, by the buildings.

I mean, the table, I would say, the table

where we present on time, the levels

do seem very, very close anyway within a decibel, which would

not be noticeable.

Officer - 1:50:51

Yeah, I recognise that.

So just so I'm really clear, though, your assessment's based

on, say, that moment it's between Unit 2 and 3 or

whatever, and the vehicle's passing there, and that's what

the people, the residents from the east might experience.

That's correct.

for the entire duration that vehicle travels to whichever unit it needs to go

to on the site, yeah?

Officer - 1:51:18

Officer - 1:51:27

So in the comparison you ended up with 37 seconds for the council and I just

I would like to clarify how that was derived.

Is that based on that period of being visually exposed,

if you like?

So...

It's simply the, yes, the traversal length that would be visible.

You know, if it weren't for the barrier fencing that would

be visible at a nominal speed of 10 miles an hour.

That's entirely how the, how the duration's been derived.

Officer - 1:52:13

So I'm just trying to make sure I've understood it.

I'm not saying it's right or wrong or anything like that.

I'm just trying to make sure I've understood where

that figure's come from.

So 37 seconds was, it didn't feature in your report 37

seconds, it featured in the comparison.

I just want to be really clear how that's been worked out

because that compares to your 26 seconds, which is your 18 seconds of driving plus eight in reverse.

I would have to find it, but I believe that it was Mova that revised the numbers down to 37 seconds,

and we've simply quoted that value.

I'd have to have a hunt around and find it, but I believe that was the case.

So on the comparison document, on the second page, there's a table at the start which has

the 37 seconds in it, and there's a footnote to that which I'm simply saying what it says,

whether it's right or not. It says, NA originally stated three minutes but later revised that

down to 37 seconds based on the 185 metre traverse at a speed of

five metres per second equivalent to 11 MPH.

So that's the source, as it were.

Thanks.

Yes, thank you for locating that, because, yes, that's the

bit I want to understand.

How did that?

Who did that?

And how did they do it?

Officer - 1:53:55

Officer - 1:53:59

I was going to say, we've not, the way we've done on times isn't particularly using seconds

or anything like that. What we've done is we've drawn a route. In the noise modelling

software we then assign a speed to that and what it will effectively do is it will, along

that it will put point sources, so points that are noise emitting every metre across

and that will be based on the speed and the length of the room.

So what it does is it assumes that will be the noise level in total,

doing one, traversing from one point to the start point when it enters the site,

to the end finish point if you like, where it's at the delivery yard.

So we've not, that derivation of 37 seconds, we haven't ever included that in our report.

No, I know you haven't and I'm just trying to figure out what it means.

Officer - 1:54:52

Again, not wishing to mislead or take that.

I've taken that, I've seen that value stated somewhere and, Inspector, my apologies, we're

just having a look through to see where that may have been derived from.

But clearly, certainly, you know, we acknowledge that the original three minutes, that would

appear to be a vehicle from the moment that it enters the site and makes its way round through to

any one of the service yards. Personally, I mean that feels 180 seconds for a site that vehicles

enter from the west. It seems a long time to get to any of the service yards was my original

feeling and my thoughts that didn't seem to make sense for a vehicle that could

freely move through the site. Certainly the basis of our 27 seconds

yes it's based on I've taken the the longest path that I could find and

equivalent for for 10 miles an hour. Typically the sites will have 20 miles

an hour but that felt a bit fast with the paths.

Officer - 1:56:16

I think, sorry, on that three minutes, like I said, that might be more based on the total

time for one particular vehicle. So we're assuming for the BS 414 methodology, daytime

assessment, you assume an assessment period of one hour. If it's 45 minutes for a delivery,

you're going to get that vehicle going in and leaving in that same one hour as a worst

case. So it's more like it could quite easily be that it's actually 90 seconds

one way, 90 seconds the other way on the longest route. Yeah it says it's two -way

in the report it says yeah based on a two -way movement so I just

want to make sure I've really understood what's happening in it and it's that

makes perfect sense and the whole approach has been to obviously look at

but then calculate what a portion of that looks like.

That's fine.

I'm okay with that.

I've got it.

Okay, so moving on then.

How many HGV movements per day, per night?

So again, I think there's sort of just slight variation, isn't

there, between the parties sort of.

I can't remember which one of you has a few more at night

and a few less in the day, whatever, is it significant enough to make a difference?

No, so it's effectively been, no, actually, if we've, because the periods of time don't

quite correlate together, so I've tried to list out, it's to do with the way that the

units have been grouped together effectively as a cumulative for an entire site.

It would appear that Nova are assuming slightly lower number of movements during the day and

slightly higher number of movements during the night.

Going back to, you know, we've made that assumption based on the number of loading bays.

we would say that's normally a slight over -exaggeration

compared to the way that the sites eventually end up being

operated, based on B8.

Officer - 1:58:42

Am I right that this is literally saying one movement

per service door per hour could happen.

That was in the NOVA report.

There's so many different documents on this.

Yeah, one movement per service per, sorry, it's the appellant,

sorry, one movement per service door per hour,

so it's five service doors.

It operates 16 hours a day.

Is that right?

So is it that many vehicles a day?

Or am I misinterpreting what's been told to me?

The detail will follow, but in terms of rooting yourself in a document, again, the comparison

note, the second page, the second table, has this analysis of the parties' HDB inputs,

as it were, and picks up on the point that has just been made about Nova.

It's not quite apples and apples in terms of the units and how they've been, HDB's been

assigned to them, but that's that table that is what we're

now talking about.

And my question is, is that per hour, that table,

is that what that's saying?

It's per assessment period, so during the day,

that would be one hour, yes.

It's really hard to get a straight answer per assessment

period, it's an hour, yeah?

One hour, it is one hour.

Sorry, that wasn't a criticism, it's just a noise expert thing,

isn't it?

The thing is, if I can, because the assessment period is one hour, particularly if there's

a potential for looking at reducing delivery times, would there be any, you know, we would

be probably wanting to look at that worst case hour.

Could that be between six and seven, if that's, you know, seven, eight, depending on when

the deliveries are permissible, that people might be waiting, there might be more deliveries

focused on one period if it's not a 24 hour operation.

So it doesn't have to be repeated every single hour.

We're looking at what is the potential in any given hour,

which could be the worst case kind of hour, you know,

to show, highlight that impact really.

Okay, that makes sense.

So basically this is almost

like the worst case scenario movements in an hour?

Yes.

Yeah. Thank you.

That's helpful.

And you're not miles apart, as you say.

Officer - 2:01:37

Click on the Nav les

So the next noise source was the HGV reversing alarms and again you both agree

in agreement that it's eight seconds. I think you attribute less to it because

of the on -off nature of the sound. Is that correct? That's purely right where the

3 dB difference comes from effectively about halving of the energy but you know

effectively the source noise we've come from the same source levels effectively

it would seem.

Officer - 2:02:23

Do you agree?

Yeah, yeah.

Yeah, okay.

Right, I want to have a look then at sort of the issue about

allowing deliveries between six and seven in the morning.

So the apparent set out that when use of service yards,

if it was to resume at 6 a .m., background noise levels,

surrounding site are higher than perhaps in the middle

of the night.

And those are set out in the appendix to the Hall D report.

In that context, the appendix, as far as I can tell,

if I'm putting words in your mouth, in that context,

they're saying, actually, the sound levels have basically

crept up a bit, so you're almost not going to notice that sound

because it's only an hour earlier.

Is that roughly right?

Yes?

Could I get the council's view on that, please?

Yes.

Officer - 2:03:38

Oh, sorry, do you want to?

Officer - 2:03:40

I think there are two angles to this from the Council's perspective.

There is the fact that there is no, so the hours of operation that are being proposed

obviously apply to all five units.

And we're concerned that there is a particular issue with daytime use of units two and three,

which we've described.

So there's that concern that that timing would obviously apply to those two units as well.

And therefore that particular concern that we have in relation to those two units would

be an issue between six and seven.

The more general point is that the approach that we have taken is to carefully consider

the noise evidence. But we have also factored in that there are limitations to what that

can tell us and what it can reassure us on for reasons that relate to essentially the

uncertainties around the scheme itself. So because it's a B2 and B8 permission, there

are a wide range of uses that a wide range of operations that could take place at the

That leads to uncertainty in our minds.

Now, and we're conscious that BS 4142 acknowledges that you need to take uncertainties into account when assessing impacts.

So that's in the back of our minds.

The second thing then is the point that we touched on earlier in terms of data.

So the council and the appellants have obviously agreed to use the background data that's available.

When we took this application, when we reported this application to members, they questioned

whether or not there had been readings taken on the eastern boundary and we had to acknowledge

that that wasn't the case.

So whilst we've accepted the data and we've accepted the starting point, we make that

point that we may be operating here in a slightly less than perfect situation in terms of understanding

the existing context. But I put it no stronger than that.

And then the third thing is that we, like you, have had to contend with a situation

where the noise evidence is contested and NOVA acoustics were not briefed by the Council

to take a particular approach. So we have noise evidence from the appellant that suggests

essentially there will be no problem, that there will be only low impacts. And we have

a slightly different perspective from NOVA and particularly different in relation to

It's two and three. So what we've tried to do is use planning judgement in how we weigh that evidence and how we consider what might be appropriate in terms of hours of operation.

In the planning judgement we have looked at the context of the site and we draw a distinction

between, for example, a distribution park on the edge of a town where more flexibility

might be appropriate to this site which isn't that. This is an employment piece within what

is supposed to be a high quality residential led development, the Stedings. And that high

quality badge isn't just an aspiration, that is a policy requirement in policy S2. So there's

an expectation that this development as a whole will achieve high quality and we take

living conditions as part of that package, if you like, as part of that deal. And our

My concern is that in that context, if there's a question mark about whether the other thing

I should say is that our starting point for assessing any scheme of noise mitigation is

clearly condition 68 and the reason for imposing condition 68, you've already touched on this

yourself.

So the policy, condition 68 is there to satisfy policy EN 15 or ensure compliance with policy

The key part of that from our perspective is this requirement or this test that there

shouldn't be an unacceptable risk of adverse impact to the living conditions of neighbouring

occupiers. So that's the question we've asked from the

outset. Will the scheme achieve that? Will the scheme mitigate that risk?

Where we reached in July when the application was determined was the position that I have

just described contested evidence at the context of the site and taking everything into account,

the council came to the conclusion that a six o 'clock in the morning start, seven days

a week, year round, is simply too early and that if there is a real, a real, a real, a

risk and an uncertainty about the likely noise impacts within that period. That's an unacceptable

risk in this context.

So thank you, that's helpful. As I say, it would apply to five units. You've got particular

concerns of units two and three, come on to talk about sort of

whether they need to be enclosed or not as service yards.

Do units one, four and five give rise to the same level of

concern sort of for the 6 a .m. start if units two and three were

sort of taken out of the mix, so to speak?

If we look at the NOVA, I'll let Sebastian talk about the actual

assessment itself, but our understanding was that the impact for other units would be between

that one and five additional decibels, but it was at the upper end of that one to five,

or I believe it was three or four, I don't know, three to look at the note. So the concern

of impact is certainly different for units, the units other than two and three.

But there's at least a question mark in our minds then and that's where the

uncertainty comes in in terms of the nature of future uses and so forth.

Can we quickly just go to those figures in the report?

Officer - 2:11:25

So, just as we go to that, because I know you've tested out three scenarios, which was

24 -hour operations, no mitigation, then 24 -hour operation with some mitigation, and then just

operating externally between seven and 2300 hours.

But there's nothing in here that sort of tests the 6 to 7 a .m. bit.

I think on that, so in BS 4142 it separates two assessment periods, daytime and nighttime.

So daytime is 7 a .m. to 11 p .m.

With a nighttime assessment, it's acknowledged that it's a more sensitive period for offsite

receptors.

you know, and also that's kind of reflected in a shorter assessment period. So you scale

the assessment period down to 15 minutes, so you'll, again, I think, well, it's really

to kind of heighten or to really look at the potential risk on a much smaller scale. So

say there was an activity that was going to be 10 minutes in an hour, you would correct

that much more favourably, if you like, during the daytime, because it's only one -sixth of

time, whereas during the night time you know you're two thirds if that makes sense.

So in terms of that, he's acknowledged that that sixth or seventh would be a period of

higher sensitivity at the offsite receptors.

And just for potential sleep disturbance as well, those periods run through basically

all of the noise standards that you could apply.

I'm pondering it.

I'm going to let the appellant...

Can I just start with a response to what Mr Keon was saying. The background levels we

established previously are agreed to. The point about, well, you could have done other

monitoring points, that's gone as an issue. Because if the council wanted to take that

point against us that what we were presenting was in some way unreliable, they would have

said so and we wouldn't have the agreed position. So the council can't introduce uncertainty

by reference to that because that's agreed. So that's the basis and just going to the

point that Nova are making, absolutely the division between daytime and nighttime in

the noise stand is absolutely standard of course but we are talking whether on the evidence

that we've put in allowing operations between six and seven would be acceptable or not.

It isn't, one doesn't just look at the whole nighttime period as a whole, one can see as

will be explained in a moment by reference to individual hours, whether plugging in operations

would be likely to cause a problem by reference to the existing background levels at that

point. So that's where we are. But if you want to explain why the six to seven period

is okay. Well, only to highlight that, yes, we have broken down the background noise levels

in hourly periods, 15 -minute periods. This is in the Hawley memo.

Is the comparison document in the last, is that the one?

That's correct, yes.

Are those the same as appendix 2 as well in the original or the report?

So that's the original raw data that was measured on site.

In the comparison memo, it's actually been broken down into an hourly and 15 minutes,

As for the assessments, the ballpark or the headline values are that for daytime a background

noise level of 37 decibels has been agreed as an appropriate limit between the hours

of 7am and 8am.

I believe that's at the very top of page 9.

We are looking at levels between 38 and 46 decibels, so a high level of noise earlier

in the day.

Comparatively looking at the very bottom of the table, which is on page 10, which breaks

it down to 15 minute chunks between primarily we can see that noise levels do jump up from

I believe it's 4 .30 onwards.

Now that's not the discussion that's happening here.

But certainly between 6 a .m. and 7 a .m. background noise levels, the lowest is 37, but it does

increase to 45 decibels.

If nothing else changes, if we were to say that the noise impact is acceptable at 7 a .m.,

if nothing else changes the background noise levels aren't any lower at that

earlier 6 a .m. period. We don't see that there's a material change if it's

acceptable at 7 a .m. it should be acceptable at 6 a .m.

Do you think people have different expectations though about what their

environment will be like between 6 and 7 a .m. and 7 and 8 a .m. for instance?

I mean the standards make reference to nighttime sleeping and

daytime resting. We try to get low impact at all times because of shift workers

for people who don't lead conventional lives. There's you know the aim, the

reason it works the way it does is noise levels are noisier generally during

during the days which provides more more masking. I think our point here is if

it's not going to be of disturbance at 7 a .m. or indeed any time during during

the day there shouldn't be any increased disturbance at that earlier hour based

upon the the same principles that are being presented. Everything else would

operate the same, you know, it would be the same vehicles moving in

the same way, doing the same manoeuvres with the same operations on site. The only variance

in this is the level of background noise and I think that the table clearly shows that

it's not significantly quieter at that period of the day.

Officer - 2:17:59

Indeed, it's maybe equivalent.

Officer - 2:18:12

Okay, I understand the point you're making.

I suppose my just real worldness here as opposed to this is what

BS 4142 says you can do and how you measure stuff,

and we've done some monitoring, is just like, it's that,

you know, this is over four nights.

I know the figures have been accepted, but it's four nights,

two of them in the weekend.

It's just like, is it really that noisy between six and seven?

I'm not saying it's noisy, but is it always like that?

I suppose it's just the real world experience.

I'd just be interested in what the parties think on that.

Officer - 2:19:03

I think the only other thing is obviously

what's being referred to as the specific sound level,

the sound level that you could measure.

That has been derived assuming for when

we're looking at the daytime assessment,

assuming a one hour reference period.

If you're going to reduce that down to 15 minutes,

there will be additional.

or say something as transient as a reverse alarm,

eight seconds over one hour,

you'll get a different on -time correction

if you're doing eight seconds over 15 minutes,

which again can amplify that specific sound level

because you're shortening the reference period

in the first place.

So what you're saying is it makes it seem noisy

because it's measuring in the 15 minutes?

It's just, yeah, I think the standard has been,

it's outlined like that because it's to try

account for high end sensitivity. So because that would be a more sensitive

period you kind of yeah you reduce the assessment period accordingly. So those

levels that we are predicting or that might be shown in the daytime actually

might be inflated if we were going to read if that assessment was read on to a

15 to a 15 minute assessment period because of on times will change. So if

you reworked all the daytime figures to be measured as you do at night time? Yeah

I'm with you.

And on the real world experience point, yes, the Council's position is that people's expectations

at six o 'clock in the morning are different to seven o 'clock in the morning.

So we've taken the daytime period as seven to seven in the evening.

And then we think that if there is a risk of adverse impact in that period, we can accept

that to a certain, we can accept that if there's appropriate mitigation in place, and we'll

come on to talk about that in more detail.

But the more general point on the six to seven issue is that we just think that's too early

for an area where there are a lot of existing residential properties, and this is part of

of a residential scheme that is required to be a high quality scheme. We just

think people's expectations will be different.

Officer - 2:21:21

Just to come in on those points as well, obviously the new scheme of noise

mitigation does require no reversing alarms and all those various points

there so from that early period you're not going to get those specific spikes

that we're just spoken about. I'm sure we will come up with mitigation. I'll come back to that.

Are you answering on a technical point, I suspect?

Officer - 2:21:43

I was just going to say we acknowledge that all noise surveys are a drop in the ocean,

really.

We monitor for a few days and wind farms, you might do a couple of weeks monitoring,

but we acknowledge that with reasonable weather conditions, we've got something that for that

period of time was accurate.

we've deliberately chosen a weekend period because our experience is that

the Saturdays and Sundays are going to be the quieter times. I dare say I

mean the graphs, let's say the charts are to on page page 9 and 10 with the

the pretty colours. I think they do quite clearly show that that yes noise levels

are quieter at the weekends on those those Saturday Sunday periods and there

is that increase at those times of the day on the Monday and Friday.

Had we measured for a longer period of time, I daresay we would have seen a week of more

like the greens moving into the reds of the weekend and then back into the greens and

so on.

But the point I suppose I'm trying to make is the assessments have been based on those

quieter weekend periods, at all of the times,

the background noise levels are higher,

in some cases considerably higher, which will indeed

provide that extra level of masking as to the activities

that occur during those times.

Dr. Anne Pritchard.

No, I appreciate, I recognise that.

You know, that is how noise monitoring is done.

I totally understand that.

So, my question then is, if it was 12 .6 a .m. and deliveries

could come in at 6 a .m. in the morning, what's going to,

you know, who's going to be there to tell them to switch

off their reverse?

How's that actually going to, how would that be controlled

in reality to stop all those sort of intrusive sounds

of HGVs and reverse alarms and things between 6 and 7

in the morning?

I know it's the same throughout the day, but between

six and seven people are hopefully well some people are hopefully asleep yes I

mean that's just effective management of the site which I think a dream you can

confirm is confirmed in bs4 142 assumes good management of the site and that

will be down to the individual occupiers there to manage their deliveries in and

out of the site it's it's no more than we would expect out of any other

employment site that we've dealt with

Officer - 2:24:25

I understand that, but if I lived opposite an employment site and there were noisy lorries

arriving and they're parked up because they're there before 6am when they're going to be

left on the site and their engines are running because it's cold outside and it's keeping

them warm, they've got the blowers going, whatever it is, you know, it's like, how does

that get stopped?

stopped because you're going to have all those people living on the opposite side of

Wilkinson Road, isn't it? Spratsgate Lane. So this isn't even to the east now, this is on where the

lorries are going to enter the site. How does that sort of issue that may arise get addressed if you

start that early? I mean it could start creeping into 5 a .m. onwards and things. So could you explain?

Officer - 2:25:16

The new scheme of noise mitigation includes those various measures in terms of turning

your engines off, the various other bits there which will need to be enforced by the owners

and occupiers of those units. There is 24 -7 working within the building so it's not like

there wouldn't be presence there waiting. They can't arrive at 5, sit there, wait for

out or there'd be someone on site to let them in, turn off and you're done. And then of

course the requirement to comply with that noise management plan should subject to agreement

would be subject to enforcement by the council if there is any discrepancies there. But ultimately

it comes down to the reputation of the developer as well in terms of previous sites that we

haven't had complaints from have been subject to noise management plans and that is something

that is well managed there because obviously it is a reputation matter as well.

Officer - 2:26:15

Thank you. Is there any punch from the council on that?

Yes there is a lot of concern on the council's behalf but what we have heard there is that

those issues would be managed by individual occupiers but what has been proposed in the

commitment that has been made in the revised scheme of noise mitigation is that the appellants

will distribute a generic noise management plan to individual occupiers. There is no

mechanism there for council approval of the noise management plans. There is no mechanism

for subsequent enforcement of that. What the council has suggested by way of mitigation

is to use noise management plans to address those issues, not only at that six to seven period, if that's what we had to do, but throughout the day and the evening period as well.

But the Council's proposition is that the scheme of noise mitigation requires each individual occupier to submit a bespoke noise management plan that suits their operation,

that is something that they can commit to and obligations that they feel they can meet.

That noise management plan for each unit then gets approved or otherwise by the council

pursuant to any agreed scheme of noise mitigation.

Then by dint of that approval, each noise management plan becomes part of the approved scheme of noise mitigation.

then it is enforceable.

And then we understand what each individual occupier has

committed to in terms of avoiding nuisance,

dealing with complaints, and trying to address those issues

and manage their operations in a way that won't affect

living conditions.

And that piece is missing even from the revised scheme of noise

mitigation in our view.

And that would be something that would need to be conditioned?

We are advised.

The Council, before it determined this application, it explored whether or not the noise concerns could be dealt with by condition.

The Council didn't want to refuse the application.

condition, the advice that we received was that it would be inappropriate to attach a

condition to a reserve matter's approval that effectively duplicates the OPP condition 68.

Because noise and some of the issues that go to an appropriate scheme of noise mitigation,

hours of operation, noise management plans and so forth, that they go to that

outline condition and to try and duplicate it on the reserve matters

approval would be unlawful. So that's why the council has drawn a careful

distinction between suggesting noise conditions that relate specifically to

reserve matters and noise conditions that relate to the operation of the use

and the planning permission, the Alpine planning permission.

If we'd had the opportunity to do that,

we would have taken that route.

So I'm not terribly clear how the council envisages

securing the noise mitigation, whatever that might look like,

whether it's saying you can operate from 6 a .m. or 7 a .m.,

any kind of noise management plan.

I don't know how do you envisage having something that you could enforce against?

Officer - 2:30:04

So the...

In our statement of case we've identified the elements that we think need to be included within

a scheme of noise mitigation that the council could approve pursuant to OPP condition 68.

Some of those, as you noted, could be conditioned, but the three that we think can't be conditioned are the hours of operation, generally, and the six to seven issue in particular.

The measures to mitigate the particular impacts arising from

Units 2 and 3 that the NOVA assessment has revealed, and

the third one is the submission and prior approval of noise

management plans.

And the way we envisage dealing with those things is to have

them wrapped up in the scheme of noise mitigation. So the scheme of noise mitigation would effectively

deal with condition 68 and 65 in that it would set out, amongst other things, appropriate

hours of operation for the service yards and the buildings.

The scheme of noise mitigation is then approved pursuant to OPP condition 68 and is enforceable

because they are approved details pursuant to that condition.

If the scheme requires then, if the scheme itself then requires each individual occupier

to submit and have approved a noise management plan, the noise management plan becomes by

approval part of an intrinsic part of the scheme of noise mitigation to satisfy condition

and that becomes then enforceable by the council as well.

Officer - 2:32:17

It sounds quite complicated.

So am I being asked then to discharge condition 68 as well as approve reserve matters?

I don't mean to add another kind of layer of complexity, but the way the Council has

interpreted Condition 65 and 68, and we have taken advice on this as well, is that the

wording of Condition 65 is a little bit ambiguous in that it requires the hours of operation

to accompany each reserve matters application that includes commercial uses.

But it then goes on to say that the hours of operation should be submitted and approved.

So there's a suggestion there that 65 could be the subject of a separate discharge of

condition application.

That's one angle to this or one aspect to it.

Condition 68 is more straightforward in the sense that it requires each reserve matters application that includes commercial uses to have with it, to have as part of it, a scheme of noise mitigation.

If you were satisfied with the appellant's scheme of noise mitigation, then we don't think there's a separate need to discharge Condition 68.

you would simply approve the reserve matters details if you are satisfied with them and

condition 68 would have been discharged in that process. If you are not satisfied with

the revised scheme of noise mitigation, but you want to approve the reserve matters application,

the Council is concerned that you have no road to do that, that it would not be lawful

to attach a condition to a reserve matter's approval that effectively duplicates either

65 or 68 attached to the outline. If we had felt that that could be done, it would have

been done.

Officer - 2:34:50

the reserve matters in accordance with condition 68, the scheme of noise mitigation. That includes

a number of measures, some of them which are duplicated in the Council's suggested conditions,

which we have subsequently over the course of the reserve matters not agreed with.

We put forward and contend that the scheme of noise mitigation that has been submitted

will be approved upon any approval of the reserve matters.

That is an approved document that any reserve matters occupation would have to abide by

and is therefore enforceable by the council.

That would include the noise management plan, the sound insulation measures, the requirements

for fixed plant to not exceed a certain noise level, the hours of use and the hours of deliveries

within that. All those items there which packaged up and form that scheme of noise mitigation

is an approved document in accordance with condition 68 and is therefore enforceable

by the council and would have to be abided by any future occupiers.

So, critically, the scheme of noise mitigation needs to cover everything that you might potentially

have wanted to condition in another sort of life. Had perhaps condition 68 been worded

differently?

I think there's a, going back to the top of the meeting and the items you identified,

building fabric, fencing, noise management plan, as operation plant, all those sort of

What we're looking for is a solution basically to get all so you can be

satisfied that what comes out of this is a reserve matters approval with

everything tied down appropriately. I get the very strong impression that both

part was and we're pushing for that obviously because that's why we're here

I get the impression that's why the council here too they want to find a

solution if they can. So precisely how we divvy things up between taking for

the plant noise which I think was in a condition but has since recently been put in the noise mitigation scheme

kind of doesn't really matter in a way which way where it ends up. We just got to find a home for it

and it's tied down and if it is in the noise mitigation scheme what it's in there if it was in the condition it would be

on the face of your reserve matters approval.

So that's what we're trying to get to just making sure that all those issues are tied up appropriately.

But from what I've heard from the capital is you can't have a generic noise mitigation

sort of scheme for, or noise management scheme if you like, for individual, no generic one

for the whole site, you need it for individual occupiers.

So how do you start to sort of tie that back and enforce it?

It's actually more fundamental than that from our perspective.

Yes, that's true.

A bespoke noise management plan for each occupier is our preference.

And the appellants mentioned that some of the issues that you raised would be addressed by the individual occupiers.

That's exactly what we're asking for, that they commit to doing that.

The point that I was making earlier is that the only commitment in the revised scheme of noise mitigation

is to distribute a generic noise management plan to individual occupiers.

There is no commitment to adhere to it or to implement it.

Well it would be an approved document as part of the reserve matters and therefore enforceable against.

and it may be also we'll come to the document in due course and look at the wording,

but insofar as, from the council point of view,

or you were to accept it in precision in anything that's in the document,

then we need to be looking at a notwithstanding what's in that document.

This needs to be in the way that the council phrased some conditions already in this hearing.

Notwithstanding that document, it's not perfect, so do this.

But obviously what we have to be very clear about

is the commercial acceptability of what those things are.

So we're talking principles here rather than details.

So I just want to acknowledge, I appreciate

that both parties are actually trying

to find their way through this.

It's not like, no, we don't need to do this development.

I totally understand that.

I think what's really important that if I

were to allow the appeal, what comes out

at the end is something that is robust and absolutely

enforceable to ensure that the reason that condition has been

put in place in the first place, which is to protect residents,

is, you know, going to work.

And at the moment, I think I'm struggling to see quite how

that's going to work because we'll dig into it a bit,

but it's just to see how, you know, how enforceable

it could be.

And then what do you do, for instance, when the occupants change and the nature of the business might change from a B2 to a B8 in Unit 2 or Unit 1 or whatever?

How does all that work? And they're all questions that are going around in my mind and I'll be honest, I can't quite answer them at the moment, so if anyone can help me with that, I'd be really grateful.

But yes, equally I understand the sort of the need to appeal

to prospective occupants of the units.

And I totally get that as well.

And I have got some questions on that which I will get to.

I'm just looking how we're doing for time.

Let me just see how much more I have on.

I'm going to try and finish noise before lunch, I think,

because I'm sure we'll get back to it when we talk

conditions again.

So, but let's see where we get to.

Okay.

I think actually this comes in actually quite nicely to the

sort of what appeals to commercial occupants, you know,

what's going to work for them.

So I think that is quite important.

So perhaps if I take each of the proposed sort of headline mitigation points one by

one and hear from you on that, that will help me because that obviously would feed into

any part of the judgement I'm going to make.

So noise management plans being one of them, how would those be received and dealt with

by potential occupants?

I think generally OK, but again, it's

the content of them which may place undue restriction

upon any potential occupier, which

would reduce the letability of those buildings.

I think previously, the Council have

contended the provision of electric forklifts

and things like that.

It's not something that you could

force a potential occupier who's moving from one unit

to another to go, well, I've got a fleet of standard forklifts,

So now we need to invest another 200, 300 ,000

in a whole new fleet of electric forklifts.

It's just gonna reduce the ability

of the building to be let.

Other matters which were put forward,

so continuous noise monitoring from the site,

it's again not something that we can reasonably force

upon a potential occupier, but in general terms,

the matters that we've put forward

in the noise management plan are terms

that could be accepted.

The normal stuff, sort of, you know, turning off reversing alarms, keeping roller shutters

doors closed, you know, a source for contacts of complaints and those usual matters which

we've used in noise management plans before on other sites.

Officer - 2:43:17

Mr Kieran.

The council hasn't prejudged what ought to be in any of the noise management plans.

It hasn't put forward any particular requirements for the noise management plans other than the overall outline requirements that we have set out in the letter responding to the revised scheme of noise mitigation.

So we are sensitive to that point that they have to be balanced.

What we are after is a noise management plan that an individual occupier commits to and

that is enforceable.

And the revised scheme of noise mitigation doesn't offer that.

Officer - 2:44:06

Officer - 2:44:11

Specifically what is missing in terms of the enforceability of noise management plans?

For the point that I have already made, the only commitment in the scheme is to distribute

that noise management plan to individual occupiers.

I get that, but what would you want to see instead?

A commitment to actually implement, so for me, for each occupier to commit to a noise management plan

as something that they have signed up to, it's their obligation, and that they will implement it from the date of their first, from the first date of their operation, from the first date of use.

And would you expect to be signing those off every time there's a new occupant?

Or would it just, I mean, you sort of don't want a generic noise management plan as far as I can tell?

I suspect that noise management plans probably will be close to the generic, but the point is that the commitment's in them.

And then if for sake of because the planning commission is wide ranging, if there is a

particular occupier who has a B2 operation that is out of the norm for a B8 park that

they would commit to particular measures that would be appropriate to their use.

So that's essentially what we're after.

But the council is not particularly asking for anything out of the ordinary in terms

of a noise management plan. It's primarily the commitment to it being enforceable.

Officer - 2:45:50

So on that point... On that point I think we'd be happy to agree

a condition that says something on the reserve matters, that says something along the lines

of the developments shall be carried out. The noise management plan contained within

the scheme of noise mitigation shall be implemented and adhered to at all times by occupiers.

Officer - 2:46:15

Officer - 2:46:17

I'm just, what's the noise mitigation plan attached? The issues you can't attach to a

condition, you can't condition it, it needs to be... It's a duplication. Yeah, it needs to be

done.

Is that a duplication though? Because it would be the noise management plan contained within

the approved scheme of noise mitigation submitted against the reserve matters and against outline

condition 68 would then be required to be adhered to and implemented at all times.

Officer - 2:46:49

That would be conditioning a non -reserved matters conditioner, wouldn't it?

I'm not a legal expert, but I would question.

Officer - 2:47:04

But then the outline requires us to submit this with the reserve matters.

I think the starting point is it wasn't the most effective way of putting together the

outline planning commission. Okay, so it's now how can that be sorted out? That's where

I'm at.

The way that we thought this could be sorted out, and this is why we gave this advice before

the application was determined, that we had a scheme of noise mitigation submitted pursuant

to condition 68 to accompany the reserve matters application that did all these jobs. It was

a satisfactory scheme of noise mitigation and because we didn't have that, we had no

Officer - 2:48:14

Well, I'm not going to make a decision on it here, but I will ponder it further as well

during lunch break, and I'd ask everyone else to do so also because I feel it's kind of

left hanging there at the moment.

Yeah, let's come back to that.

So in terms of other mitigation required by the council, obviously construction of the building and so on and so forth would just happen anyway.

That would have been done.

So it comes down to units two and three, internal loading bays.

can you set out why that would not be wished for by a future occupant?

Officer - 2:49:04

Yeah so internal loading bays would take up a significant amount of internal floor space

of units two and three again reducing its acceptability and letability to a

future occupier based on you giving them a x square metre building and then

you're taking off quite a bit of it for an internal loading bay it wouldn't be

acceptable and it would reduce the configurability of the building as well.

I just asked the council about that. When you talked about internal loading base

did you envisage kind of turning the service yard into something internal or

Officer - 2:49:38

within the building fabric itself? The latter. It would lose floor space? It's

effectively a platform within the building itself which would allow the

vehicle to be loaded. The vehicles against the wall of the building but the

and unloading takes place within the building fabric.

So yes, there would be a floor space implication.

Approximately how much of the floor space? Roughly percentage wise? Rough?

We're not entirely sure to be honest. It's not nothing that we've ever seen before on an industrial unit.

Ward Member - 2:50:15

Sorry, just a comment. We've never delivered that on any building that we've delivered in 20 years.

So we haven't got any experience of the implication of that, I'm afraid.

Officer - 2:50:26

So the council acknowledges that it would reduce floor space, operational floor space within the units?

Yeah, the main concern for the council was that particular impact from units two and three.

And this was obviously discussed before the application was determined.

So the key point here is about trying to mitigate that adverse impact.

The internal loading bay auction is one thing that was discussed, floated as a potential

way to deal with this, because we were advised that the noise impact was primarily coming

from unloading and loading activities within the open service yard.

If there is another way to deal with that, if there had been another way to mitigate

that impact, we would have been open to looking at that, not necessarily wedded to the idea

of internal loading bays, but that wasn't a discussion that, that it wasn't, that discussion

wasn't going anywhere before the application had to be reported to the Planning Committee.

So we envisaged that if the internal loading bay proposition had come to anything, that

would have been combined with the noise management plans to ensure the mitigation that was required.

If there had been another solution, if the appellants then applicants had broached another

solution with us to deal with that issue, we would have looked at that objectively.

If there had been an alternative solution that worked from the developer's perspective

and dealt with the issue, again, we would have looked at that objectively.

But that wasn't the case.

So we determined the application on the basis of what we were presented with in July.

Officer - 2:52:29

If I were to find there were unacceptable noise impacts arising from units two and three,

I think my concern is where does it leave this sort of employment site?

But that's not in itself a reason to just ignore the fact it might be having a harmful

effect on neighbouring occupants. I'm just...

I think it's something that we discussed. Sorry.

It's something we've discussed and obviously we'll discuss again over the lunchtime break,

but what I think you need to leave the room with is a very clear position from us as to whether we would actually

invite you, what we would invite you to do. If you got to that position and said that the only way I would consent these

reserve matters would be with a condition requiring internal loading bays to be configured inside units two and three,

what's the opponent's position on that? Do they actually want that consent? Because if it's on our analysis unmarketable,

then we need to let you know that. But that can come later.

We can tell now.

I think our position is clear that with that sort of compromise, it affects the viability

of the scheme for us.

What we don't want to do as developers is to build our units and them to be set empty,

which in our opinion is what would happen.

It's a significant cost for us to go out and speculatively build however many units for

them to set empty for years on end.

Ward Member - 2:54:02

in our opinion, and we have taken the advice from marketing agents and surveyors in the area that are acting for us,

that would have a significant impact. So, yeah, that's our concern.

Officer - 2:54:16

Okay, and I've definitely heard that. Obviously I'm going to have to reach a decision on this,

and a condition probably needs, well, I'll need to consider what that might be in the event I were to allow the appeal

or otherwise.

But, yes, I have heard that point.

We should probably talk more again in condition section

on this.

Officer - 2:54:52

So, limit operation hours between 7 and 11 p .m.

Why is that unattractive to potential occupants?

Officer - 2:55:07

I think it's largely just repeating what we've already put forward. It's the attractiveness of

the units within the market and if operators are able to occupy internally 24 -7 and then

not able to deliver out until 7am, it's just unattractive to them. They want to be out on

It's competitiveness within the market as well.

You know, there will be other units that are completely

unrestricted elsewhere that will be occupied first.

So that's primarily the driver for it.

Officer - 2:55:46

So that's anecdotal, obviously, that they're

unrestricted elsewhere.

I don't have any sort of firm evidence of that.

So I can't say all down the road they're allowed to start

from 5 a .m.

or something.

I've got nothing to sort of compare that against.

But yes, I know delivery drivers are quite keen to get off and

out and get working.

I understand that.

So, yep, that's one for me to think about.

Okay, and then limitations on the limited,

limits on the fixed plant.

We didn't really talk in great detail about that,

but you obviously have different positions in respect of that.

And again this sort of is going to come to questions but what's come to conditions but what is the issue for future occupants if the limits that the Council required were to form part of any permission?

Officer - 2:56:53

Yeah I mean if it would assist Sebastian please correct me if I've got it

incorrect but I believe that a limit of 25 decibels has been suggested based on

the five units, 10 log 5 is 7 decibels. So for the purposes of somebody sat in their garden,

the approach that we've taken is, you know, if those noise limits of 32 decibels

is there, you almost don't care that you've got an element from that unit and an element from

that unit, it's the cumulative level of noise that is either acceptable or unacceptable.

I think what we are proposing is just more flexibility in terms of, okay, there might

be a little bit more from that unit, unit two, there might be unit four that might have

no external plant whatsoever, but so long as that overall target is achieved, it almost

doesn't matter. Placing a limit of 25 decibels onto units that may not even

have any external plant seems unnecessarily restrictive. And what if

Officer - 2:58:27

everyone went for the high end and went for the 37? Because that's a daytime

each of the condition I would guess and mitigation enforcement would would be

Officer - 2:58:42

applicable. Which condition?

Officer - 2:58:51

Officer - 2:58:52

Well it depends, Council is suggesting it would be turning on the word in the

condition it'd be that condition if it was through the noise mitigation scheme

it would be enforceable through that,

they're required to comply with it.

So I'm struggling a bit.

I'm sure you can all see that.

So you've got five different units, five different occupiers.

They've all got their different needs.

And you turn around to occupant of unit three and you go,

sorry, all the fixed plant sort of capacity's been used by

units one and two because they've put some really

noisy equipment in.

I just don't see how it works, which I understand that's the approach you're taking is by unit,

so it's almost like that's your lot, which I can equally see might not appeal to some

occupants.

I think both conditions work, as it were.

They get to an end result, which is enforceable.

It's just a question of which one you impose.

and in truth I don't think as it was being explained

there's that much difference between both parties

aiming for the same end product,

which is an acceptable noise level at receptors,

and it's just whether you divvy that up between five

or say well actually, as has been explained,

the person sitting in their garden doesn't really mind

whether it's coming from one, two or three,

it's the job lot that's coming their way

and as long as that's at a level of 10.

But I understand that, but if everyone wants to have noisy equipment on site, how are you

going to stop that if it then amounts to too much noise at number whatever orchard field?

No, I agree.

I suppose this is where we come in and get more business in terms of, you know, that

would be you know that you know any new plant going in would be subject to a

noise assessment effectively in reverse of what's what's been done already we

know what the limits are you're absolutely correct that the danger is

that there's a limit everybody works for that limit and you get background creep

you get noise level creep because it's something there and everything's a

So on other sites it would be a case of you can't just put in what you want willy -nilly.

It would be a new plan to achieve these targets in the context of the wider scheme.

And the flexibility would be with all of these, there are limits because there's a lot that can be done

in terms of the selecting of the plant, the location of the plant, the enclosures

of the plant and everything. So I acknowledge that how it would be enforced

but that's how we would approach it as acousticians on a per plant basis.

Officer - 3:01:52

In terms of enforceability, certainly the council's draught condition at the moment

says no external plant at all until it's been submitted and approved by the council.

so that's I'm thinking what reserve matters that's attached to layout yeah

and appearance that you're asking to control yes yeah and the case that the

council put in of this it's not exactly on all floors but it points out that

noise can be relevant to certainly where the building is if the

building is hard up against the boundary that's a layout point and if that things

with it you know noise issues then that can be dealt with as per the council

suggested condition here so that so it asks your question how would it be

controlled nobody could put plant up without the council having first said

you can put that plant up and if they do something else then it's a breach of

this condition

Officer - 3:02:53

And just in terms of commercial occupants, would they be happy with that?

Officer - 3:03:07

Yeah, we've discharged plant conditions before on multiple unit schemes.

And any time any new plant was required it would have to go through that process again

because there'd be a condition.

Officer - 3:03:55

Sorry.

So just picking up on the boundary treatments and the council's concern about the post and rail fence, can I cheque?

Was it part of the council's sort of assessment that that would provide some acoustic screening or not?

Has it been factored in?

Post and rail.

Yeah, so your concern is that you don't like the...

You're not prepared to agree the boundary treatments plan

because while the acoustic fencing is OK where it's positioned,

you have concerns about the post and rail fence

because that might give rise to noise.

That's...

No.

Sort of alluded to, I think, but maybe I've gone there wrong, so correct me.

No, that's fine.

The locations for acoustic fencing are agreed.

The reason we want to separate out those two drawings, other boundary treatments and acoustic fencing,

is that that element of the mitigation scheme for noise, acoustic fencing, we believe that can be resolved

through the conditions that we've suggested.

The concern about the post and rail fencing is not related to noise.

It's related to the second issue that we'll come on to discuss, the additional tree planting

requirement on the boundary of the site with Sprazkit Lane and Wilkinson Road.

And the scheme for additional tree planting that we've seen

assessed, we're happy with, requires trees to be planted

within that boundary hedgerow.

And space there is already at a premium.

It's quite tight.

So we don't want a post and rail fence in there as well.

Okay, we're drifting into the next main issue.

And so just to be clear, nothing to do with noise.

Nothing to do with noise mitigation.

That's all I need to know.

So that's fine.

I'm going to leave trees and landscape

until after lunch, which I'm going to suggest,

unless there's anything else anyone wants to raise on noise.

Obviously, if over lunch you think of anything

you wish you'd raised or want to clarify with me or whatever,

that's fine.

But for now, I think I'm going to suggest that we

do take a break for lunch.

And back at 2 o 'clock, is that okay for folks?

Yes?

Subject to anything that anyone wishes to add on about noise,

but yes, that would be my plan.

So, yeah, the hearing is adjourned until 2 p .m.

Thanks.

Officer - 3:07:10

So I hope everyone's had a short but pleasant break.

And we'll come back this afternoon to discuss the second main issue in relation to trees

and landscaping and conditions primarily.

But before I start, is there anything that's come up during

the break in relation to matters discussed this morning?

No, we can't make up conditions.

Okay.

In which case, I shall move on to the next main issue,

which was the effect on the character and appearance

of the area with particular regard to landscaping

between the employment buildings and Wilkinson Road

and Sprat Scape Lane. And the council were looking for a unilateral undertaking in

respect of that to secure the necessary tree planting and the requirement for

that tree planting is not agreed by the appellants.

So, if I could just start off with where the requirement for the tree planting comes from,

and I have that down as a detailed design code.

I believe that's mandatory.

Am I correct?

Yeah.

And that's a detailed design code for phase one,

which covers this particular area.

Extracts of that have been provided to me.

And just sort of briefly, there's about four points

within it.

I think they're particularly pertinent to this main issue.

One being that additional trees will be planted along

Wilkins and Road and Spratsgate Lane to soften the development

edge and create a sense of landscape maturity from the start.

Where existing individual and all groups of trees are removed due to highways works along

Summerford Road, Sprat Scape Lane, Wilkinson Road, new trees will be planted to retain

the existing landscape character.

These are indicated on the detailed regulatory plan.

Then tree planting, amongst other things, provides screening of the employment buildings

from adjacent land uses and sprechskate lane and Wilkinson Road and they should

be native on the boundaries and extensions to existing woodland but can

be ornamental towards the centre of the development so I didn't give anyone any

page numbers but they are page 43 45 96 of the detailed design code though the

extract sent to me and those parts pertinent as I say

So why is it what the Appellant might set out why they are not in agreement around

Officer - 3:10:29

the planting of trees? That's fine I think we're not overly in disagreement

around the requirement of a high quality landscape scheme. The provision is more

the ability to actually get that landscaping in where it is being suggested it needs to be

provided. Primarily the requirement for the UU was to provide additional tree planting

along the western boundary with Wilkinson Road and Sprat's Gate Lane.

Since the RM approval of the dwellings to the north west there was subsequently a discharge

of condition in relation to drainage. That drainage plan that was provided in

our statement of case I think it was Appendix V, yes, shows the

drain running along the western boundary of Wilkinson Road and

Spracksgate Lane. That I believe has been implemented. We're no longer able to

provide any meaningful substantial planting along that boundary where it has been shown to be

required. We're not against providing the low level planting within the site that has been

shown on our soft landscaping scheme which has taken into account that constraint but we cannot

plant additional trees on top of that drain or within a certain metre of it. I believe it's five

due to requirements obviously routes and protect that drain.

Officer - 3:12:06

So can I just cheque when was the detailed design code approved? Was it

before or after this drainage? Sorry so the discharge of condition I've got the

reference number here was 20 -01947 comply. I can cheque when that was approved.

Officer - 3:12:53

Just while you're looking for that, the detailed design code, whenever that was approved, is

Is there a tension between the two elements now?

Because there is obviously this approval of the drainage and implementation.

What's in the detailed design code?

Officer - 3:13:17

There is tension to some extent because the drainage scheme that's been approved,

the plan that was approved is part of that.

It's not at a scale that would have allowed you to actually understand how close the sewer

line would be to the hedge.

Nonetheless, the council and one of the applicants, Bathurst Development Limited, we've met at

the site, we've discussed a tree planting scheme that takes into account the sewer.

So there's no the the scheme that is is appended to the council's case at appendix 16

The proposed tree planted scheme which the council is happy to support and would resolve the issue

That tree planting scheme takes into account the position of the existing sewer

That that was a scheme put forward by Bathurst developments so

So, are you not on the same side, so to speak?

Yes, sorry, I do have some dates for you now.

So the discharge of condition requiring the, sorry, I'll start again.

So the detailed design code was discharge of condition 10 and that was approved 10th of July 2020.

The condition 16, relating to the drain, was discharged 17th of March 2021.

So the drain was approved knowing that there was a requirement for tree planting along this boundary.

Thank you, that's helpful. And then on to my next question.

Bathurst Development, send yourselves, same side.

Yeah absolutely. So how is it that one is saying trees can be planted and the other is saying they can't?

That would have been pre us coming on site and designing said development and obviously taking in the access road from the approved access location up to a service yard to serve unit one.

There's obviously a tension there in terms of building, access road and the space available

in terms of hedgerow planting, retention of the existing hedgerow and then providing soft

landscaping.

So what you're saying is Bathurst developments agreed this prior to the layout being finalised,

is that right?

The detail design code was agreed prior to Carbide's involvement in the site, yes.

So when did Bathurst agree with you that they could tree plant? I'm sort of unclear.

Beginning of 2023 with the application in and the layout in.

This is referring to the soft landscape plan that was provided by Bathurst developments outside of Bathurst and Carbide.

I'm not correct in that.

It's the tree planting scheme that's included James at appendix 16.

It's specifically tree planting on the boundary, on the western boundary, north and south of

the main access to the site.

That wasn't an application document?

No.

Just help me understand. So Bathurst developments who work with alongside you

have said that tree planting can happen post the drainage being agreed and post

obviously a detailed design code. So they've said that what the council requires can be achieved.

I don't think in fact yes, but however we're not that, we must.

So you have an internal disagreement on this, is that correct?

It's not an internal disagreement.

There was a plan provided by Bathurst which I believe provided trees either on the red

line or outside of the red line, one of the two, which we can't agree to that plan given

the position of the tree.

That's where we're at.

James, do you want to start by saying just a little bit?

Yes, please.

Officer - 3:20:10

So it didn't form part of the proposals, so I understand that.

And what you seem to be saying is it doesn't look like it's possible to do some of that

with further investigations having gone on, is that right?

On the north side of the roundabout.

between the paper and the local industries.

Officer - 3:20:41

application could be recommended for approval.

And this issue of boundary tree planting was one more issue that was proving difficult.

So we explored with BDL the possibility of a separate reserve matters application to

follow on to provide the tree planting shown on the scheme at appendix 16.

and we understood when we met on the site and looked at those scheme proposals subsequently

that yes, space is tight to the north of the access which is why we've got that concern

about the post and rail fence. But the sort of ownership issues aside and that difficulty

in terms of that edge between the BDL land and highway land

aside.

Our understanding is that that scheme is deliverable.

It's just finding a mechanism to actually bring it forward.

So we essentially take the view that the design code, which

was actually produced by BDL and approved by the council,

Council mandates the tree planting. We think the need for that hasn't gone away. We think

there is a deliverable solution there. The Council is reasonably flexible on how that's

delivered. We were open to the idea of a follow on reserve matters application simply for

the tree planted, so unusual, but it would have worked.

But clearly that UU route and the commitment

to the subsequent application isn't

part of the appeal proposals.

Officer - 3:23:08

So the appeal proposals then are on the landscape plans,

is that right?

That aren't part of the list of plans to be agreed.

So can we?

Yes, I understand that, yeah.

So just so I'm clear, there's three plans.

So the only the area of concern for the council, sorry for the appellant that you can't plant

up, apologies, is that area north of the roundabout?

Because everyone else is showing trees, is that right?

I'll let you get your plans.

getting our bearings.

Officer - 3:25:05

Which number is this one? Is this G?

Yeah, O1G, P21168401G, sheet 1 of 3.

That's the...

We're putting forward, you can see from that, the red line.

Is that the easement shown?

Yeah, so you've got the dark green lines showing the existing hedgerow

Along the western boundary dark green lines with the the cross hatch within it

That's the existing and to the south of call it to the south of that

You've got the hatching shown on there which shows roughly the the easement location there

Which is where the tree planting has been requested

In terms of the size of the hole, where is it going?

Officer - 3:26:23

It is only that area that hasn't got trees planned.

So there's tree planting proposed over there on the left of your hands.

And it's up here that's the area of concern, just to be clear on that.

Yes.

And that's where the drain will be used.

Officer - 3:27:10

Sorry, the planting put forward by BDL.

No.

That's 16.

Yeah.

That's correct.

16.

So, have you got a plan number on that? Mine's not loaded up as appendices.

Oh, the council's appendices. Oh, okay. Right. Yeah. Sorry. I'm in the wrong one.

PDF page.

And so just so I'm clear, that you don't believe is feasible given what you know now.

The buildings are in the same position.

Is that right?

so it is all around where that drain and the easement

for the drain lies.

Okay.

So you think it isn't possible?

You think it is possible?

Are there any tree experts in the room?

I suppose that the only thing to say there is there were tree

experts on the site at the site meeting in January 2023 and they all agreed that it was

possible and they were looking at the easement and the sewer and the hedge and the boundaries

and we've since had an option from BDL which when all the facts were known in terms of

the sewer and the easement and all the rest of it and we were advised at that time that

the trees on the northern side of the access to the north of the main access

would probably be on the RMA red line the trees to the south would possibly

not be and we've not been given any reason why that option isn't deliverable

no I'm not sure that nothing has changed since then in terms of the site or

discussions.

And this does post -date the discharge condition of the drain.

So, run me through precisely why, given that somebody has been there on site and with tree

people on site and said it could be planted.

Can you set up very precisely why it can't again so I can make a note?

I think in the past when it's been surveyed and assessed we've always been advised not to plant near or within the easement

given that it provides drainage to the Phase 1 directly to the northwest of the site and is a main bit of

bit of drainage infrastructure serving as part of the development.

I think it's critical that obviously that remains intact and if there's this tiny slither of land that a tree can be planted within,

that still doesn't negate potential impacts upon that drainage easement or the drain itself.

So we've always been on the belief that we shouldn't be planting trees within an easement.

How wide is the slither of land?

I don't know the exact width of it.

Officer - 3:31:43

So basically it's narrower than the BDL plan is showing?

I didn't say whether it was narrower or not than that bit of plant, but it's a very narrow piece of the law.

Officer - 3:32:04

And just to make sure there have not been technical reports about the planting near the drainage submitted, have there?

Officer - 3:32:41

And is there any scope to set it back at all into the site?

the tree planting? When we devised the landscape scheme where we've been able to include trees

around unit one, they have been included so particularly directly to the north of where

the building, if you see on the plan where the building juts out, there's tree planting

within that area there, further up to the north as well there's tree planting at the

top, behind the building there's certainly tree planting and then within the little grass

area to the south of the car parking there's tree planting provided there so

where we have been able to maximise it within the site we we have tried to do

that yeah

Officer - 3:33:30

so when finished if based upon what you're proposing what do you anticipate

it would look like from sprats go Lane I think logic and you'll probably

appreciate this when you do the site visit, the existing hedgerow is quite a specimen.

It is ginormous and quite frankly you probably see the tops of the buildings, any tree planting

behind that hedgerow is not going to be seen for a good significant few years. So with

that, the low level planting, walking down the Surrascot Lane and Wilkinson Road or indeed

driving past, you're going to get very glimpse views of the top of these buildings. I think

the building heights parameter plan associated one of the early conditions

of the outline plan with Michigan grants I believe in this northern

second half of the site sort of up to 60 metres and then in the south part of the

site 14 metres and we're at 12 and 11 metres respectively so we've come down

what the outline originally would have sort of perceived to be a maximum

building parameter in this area so indeed walking down to Rosebrack's

driving down it's going to be very very glimpse views into the site just given

the extent of the existing hedgerow which is going to be retained. And the

Officer - 3:34:54

hedgerow is going to be safe it can be retained? It can be retained. So Mr.

Keown could I just ask you that sort of same question if the tree planting

weren't to occur what what in your view would it sort of look like as you either

walk or drive down the road?

If the tree planting isn't there and the hedgerow is retained,

then clearly the hedgerow will provide some of the softening of

the boundary edge that was envisaged in the design code.

But it won't provide over the fullness of time the same effect

that was envisaged when the requirement for tree planting was mandated.

So it will be a different appearance, the buildings will be more visible.

There will be less screening in the sense of soft landscaping than have been envisaged

in the detailed design code.

The detailed design and where that requirement came from in the detailed design code goes

back to the outline permission and the environmental impact assessment that formed part of that

and the objective of essentially reinforcing green infrastructure on that road corridor,

the Sprat's Gate Lane and Wilkinson Road corridor. So it will be a different appearance than

was envisaged in the detailed design code.

But it would still be green, you'd still see a hedgerow travelling along the road, buildings

behind it, you just wouldn't presumably have the height and the canopy of trees.

You wouldn't have the volume of proper tree crimes in the forms of time.

And I've probably no detail around this, but how fewer trees would there be than were perhaps

envisaged when that detailed design code was drawn up?

I know it didn't sort of count out how many trees there'd be precisely, but I mean, we're

talking about like 30 trees or five trees or give me a sense of that.

The scheme proposed by BDL would have included eight small leaf limes and four common hornbeams.

So 12 trees in total and obviously the small leaf limes over time would be significant trees.

and the common horn being medium sized to large trees.

In terms of the harm that would arise to the quality of development,

In terms of harm that would arise to the quality of the development, if the trees weren't along

that particular section, where would you place that on the scale of harm?

Moderate, significant, considerable?

Officer - 3:38:25

I think it gaged against the original concept outlined in the outline application and envisaged

in the detailed design code, I would say significant.

Is there a risk to the sewer by the planting going in along this particular strip of land?

Is there sort of tree roots growing into it or harm?

I can only go on the agreement that was reached on site and that discussion involved three

people who are more expert in tree matters than I would be and they seemed to feel that

this was an acceptable solution. I think over and above that if there were any concern about

encroachment into the easement or impact on the sewer, then there are solutions to that.

Tree wood barriers or the like that could be used to mitigate any particular problem.

I'm not a tree expert and I don't purport to be, so I can't say that for certain,

but if that were an issue then I'm sure that could be explored.

But I find it slightly hard to believe that a competent practise of landscape architects

would have proposed this concept if they felt that it was contrary to normal standards or

in any way likely to prejudice the infrastructure of the site.

Has there been any comment from the drainage experts at all, or have they just put it in

and assumed it will just do its thing?

No, I haven't seen any direct comments, no, but in terms of the provision of these trees,

if it was a simple case of we'll just do these trees and it gets rid of a reason for refusal,

I think we probably would do the trees, but given that you've got a drainage easement

there providing drainage infrastructure to a wider site, it's not something that we're

not doing because we won't do it, it's because we can't physically do it.

Officer - 3:42:35

understand there's highway land outside the site is that right? Yes. There is yeah

and could that be planted? I think we've tested where the what extent the

visibility splays may be affected by that but obviously it's high raised land

Officer - 3:43:03

so we don't have a prescribed agreement to do so. No it was more could the sort

character and appearance concern ultimately be addressed through another

way. I'm just sort of exploring that a bit. But yeah I appreciate it. There's visibility

plays and all the rest that goes along Highway verges.

Officer - 3:43:49

Okay, well I think it's probably for me to look at this on site, so whoever's coming

with me can point out ditches and easements and all the rest of it to make my life a bit

easier but conscious of the post and rail fence still is that just because of

these trees or is there just because of the trees okay so you'd basically rather

see the trees in the post and rail fence yeah okay right I think that concludes

the main issues. Now I will move on to the easy subject of conditions. Unless there are

any other planning matters before I do. Any other planning matters for anyone? I don't

So just picking up on the whole sort of reserve matters,

the principle of what conditions you can actually attach

to a reserve matters approval.

And I think for each of the ones that I go through,

it would be just worth just doing a quick sense cheque

whether everyone feels it could be attached or not.

And if not, let's talk about it.

So I'm just really clear by the end of it.

So I've taken the, sorry, I should say for the benefit

actually of the livestream because I'm sure everyone

in the room knows, but the discussion on conditions is

about what might be appropriate were I to allow the appeal.

The standard procedure does not indicate that I've made up my

mind on the appeal, nor does it prejudice the council's position.

It is simply to determine what could be appropriate

in the event of the appeal being allowed.

I have been provided with a list of suggested conditions,

and I have had views from the parties as to acceptability

of those conditions.

And I'm now going to just go through them and cheque

if they meet the tests set out

in the National Planning Policy Framework

and whether they are necessary in terms of this appeal.

So if I could start then.

I'm taking the list from those agreed.

I'm going to start with the ones that were agreed.

So I'm taking it in the order

from the statement of common ground.

Yeah, so number one being any three, sorry, I'm just checking

my list now.

Yeah.

Okay, so the first condition related to trees, I think it's reasonable to say that relates to landscape.

It's agreed by the parties. Just the reference to condition two above, I think that referred to condition two in the list in the statement of common ground, your statement of case.

Yes.

Yeah, that's fine.

I don't know if any other questions on that.

Is there anyone else?

Okay, number two, with the exceptions of G123 and G135.

So this relates to the, in respect of the arboricultural

report, and that relates to the landscape, ecological,

and Arboricultural Management and Maintenance Plan for Employment Area A

which has been approved. Yeah. So again that's landscape related I have no

questions. Condition 3, prior to first occupation means of access to

public highway and parking and turning facilities is this one that covers the

EV and should it be more explicit about that? The condition 8 in the statement

on ground which would list the approved drawings? I think this condition is

simply to make sure that something that's shown on those plans is in by a particular

time the later condition will come to so you have to do everything in accordance with the

site plan and parking information sketch.

Would that provide enough certainty that the EV parking would be provided for the Council?

I think the EV parking is this condition as drafted refers to drawing number

P407 revision U. The EV charging is shown on that drawing and then the

other drawing that we talked about earlier is listed in the condition that

James referred to. I think if it makes it easier we can it's parking in terms of

including electric vehicle charging provision, that would be fine to insert.

It makes it more clear, that's fine.

Officer - 3:50:09

Question was just does this require a retention or maintenance clause? Retention probably.

For the lifetime of the development presumably.

Yeah.

Similarly, bicycle parking, again, retention clause.

Yeah, agreed.

Agreed, yeah.

Condition number five, provision of changing facilities.

I'd probably put the drawing numbers in in the inspect,

we just have a habit of putting numbers in and not lots of

written explanations of drawings.

That's the way we write our decisions.

So, yeah, just add in the relevant drawings.

Similar point on this one, on elevation drawings about building samples.

So this might need changing from condition number 7,

depending where we get to on condition 10, which is the acoustic fencing and

whether that's assembling condition but that would be something we could happily look at.

Drawings.

Sorry, I'm stupid.

Condition 7 might need running for reference to condition 10.

Sorry, go on.

No, no, condition 10, it should actually be condition 11.

Yeah, I think that's the type of it.

Yeah, that's why I have actually deleted myself.

Yes, so 11 in condition is not agreed.

Okay.

11 in condition is not agreed.

It requires that the locations of the QCDs be met.

Yeah, yeah, yeah, sorry. Thank you.

Condition 8, which is the drawings, so now we're on the not agreed conditions.

So there's two, well there's the landscaping conditions which the council is not agreeing

and the boundary treatment which you wouldn't want to agree for the same reason about the trees.

Presumably in the event I was to find all that satisfactory, I would just include those

drawings.

If you were to find them satisfactory, sorry.

Yeah, if you were to find them satisfactory, then include the drawings.

Or conversely, if not, but still wanted to approve the scheme, then the option is there

for a landscaping scheme whereby we could resolve the boundary,

the other boundary treatment issues.

And there is a, I think there is a landscaping condition

anyway later on, isn't there?

And we can be flexible towards that as well in terms of

agreeing additional conditions for boundary treatments and

stuff if necessary.

Officer - 3:53:51

So condition 9 is the landscaping condition.

And I suppose the point here is whether I agree with what's been put forward as landscaping

and I would reword the condition accordingly or if I agree with what the council is saying

but still wanted to approve I'd leave that condition pretty much as it is.

Just thinking about in terms of what's required, could this cover also the tree point?

So if you were with the council but against us in terms of tree planting

being cost per land that's between the easement and the red line is that

something that could be captured by condition? It's got boundary treatments for example here.

If I was to find with the council on the trees that they were necessary, the council wanted a UU on this, a unilateral undertaking, didn't you?

What's your view on that? Could it be conditioned?

Officer - 3:55:07

The scheme that we talked about, the scheme illustrated at appendix 16 were advised by

BDL's consultants that some of those trees are on the red line of the RMA so those could

be conditioned.

Some are outside the red line.

So I would have thought not, which was why we discussed the follow -on reserve matters

application for those trees, and hence that was wrapped into the EU.

Perhaps rather than getting down to the detail of immediate discussions to which tree would

be where, I don't think that is necessarily an answer to the point that in principle you

could have a condition requiring tree planting,

obviously the details that would be worked out

through that scheme, and if they couldn't be on the site,

well, we wouldn't have proposed,

and we'd do what we could within the confines of the site

through a condition, but yeah, there would be that limitation

that you couldn't, I think, condition tree planting

offsite on land we don't own.

But you could get, if you thought some trees could be

put in, and that was necessarily made scheme acceptable,

then it would be possible in theory to, in principle,

would have a condition saying, show us where.

If I was to go with that, and I haven't made up my mind,

obviously I need to think about all of this,

but if that would only provide trees on site,

and it may be that some need to be slightly off site in order

to achieve the character and appearance

that the council is seeking.

So I'm sort of thinking about where does that, where would that leave me in making a decision?

Yeah, you'd have to form a judgement system.

Details of it, two of those trees wouldn't be, there isn't enough space for two of those trees,

well those two trees wouldn't be in there and you'd have to form a view as to whether, despite that,

it was acceptable and secureable by condition in respect to the ones that you thought were.

Okay, so we are now coming on to noise conditions

And this

sort of feels like it's all changed a bit since I did this because there's the

statement of noise mitigation and

We're back to where we were earlier on today talking about some status and enforceability of that

So my first point probably on all of the noise conditions,

most of them at least, is everyone satisfied that they

could be attached to a reserve mass application is my sort of

First question. In principle, satisfied.

So coming on to condition 10, this is about the building,

fabric how it's constructed.

Both parties are in agreement what that needs to be.

And the choice is whether it is conditioned like this or whether

it forms part of the noise mitigation.

scheme. But in a way this one's more controllable because if you're building a

building you built it, it's there. So it's not sort of any third

parties involved in the mitigation so it's probably easier in a condition. Yeah, see,

taught myself around in a circle.

So we'll discuss other conditions in a moment but that's certainly an example

lot of funding that could go in either. But if it's not, if it's better in one or easier

in one, it can go in as a condition. So there's a certain degree of flexibility between the

two and I'm sure we'll pick up on that on other points too.

Condition 11 relates to the acoustic fencing.

So in terms of reserve matters obviously it's layout, appearance, so it fits fine.

If it were to be conditioned, that would be revision L of the boundary treatments plan.

But that is not...

Well, the council wouldn't want that to be approved because of the issue around the landscaping.

So that's a bit messy.

Would it be, as I understand it, the line of the acoustic fencing is all agreed.

So it would be a notwithstanding, first part, a notwithstanding revision L, a scheme showing whatever the council wants to see separately to be submitted and approved.

And then a separate thing, the acoustic fencing shown on L will be delivered.

Officer - 4:01:51

Condition 12, I understand you don't agree to.

However, if I was to find it necessary, as worded, does that condition do what it needs to do?

Does it work for you?

And that's not saying you want an internal loading bay.

The wording of the condition works, I think.

So there's only point to anyone else wants to make.

But the wider point is the one I flagged earlier

as to where that would leave us commercially

and whether we could accept and would want you to consent.

give reserve matters consent with this requirement in respect to the units two and three,

because of its impact we say on, because that's a commercial position rather than a planning position.

So, presumably, if I were to impose such condition, you could always apply to vary or remove the condition and come along with evidence.

Just that would be how it could work.

And if that was to be the only blocker to getting a permission on this site, that's

something I guess to bear in mind.

I think that's...

I can't see another way around that.

If, you know, depending where I get to in terms of my deliberations.

Because, yeah.

Ward Member - 4:03:42

Yeah, I think just reiterating the point that I mentioned earlier, really, from a commercial perspective,

it's a fundamental issue for us on the liability of building out those units.

So I think that's the only point we can make, really.

Thank you.

Officer - 4:03:58

And I just want to reassure you, I have heard that, but I haven't had evidence to back it

all up.

So the point is noted, but that's as far as I can go.

Thank you.

Officer - 4:04:56

Where the plant's position relates to layout, and is everyone content that a noise mitigation

could be attached to any such permission without...

Yeah, yeah, that's all agreed. That's fine.

Yeah. Okay.

This is becoming more agreeable than I expected.

LAUGHTER

So just another question on this though.

Would this need to put a sort of ceiling on the noise emissions from the plant or not?

Officer - 4:06:04

I think if you were to opt for this condition, that gives the local planning authority an

opportunity to look at the noise implications of each piece of equipment as proposed. And

about where that threshold should be because it gives the local plan authority an opportunity

to assess each one on its merits and there's a record there within the public domain of

what has been approved and what the cumulative effects might be.

Does that sound reasonable to the appellant's team?

Officer - 4:07:05

From a commercial perspective do you think that would be acceptable though if people

wanted to bring in plant and machinery? Or is this...? They're still doing that.

Thank you.

Officer - 4:08:12

You can take five minutes if you need to talk about it.

It's fine.

I'd rather you sorted it out. So agreed to that condition and the council has

helpfully indicated that that would potentially sidestep that whole plant

machinery issue because it just gets controlled as depending on what's being

proposed. So that's the end of the list of conditions, but I'm still stuck on how

we control. Can we just quickly deal with levels and then we'll come back to this

next more knotty issue if you like. Did you consider a condition on levels and...

Officer - 4:09:19

You haven't spoken to the opposite side, no, but a condition requiring details of existing and proposed levels in relation to the residential development located to the east of the reserve matters site shall be submitted to and approved and

acceptable. I'll get you to send that across and then that can actually be

sent into me in due course like once you've had an opportunity to look at it

and just cheque. We did draught a fairly simple condition that would allow us to

compare with the residential. We'll send that over to James and compare notes and send something in.

talk about that and then send it. It's fairly minimal.

So what remains to be properly controlled through a noise scheme, noise mitigation,

and I'm still not sure how much that's going to bite in terms of enforcement and it concerns

me.

I think in terms of the principles, if I can just outline, I think the case that the Council

has identified is helpful in this regard.

In that case too, there was a reserve mass application and there was a noise condition

on the outline permission.

and I think the starting point here is trying to understand, as you've asked already, what's

up for grabs today, as it were. Do you actually have to have approved the condition 68 document,

the noise mitigation scheme, or on the wording condition, that they come forward together

and the council consider the reserve mass application obviously in the light of that

document and they've in this instance refused it because of that document. Now I think in

In pure legal terms, you would be able to grant reserve matters consent, even if, and

I'm not saying you should be, even if you thought there was something in the noise mitigation

scheme that wasn't perfect.

Because there's no, the way the noise mitigation scheme condition works is that's got to be

submitted to, approved by the council, it hasn't been.

And until it is, we can't press on with the scheme.

So you will see from the case law actually it is quite helpful in terms of if you were

satisfied let's say we had a really thorough discussion about what should be in this noise

mitigation scheme and we all agreed in principle we need to cover or at the other end of the

spectrum there was something noise mitigation scheme that just didn't make sense, it just

needed to be corrected, there was a typo that sort of reversed things around.

You wouldn't have the completed document in front of you here but you could nonetheless

grant reserve matters consent knowing that that could be sorted out between ourselves

and the LPA going forward until it was the scheme that you are consenting couldn't come

forward in the way that there are other conditions that need to be discharged to across the rest

of the piece.

So that's I think sort of the legal structure in terms of enforceability and it's enforceable

in its own terms because it says the scheme should be implemented in full prior to the

occupation of the development the subject approved matters and retained and

maintained as approved. So the scheme that's submitted to and approved by the

council under 68 has to be kept going and that's that's that's an

enforceable position. So if we don't retain and maintain what's approved on

the condition 68 then the council can come against us. So that's the

legal structure. Then we'd get down to the detail of the noise mitigation

and obviously at the moment, I mean, it needs some redrafting in any event because at the moment it's got some things in it which we've all agreed should be in the condition.

So a redrafting would, there would be no point having plant and external equipment noise levels in it if that's going to be in a condition.

So that can be rejigged and that can be resubmitted to you so you can see it or it can be left for us in the council but you know what's coming but I suspect the best thing to do would be to rejig it and get it back to you so at least you can see what's there.

And if there's anything else that needs changing, you know, what else we got?

We've got hours of operation at the moment in this, it says 6 to 11.

Now we can discuss what's in it in terms of that, because if you think it should be 7

to 11, then do we need to find a form of words in this to capture that?

That's sort of the discussion point for the next 10, 15 minutes.

And ditto the noise management plan which has gone in, the council raised concerns with,

at the moment they think it shouldn't just be give that to people and not paraphrasing,

but if you give that to other people it should be more robust.

Well if there's some words that need to go into that we can discuss those, we can put them in and we can circulate and go again.

So the solutions that we're looking for it's easily done, but it just needs a little bit of kind of you know,

sensible thinking just to make sure that document sits alongside the conditions and is properly enforceable.

So I think that's the way through.

Officer - 4:14:51

So just so I'm clear in that document and I have July on someone let me just...

So at the moment that has acoustic fencing which is conditioned.

So that goes, building acoustic performance that goes.

Yeah it could, there's no need for it to be...

Because it's, yeah I'm just saying if I was put in conditions I'm just...

and the plant and external equipment, because there's a condition that could potentially be left out rather than that goes.

But that does leave the issue of hours and the noise management plan,

I am certainly not going to issue a view on the hours here because I need to think about

that.

Sorry, just giving the condition 65.

65 yes, whilst in one breath it says each preserved matters application, there's then

the last sentence states the details shall be submitted to and approved in writing by

the LPA. So is that whether or not if you don't consider what we've put forward in terms

of 0600 acceptable, we still are able to come back and discharge the condition to secure

hours of operation.

I think as I understand it,

what's been suggested with regard to condition 68,

I'm just going to

give you my understanding of what's been suggested, is that

we deal with condition 68 as if

it provides for a separate discharge of condition process for the scheme of noise mitigation.

Is that the suggestion?

I'm not sure that it is. I'm not being clear enough.

What I was saying is that we've gone through all these conditions,

and there are a fair number of them which currently appear in the noise mitigation scheme,

and so there's no point duplicating things.

Also we can discuss the document in broader terms.

There are some things in this that don't need to be here anymore if they are going to be in a condition.

So on a redraft of this, they could come out.

That would then leave, as the Inspector just began the discussion, on the question of hours of operation and noise management.

And in relation to hours of operation, the document currently states our position, which is 6 to midnight.

midnight, sorry, 11 o 'clock till six in the morning, obviously the counsel's case and

the case that the inspector is going to have to deliberate on is whether that's okay, in

which case there wouldn't be an issue with this document. If you thought it was fundamental

that it should be seven o 'clock, then this doesn't work and it's a question of whether

we can find a form of words through discussion in the room to have something in this document

that captures that alternative position, so it's this, unless the inspector on appeal

reference X says 7 in which case it's 7. So that's the sort of simple way through it.

And then it then means there isn't a problem obviously from a commercial point of view we do

things properly and from the problem of even planning we've got a document that sets out as

operation that you think are acceptable and then wouldn't get in the way of a reserve matters

consent. In my submission they don't have to be. The point that I think was just being made there

was if we left this document as it is and you were to say I don't like that

should be seven well that doesn't stop you granting reserve matters consent

because having said seven obviously we would need an hours of operation sign

off under condition 65 from the council we wouldn't have one until we went to

them said can it be seven please so either way it works but I think the

ways to have wording in this document that says it's six unless the inspector says it's

seven.

I think we accept that there is a discharge of condition route in condition 65 to agree

the hours of operation separate to the approval of the reserve matters application. As for

the scheme of noise mitigation, we don't think there is a separate route. The scheme is either

and therefore the reserve matter's approval can be granted or it's not acceptable and

the reserve matter's approval shouldn't be granted.

Sorry, I'm out of here.

Maybe I'll make it careful.

It's extremely helpful and obviously we agree that 65 would allow us that route that I was

talking about. Again, me, sorry, I get it, but we've got a noise mitigation scheme that

says six. If you're happy with that, no problem with that, we move on. If you're not, then

you say, well it has to be seven, then obviously the noise mitigation scheme doesn't work.

But obviously we couldn't proceed until we had a sign off from the council under 65 and

The only way we would get that would be if we went to the council and said seven, because

you told us it was going to be seven and they won't sign off unless it is seven.

So if we went back and said please give me six, they would say no, because the inspector

said no.

So that's fine.

68 though, I don't see a difference in principle at least as to why we can't use 68.

68, because at that point the only thing left in the noise mitigation scheme is the noise

management plan. And so again, going back to the case law, you are certainly in principle

allowed to grant reserve matters consent knowing that there is something that has to be delivered

under condition 68, which is the council sign of a noise mitigation scheme. And so if you

you were to find that the one we put forward isn't robust enough for the following reasons.

You know, it doesn't X, Y, Z. That would be the blueprint for the sign -off of the Commission 68

scheme, which is a requirement and we can't occupy the building until that's done. And

obviously commercially we wouldn't start putting space in the ground until we knew we were going

to be able to occupy it. So there's a route through it. There's no issue about that. And so

it's really a question of whether we try and knock it into shape through the noise mitigation

on the back of hearing the council's evidence and also having heard the questions you've been putting.

Because the document itself has to change a bit because some things are going to come out.

If we are going to put in, which I think we can put in, my suggestion about the hours of operation,

it's six unless the inspector says it's seven or should it be seven, so that would then work its way through.

and then we can add some sentences to the noise mitigation. No, I can't speak anymore.

Operational management plan. Bit of it. So we can at the moment the council

saying well it's not enough to simply hand it out to people. There has to be a

line saying and it should be complied with and is enforceable etc or whatever

the words are going to be. So there's the scope there. So that's what I was going to

suggest is we'll be talking through to the extent we need to anymore and then

And that's a document we can, at the next day or so, frankly, put a line through, tidy

up, recirculate and see whether that gets us over the line.

But even if it didn't, it wouldn't stop you from granting reserve matters consent because

you know there's a route we'd have to go through under Condition 68.

How about that?

I do understand the point that's been made and I understand the reference to the case

law that we've referred to as well.

And I think that certainly holds for Condition 65.

But the only thing I need to flag is that the Council did take legal advice on this before it determined the application.

And the legal advice that we received was that, unlike Condition 65,

Condition 68 does not expressly contemplate any approval separately from approval of the Reserve Matters approval application.

That's the difficulty that we've always had.

I don't profess to be a legal expert, so I'm just flagging the advice the Council has received.

I leave it with you to have a think about what you think.

So, this is what I would like.

I would like the two parties to put together a note about options around imposing these conditions

because I may require my own legal advice on this anyway.

And I think just setting that out so I've not misunderstood

anything that's been said to me, you've not misunderstood

anything that's been said here, and get that submitted to me,

you know, get it submitted in a week or something even.

You know, I'd rather get this right than, you know,

and make sure it's, you know, if I am going to allow that

whatever I do is sound legally.

So I think that would really help me if sort of routes

to addressing these matters could be set out in a note.

I think that would be particularly helpful,

plus the revised scheme of mitigation

and what that might look like.

Mr. Kieran.

I was just going to say, I think that would be very helpful.

If we could have that, we can have a look at it,

take a view on it.

It would certainly help me.

But I just think it's just there, it's clear to everyone what's been discussed and what the options might be.

And if I then need to get advice I can also do that.

Absolutely.

And thanking the council for their acceptance of the suggestion.

Because I think the importance of the noise mitigation scheme being updated,

it strips out the conditions, but if it then sorts out the as -operation on the alternative

basis and then puts in a NMP, operational management plan, which, fingers crossed, the

council thought it was fit for purpose and said we can approve that, then the issues

in front of you are very narrow indeed. So that's what we should aim for.

Officer - 4:26:09

I'm happy with that and could that be done within a week?

I mean, obviously, the sooner the better,

but I'll give you a week.

So that would be a sort of note setting out options,

a revised, I'm getting the same now, noise management plan

and the noise mitigation scheme which sort of sit over that.

So yeah.

Right, that's cut that conversation short.

Anything else on conditions?

Nothing, miss, nothing.

Okay, in which case, costs. My next item is costs, applications for costs.

Can I suggest now that we've got a week or so to sort that document out that inside the

next 48 hours I put down what I was about to read out to you in writing and send it

in and then the council can reply in writing?

I'm very happy with that approach.

Cost and writing tend to be a lot easier and that would give the council time to respond and consider what's been written.

Thank you.

Okay, and just to cheque for completeness, any applications and costs from the council?

Officer - 4:27:40

Officer - 4:27:43

Arrangements for site visit?

Sorry, excuse me.

Yeah, sure.

Just wanted to correct one. I gave you the wrong figure earlier on the trees so for the record

I said 12 trees. I should have said 17

Officer - 4:28:45

Officer - 4:28:59

Okay, anything from anyone else before I make arrangements for site visit? Okay, I shall

now visit the site. I need somebody from both parties to come with me. I could ask who that

will be. Mr Keiran.

I think we're probably both coming down but then Peter as well.

Do you know where the easement is?

No, but we'll work it out.

Yeah, yeah, fine.

So just to remind you, happy for anyone to point out anything to me on site but no merits please.

In which case, subject to obviously receiving the documents that we've discussed and the note,

I think we've completed our discussions. Everyone said what they want to say to me.

And so on that basis, I shall say thank you very much to everyone. And this hearing is closed.

Thank you.

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Planning Appeals Hearing - Wednesday 23 July 2025, 9:00am - Cotswold District Council Webcasting

Planning Appeals Hearing Wednesday, 23rd July 2025 at 9:00am

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Votes

Officer - 0:00:00

Officer - 0:00:04

Officer - 0:00:27

Officer - 0:07:22

Cabinet Member - 0:08:25

Officer - 0:08:26

Officer - 0:08:39

Officer - 0:08:47

Officer - 0:08:50

Cabinet Member - 0:10:48

Officer - 0:11:02

Officer - 0:15:40

Officer - 0:16:23

Officer - 0:18:42

Officer - 0:20:04

Officer - 0:20:19

Cabinet Member - 0:20:26

Officer - 0:21:20

Officer - 0:24:11

Town/Parish Council - 0:24:16

Officer - 0:24:30

Officer - 0:24:47

Officer - 0:25:15

Officer - 0:25:55

Officer - 0:26:19

Town/Parish Council - 0:26:22

Officer - 0:26:28

Town/Parish Council - 0:29:12

Officer - 0:29:21

Officer - 0:29:53

Officer - 0:30:54

Applicant/Agent - 0:34:00

Officer - 0:34:02

Officer - 0:34:14

Applicant/Agent - 0:35:24

Officer - 0:36:55

Applicant/Agent - 0:37:13

Officer - 0:39:01

Applicant/Agent - 0:39:37

Officer - 0:40:16

Officer - 0:41:28

Applicant/Agent - 0:41:32

Officer - 0:42:04

Applicant/Agent - 0:42:08

Officer - 0:42:15

Applicant/Agent - 0:42:33

Officer - 0:43:03

Applicant/Agent - 0:43:11

Officer - 0:43:33

Officer - 0:44:22

Officer - 0:46:52

Officer - 0:47:16

Town/Parish Council - 0:48:44

Officer - 0:49:20

Town/Parish Council - 0:50:16

Officer - 0:50:25

Applicant/Agent - 0:52:25

Officer - 0:52:39

Officer - 0:55:53

Officer - 0:56:40

Applicant/Agent - 0:56:48

Officer - 0:58:15

Cabinet Member - 0:58:25

Officer - 0:58:33

Officer - 0:58:57

Applicant/Agent - 0:59:18

Officer - 1:01:03

Applicant/Agent - 1:01:19

Planning Appeals Hearing
Wednesday, 23rd July 2025 at 9:00am