The applications below have been called into Planning Review committee by 12 councillors: Councillors Hollingsworth, Upton, Kennedy, Fooks, Simm, Taylor, Clarkson, Sinclair, Henwood, Tanner, Lygo and Turner.

The reason for the call in was given as:

“…….. the (West Area Planning) Committee decided to go against officer advice, which argued that a refusal of the application was not defensible at appeal. The minutes record that: “The Head of Planning & Regulatory Services reminded the Committee that a vote against the officer recommendation was likely to prompt NR to launch an appeal and that there were potential risks of an adverse award of costs against the Council from the decision. If that was the case then the officers involved in the NR applications would not be able to support those decisions at appeal as the position of the Council at appeal would be irreconcilable with the professional advice provided by those officers. The Council would need to appoint a new team of advisers to support those members of the Committee presenting the Council’s case at appeal.”

The advice from officers is that an appeal against the Council is very likely to be upheld, and as the minutes above make clear, the potential costs of such an appeal may be very substantial indeed, especially if the Council is made to pay the costs of Network Rail into the bargain. When the professional judgement of officers is that they cannot support a decision made by members, I think it is incumbent on members to take every opportunity to review that decision to be sure that it is the right one.”

The attached report and appendices covers both of the East West Rail Phase 1 applications included on this agenda.

A covering report and a legal advice note will be published in a supplement to these papers.

The Committee considered two applications for the Noise Scheme of Assessments: 16/02507/CND for route section H and 16/02509/CND for route section I-1.

The two applications have been called-in to the Planning Review Committee on the grounds that the West Area Planning Committee decision of 21 February 2017 had retained conditions relating to rail damping and restrictions on train services against officer advice, which argued that approval with those conditions or refusal of the applications was not defensible at appeal.

The Planning Officer presented the report, setting out the background to the applications and the nature of the professional advice from officers.  The Planning Officer explained that Network Rail (NR) had resubmitted the approved Noise Scheme of Assessments with additional information so that the issues around the conditions imposed on previous approvals of those schemes concerning rail damping and restricting rail services could be reconsidered. This was regarded as best practice being an attempt to eliminate or minimise outstanding differences between the applicant and the planning authority.

The Planning Officer explained that, in essence, the two decisions before the Committee were to determine:

1.    Whether rail damping is reasonably practicable in the current circumstances where noise barriers and noise insulation are already installed

2.    Whether it is reasonable to retain a planning condition which restricts the pattern of rail services

The Planning Officer then referred the Committee to the advice from Queen’s Counsel:

·         The Noise and Vibration Monitoring Policy (NVMP) does not require ‘at source’ mitigation if the other measures already provided will achieve the objectives of the NVMP (para 77)

·         The NVMP does not require any assessments to address any future increases in train services and that these potential changes do not need to be modelled (paragraph 84 of his Advice).

·         Network Rail can increase services without being in breach of condition 19 of the deemed planning permission, and do not need to seek further consent (paragraph 85 of his Advice).

In conclusion the Planning Officer explained that the officer assessment was that:

·         the existing barriers and insulation meet the requirements of the NVMP (in both route sections H and I-1) apart from at one Noise Sensitive Receptor (NSR) in section H where the residual (post barrier) noise impact is 3dB. Given that at that one NSR the benefit of rail damping would be a ‘just-noticeable’ noise reduction, the likely costs of providing rail damping make it not reasonably practicable.

·         there is no legal basis for the imposition of the condition to restrict train numbers.

The Environmental Health Officer gave a detailed presentation explaining the technical issues relating to the two applications.

The following local residents spoke against the two applications: Caroline Robertson, Greg Kaser, Mike Gotch, Paul Buckley, Jeremy Thorowgood, Adrian Olsen and Keith Dancey.

Representatives from Network Rail, Paul Panini and Ian Gilder, spoke in support of the two applications.

The Committee asked questions of the officers and Network Rail representatives about the details of the two applications.

The Committee discussion noted, but was not limited to, the following points:

·           that possible future changes to services as a result of the introduction of HS2 services was not a relevant consideration in determining these applications

·           that the use of rail damping in Europe was of interest but not directly relevant due to the number of differences in rail infrastructure and rolling stock between Europe and the UK

·           that the cost of rail damping in section H would be about £1.5M

·           confirmation that the barriers would be subject to annual checks and monitoring and on-going maintenance – in perpetuity by Network Rail

·           confirmation that monitoring would be undertaken at 6 and 18 months after the commencement of services for EWR Phase 1 and again at 6 and 18 months after the commencement of services for EWR Phase 2

·           the definition of Best Practicable Means as stated in Section 72 of the Control of Pollution Act 1974

·           that the methodology used throughout the planning process for noise measurement was accepted as the international standard

·           reservations about the adequacy of the Government’s preferred cost benefit ratio software

·           that although the risk of an appeal being lodged was not a material planning consideration the monitoring officer report had outlined some of the consequences for the Council if an appeal is lodged

·           that officers were satisfied that there was no conflict of interest for Ove Arup in advising the Council

·           that neither the SoS deemed permission nor the NVMP states what the noise environment will be or should be

·           The performance of the mitigation measures is not judged against a pre-determined noise environment - NR is only obliged to repair/amend its mitigation measures if they do not perform as expected in terms of reducing noise by stated amounts in the modelling

In reaching its decisions, the Committee considered all the information put before it.

The Committee expressed its sympathy with the local residents and registered its frustration with the decision making process which had placed the City Council in an invidious position with regard to these applications.

Decisions

As part of his summing up the Chair referred the Committee to the legal advice from the Monitoring Officer which stated clearly the constraints on the powers of the Council to go beyond Condition 19 of the deemed planning permission. Finally he explained that, if the Committee was minded to vote against the officer recommendation, they would need to appoint a Councillor from the Planning Review Committee to represent the Council at any subsequent appeal.

On being put to a separate vote for each application a majority of the Committee agreed with the officer recommendation in both instances.