Noise Protection Scheme Measurement Results: Category A Housing Development Bel Royal

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A decision made on 21 August 2009 regarding noise protection scheme measurement results at Bel Royal Category A housing development

Decision Reference: MD-PE-2009-0119
Decision Summary Title :	DS – Category A Housing Development at Bel Royal – Noise Protection Scheme – Measurement Results		Date of Decision Summary:	19th June 2009
Decision Summary Author:	Roger Corfield Principal Planner: Policy and Projects		Decision Summary: Public or Exempt?	Public
Type of Report:	Written and Oral		Person Giving Oral Report:	Roger Corfield, Principal Planner
Written Report Title :	WR – Category A Housing Development at Bel Royal, St. Lawrence – Noise Protection Scheme – Implementation		Date of Written Report:	19th June 2009
Written Report Author:	Roger Corfield Principal Planner: Policy and Projects		Written Report : Public or Exempt?	Public
Subject: Proposed Noise Protection Scheme - Implementation.
Decision(s): The Minister for Planning and Environment decided that the approved ‘noise protection scheme’ has been satisfactorily implemented to comply with PPG24 ‘Planning and Noise’ and WHO ‘Guidelines for Community Noise’, 1999 and delivers the benefits modelled in the ‘noise protection scheme’, on the basis of the evidence of noise measurements undertaken by Peter Brett Associates on behalf of Dandara Jersey Limited and submitted in a report dated April 2009.
Reason(s) for Decision: · To protect the amenities of future occupants of the approved properties at the Category A Housing Site comprising Fields 848, 851, 853 (part) and 854 (part), St. Lawrence from noise arising from the nearby Jersey Steel operations. · To effect compliance with the second part of Planning Condition No. 31 (Noise Exposure), which requires the implementation of the ‘noise protection scheme’ to the satisfaction of the Minister in consultation with Health Protection. · To ensure that the completed development successfully meets the objectives of, and delivers the benefits modelled in, the ‘Noise Protection Scheme’.
Resource Implications: None
Action required: 1. Inform the land owner, local political representatives and Health Protection Services.
Signature:		Position:
Date Signed:		Date of Decision (If different from Date Signed):

Noise Protection Scheme Measurement Results: Category A Housing Development Bel Royal

PLANNING AND ENVIRONMENT

Category A Housing Development at Bel Royal, St. Lawrence –

Noise Protection Scheme - Implementation

Purpose of the Report

To consider the ‘Noise Protection Scheme – Measurement Results (Issue 1)’ required in connection with the above development and submitted in order to discharge the second part of Planning Condition No.31 (Noise Exposure). This condition requires the approved ‘noise protection scheme‘ to be implemented to the satisfaction of the Minister in consultation with the Health Protection Department, prior to the occupation of the majority of the new homes.

Background

1. On 21st March 2007, the Minister for Planning and Environment (The Minister) decided to grant planning permission for development at the site comprising inter alia 102 Category A homes. This decision was subject to finalisation of planning conditions.

2. The potential noise impact from Jersey Steel was one of the most difficult issues to resolve during the long and protracted planning process. This is well documented elsewhere and, notably, in the report of the Minister on his decision to grant planning permission (May 2007). In his report, the Minister recognised he had a responsibility to ensure that any proposed development would not be subject to an unacceptable degree of noise disturbance. However, he was also aware of the need to ensure that he did not place unjustifiable and unreasonable obstacles in the way of developments…“particularly, developments of much needed affordable homes on land zoned for the purpose”. He concluded that:

· he should aim to ensure there is a reasonable and proportionate response to the noise issue;

· he should take account of advice from Health Protection Services; and

· the matter should be addressed by imposing a planning condition requiring the submission of a satisfactory ‘noise protection scheme’ to comply with UK government and World Health Organisation policy guidelines.

3. Devising a suitable noise condition proved difficult, because of the long-running disagreements between Health Protection Services and the developer’s appointed noise consultants, Peter Brett Associates (PBA). In the event, the Minister agreed a planning condition governing exposure to noise from the adjacent Jersey Steel site and this was attached to the permit issued on the 8th May 2007.

4. Planning Condition No.31 (see Appendix 1) is essentially in two parts. The first part requires the submission of a ‘Noise Protection Scheme’, which complies with current UK Government policy guidance on planning and noise (PPG24) and the World Health Organisation noise guidance (Guidelines for Community Noise, 1999). This scheme had to include a number of specified on- and off-site noise mitigation measures and had to be approved by the Minister in consultation with Health Protection Services. The second part of the condition requires the approved ‘Noise Protection Scheme’ to be implemented to the satisfaction of the Minister, in consultation with Health Protection Services.

5. The on- and off-site noise mitigation measures specified in the condition include:

· Automatic roller shutter doors at the eastern entrance to the Jersey Steel factory;

· A lean-to building over the eastern entrance to the Jersey Steel factory;

· A close-boarded fence at Jersey Steel parallel to the Perquage Walk;

· A 5m high acoustic berm with close planting on Field 853, between Le Perquage and the approved housing;

· All generally eastward facing boundary walls / fences to private gardens to be a minimum of 1.8m high close-boarded or solid construction;

· Acoustic glazing and whole house ventilation or other satisfactory means of ventilation, as appropriate; and

· Additional noise mitigation measures included in para. 5.2.1 of the ‘Maximum Noise Level Assessment Report’, PBA, March 2007.

6. A ‘Noise Protection Scheme’ which included the above mitigation measures was eventually approved by the Minister on 17th November 2008, so discharging the first part of Planning Condition No.31.

7. This scheme was only approved following:

· amendments to acknowledge the position of Health Protection Services (as well as their own position and understanding) and address the points raised in the correspondence between the relevant parties; and

· the submission of a letter of assurance from PBA that, in their professional opinion, the scheme complies with the terms of Planning Condition No.31 and, notably, PPG24 and WHO Guidelines.

8. Whilst Health Protection Services have a different opinion on the noise protection standards that should apply, they have previously accepted that Planning Condition 31 is what it is and have simply asked that the permit condition and the associated required standards be discharged…”nothing more, nothing less”. They have also previously made it clear that they would not be prepared to confirm whether the submitted scheme complies with PPG24 and WHO guidelines until the works are complete and actual noise levels are assessed, arguing that the applicant must demonstrate compliance and that it is “not going to allow liability for compliance to transfer to Health Protection Services…”.

9. In approving the ‘Noise Protection Scheme’, the Minister explained to the developers what is required to discharge the second part of the condition. He made it clear that he would require evidence that the finished scheme complies with PPG24 and WHO Guidelines and delivers the benefits modelled in the ‘Noise Protection Scheme’.

Planning and Noise Policy Guidance Criteria

10. The basic requirements for compliance with the policy guidance referred to in the approved ‘Noise Protection Scheme’ (i.e. to ensure a residential development has a suitable noise climate) can be summarised as follows:

PPG24
Requires upper boundary of 55dBLAeq for the daytime (16 hours) for Noise Exposure Category A for ‘mixed source’ noise, which includes industrial noise. The PPG states that noise need not be considered as a determining factor in granting planning permission (although the noise level at the high end of the Category should not be regarded as a desirable level).
BS8233: 1999
This supersedes the British Standard referred to in PPG24 covering ‘Sound Insulation and Noise Reduction in Buildings – Code of Practice’.
Recommended indoor noise levels for habitable rooms		Good (30dBLAeq) Reasonable (40dBLAeq)
Recommended outdoor living areas / gardens		Desirable (50dBLAeq) Upper limit (55dBLAeq)
WHO: Guidelines for Community Noise, 1999
Provides guidelines for Community Noise in specific environments.
Outdoor Living	Serious Annoyance (daytime and evening):	55dBLAeq
	Moderate Annoyance (daytime and evenings)	50dBLAeq
Indoors	Speech intelligibility and moderate annoyance (daytime and evenings)	35dBLAeq
Inside bedrooms	Sleep disturbance (night-time)	30dBLAeq (45dBLAmax)
Outside bedrooms	Sleep disturbance (night-time): – window open:	45dBLAeq 60dBLAmax

3.1.

Noise Measurement Exercise

11. The developers instructed their noise consultants, PBA, to carry out the required noise testing strictly in compliance with Condition 31, to demonstrate that the noise from Jersey Steel in homes and gardens does not exceed the noise limits specified in PPG24 and WHO Guidelines. These limits have been summarised by PBA as follows:

· Internal habitable rooms of 35dB LAeq, 16 hour;

· External noise level (garden areas) of 50dB LAeq, 16 hour.

12. PBA drew up a methodology and procedures for undertaking the measurements and analysing the data in January 2009, which also identified the dwellings, rooms and gardens to be tested. This was forwarded to Health Protection Services for comment with a view to:

· providing assurance to them that the approved ‘noise protection scheme’ has been implemented satisfactorily; and

· avoiding any technical arguments after the measurements.

13. Health Protection Services did not endorse the methodology and procedures, having previously offered to audit the methodology for the required noise measuring. Instead, they reiterated what the scheme should achieve, called once again for the use of LAMax targets for noise levels in gardens (even though this is not in the WHO or PPG guidance) and said that they would be carrying out their own noise tests (i.e. for auditing purposes).

14. On 16th and 17th February 2009, noise measurements were undertaken by PBA at 4 properties predicted to be worst affected by exposure to noise from Jersey Steel (Plots 3, 15, 53 and 90), during the company’s operating hours. Health Protection Services declined an invitation to witness the measurements and have not carried out separate tests, although they have retained the right to monitor.

Discussion

15. Extensive noise mitigation measures have been completed for the development both within the site (i.e. acoustic bund) and at Jersey Steel.

16. PBA’s noise measuring methodology and findings are set out in a report entitled ‘Bel Royal: Noise Protection Scheme – Measurement Results’, April 2009, which was submitted with a covering letter from Dandara Jersey Limited (see Appendix 2). All the measured noise levels included in the report are within target noise levels set in the approved ‘Noise Protection Scheme’. As a consequence, PBA conclude that the approved ‘Noise Protection Scheme’, as implemented, provides the required level of protection for future residents from noise associated with Jersey Steel’s activities.

17. These results have been submitted with a view to discharging the requirement in the second part of Planning Condition No.31 to demonstrate that the approved ‘noise protection scheme’ has been implemented to the satisfaction of the Minister, in consultation with Heath Protection Services, prior to the occupation of the majority of new homes.

18. Leaving aside the test results, the developers have also submitted testimonials from a number of residents (6no.), which confirm that they have not experienced any noise nuisance from Jersey Steel since they have moved in. Some of these have been occupying their homes since October 2008 and, in the interim, the Department is not aware of any complaints being made about noise emanating from Jersey Steel (see Appendices 3 to 8).

19. It would appear from the evidence provided that this is sufficient to demonstrate:

· the effectiveness of the approved ‘Noise Protection Scheme’ (with all its noise mitigation measures) and its implementation; and

· that the levels of noise from Jersey Steel operations are within the adopted limits of PPG24 and WHO Guidance, both internally and externally at the new homes.

20. In view of the above, there would seem, on the face of it, to be no reason why the Minister should not be satisfied with the implementation of the approved ‘Noise Protection Scheme’ or, therefore, why Planning Condition No.31 should not be discharged.

21. However, when Health Protection Services were consulted, they were of the view that the report failed to discharge the planning condition and pointed to:

· a lack of time context for the test data provided,

· a failure to show direct comparisons between noise measurements and maximum noise limits; and

· what they regarded as an attempt to disaggregate noise from Jersey Steel and ‘residual’ noise sources.

22. PBA responded to Health Protection Services’ concerns by agreeing to provide an addendum to their report detailing the dates and times of each individual measurement. They also made it clear that noise from Jersey Steel “has NOT been disaggregated from other environmental noise”. They confirmed that the measurements only took place during hours of Jersey Steel operation and that the measured noise levels were already below the target noise levels, without the need to subtract residual noise.

23. Having received the addendum, Health Protection Services suggested that the testing fell short of ‘good practice’. They maintained that compliance with the planning condition had not been demonstrated, because the test results comprised a few 15 minute averages. They also queried why the noise testing as completely different to the approach used by Dandara at the Castle Quays development.

24. PBA refuted the comments made by Health Protection Services and argued that:

· the noise tests at Castle Quay are comparable with the tests in question, in that they are based on a few 10-minute measurements;

· planning condition 31 is specifically geared to mitigating noise from Jersey Steel only;

· the noise levels were measured across the site covering a 13-hour period over 2 days, focusing on the times when Jersey Steel was in operation and, therefore, represents the worst case scenario;

· Health Protection Services had the opportunity to comment on the Noise Protection Scheme, before it was approved;

· Health Protection Services declined the opportunity offered to comment on the test procedure and to attend as witness to the noise measurements;

· All noise levels are within the target levels specified in the approved ‘Noise Protection Scheme’.

· During the testing it was noted that the level of noise was extremely low and that the electric equipment such as fridges had to be turned off, because they were the dominant source of noise inside the homes; and

· The letters submitted from local residents living on the site are indicative of the ‘subjective response’ to noise levels on the site and their acceptability.

25. Regretfully, there has been no further response from Health Protection Services to the latest PBA comments. However, Dandara have written to the Department to emphasise the urgency they attach to discharging condition 31 and pointing out the embarrassment that might follow if the finished homes are not able to be occupied (i.e. including the 46 Jersey Homebuy homes, which are shortly to be transferred to the States Housing Department).

Conclusion

26. It seems clear from the above exchanges between the applicants and Health Protection Services that there is little chance of breaking the impasse and achieving a consensual agreement. This is also evidenced by historic exchanges over the past 5 years or so. The situation has not been helped by the fact that Health Protection Services are a regulating authority and wish to avoid taking on any liability for compliance with the ‘Noise Protection Scheme’.

27. The key facts / material considerations are as follows:

· The applicant is required by condition to demonstrate that the approved ‘Noise Protection Scheme’ has been satisfactorily implemented.

· The applicant has employed suitably qualified noise consultants to undertake noise testing.

· The results if the testing indicate that the noise levels from Jersey Steel are within the required limits set in the approved ‘Noise Protection Scheme’.

· The applicants’ noise consultants have been led by a highly qualified senior acoustic engineer, who is a corporate member of the Institute of Acoustics and an experienced environmental noise consultant. In his professional opinion, the noise testing “clearly demonstrates that the Noise Protection Scheme has been satisfactorily implemented”.

· There have been no complaints about noise from residents of the scheme who have been occupying the site from October 2008 onwards.

· The testimonials from a number of residents indicate that they have not experienced noise nuisance from Jersey Steel.

28. On balance, therefore, it is concluded that the applicants have provided sufficient evidence to show that the approved ‘Noise Protection Scheme’, with its extensive noise mitigation measures, has been satisfactorily implemented and delivers the benefits modelled.

Legal implications

Although the evidence suggests that it will not be the case, there could be legal implications in the future, if there is a complaint by future residents about noise arising from Jersey Steel, should this be determined a Statutory Nuisance. In such circumstances, a ‘noise abatement notice’ would be served on Jersey Steel, who would in all likelihood appeal, meaning the matter would probably end up in the Royal Court. In such circumstances, Health Protection Services have previously suggested that they would argue the case for imposing a more restricted noise target of 55dBLAmax in gardens. Therefore, the Minister may be called upon to explain why Planning Condition 31 does not include this parameter.

In such an event, Jersey Steel could point to the noise condition attached to the planning permission for the housing development, the approved ‘Noise Protection Scheme’, the extensive noise mitigation measures that have been put in place, the testimonials of residents already living in homes on the development, and the PBA test results for noise measurement. It might also highlight the previous conclusions of Health Protection Services’ own noise consultants (Industrial Noise and Vibration Centre Limited) in 2006. Its recommended solution was the installation of automatic roller shutter doors at the Jersey Steel premises. In the light of these findings, Health Protection Services confirmed, at that time, that the installation of the doors, aligned with the filling of holes in the structural façade of the Jersey Steel building “will provide the necessary acoustic reassurance to overcome the outstanding concerns of noise nuisance”.

On the basis of previous legal advice, the Department is of the view that Jersey Steel would have no claim against the Minister if it was unsuccessful in an appeal. It is also the Department’s view that no such claim could be made by residents who may be successful in bringing private law proceedings that require Jersey Steel to cease making undue noise.

Consultation

The matter has been discussed and the subject of written consultations with representatives of the land owners (Bel Royal (Jersey) Ltd) and Health Protection Services (see above).

Recommendation

That the Minister for Planning and Environment decides that the approved ‘noise protection scheme’ has been satisfactorily implemented to comply with PPG 24 ‘Planning and Noise’ and WHO Guidelines ‘Guidelines for Community Noise’, 1999 and delivers the benefits modelled in the ‘noise protection scheme’, on the basis of the evidence of noise measurements undertaken by Peter Brett Associates on behalf of Dandara Jersey Limited and submitted in a report dated April 2009.

Reason(s) for Decision

· To protect the amenities of future occupants of the approved properties at the Category A Housing Site comprising Fields 848, 851, 853 (part) and 854 (part), St. Lawrence from noise arising from the nearby Jersey Steel operations.

· To effect compliance with the second part of Planning Condition No.31 (Noise Exposure), which requires the implementation of the ‘noise protection scheme’ to the satisfaction of the Minister in consultation with Health Protection Services.

· To ensure that the completed development successfully meets the objectives of, and delivers the benefits modelled in, the ‘Noise Protection Scheme’.

Action Required

· inform the land owner, local political representatives and Health Protection Services.

Written by:	Roger Corfield, Principal Planner – 19th June 2009

Approved by:	Kevin Pilley, Assistant Director – Policy and Projects

Endorsed by:

Attachments:

· Appendix 1: Planning Condition No.31 (Noise Exposure).

· Appendix 2: Cover letter dated 8th May 2009, submitted by Dandara Jersey Ltd with the PBA report entitled ‘Bel Royal: Noise Protection Scheme – Measurement Results’.

· Appendices 3 to 8: Testimonials from existing La Providence residents (not for publication).

File ref: P/2006/2489

APPENDIX 1: Planning Condition No.31 (Noise Exposure), as amended.

A noise scheme for protecting the proposed housing from noise from Jersey Steel, in compliance with Department of Environment Planning Policy Guidance 24, ‘Planning and Noise’ and World Health Organisation publication ‘Guidelines for Community Noise’, 1999 shall be submitted to and approved by the Minister for Planning and Environment, in consultation with the Health Protection Department, within 6 months of the Planning Obligation Agreement being registered in the Royal Court and prior to the occupation of the development hereby permitted, with the exception of plot numbers 50, 52-58, 60, 62, 76, 90, 91, 94 and 96.

The scheme shall include details of the proposed noise mitigation measures, details of the noise calculations confirming the effectiveness of proposed noise mitigation measures and details of the proposals for implementing them.

As a basic minimum, the noise scheme shall include the following on- and off-site noise mitigation measures:

(i) automatic roller shutter doors (default closed) at the eastern entrance of the Jersey Steel factory;

(ii) a lean-to building over the eastern entrance to the Jersey Steel factory;

(iii) a new close-boarded boundary fence at Jersey Steel parallel to the Perquage Walk;

(iv) a 5m high acoustic berm with close planting on Field 853, between Le Perquage and the approved housing;

(v) all generally eastward facing boundary walls / fences to private gardens to be a minimum of 1.8m high close-boarded or solid construction;

(vi) acoustic glazing and whole house ventilation or other satisfactory means of ventilation, as appropriate;

(vii) the additional noise mitigation measures included in paragraph 5.2.1 of the ‘Maximum Noise Level Assessment Report’, PBA, March 2007.

Any approved noise scheme shall be implemented to the satisfaction of the Minister for Planning and Environment, in consultation with the Health Protection Department, prior to the occupation of the development hereby permitted with the exception of plot numbers 50, 52-58, 60, 62, 76, 90, 91, 94 and 96. For the avoidance of doubt, the above specified units shall be made to comply fully with the approved noise protection scheme.