Appeal 3270153

The appeal is dismissed.

Since the application was determined, a revised version of the National Planning Policy Framework (the ‘Framework’) has been published. The main parties were given the opportunity to comment on any relevant implications for the appeal and have not therefore been prejudiced. The main parties did not have any comments on this matter.

The appeal site forms part of the [address] Stall. Planning permission was granted in 2002 for the stall to be used as an al fresco area1. [name] 2020, the 1 02/01034/COU Council granted planning permission to vary condition 4 and remove condition 5 of the original application to allow the layout and design of the seating area to be changed2.

This appeal seeks to vary conditions 2 and 4 and remove condition 5 of the original application. I have no reason to disagree with the Council’s previous view regarding conditions 4 and 5 and therefore my decision only deals with condition 2.

The main issue is the effect of varying condition 2 upon the living conditions of the occupiers of nearby residential properties, with particular regard to noise and disturbance.

Condition 2 allows the al fresco dining area to operate between 09.00 - 22.00. The appellant seeks to alter the hours of the al fresco area to 09.00 – 00.00 seven days a week.

The appeal site is situated within Chester city centre and forms part of the [address] Stall. The stall is open sided and is located at the corner of [address] and [address].

Based on the evidence before me, the nearest residential units, to the appeal site, are located on [address]. These units are in relatively close proximity to the appeal site.

The appellant states that there are other venues, within the city, that have outside spaces used beyond midnight. However, they have not provided any details as to where these venues are located and their proximity to residential units.

No evidence has been submitted to show that there are other premises on [address] Stall or nearby with permitted al fresco use beyond 23.00. It is also not clear whether those premises which can open until 23.00, are permitted to do so seven days a week. I understand that similar premises on [address] have been required to provide lobby door entrances to prevent noise issues and disturbing residents. Furthermore, there are similar premises on [address] which have planning conditions that require the al fresco areas to cease by 22.00.

I accept that the nearby residents would expect a certain degree of noise and activity due to the city centre location and there would be existing noise from other sources. However, the proposed additional hours, seven days a week, would be at a time when occupiers of the nearby residential units would reasonably expect a degree of peace and quiet when they would wish to sleep.

The appellant highlights that: they are not an establishment which produces loud music, have never had a noise complaint, they are restaurant led and the terrace holds 26-30 people so does not create hustle and bustle. They assert that extending the hours would give more space to serve food and drink to customers. Additionally, opening later would improve customers dining experience as currently they have to ask them to move indoors or leave if there is not enough space inside. 2 20/00168/S73

The appellant also sets out that they would maintain a respectable venue and outline how they would ensure public safety, prevent crime and prevent public nuisance. They would do this through a range of measures including ensuring the music would not be too loud, not promote excessive drinking, food available throughout trading hours, maintain table service, use registered door supervisors, CCTV and train staff.

However, I am unable to attach an enforceable condition to ensure that these measures are met. Based on the evidence submitted, I am not satisfied that the likely impact could be mitigated through the imposition of a condition. Therefore, I do not consider that the measures highlighted by the appellant would truly manage or mitigate potential noise and disturbance.

Consequently, given the nearby residential units, the exposed nature of the area, potential noise and disturbance seven days a week and limited similar al fresco operating hours in the vicinity of the appeal site, the sought operating hours are likely to result in additional noise and disturbance which would adversely harm the living conditions of the occupiers of nearby residential units.

The Council state that they would be willing to accept permission for the use of the area between the hours of 22.00 to 23.00 hours for a temporary period of one year. However, this is not what the appellant has applied for. In any event, I am not satisfied on the evidence provided that such a condition would not harm the living conditions of nearby residents.

Accordingly, based on the evidence submitted, condition 2 is reasonable and necessary in its current form to protect the living conditions of the occupiers of nearby residential properties, with particular regard to noise and disturbance. The proposal would therefore conflict with Policy SOC 5 of the [name] and Chester Council Local Plan ([name]): [name] (2015) and Policy DM 2 of the [name] and Chester Council Local Plan ([name]): [name] and [name]. These collectively seek, amongst other matters, to safeguard the quality of life for residents living nearby.

The appellant highlights that the proposal would help to rejuvenate The Rows, add to the healthy city centre night life, and would help to develop the cultural development of the city with later eating in a modern concept. [name] have little evidence to substantiate these claims, in any event, these matters do not outweigh the harm identified above.

I also note that the proprietor of a nearby business highlights that the extended hours would benefit businesses. They consider that The Rows suffers from low visibility and the proposal would increase awareness of their business. In addition, the business and their owners have been respectful, helpful and friendly. There is no substantive evidence to demonstrate that nearby businesses are struggling and the extended operating hours would truly benefit businesses. The matters raised by the business proprietor do not outweigh the harm identified.

I understand that the appeal site is located within the City Centre Conservation Area (CA). I am satisfied that the amended hours would have a neutral impact upon the character and appearance of the CA and would not cause harm to the significance of the designated heritage asset. However, this is a neutral consideration and does not weigh in favour of the appeal.

The proposal would therefore conflict with the development plan as a whole and there are no other considerations that outweigh this conflict.

For the reasons given above the appeal should be dismissed.