Appeal 3361641

The appeal is allowed and the planning permission Ref 23/02127/FUL for erection of (i) 8 no. flats (4 no. studios, 2 no. one bed & 2 no. two bed flats) on the eighth floor on [site address] with removal of [name] on the roof (ii) bin-store for proposed flats occupying one existing car parking bay (iii) bespoke structure to cover 20 no. existing cycle bays (iv) structures to cover 32 no. additional cycle bays at [site address] granted on 6 September 2024 by Cambridge City Council, is varied by deleting conditions 6 and 25 and substituting for them the following condition:

The development hereby permitted shall be carried out in full accordance with the approved Construction Environmental Management Plan, [name], [name]. 4D_1845_CEMP_PRE_01, dated 17 December 2024.

The Application Form and Appeal Form list the applicant/appellant as [name], whereas the Decision Notice lists the applicant as [name] both are identified as “c/o Mayflower Manhattan Ltd.” It has been confirmed in writing with [name] and Mayflower Manhattan Ltd, that [name] was the original agent who passed away prior to the determination of the planning application. [name] was subsequently appointed as the agent acting on behalf of Mayflower Manhattan Ltd and this was communicated to the Council. I am satisfied that Mayflower Manhattan Ltd were and have always been the applicant and that this was also the Council’s understanding when determining the planning application. The appeal is therefore valid, and Mayflower Manhattan Ltd is the appellant.

The main issue is whether conditions 6 and 25 are reasonable and necessary, with particular regard to the living conditions of occupiers of [site address] .

Both conditions 5 and 6 require a demolition/construction noise and vibration impact assessment to be submitted to and approved in writing by the Council prior to the commencement of the development. The main differences are that Condition 5 states that the assessment shall be in accordance with the provisions of BS 5228:2009 Code of Practice for noise and vibration on construction and open sites, and Condition 6 specifies that the report shall include full details of monitoring, public communication, and complaint handling.

The provisions of BS 5228:2009 do not directly concern the effect of the development on occupiers of dwellings directly adjoining the works. However, Condition 5 specifies that the assessment should be in accordance with these provisions and include details of mitigation/monitoring measures to be taken to protect local occupiers from noise or vibration. As such, the report should include measures to protect occupiers of dwellings directly adjoining the works, as this would be covered by the details of mitigation/monitoring measures to protect local occupiers.

Following the submission of the appeal, the appellant has discharged Condition

The approved details include a Construction Environmental Management Plan1 (CEMP) for the proposed rooftop extension. This report includes details on how the contractors plan to communicate with occupiers and contact details for the contractor. However, the approved details do not include details of a complaint procedure to be enacted throughout the demolition and construction period. It is necessary for these details to be provided to ensure that the occupiers know how to report any concerns. However, it is not necessary for these details to be the subject of a separate condition. The details should be included as part of the mitigation measures provided to discharge Condition 5. 1 [name]. 4D_1845_CEMP_PRE_01

As such, the measures required to be submitted to and approved in writing by the Council within Condition 6 would in part be duplicated in the details submitted to discharge Condition 5 and are in part within the approved details submitted to discharge Condition 25. Accordingly, Condition 6 is neither necessary nor is it reasonable to attach it to the planning permission. Condition 25

The description of development on the Application Form included “... with removal of [name] on the roof ...” The Decision Notice duplicated this phrase within the description of the proposal that was granted planning permission. Therefore, permission was both sought and granted for the removal of the electronic communications apparatus. Accordingly, the removal of the apparatus falls to be considered as part of the planning permission.

The granting of permission would not interfere with existing rights to remove the apparatus through alternative consent regimes. As such, it would not be ultra vires for the Council to require a CEMP to be approved prior to the removal of the apparatus. However, there is no substantive evidence before me that the removal of the apparatus would harmfully affect the living conditions of occupiers of [site address] , with particular regard to noise and vibration. Therefore, it is unclear why a CEMP is necessary to control the removal of the apparatus.

I acknowledge that imposing Condition 25 may have delayed the commencement of works as the apparatus may have been removed without harming the living conditions of occupiers. Notwithstanding this, Condition 25 has already been discharged. It would cause further delays if I were to reimpose the condition as originally stated without the need for a CEMP to cover the removal of the apparatus. Accordingly, I have imposed a condition which requires the demolition and construction works to be undertaken in accordance with the approved CEMP for the proposed rooftop extension.

I conclude that Condition 25 is necessary and reasonable in part. However, I have amended the Condition to reflect the recent discharge of condition approval and remove reference to parts of the condition that were unnecessary.

The planning permission without conditions 6 and 25, and with the new condition would be in accordance with Policy 35 of the Cambridge Local Plan, October 2018 which indicates that development will be permitted where it will not lead to significant adverse effects on amenity from noise and vibration. It would also be in accordance with paragraphs 135 and 198 of the National Planning Policy Framework where it indicates that planning decisions should ensure that developments create places with a high standard of amenity and is appropriate for its location taking into account the likely effect of pollution on living conditions.

There is no substantive evidence before me that the proposal would have a harmful effect on highway safety due to the additional vehicular movements and demand for parking. Similarly, there is no substantive evidence before me that the proposal would have a harmful effect on the living conditions of neighbouring occupiers due to a loss of light or through causing a rain tunnel.

An interested party has raised concerns with the removal of vegetation within the estate. This did not form part of the proposal that was before me and, therefore, has not altered my assessment on the acceptability of the appeal proposal. They also indicated that the proposal had previously been refused. However, the appeal was against the conditional grant of planning permission. There is no compelling evidence within the representations or from my observations that indicates that planning permission should have been refused for this proposal.

For the reasons given above I conclude that the appeal should succeed. I will vary the planning permission by deleting conditions 6 and 25 and imposing a new