Appeal 3365239

The appeal is dismissed.

An application for costs was made by Uttlesford District Council against [name]. This application is the subject of a separate decision.

The main issue is the effect that amending condition 11 would have on the living conditions of the occupiers of neighbouring properties with regard to noise and disturbance.

Planning permission has been granted on the appeal site for the erection of commercial units with a Class B8 use in a single L-shaped building. The appeal seeks to amend condition 11 of the planning permission to change the stipulated hours of operation of the units to also include Saturdays from 08:00 to 18:00 and to allow the use of machinery, plant and power tools within this building.

The appellant has suggested that the condition is replaced with the following iteration: The commercial units shall operate only between 07:00 and 19:00 Monday to Friday and 08:00 to 18:00 on Saturdays. They shall not operate on Sundays or [name]. Operation of externally audible machinery, plant, or power tools shall not occur outside of these hours.

Condition 11 was implemented by the Council in accordance with the times detailed on the original application form. However, the appellant has now requested for additional operating hours on Saturdays, in line with two other commercial buildings within the [site address] site which were granted planning permission1 accordingly. [name] have not seen copies of these planning approvals, the Council do not contest that these application were granted with operational hours to include 08:00 to 18:00 on Saturdays.

The [site address] site is well separated from most residential development in the surrounding area, including within the village of [name]. However, the site also includes five caravans used for residential purposes as well as a farmhouse. It appears that the caravans are occupied by workers on the site, however no information has been provided to me to suggest that the occupation of these units is restricted in any way.

The caravans in particular are in close proximity to the recently approved commercial units and therefore any noise produced as part of their use is likely to have some impact on the occupiers of these properties. Furthermore, there is no evidence before me, in a noise assessment or similar, to outline the likely noise generated from these commercial units and any necessary mitigation to demonstrate that the approved development would have a limited impact on the occupiers of these caravans in relation to noise.

It is understood that a B8 use may require the use of certain machinery, such as a forklift and pallet trucks or power tools such as a hand drill. However, without evidence to quantify the potential noise impact from such activities, I cannot be certain that any noise or disturbance generated from the use would not result in harm to the living conditions of the occupiers of the nearby properties. Therefore, without any evidence to suggest the noise impact would be limited or suitably mitigated, restrictions to operational hours and the machinery used within them is entirely reasonable and necessary given the close proximity to residential uses. Furthermore, I am satisfied that the wording of the condition, including the term ‘power tools’ is not ambiguous and although would include a drill, would be unlikely to include a vacuum cleaner or the like.

The caravans may have been present on the wider site during the previous applications for commercial units with a class B2 use and I accept that the wider site is a working farm with a number of existing commercial units. However, without evidence to the contrary, additional commercial usage on the site would be likely to intensify noise and disturbance and, without appropriate mitigation, should not be unrestricted. I also note that there have been no noise complaints from the current occupiers of the caravans in relation to the commercial uses on the site. However, this is prior to the implementation of the approved development and does not relate to any future occupiers of the caravans.

I also note the appellant’s assertion that the construction environmental management plan allows the construction of the approved building on Saturdays, contrary to the actual operational hours of the building stipulated in condition 11. However, construction of the building and any noise associated with this is temporary and therefore different to the ongoing use of a permanent building. 1 UTT/18/2307/FUL and UTT/19/1654/FUL

[name] agree that differing operational hours between different buildings on the [site address] site is inconsistent, may be impractical for the proposed use and may lead to confusion, an additional commercial building on the site and any unrestricted noise associated with this, would lead to an intensification of noise activity to the detriment of the occupiers of the residential properties on the wider site. Consequently, as it stands, the condition imposed meets the six tests for planning conditions outlined within paragraph 57 of the National Planning Policy Framework.

Therefore, without the evidence to suggest otherwise, I conclude that amending condition 11 to extend operational hours and allow for the use of certain machinery on the appeal site would be likely to have a harmful impact on the living conditions of the occupiers of the neighbouring properties with regards to noise and disturbance. It would therefore conflict with Policies GEN2 and GEN4 of the Uttlesford District Local Plan. These policies seek to ensure that development will not be permitted unless it minimises the environmental impact on neighbouring properties by appropriate mitigating measures and that development and uses will not be permitted where noise or vibrations generated would cause material disturbance or nuisance to occupiers of surrounding properties.

The appellant has commented that the condition undermines the practical use of the appeal site and the employment benefits gained from the proposed development. However, this does not negate the requirement to ensure that the living conditions of the occupiers of neighbouring properties are not detrimentally impacted and I have no evidence before me to suggest that the proposal would be unviable with the restrictions set out in condition 11. Therefore, this would not outweigh the potential harm identified.

A third party representation has raised concerns in relation to the potential retrospective nature of some of the proposed development. However, there is no conclusive evidence before me to suggest that this was the case during the planning application stage and, nonetheless, it is not relevant to the matters before me in this appeal. Similarly, matters in relation to other activities on the appeal site are not relevant to this appeal.

Therefore, for the reasons given above, I conclude that the appeal should be dismissed.