Appeal 6000516

The appeal is dismissed.

The description of the proposal in the banner heading above is taken from the decision notice which is the same as the appeal form. However, reference to ‘retrospective’ in the description is not a form of development and so I have amended it accordingly.

I am aware that the appeal site is subject to an enforcement notice which has been appealed (appeal ref: APP/N5090/C/25/3370977). That appeal is outstanding; however, the grounds of that appeal have no bearing on this decision.

The Council’s second reason for refusal refers to a loss of outlook from the rear dormer window in the upper floor residential property above the appeal site. At my site visit I saw that the ducting has been installed and that it appeared to be in the location shown on the submitted plans, to the side of the dormer window. The Council’s Appeal Statement confirms that if the ducting is not in front of this window, they would not defend this reason.

Therefore, the main issue is the effect of the development on the living conditions of neighbouring occupiers, with particular regard to noise, vibration and odour.

The appeal site is a three-storey terraced property in a town centre location. There is a commercial unit at ground floor which is in use as a hot food takeaway. The upper floors are in residential use. The adjacent properties also have commercial uses at ground floor and residential on the upper floors.

The purpose of the ducting is to provide ventilation to the commercial kitchen at the ground floor via a fan located within the building. Given its proximity to the adjoining residential properties, there is the potential for neighbouring occupiers to be affected by any noise, vibration or odour emitting from the ducting.

The appellant has submitted a Noise Impact Assessment (NIA) ([name], 21 July 2025) as part of their appeal submission. However, the assessment was carried out for a relatively short period of time, and it did not cover the quietest time of the week. Furthermore, the assessment does not take account of any mitigation measures that may be required to control odour, and which may generate additional noise.

The NIA recommends that, to meet the Council’s requirements for noise emissions, mitigation measures including an attenuator and cladding are required. However, there is little detail within the submissions about these measures and how their installation would be secured and retained. Moreover, given my concerns about the robustness of the NIA, I am not satisfied that the suggested measures would provide adequate mitigation.

Consequently, I am not persuaded that the NIA is sufficiently robust to be able to conclude that the living conditions of neighbouring occupiers would not be unacceptably harmed by noise.

The NIA does not address the potential need to acoustically isolate the ducting from the building to prevent vibration. The appellant states that the fan is securely mounted and has measures to ensure that no perceptible vibration reaches the adjoining property. However, there is no technical evidence submitted to demonstrate this. As such, I am not satisfied that vibration from the development would not adversely affect neighbouring occupiers.

In addition, the current use of the appeal site has a high or very high risk of odour, smoke content and grease. The ducting does not meet the Council’s requirement to be 1.5 metres above any openable window and there is no site-specific technical assessment to demonstrate that the design and operation of the ducting prevent cooking odours from lingering or entering nearby windows. In the absence of such evidence, there is no reasonable assurance that odour from the ducting would not adversely affect neighbouring occupiers.

Taking all of the above into account, I have found that the evidence submitted fails to demonstrate that the development would not cause unacceptable harm to the living conditions of neighbouring occupiers with regard to noise, odour and vibration and is likely to do so. Therefore, it conflicts with Policy D14 of the LP and BLP Policy ECC02. Taken together these policies seek to avoid significant adverse noise impacts on health and quality of life and require odour emitting businesses, such as restaurants, to install extraction systems that take into account the amenity of nearby properties.

The Council’s first reason for refusal also cites BLP Policy TOW04 which relates to the night-time economy. However, it has not been explained specifically how it applies to the appeal proposal. Accordingly, I find no conflict with BLP Policy TOW04.

I acknowledge that the ducting is not visible from the public realm and that the Council does not raise any objection in relation to the effect of the development on the character and appearance of the area. I have no reason to reach an alternative conclusion in this regard. However, this consideration does not alter my conclusions on the main issue of this appeal.

For the reasons given above, the proposal would conflict with the development plan as a whole and there are no material considerations that outweigh that conflict. Therefore, the appeal is dismissed