Appeal 6001052

The appeal is dismissed.

The Council has granted planning permission to allow the erection of ten B2/B8 commercial units on the appeal site. The proposal seeks permission to carry out the development without complying with Condition 16, which controls the hours during which the buildings can operate.

The main issue in this appeal is whether Condition 16 attached to the planning permission, Council Reference 23/00311/FUL, is necessary and reasonable to safeguard the living conditions of neighbours.

At the time of my visit the site contained a number of vehicles, in various states of repair. Granting of the planning permission allows the erection of 10 B2/B8 commercial units within the site. This was acceptable to the Council, subject to the imposition of Condition 16.

Policy PMD1 of the adopted Thurrock Local Development Framework Core Strategy and Policies for the Management of Development (as amended) (2015) (the LDFCS) seeks, amongst other things, to protect the area and people within it from the effects of pollution, including noise pollution, on amenity and health.

The appeal site lies within, but on the edge of, an area of commercial and industrial uses known as the [name] (the industrial estate). It lies at a lower level to the adjoining land to the south, where there is a recreation ground, and east, which is a steep bank on top of which lie residential properties. The front of the site faces towards further residential properties, lying across the industrial estate from the appeal site, and again at a higher level.

The Council, at the time of granting the permission, considered that a condition was necessary to control the impact of noise emissions from the development to protect the amenity of residents in the neighbouring residential area. The Council have received complaints about noise disturbance emanating from the industrial estate, including the appeal site. The Council also identify that older units on the estate are not subject to restrictions on their hours of operation, whilst newer units have had these restricted.

Currently the control of noise emissions and disturbance for neighbours would be controlled by Condition 16. This is relevant to the development and to planning, seeking to prevent disturbance during certain hours when residential uses would expect a peaceful environment. Some form of effective control of noise emissions is necessary, given the proximity of residential uses. I also find Condition 16 enforceable and precise. There is dispute, however, as to whether it is necessary and reasonable, if other, less restrictive means are available that would achieve the same ends.

To accompany the application relating to the variation or removal of Condition 16, the appellant submitted a Noise Impact Assessment Report (NIAR), dated 6 November 2024, and a Noise Management Plan (NMP), dated 19 February 2025, both produced by Sound Licensing Limited.

The NIAR was prepared with a view to the discharge of Condition 9 of the planning permission, which required that “Notwithstanding the submitted Noise Assessment, prior to any works above ground level, a new Noise Assessment conducted fully in line with BS 4142 and any recommendations for mitigation, shall be submitted to and approved in writing by the Local Planning Authority. The development shall be carried out in full accordance with the approved details and retained as such thereafter.” I have no information before me as to whether Condition 9 has been discharged.

Whilst the NIAR does not identify specific end users, and thus the exact use of each unit is unknown, it has been prepared by the appellant’s consultants on a “worst-case” scenario and in accordance with BS 4142.

The Council identify that previous activity, both within the estate and in particular the appeal site has resulted in complaints. However, there is an extant permission on the site to provide ten units, and this could be implemented with Condition [address]. It is incumbent upon me within this appeal to determine whether the removal of Condition 16 would be likely to result in unacceptable disturbance to the neighbours.

The NMP sets out a detailed framework for ongoing management and monitoring of noise emissions and how they are controlled. However, in order for control through the NMP to be effective, in planning terms, it must be secured and enforceable and this would need to be done through a planning condition attached to a permission, rather than civil contract. Such a condition would need to satisfy the tests set out in the Framework and could appropriately replace Condition 16, should it achieve the same planning aims as the policy.

The NMP would form part of a contractual arrangement with the occupier of any unit. However, it also sets out that it will be monitored for effectiveness and, if necessary, changed, should, for example, there be complaints about disturbance. Such monitoring and alteration would be on-going.

Under such circumstances, a condition requiring approval of the NMP by the Council would not be reasonable as the Council could not be certain what they are, ultimately, approving. It would be unreasonable to expect the Council to commit to an open-ended ongoing review process. I therefore find that, in the absence of any alternative, practicable means of controlling disturbance, Condition 16 provides the necessary and reasonable means of control to safeguard the living conditions of neighbours. In the absence of Condition 16 there would be inadequate measures to prevent disturbance, contrary to the aims of Policy PMD1 of the LDFCS.

The appellants tell me that the restrictive hours imposed by Condition 16 make the development commercially unviable, providing a letter from their letting agent in support of this. However, that evidence is extremely limited and does not demonstrate a concerted effort to market the site over time.

I recognise the importance placed by the Government, and set out in the National Planning Policy Framework (the Framework), on supporting sustainable economic growth. However, the Framework also recognises the importance of good design in creating places which promote health and well-being, with a high standard of amenity for existing and future users. In this case the amenity of local residents outweighs the moderate economic benefits accruing from a proposal of this scale.

For the reasons given above the appeal should be dismissed.