Appeal 6001182

The appeal is dismissed.

The appellants have submitted a noise impact assessment (Noise Assessment) and a highways technical note (highways note) with the appeal. These do not alter the proposal before me, and as they were submitted up front with the appeal, the timeframes have allowed the opportunity for both main and interested parties to comment on them. As such, considering these documents would not lead to any procedural unfairness.

The appeal building is currently vacant and comprises an existing metal clad building, of a significant size, which is located to the rear of and shares an access with [address] and [address].

My attention has been drawn to a permission1 for a four-bedroom detached dwelling with a detached double garage. I understand that works may have been undertaken to commence development; nevertheless, I saw no clear evidence during my visit to establish whether this was the case. Nonetheless, given the recent nature of the permission, I have proceeded on the basis that it remains extant for the purposes of this appeal.

There is no planning permission or certificate confirming whether the use of the building for commercial purposes is lawful. Several interested parties state that the site has only ever been used for purposes ancillary to [address]. [name] acknowledge there is some evidence which could suggest a past commercial use, including the type of materials stored within the building, the scale of the building compared with [address], and its physical separation—there remains clear disagreement between the parties. Without a certificate of lawful use or a planning 1 Application Ref 23/00397/FL application, is not my role under section 78 of the act, to determine whether a use is lawful.

Given the main issue before me, and in light of the disagreement, I have adopted a precautionary approach and assessed the proposal on the basis that the lawful use is for ancillary residential purposes.

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

The appeal site sits within a residential area and lies in close proximity to neighbouring dwellings, most notably [address]. The access road is narrow, largely single width, and has the appearance and function of a residential drive rather than a commercial access. The character of the ambient environment generally reflects this. Whilst background noise is influenced by distant traffic movements along the A228 and adjacent highways, during my visit this manifested as a constant but remote backdrop, rather than sounding unduly dominant, although I recognise this was just one point in time and may not be reflective of other days and times. This quiet residential context is an important consideration when assessing the effects of any intensified activity on the site.

The proposed use class (E(g)) is limited to offices, research and development, or industrial processes that can be undertaken within a residential area without causing harm to amenity. The appellants are also willing to accept a condition restricting the use of the building to activities falling solely within this. I recognise as well that the workshop element of the proposal is modest in its floor area and would employ a maximum of three staff, with the remaining activities being office based and typically quiet. However, these characteristics must be considered alongside the size of the proposed building and the sensitivity of the surrounding environment.

In the context of the surrounding residential properties, the building is of a notably large footprint, mass, and overall scale. Although the individual activities may be of a type that could occur within a residential area, the overall level of activity that could take place within a building of this size would be significant relative to the local context. As such, I find that the use class in itself is not definitive as to the acceptability of the proposal in respect of its effect on the living conditions of neighbouring occupiers. The Noise Assessment primarily addresses likely noise generation from internal activities, associated with the office and workshop activities while the Council’s concerns relate instead to noise and disturbance from increased comings and goings. Given the scale of the building and the range of potential activities, the number of movements generated is likely to be materially greater than that associated with a residential use.

The Noise Assessment concludes that internal noise breakout from the office and workshop activities would not undermine the living conditions of neighbouring occupiers. However, the Council’s reason for refusal is centred not on internal noise, but on the likely increase in comings and goings and the associated disturbance arising from the use of the site. Given the size of the building and the mixed commercial nature of the proposed use, the number of daily movements would be materially greater than those generated by a single dwelling and would occur within a constrained space immediately adjacent to residential boundaries. This distinction between internal noise and activity-related disturbance is important, and it is the latter that is most relevant to the site context.

There is also a discrepancy between the vehicle movements quoted in the Noise Assessment and those set out in the [name]. The Noise Assessment refers to a total of 30 vehicle movements per day, but this appears to exclude the additional six servicing and delivery trips identified elsewhere. In either event, these figures indicate a clear and significant increase in vehicle movements over and above a single residential dwelling.

Both the Noise Assessment and the [name] are set against an existing workshop baseline, rather than the baseline of a single dwelling. As noted above, there is no substantive evidence that a workshop is the lawful use of the site. In considering these documents, I have therefore given limited weight to the figures and analysis that rely upon comparisons with an assumed existing workshop use.

[name] understand that the site was vacant during noise monitoring, it is not confirmed whether any activity occurred at the site during that period, including deliveries, visitors, or incidental vehicle movements. I cannot therefore assume that the existing figures represent an appropriate starting point or that they reflect the circumstances of a residential dwelling. No figures are before me for a single dwelling and this uncertainty is particularly unhelpful when assessing effects on living conditions. Nonetheless, from my own understanding of single residential dwellings, it is evident that the number of vehicle movements associated with such would typically be very low. I note that the Council has reached a similar view.

I recognise that the Council’s consultees, including the environmental health officer and Kent County Council highways officers, raised no objection to the proposal. The Council does not dispute the acceptability of the scheme on highway safety grounds, and therefore the highways response carries limited weight in assessing the effect on living conditions from noise. In respect of the Environmental Health response, which raises no objection subject to conditions, it is not clear whether this was based on an existing workshop or the baseline of a single dwelling. In any event, the Council has set out substantive reasons for reaching a different conclusion. As such, this consultation response does not remove the need to assess the proposal as a whole, based on all of the evidence before me.

In this context, where the relevant comparison is with a residential dwelling, the apparent omission of servicing vehicles becomes significant. Servicing vehicles are typically noisier than cars, they are more likely to emit reversing alarms, produce heavy door slams, and generate manoeuvring noise and impacts. There is also a tendency for servicing and deliveries to take place at more sensitive times of the day. These differences are likely to be of particular relevance given the constrained access road. Servicing vehicles tend to be larger than cars and this, combined with the constrained access, increases the likelihood of short, loud noises to be generated. The Noise Assessment does not distinguish between the noise associated with cars and servicing vehicles. Nor does it distinguish between different types of noise and there is no specific assessment of the short, loud noises referred to above.

[name] acknowledge the appellants’ position that deliveries would typically comprise small courier packages similar to those received by a residential property, this is not supported by any detailed information on frequency, timing, or operational needs. Nor is there any mechanism before me that would prevent commercial deliveries from occurring at times or in numbers materially greater than those associated with a single dwelling. In the absence of firm, site-specific evidence to demonstrate that servicing demands would be limited, I am unable to place significant weight on this assertion.

Residential occupiers living in a setting such as that around the appeal site are likely to be especially sensitive to noises associated with a commercial use, because these are of a different nature to those ordinarily experienced in a residential environment. The Noise Assessment was based on a single monitoring point, located at the corner of the site and slightly removed from [address] and the relevant boundary. There are limits to the information that can be taken from a single monitoring point, as this assumes a uniform distribution of noise across the site.

The Noise Assessment states that any increase in noise from additional vehicle movements would be very small, with rises of 0.4 dB for a 10% increase in traffic and 3 dB for a 100% increase. However, no calculations are provided to support these figures, and they appear to be general assumptions, rather than based on site specific information. As general assumptions, they are likely to relate to background traffic on surrounding roads, rather than the specific impacts arising from the use of a constrained residential access. Furthermore, although no trip movements are provided for a single dwelling, I cannot rule out the possibility of the proposal generating well in excess of double the movements associated with one residential property, given the naturally low level of traffic generated by a single dwelling. In light of this, the findings of the Noise Assessment in respect of traffic noise carry very limited weight.

For the reasons set out above, and in particular the reliance on an industrial use as the baseline, I am unable to attach meaningful weight to the findings of the Noise Assessment. Although it concludes that noise increases would be minimal, this is not supported by a comparison with the level of activity ordinarily associated with a single residential dwelling. The difference between these baselines is significant. When considered alongside the scale of the proposed building, the likely number of daily movements, the nature of servicing activity, and the limitations of the evidence provided, I have substantial concerns regarding the effect of the development on the living conditions of neighbouring occupiers, with regard to noise.

In light of this, I find that the proposal would conflict with Policy CP24 of the Tonbridge and Malling Borough Core Strategy (2007), which seeks to safeguard the amenity of existing residents.

The appeal site lies close to a small cluster of [name] listed farmstead buildings: [address] to the north, The Barn and The Byer to the northeast, and [address] to the southwest. Together with other unlisted buildings, these formed the historic [name]. In accordance with my duty under s66(1) of the Planning (Listed Building and Conservation Areas) Act 1990, I have had special regard to the desirability of preserving their setting.

These buildings hold significance through their collective identity as traditional farmstead structures, which provide a clear reminder of the former agricultural use of the area. Their appearance and architectural form remain recognisable as historic farm buildings. However, the immediate setting of the appeal site is now residential in character, and at my site visit there was little to indicate a strong visual or functional relationship between the appeal site and the former farmstead. The evidence before me confirms that the legibility of the original farmstead layout has been eroded by later development.

The proposed building would sit in a broadly comparable position to the existing structure, and its commercial use would not be out of keeping with the type of activity that might reasonably be expected within a former farmstead environment. On this basis, I am satisfied that the setting of the listed buildings would be preserved and that their significance would not be harmed by the appeal scheme. I also note the Council did not identify any harm to their setting.

My attention has been drawn to support within the Framework, in particular paragraph 89, and Policy DC2 of the Managing Development and the [name] (2010), and the support these give to rural businesses. Paragraph 89 recognises that small-scale rural businesses can play an important economic role and that rural areas may accommodate development where appropriate. However, the same paragraph also emphasises the need for such development to remain sensitive to its surroundings and to avoid unacceptable impacts on local amenity. In this case, the introduction of a commercial use of the scale proposed, relative to its modest residential setting, has the potential to detrimentally affect the living conditions of neighbouring occupiers. Having regard to this, I do not find that the general support for rural economic development within paragraph 89 can be applied uncritically in this instance.

Policy DC2 similarly supports the replacement of existing rural buildings where this would assist economic development purposes, subject to several provisos, including that the replacement should deliver a more acceptable and sustainable form of development, and result in an environmental improvement in terms of its impact on the site and surroundings. Whilst the proposal would introduce an employment-generating use, the evidence before me does not demonstrate that it would, in this case, lead to a form of development that is more acceptable than what might otherwise be achieved. The extant residential permission on the site shows that the building could be reused in a way that is compatible with the surrounding residential context and would not introduce a noise-generating commercial activity, although I recognise that such an option would not bring equivalent economic benefits.

There is very limited information before me regarding the existing business, including where it is currently based, whether it has any existing employees, or whether there is any operational need to be located at the appeal site. Some aspects of the business’s likely operation can be inferred from the proposal itself, but there is no substantive information explaining why these premises are required here.

Even so, it is clear that the proposal would provide employment space for around 11 people and would create a business premises within a rural area, with additional short-term employment associated with construction. These economic benefits are important, and I attach considerable weight to them. However, the weight I can give to wider rural economic development arguments is necessarily tempered by the lack of information about the existing business and the site-specific considerations set out above.

To conclude, I recognise that the development would generate economic benefits through the creation of a new rural business in this location. As set out above, these benefits attract considerable weight. However, I remain concerned about the potential harm to the living conditions of neighbouring occupiers, with regard to noise. This is a significant issue. The resulting impact would lead to a conflict with Policy CP24 of the CS, as well as with the Framework requirement that development should create places with a high standard of amenity for existing users.

In light of this, I find that the social objective of sustainable development would not be met and the scheme would not therefore amount to sustainable development. I attribute substantial weight to this harm. On this basis, I consider that the harm identified, together with the related policy conflict, would outweigh the economic benefits of the proposal.

The harm is such that the scheme would conflict with the development plan, and the material considerations do not indicate a decision other than in accordance with it. Therefore, for the reasons given above, the appeal is dismissed.