Appeal 6001196

The appeal is dismissed.

The main issue is the effect of the proposal on the living conditions of nearby residents with regard to noise and disturbance.

The appeal site consists of a large building set within an extensive plot, with a parking and circulation area to the front and a garden to the rear. It is located in a street primarily of a residential character, although the evidence suggests that there is another care home in the area. There is a primary school to the rear of the site, with a school playground located between the appeal site and school buildings.

The issue of noise and disturbance relates to the use of the rear garden of the appeal site as a playground for the nursery. The nearest noise sensitive receptors are the properties of 17 and [address] located on either side of the appeal site. These properties have a number of windows that would look onto the proposed playground as well as rear gardens which would be adjacent to the playground. There is therefore potential for noise from the proposal to affect the living conditions of occupants of nearby properties, including when windows are open or during the enjoyment of their gardens.

Due to the potential number of children using the play area and the proximity of the site to adjacent properties, there is a realistic possibility that the intensity of use arising from the proposal would lead to levels of noise above that which could be reasonably expected by nearby residents, with significant harm to their living

The appellant has prepared 2 [name] (NIA), with a second (NIA2) being submitted due to concerns about the assessment standard used in the original NIA.

NIA2 has used measurements of the loudest 15 minute period playground activity on a similar site with approximately 30 children playing. Measurements of existing noise levels at the appeal site have identified periods of elevated noise reflecting periods when the adjacent school has break times. The NIA2 concludes that noise from the proposed use would not be dominant when compared to noise experienced due to external activities at the existing school.

In order to minimise the impacts of noise, the appellant has proposed a number of measures including that playtimes should be scheduled to match the breaks of the nearby school and that the appeal proposal should operate during termtime only. They have suggested a number of conditions to this effect, including the submission of a Noise Management Plan.

Based on the evidence before me, the adjacent school has playground breaks lasting for approximately 1 hour per day, with two 15 minute breaks and a 30 minute lunch hour break. However, given the nature of outdoor play associated with the nursery, I do not consider that it would be feasible to organise groups of young children to reflect such a ‘shift pattern’. The appellant refers to up to 50 children attending the nursery at any one time, and the short and intermittent periods of the proposed times of outdoor play would be impractical for this number of young children. These short period of outdoor play would also not provide a suitable level of wellbeing for children in the nursery, particularly during warmer weather, and I am mindful that outdoor play for young children is encouraged in the early year’s foundation stage curriculum. Also, given the possibility of variations in the school break times, this would not be suitably precise and would be difficult for the Council to enforce. My conclusions on this matter reflects those of the Shinh1 Judgment referred to by the Council.

The appellant also proposes that the appeal proposal will only open during the term times of the adjacent school, again so that outdoor play would reflect the activities of the school. However, it is reasonable that a nursery could expect to operate outwith school term times, as the need for nursery accommodation is not linked to the schooling of older children. Although a condition to this effect would be precise and enforceable, I do not consider it would be reasonable due to the effect on the inherent nature of the operation of a nursery. Should there be an application to vary this condition this would be difficult to resist, as the condition would not be relevant to the development permitted or reasonable in all other respects.

It is proposed that the Noise Management Plan would include measures to manage noise levels from children playing outside, including staff supervision. However, even with extensive staff supervision, it would be very difficult to control the impulsive nature of screams or cries which would be likely to result from young children in a playground. Within this context, I am mindful that there is a subjective human response to a child’s scream or crying which can be particularly strident and highly distracting. The potential noise from interactions between staff and children adds to my concerns. 1 Shinh & Anor v [name] of State [2005] EWHC 521 (Admin) (14 March 2005) (f

The appellant proposes the installation of 2m high acoustic barriers and the limitation of play equipment to be no more than 1m high. The Council expresses concern about the enforceability of a condition limiting the height of play equipment, but this would be observable from nearby properties and could be assessed on the basis of a visit to the nursery. However, even play equipment limited to 1m high would reduce the effectiveness of the noise barriers due to the elevated height from children using the equipment.

The Council also expresses concern that the cumulative effects of the proposal would worsen the impact of noise from the adjacent school. In that regard, I am not persuaded that the 15 minute monitoring period used for the source noise levels in NIA is representative of the impulsive and intermittent nature of the noise from young children playing outdoors. The contention of NIA2 that noise emissions from the proposed playground is indicated as having a low impact on adjacent noise sensitive receivers when compared to school playground noise currently experienced would not appear to be suitably robust. On that basis, I conclude that the Council’s concerns on the cumulative impacts of the proposal are well-founded. In any event, this does not address my concerns in respect of the use of the nursery playground outwith the times of use of the school playground.

I therefore conclude that the proposal would lead to significant harm to the living conditions of nearby residents in respect of noise and disturbance arising from the proposed playground, and this matter cannot be addressed by planning conditions. The proposal would therefore be contrary to the amenity requirements of Policy DM02 of the Blackburn with Darwen Local Plan 2021-2037. The proposal would also be contrary to the National Planning Policy Framework with regard to the effect of noise on amenity and living conditions

The appellant refers to the previous use of the site as a care home for up to 6 adults with learning disabilities. In that respect, the activity associated with the permitted use of the property could exceed that associated with a typical dwelling. However, although the proposal would operate over a more limited time period than the care home, I do not consider that activities associated with the care home would be of a similar intensity or with associated levels of noise and disturbance that would arise from the proposed nursery, particularly in respect of noise from the rear garden.

The appellant also states that the proposal is intended to provide for early learning with a specific focus towards Islamic and cultural identity and lifestyle. In considering this appeal I have had due regard to the Public Sector Equality Duty contained in the Equality Act 2010 which sets out relevant protected characteristics. However, the circumstances of the proposal and the proposed focus of the form of early learning do not outweigh the significant harm that I have identified. Following careful consideration of these particular matters I am satisfied that the impact of dismissing this appeal is proportionate and justified.

The proposal is in an accessible location and would provide a service for the community, and the appellant emphasises that locations elsewhere such as on main roads raise other issues including safety, parking and pollution. However, whilst it is not desirable to locate nurseries remotely from the areas they serve, they should be located and designed so that they do not harm the living conditions of nearby residents. The benefits arising from the proposal do not outweigh the harm that I have identified.

For the reasons given above the appeal should be dismissed.