Appeal 6001272

The appeal is dismissed.

The appellant initially sought to remove Condition 6 attached to the Original Planning Permission 1. This would have removed any restrictions on the operational and delivery hours for the petrol filling station and shop. Following a response to the planning application by the Environmental Services Officer, the appellant instead sought to amend Condition 6. The proposed amended condition would restrict the delivery of fuel to between 04:00am-23:00pm Monday to Saturday and 07:00am-23:00pm Sunday and [name]; but would not restrict the operation of the petrol filling station and shop, or delivery times to the shop.

The Council considered the proposed amended wording for Condition 6 when determining the planning application. It concluded that the proposal would result in unacceptable levels of noise and disturbance for residents.

Therefore, the main issue of the appeal is whether Condition 6 is reasonable and necessary, having particular regard to the effect of the development on the living conditions of occupiers of nearby properties. 1 Planning Permission Ref. 06/0479/1/PX

The appeal site is located at the junction between [address] and [address]. The area largely comprises of houses set back from the road by a driveway. Some of the houses on the other side of [address] are accessed via a track which is positioned behind a hedge. As such, those houses are further away from the appeal site than houses on [address], and those on the same side of [address].

To facilitate the extended opening hours and delivery times, the forecourt lights would need to be operational for longer periods, including throughout the night. Interested parties have complained about the forecourt lights when they were previously left on overnight and explained this caused disturbance to their sleep. Furthermore, the Council has submitted photographs which show that with the lights on, the forecourt appears as a bright feature.

Despite concerns raised by the Council and interested parties, the appellant has not submitted lighting details or sought to address how potential disturbance caused by extended periods of lighting could be mitigated. Consequently, it has not been demonstrated that the extended operation of the lights would not harm the living conditions of occupiers of nearby properties. Particularly those living on [address] due to a lack of intervening development.

The appellant has submitted a Noise Impact Assessment 2 (NIA). The NIA concludes that, in terms of noise, the potential effect of the extended operational and delivery hours would be low, and below the [name]. Furthermore, a noise rating penalty has been applied to some of the activities assessed to account for perceptible impulsivity. The Council does not dispute the methodology used in the NIA. As such, I conclude that applying the noise rating penalty is appropriate to assess impulsive noise in this instance.

[name] 4142:2014+A1:2019 (BS4142) indicates that the internal specific sound levels should be considered when assessing potential effects during the night, assuming this approach is contextually appropriate. There is no cogent evidence before me that this approach is not appropriate in this instance. Therefore, a departure from this aspect of BS4142 is not justified.

Concerns have been raised about loose drainage grills and a loose metal cover. If the appeal were allowed, a condition could be attached to the planning permission to ensure that all grills and metal covers are suitably fixed and maintained in that condition. This would ensure the noise generated by the extended operation of the site would be minimised. Moreover, concerns have been raised about the effect of tonal noise. However, currently there are no tonal noise sources at the appeal site, and none are proposed.

Due to the expected levels of activity during the night, the noise generated by people talking on the forecourt would be limited. It would have less of an effect on the living conditions of occupiers of nearby properties than the use of the forecourt. As such, the effect of people talking would not be materially harmful. 2 Noise Impact Assessment; Asda, Blaby; [name]. 26515650-01

Despite interested parties’ concern with regard to the extended operation of the appeal site, the NIA indicates that the noise generated by the extended use would not be harmful. The NIA has been carried out in accordance with [name] and produced by a suitably qualified organisation. There is no substantive evidence that the standards applied are unsuitable or that a different approach should be taken. Accordingly, I conclude that the proposal would not have a harmful effect with regard to noise, without the need for mitigation.

Notwithstanding this, it has not been demonstrated that the proposed extended operating and delivery hours of the petrol filling station and shop would not have a harmful effect on the living conditions of occupiers of nearby properties. As such, Condition 6 is both reasonable and necessary. The proposed amended wording of Condition 6 would be contrary to Policy DM1 of the Blaby District Local Plan, Local Plan (Delivery) Development Plan Document, February 2019, and Policy BNP1 of the Blaby Neighbourhood Plan, February 2018. These policies indicate that development proposals will be supported where they provide a satisfactory relationship with nearby uses, amongst other matters. Human Rights Act, [name] on the Rights of the Child, and the

In reaching my decision, I have had regard to the rights of interested parties under Article 8 of the [name] on Human Rights as incorporated into the Human Rights Act 1998. Article 8 affords the right to respect for private and family life and home. I have also had regard to Article 3(1) of the [name] on the Rights of the Child, which specifies that the best interests of the child shall be a primary consideration.

Dismissing the appeal would not alter the current operation of the petrol filling station or shop. Accordingly, my decision would not interfere with the rights of interested parties and would not be contrary to the best interest of a child.

As the protected characteristics of age and/or disability may be relevant to interested parties, I have had due regard to the PSED as set out within the Equality Act 2010. Dismissing the appeal would not be contrary to the 3 aims of the PSED, which are to eliminate discrimination against persons with a protected characteristic(s), advancing equality of opportunity for those persons, and fostering good relations between them and others.

The proposed amendment of Condition 6 conflicts with the development plan, when read as a whole, and the material considerations do not indicate that the appeal should be decided other than in accordance with it. Therefore, the appeal should be dismissed.