Appeal 6001615

The appeal is dismissed.

Schedule 2, Part 3, Class MA of the Town and Country Planning (General Permitted Development) (England) Order 2015 (as amended) (GPDO) permits development consisting of a change of use of a building and any land within its curtilage from a use falling within Class E (commercial, business and service) to a use falling within Class C3 (dwellinghouses). The Council indicate that the proposal would qualify as permitted development under [name].1 (1). Based on the evidence before me, I see no reason to disagree. Development within Class MA is permitted subject to the condition that before beginning development the developer must apply to the local planning authority for a determination as to whether prior approval will be required as to a range of issues, including the impacts of noise from commercial premises on the intended occupiers of the development.

The main issue is whether prior approval should be granted, regarding the impacts of noise from commercial premises on the intended occupiers of the development.

The appeal property is located on a section of [address] which has a predominantly commercial character. It is attached to a hot food takeaway and on the opposite side of the road are two public houses. The proximity of the proposed residential units to these commercial uses creates a sensitive relationship, particularly during the evening and night time.

Residential uses on a commercial high-street such as the appeal site location are not unusual and there is no evidence that noise generated by the premises in the surrounding area have resulted in complaints, yet there is a specific requirement under Class MA to assess whether the proposed residential use would be compatible with nearby commercial activities. Even though the appeal property is a solid building with thick walls, in the absence of any specific evidence to objectively establish the background noise levels, it is not clear whether an acceptable standard of living conditions for the future occupiers would be secured.

Noise and disturbance arising from customers milling about outside the front of the takeaway and public houses, or on their way to or from them, would be likely to be directly audible from the primary elevation windows of the proposed flats. This would be particularly noticeable at night time when occupiers would expect a reasonable level of peace and quiet. Noise can have significant effects on quality of life and so it is important to have sufficient quantity and detail of information about the underlying sound present in the appeal site location to draw robust conclusions as to whether acceptable living conditions would be achieved.

While reference has been made to a separate application that has been approved for external works at the appeal property, including windows, without an understanding of the existing background noise, it is unknown whether the approved works would ensure that noise levels inside the appeal property would be acceptable to the future occupiers or if mitigation is required. I note that the Council’s Environmental Protection Officer raised an objection on this basis.

Measures exist under different regulatory regimes and legislation to control noise, however I am mindful of the agent of change principle whereby developers should mitigate noise impacts from existing nearby commercial uses rather than placing unreasonable restrictions on the existing businesses. The proposal would be built out to conform to the relevant building regulations standards, however this would not include any mitigation measures if they were required. Moreover, this is not a matter that can be left to a condition which would be imprecise as the extent of any mitigation is unknown without specific evidence on noise levels. In any event, Class MA does not permit external alterations to the building.

Overall, I conclude that the proposed development would fail to meet the criteria set out at paragraph MA.2. (2) (d) under Class MA of Part 3 to Schedule 2 of the GPDO with respect to impacts of noise from commercial premises on the intended occupiers of the development.

The viability or otherwise of the appeal property having a long-term commercial occupant is not a prior approval matter for Class MA. Similarly, while there is significant support for boosting the supply of houses, whether there is a need for the proposed housing falls outside of the remit of this appeal.

For the reasons given above, I conclude that the appeal should be dismissed.