Appeal 6001711

The appeal is dismissed.

I have taken the site address from the Council’s Decision Notice as this accurately and concisely identifies the location of the proposed development.

The original application form sought the variation of condition 4 to allow up to 50 dogs to be on site at any one time. During the course of the Council’s consideration of the planning application, this was amended to 30 dogs. The Council confirms that this change was the subject of further consultation, so I am satisfied that my consideration of the proposal on the same basis, an increase to 30 dogs, would not be prejudicial to any parties.

I am advised that the appellant holds a licence under the Animal Welfare Regulations for up to 25 dogs to be on site at any one time. However, the original planning permission1 restricted the number to 20. There is no evidence before me to suggest that in planning terms, up to 25 dogs on site at any one time is lawful. Therefore, I have considered any uplift over and above the number of 20 dogs permitted by the original planning permission. 1 3/2018/1054

While the reason given for the imposition of condition 4 on the original planning permission was to clarify the nature of the consent and to protect residential amenity, the Council’s refusal reasons relate to both highway and pedestrian safety, as well as the impact on residential amenity, with regards to noise. Consequently, the main issues in this appeal are the effect that varying condition 4 in the manner proposed would have on (a) vehicular and pedestrian safety, and (b) the living conditions of occupiers of nearby residential properties, with particular regard to noise.

The appeal site connects to the adopted highway via a long, unlit, private track, which is relatively narrow, albeit the width varies. The track appears to provide access to farmland, a small number of residential properties at its eastern extent, the wastewater treatment works, and the appeal site. A public right of way also runs along this track (FP0345020).

The plans provided with the proposal indicate that the road width is 3.2m for much of its length. This width would not allow two vehicles to pass. While photographs have been provided indicating that vegetation can be cut back to afford a 6m width, this greater width appears to include the grassed verges to either side, and not the hard surfaced width of the track itself. The plans also indicate a number of passing points, where it is suggested that the track width is 5.5m. However, from the available evidence and my own observations, these areas did not appear to be formally laid out passing places, but areas of uneven and unmade surfacing.

The appellant indicates that measures have already been taken to make the track safer, including repairing potholes, improved surface drainage and maintenance of passing places. I also note the addition of some safety signage. However, at my site visit, I observed that whilst the hard surfaced track was generally in good repair, there were areas of deterioration with numerous potholes. Further, there was evidence of vehicles using the verges and the informal passing places, to pass. These informal passing arrangements were resulting in deterioration of the track and verges, with extensive churning of mud, pooling of water and uneven surfacing. As such, while I note the appellant’s efforts to improve the track, there remains evidence of damage and deterioration from its existing level of use.

The appellant indicates that the present use of the appeal site, which relates to the operation under the licence for up to 25 dogs, results in 25 vehicles visiting the site daily, and that the lane is already subject to heavy vehicular traffic associated with the operation of the wastewater treatment works and farm activities. The appellant suggests that the uplift of vehicle movements associated with 5 additional dogs over and above the licence, could be managed through a dedicated dog van service, resulting in only two additional vehicle movements overall.

However, representations from interested parties challenge the extent to which the lane is heavily trafficked by farm vehicles or the operator of the sewage works. I have not been provided with any substantive evidence demonstrating the frequency/intensity of vehicular activity along the track associated with its various users, and so the extent to which the appeal business may or may not contribute to surface wear of the track is unclear. Therefore, I cannot conclude from the available evidence that the appeal business is not contributing significantly to surface wear to the track and verges, even if drop off and pick up are confined to specific periods of the day.

[name] note the commitment to a dedicated dog van service for the uplift in vehicle movements, over and above the existing use, it would appear from the submissions that this would relate to the increase over the current licence and not the current planning permission. Therefore, the vehicle movements associated with the 5 dogs that are presently accommodated on site, albeit exceeding that permitted by condition 4, would appear likely to continue by private car.

When granting planning permission under section 73 of the Act, it is possible to add new conditions provided that they do not materially alter the development that was subject to the original permission and they are conditions that could have been imposed on that original permission. However, such conditions must meet the tests of the National Planning Policy Framework (the Framework). The appellant suggests that operational arrangements are routinely controlled through planning conditions and that this would be workable mitigation. However, a detailed and precise mechanism to secure an operational dog van service has not been presented to me as part of this appeal. In its absence, I share the Council’s concern as to whether such a condition would be practically enforceable.

Going forward, the appellant indicates a commitment to modest surfacing improvements along the private lane, including the cutting back of vegetation, pot-hole repairs, measures to prevent water pooling and surface improvements such as topping with stone or planings. However, having seen the present condition of the track, I am not convinced that these modest repairs would address the extent of deterioration, particularly that resulting from the use of informal passing places. Nor can I be certain that the suggested maintenance measures, or more substantial ones, could be secured, given that the lane is not within the ownership of the appellant.

I am referred to a number of other vehicle management measures that the appellant has in place, however, many of these relate to car parking arrangements rather than vehicle movements, so they do not address the above concerns.

Drawing all of these points together, while the appellant has a right of access over the private track, the intensity of the use by vehicles associated with the appeal business is limited by the restriction to 20 dogs, imposed by condition 4. Both the Highway Authority and the Council’s Public Right of [name] raise concerns with the condition of the track resulting from its present level of use, and I was able to see the condition of the track for myself.

While the Highway Authority and Public Right of [name] may have withdrawn their objections based on the appellant’s submissions, I am not convinced that the measures suggested by the appellant would be satisfactory in terms of minimising any increase in vehicle movements resulting from the proposed change in dog numbers, or in addressing the condition of the lane going forward. Consequently, I am unable to conclude that there would not be an intensified use of this narrow and unlit track, which would lead to further deterioration of it, which would be detrimental to the safety of all users.

Consequently, varying condition 4 in the manner proposed would be harmful to vehicular and pedestrian safety. The proposal would conflict with policies DMG1 and DMB5 of the [name] 2008 – 2028 A Local Plan for Ribble Valley, [name] 2014 (LP), which collectively and amongst other matters, require safe access which is suitable to accommodate the scale and type of traffic likely to be generated, and the protection and enhancement of public rights of way.

The appeal premises has planning permission to be used as an exercise/play area for up to 20 dogs between the hours of 8am and 6pm on any day, and this lawful use will bring with it a degree of noise and disturbance. Nevertheless, an increase in the number of dogs kept at the site has the potential to result in further noise and disturbance impacts, while the Council and interested parties also raise noise from additional traffic movements.

The appeal site lies adjacent to the river Calder and close to the A59, both of which influence the existing noise environment. However, the existing business at the appeal site will generate a different type of noise, which could intensify with an increase in the number of dogs on site. The Council indicates that the appeal site lies 380m from the nearest residential property. While this is not an insubstantial distance, distance is only one of a number of factors that can influence the transmission of noise.

The Council’s Environmental Health Section indicates that it has received 5 complaints regarding the appeal business since it began operating, albeit the appellant indicates that no enforcement action has been undertaken or statutory nuisance identified. However, no detailed information from either of the main parties has been provided in relation to these complaints, and so it is unclear whether they are resolved, or ongoing.

Nevertheless, the proposal to vary condition 4 has generated a not insubstantial number of representations by the public at the application and appeal stage, which raise concerns with the level of noise caused by dog barking at the appeal premises presently, as well as the likelihood for this to increase. Only some of these representations related to the original proposal to increase the number of dogs on site to 50, while many also related to the amended proposal for 30. In the circumstances, I do not find the Council’s request for a noise impact assessment (NIA) for the increase in dogs kept at the site to be an unreasonable one.

Instead, the appellant has provided a noise management plan (NMP). This refers to the permitted operating hours and notes that dogs are not allowed outdoors in the early morning or late evening. It indicates that fully trained staff supervise the dogs at all times, in small groups, that creates a stress-free environment which reduces barking. It refers to a number of physical mitigation measures, including two indoor areas which are soundproofed, screening to the perimeter which acts as an acoustic barrier, and obstructs external activity which might trigger barking, and trees to the perimeter, which contribute to noise reduction. It identifies behavioural monitoring and a complaints procedure, including investigation and review of practices where appropriate.

However, the NMP does not serve the same purpose as a NIA. It does not provide reliable information relating to likely noise generation from the varied proposal, in comparison to that generated from the existing lawful use. Further, while the NMP refers to potential noise attenuation measures, such as screening and tree planting, the extent of any noise reduction achievable by these measures is not clearly demonstrated through any robust assessment. I appreciate the scale of the existing operation and the proposed increase, however, the requirement for a NIA need only be proportionate to the proposal. Without reliable information relating to noise generation and mitigation, I am unable to conclude that the number of dogs on site could be increased, without adversely impacting on the living conditions of occupiers of nearby residential properties by way of noise and disturbance.

Consequently, the proposal would harm the living conditions of occupiers of neighbouring properties, with regard to noise and disturbance. There would be conflict with LP policy DMG1, which requires that development does not adversely impact the amenities of the surrounding area.

Interested parties have raised a number of other concerns, including loss of agricultural land, landscape impact, flood risk, lack of proper facilities for employees, and the disposal of waste. However, these are matters which the Council would have considered when granting the original planning permission. As this appeal relates only to the number of dogs that can be on site at any one time, it is not necessary for me to re-visit these other matters.

Interested parties also question whether the appeal site is operating in accordance with the original permission, both in terms of its use and operating hours. This would be a matter for the Council to investigate under its powers of planning enforcement.

For the reasons set out above, varying condition 4 in the manner proposed would be harmful to vehicular and pedestrian safety, and the living conditions of occupiers of nearby residential properties, with particular regard to noise. There would be conflict with the development plan when taken as a whole, and there are no material considerations of sufficient weight to indicate that a decision should be made other than in accordance with the development plan. Consequently, the appeal should be dismissed.