Appeal 6001869

The appeal is dismissed.

In support of the appeal, the appellant has submitted an updated noise survey, along with amended plans (proposed site plan, reference 23.3492.100 rev P10, first floor plan, reference 23.3492.102 rev P5 and elevations, reference 23.3492.105 rev P5). These plans show a relocated bedroom window in apartment 6 to the south elevation and a ‘pedestrian route’ along the existing road to the south. [address] [name] (RSA) has also been submitted in relation to the pedestrian route.

In deciding whether it is appropriate to accept this evidence, I have had regard to the Procedural Guide: Planning appeals – England. This states that the appeal process should not be used to evolve a scheme and what is considered by the Inspector at appeal should be essentially the same scheme that was considered by the Council and by interested parties at the application stage. In this instance, these revised plans provide only a minor change to the scheme relating to the position of a window and annotating a pedestrian route. The updated noise report provides clarification. I am therefore satisfied that accepting this material would not prejudice any interested party. I have determined the appeal on this basis.

The main issues are: • whether the proposed development would provide acceptable living conditions for future occupiers, with regard to noise from the nearby public house; and • the effect of the proposed development on highway safety.

The appeal proposal consists of an apartment block which would be positioned on a lawned area beyond a small car park to the rear of [site address] public house (PH). The PH has windows and an entrance leading onto a rear outdoor seating area and car park facing the appeal site.

A Noise Impact Assessment (NIA) has been submitted. The NIA data was collected over busy weekend periods during warm weather, when the PH and the outside seating area were most likely to be in greatest use. The NIA concludes that noise associated with the public house should not have an adverse impact on the occupiers of the proposed development, although it acknowledges that levels are sometimes relatively high. However, the NIA argues that suitable mitigation measures can be implemented. This includes the closing of windows combined with measures such as mechanical ventilation systems to ensure ventilation when windows are closed.

Although the NIA and appellant argue that the use of mechanical ventilation systems and closed windows would provide choice rather than being wholly relied on, there is significant potential for this to be necessary during noisier periods. Therefore, there would be a need for windows to be closed, even if only for a period of time. Whilst the proposal does allow for flexibility for much of the day, where the option fails for these late-night periods, it would constitute unacceptable living conditions for future occupiers.

Even were I to accept the conclusions of the NIA, its findings are reliant on the PH closing at 23:00 Monday to Thursday, 23:30 on Friday, 00:30 on Saturday and 2230 on Sunday. The evidence before me demonstrates that despite the current arrangement at the PH, the existing premises license allows for later night opening (to 00:30 Monday-Thursday, 01:30 Friday-Saturday, and 23:30 Sunday). It also allows for the playing of recorded and live music late into the evening (to 00:00 Monday-Thursday, 01:00 Friday-Saturday, and 23:00 Sunday). There is nothing before me to demonstrate why those licensed hours shouldn’t be implemented at any time.

Accordingly, despite the proposed layout, and the employment of noise mitigation and ventilation measures, amplified noise from the PH still has the potential to reach habitable room windows and balconies. The proposed development would not, therefore, provide satisfactory living conditions for future occupants who would be reliant on closed windows during periods of unacceptably loud noise emitting from the PH.

In making my decision, I have had regard to Policy BE3 of the Warwick District Local Plan (2017) (the Local Plan) which seeks to protect future occupants of development from adverse living conditions. It is clear there will be potential harm from noise and at a loud enough magnitude during the most sensitive hours of the day, when residents might expect to be asleep, to apply serious caution.

Overall, I conclude that the proposed development would fail to provide acceptable living conditions for future occupiers, with regards to noise. As such it conflicts with Policy BE3 of the Local Plan which requires, amongst other matters, for development not to have an unacceptable adverse impact on the amenity of future users.

Even were I to find this matter acceptable, it would not alter my conclusions on the other main issue.

The site is located to the rear of the PH with no direct connection with the public highway. Access is either by foot along an alleyway between the PH and adjacent parade of shops or along a service road (accessed from [address]) running along the rear of the shops.

Whilst there is a single lamppost in the alleyway and a further lamppost in the service road, there is no natural surveillance in either of these spaces. These routes are enclosed by blank walls and garaging, making them both wholly unattractive and potentially unsafe to use throughout the day or after dusk. Furthermore, the access road’s principal function is for deliveries and servicing to the PH and shops along with access to the garage parking and the PH car park. The road is not designed with pedestrians in mind and there is the potential for conflict between people accessing the development by foot, and cars delivery/refuse vehicles manoeuvring within this space.

The appellant has provided a revised layout plan for a proposed segregated pedestrian footway connecting the site to [address]. This proposes a new footpath along the side of the access road adjacent to the garages and would connect with the section of footpath at the junction with [address], thereby linking the site to the public highway. The submitted [name] (RSA) concludes that the design is acceptable, subject to mitigation measures that would ensure the pedestrian footpath is sufficiently clear to motorists. I broadly accept the findings of the RSA. However, it is unclear how this would be secured as it lies outside the application site. In any case, the provision of a dedicated footway would not overcome the harm I have identified in respect of the safety and attractiveness of the routes.

The appellant notes that a ‘Car Park Management Plan/Car Park & Servicing Management Plan’ could ease the conflict between highway users. Whilst this may help manage the conflict between pedestrians and vehicles, my concerns over surveillance, as set out above, would not be alleviated.

In making my decision, I have had regards to paragraph 116 of the National Planning Policy Framework (the Framework) which requires decision makers not to resist development on highway grounds unless there would be an unacceptable impact on highway safety. Paragraph 117 goes on to set out that within this context, development should, along with other requirements to (c) create places that are safe, secure and attractive. To that end, and as described above, this access would not benefit from an attractive or safe environment through its lack of surveillance.

Overall, I conclude that the proposed development would harm highway safety, with particular regard to pedestrians. As such it conflicts with Policy TR1 of the Local Plan which requires, amongst other matters, for development to provide safe, suitable and attractive access routes for pedestrians.

The ownership of the alleyway is not in the appellants control and the Council states that it cannot be relied upon in perpetuity. Whilst the appellant has noted an alternative route along the canal, there is equally no assurance that this route could anymore be relied on in perpetuity to provide access from the tow path.

The site lies within the Canal Conservation Area (the CA). Heritage matters do not form part of the Council’s reason for refusing the proposed development. Nonetheless, in line with section 72(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 (the Act), I have paid special attention to the desirability of preserving or enhancing the character or appearance of the CA.

The special interest and significance of the CA is largely derived from the linear form of the waterway and the associated infrastructure and buildings relating to its function as a historic transport corridor. It contains a number of high-quality open spaces of value of which this site does not significantly contribute to. Bearing in mind the position, nature and extent of the proposal, I consider that it would have a neutral effect on, and would therefore preserve, the character and appearance of the CA as a whole. As such, the proposal would not harm the significance of the designated heritage asset. Nevertheless, the lack of harm in this respect does not weigh for or against the appeal and does not alter my conclusion on the main issue.

The appeal proposal would fail to provide acceptable living conditions for future occupants and would be harmful in respect of pedestrian safety. As such, the proposal would conflict with the development plan as a whole. However, the Council cannot currently demonstrate a five year housing land supply (5YHLS), currently standing at 2.34 years which represents a serious shortfall. The parties agree that in these circumstances paragraph 11d of the Framework is engaged.

Paragraph 11(d)(ii) of the Framework explains that planning permission should be granted unless any adverse impacts of doing so would significantly and demonstratively outweigh the benefits, when assessed against the policies in the Framework when taken as a whole.

The proposal would make a positive contribution to housing supply within the district where the is a serious shortfall. These homes would be within walking distance of services and facilities and would make an efficient use of land. There would also be associated social and economic benefits during the period of construction and once the dwellings were occupied. However, the scale and nature of the development means the benefits, would be reasonably limited. Moreover, the provision of homes is not at the cost of securing well-designed, attractive and healthy places, and in particular providing a high standard of amenity for existing and future users.

Consequently, the adverse impacts of granting permission would significantly and demonstrably outweigh the benefits when assessed against the policies in the Framework taken as a whole. As a result, the presumption in favour of sustainable development does not apply.

For the reasons given above, I conclude that the appeal proposal would conflict with the development plan as a whole and that there are no material considerations that indicate that the development should be determined other than in accordance with it. Therefore, the appeal is dismissed.