Appeal 6002140

The appeal is allowed and planning permission is granted for the erection of a McDonalds drive-thru restaurant, including access, car parking and landscaping at [site address] , [site address] , [name], Swindon, [postcode] in accordance with the application [name]/25/0127/JP, without compliance with condition number 3 previously imposed on planning permission [name]/14/0023/TB dated 13 March 2014 and subject to the following conditions:

Incoming deliveries shall be taken at the site only between 0600-2300 on Mondays to Saturdays and 0800-2200 on Sundays.

Collection of refuse from the site shall only take place between of 0700-2200 on any day.

The in-store restaurant shall only be open for customers between 0600-2300 on Mondays to Saturdays and 0600-2200 on Sundays and [name].

Prior to the first opening of the premises outside of 0600-2300 on Mondays to Saturdays and 0600-2200 on Sundays and [name], a Site Management Plan and a Premises Noise Management Plan shall be submitted to and approved in writing by the Local Planning Authority. The plans shall be implemented as approved thereafter.

The use of the premises outside of 0600-2300 on Mondays to Saturdays and 0600-2200 on Sundays and [name] shall cease within 7 days of the date of failure to meet any one of the requirements set out in i) to iv) below: i) Within 1 month of the first use of the premises outside of 0600-2300 on Mondays to Saturdays and 0600-2200 on Sundays and [name] an updated BS 4142 type noise impact assessment which assesses plant noise arising from the development hereby permitted and shall include an assessment of peak times and weekends shall have been submitted for the written approval of the local planning authority. Where the assessment identifies that the rating level of any noise source exceeds 5dB below the background level (LA90), as determined by a BS 4142:2014 assessment, then a scheme of noise mitigation to achieve this shall be submitted with the assessment in writing along with a timetable for its implementation. ii) If within 3 months of the first use of the premises outside of 0600-2300 on Mondays to Saturdays and 0600-2200 on Sundays and [name] the local planning authority refuse to approve the scheme or fail to give a decision within the prescribed period, an appeal shall have been made to, and accepted as validly made by, the Secretary of State. iii) If an appeal is made in pursuance of ii) above, that appeal shall have been finally determined and the submitted scheme of noise mitigation shall have been approved by the Secretary of State. iv) The approved scheme of noise mitigation shall have been carried out and completed in accordance with the approved timetable. Upon implementation of the approved scheme specified in this condition, that scheme of noise mitigation shall thereafter be maintained. In the event of a legal challenge to this decision, or to a decision made pursuant to the procedure set out in this condition, the operation of the time limits specified in this condition will be suspended until that legal challenge has been finally determined

No goods, plant, machinery or materials shall be deposited or stored, or articles displayed, or processes undertaken, outside the building on the site unless part of the agreed Site Management Plan and Premises Noise Management Plan.

While several previous applications have been referred to in the evidence, the appellant has clarified that the appeal scheme relates to condition 3 of the S/14/0023/TB. This was also used in the description of development and notification of the application and appeal.

The main issue is the effect that varying the opening hours would have on the living conditions of nearby residents with regard to noise and disturbance.

The appeal site is at the end of the shopping centre nearest the properties along [address]. The route of the drive-thru takes customers around this end of the building. While large parts of the wider car park have barriers at night, the route to and passed the appeal site, and petrol station is not restricted. Nevertheless, there is some distance between the building and drive-thru and the closest properties. Moreover, there is a fence at the boundary of the site and vegetation between the appeal site and the rear elevation of the properties.

I visited the site during a midweek afternoon and again in the evening, before and after the barriers at the wider car park were lowered. There was still a relatively steady use of the drive-thru approaching the current closing time, including the Customer Order Display (COD) Unit system and some customers remained in the car park after being served.

Notwithstanding this, when standing at the edge of the shopping centre, by the vegetation barrier, I heard little noise from the comings and goings at the restaurant, including the drive-thru. Noise from the main road outside of the shopping centre was more prevalent and louder. This is only a snapshot in time, and the level of use and behaviour of customers may be different at other times of day, week and year.

However, the Council have stated that there is no record of complaints made to Environmental Health or Planning Enforcement Teams about the use of the appeal site. No detailed evidence of police reports and incidents have been provided. No clear case has been made as to why the extended hours would lead to anti-social behaviour at the site given this context. Existing cameras in the car park would further discourage anti-social behaviour.

Furthermore, it is likely that the level of use would be lower during the extended opening times given they are overnight. Controls such as the COD volume would assist in keeping noise levels low. The parking areas for the nearest properties at [address] is to the rear between the properties and the appeal site. As such, there is already potential for some noise and disturbance from the use of that area at any time of day or night.

The entrance for delivery drivers is also to the far end of the appeal building from the residential properties. Moreover, the larger area of car parking not closed off by barriers is beyond the restaurant, further from the properties. This would provide sufficient separation to prevent significant disturbance being experienced at those closest properties. As such, it would not be necessary to prevent use of this area of the car park. Furthermore, I saw that there are time limit controls on the use of the car park and there is no compelling case that this would be changed.

A noise assessment was provided which indicated that noise from cars using the restaurant and surrounding car park overnight would have a negligible impact on the closest occupiers and have [name]. There is no detailed evidence or surveys to demonstrate otherwise. Deliveries to the site would still be restricted as previously by condition.

There would be some noise and disturbance from the additional movements and activity at the site from the extended opening. Nonetheless, there are measures proposed in the PNMP1 and SMP2 that would assist in reducing noise and disturbance. In their current form, these documents lack precision to enable them 1 Premises Noise Management Plan 2 Site Management Plan to be appropriately implemented and, if needed, enforced against if not complied with. Therefore, a condition is imposed requiring the submission of final management plans. This would cover measures such as the precise level of the COD, movement of bins, location of collections, parking controls and other security related measures to reduce the risk of anti-social behaviour.

Mitigation has been put forward to control noise from the plant. It was not clear if this has already been implemented from my visit and how it is currently operating and would when the extended hours begin, so a condition requiring a noise assessment and possibly mitigation measures is imposed. This is to ensure that if required, the mitigation measures are submitted, approved and implemented so as to make the development acceptable in planning terms.

The petrol station is said to operate 24 hours already at this end of the shopping centre, so vehicles are already able to use the access road at any time. The effects of vehicle lights using the drive-thru and car park would partly be screened by the intervening vegetation, the existing fence and the building itself. The evidence also suggests a limited number of users at the extended hours. No compelling evidence of existing issues with smells or light from signs at the appeal site has been provided. Signage is not covered by this application. Therefore, as the appeal only relates to extended opening hours, I see no reason why the effects of these would become unacceptable.

Consequently, varying the opening hours would not have an unacceptable effect on the living conditions of the nearby residents with regard to noise and disturbance. The proposal would accord with the amenity protection aims of Policy DE1 and EN7 of the Swindon Borough Local Plan 2026.

That there are other 24-hour premises in the area does not mean that similar arrangements should be resisted at the appeal site. I have found the scheme would not cause unacceptable effects on the living conditions of nearby occupiers. As such, there is no need to weigh the benefits of the scheme and no policy requirement to demonstrate need for the additional hours has been put forward. I do not have full details of the other appeal schemes referred to. However, as they relate to different locations, their context would be different and therefore they would not be directly comparable to the appeal before me.

Conditions relating to deliveries, management plans, opening hours and refuse collection are imposed to prevent unacceptable effects on living conditions of nearby occupiers. To protect the character and appearance of the area a condition regarding outside storage and display is imposed.

Conditions restricting hours of certain activities clearly specify what is restricted and when. Therefore, it is not necessary to include reference to what is not restricted.

The condition relating to a noise assessment is necessary to ensure that works have been carried out correctly and plant is operating satisfactorily. There is a strict timetable for compliance because the permission will need to be implemented for the assessment to be carried out. The condition will ensure that the development can be enforced against if the required details are not submitted for approval within the period given by the condition, or if the details are not approved by the local planning authority or the Secretary of State on appeal, or if the details are approved but not implemented in accordance with an approved timetable.

The proposal would accord with the development plan. For the reasons given above I conclude that the appeal should succeed. A new planning permission is granted with the conditions that are relevant and necessary.