Appeal 6002432

The appeal is dismissed.

[name] was granted in 2019 to convert a shop to a restaurant/cafe1, subject to several conditions. Amongst these, the use is restricted to an ice cream parlour and/or coffee shop, its opening hours are between 10:00 and 18:00, and the external area cannot be used for eating and drinking. The use has been in operation since June 2021. The appellant now seeks the extension of the opening hours up to 20:00, and the use of the external area to the front of the building for customers to eat and drink.

The main issue is whether the disputed conditions are reasonable and necessary to safeguard the living conditions of the occupiers of surrounding residential properties, with regard to noise and disturbance.

The appeal site is within a predominantly residential area. It is a terraced building, such that it shares adjoining walls with residential dwellings, no’s 21 and [address] 1 COMX/[address]. The business occupies the ground floor of the building. Its shopfront, customer entrance and front external area are in close proximity to the ground floor windows of the two adjoining dwellings. One of the two adjoining dwellings sits between the appeal premises and a convenience store. Opposite the site is a park with play area and nearby is a public house with external seating.

Based on the evidence before me, the noise generating activities associated with the current operation at the appeal site, includes customers coming and going, potentially standing and talking nearby on the pavement, and noise from operating machinery. The effect of the proposal would be that these activities could take place into the evening, and customers could linger within the external area to consume the produce.

The evening hours would be at a time when the adjoining residents are likely to be at home. The occupants would be carrying out household and leisure activities within their homes, for example reading or watching television. They would, therefore, have a reasonable expectation of relief from noise and disturbance. I am told that the noises, potentially from the coffee machine, are an abrupt, repetitious noise that is transmitted through the adjoining walls, and there is nothing before me to dispute this, even though one neighbour has not raised a concern. The experience of this noise would be more of a disruption during the proposed evening hours and would harm the neighbouring occupiers’ living conditions for this reason.

The appellant intends that the extended opening hours would be seasonal and occasional. However, there are no details before me to identify when such later opening would take place. Consequently, there is no certainty that there would be relief from the noise and disturbance. The premises may utilise extended opening hours, for example, throughout a lengthy summer period. Moreover, there is nothing before me to indicate that the appellant residing at [address].

I have considered whether mitigation measures could be imposed through the use of planning conditions. However, and being mindful that acoustic installation is already in place, without more detailed information relating to baseline and predicted noise levels, the effectiveness and suitability of any measures cannot be assessed.

The convenience store and public house have later opening hours. During my site visit, I observed the area to be relatively quiet. However it is apparent that during warmer weather and lighter evenings, there would be a greater degree of external activity in the vicinity, as people are likely to stay outside in the area and make use of these local facilities into the evening. The proposal would sit comfortably within this wider context and would not result in noise and disturbance to local residents, living further afield than the adjoining neighbouring occupiers that I have identified.

The proposed use of the external area, regardless of whether customers are sitting or standing, would allow customers to stay on site for longer, to consume produce on the premises. This would be within a confined external space, such that prolonged conversations and more unpredictable noise such as laughter and shouting, would take place in very close proximity to the ground floor windows of the adjoining dwellings on a regular basis. Loss of privacy could be prevented through screening. However, it is likely that the adjoining residents would be compelled to keep their ground floor windows closed to avoid disturbance to their own activities within their home, thus harming the quiet enjoyment of their living environment, particularly during warmer months. This would be regardless of the fact that no alcohol would be served or music played. Whilst customers may already pause outside of the shop, this is a transient activity and is not directly comparable to staying on the premises.

The public house has external seating; however this is a long established use, and I observed during my site visit that there is a greater degree of separation between the seating and windows in adjoining neighbouring dwellings. As such this is not directly comparable.

The business has been operational for more than 4 1⁄2 years. I am mindful of the appellant’s stance, and that of interested parties, that it has operated with no complaints during that period, and that customers are well-behaved. Moreover, the Council’s Environmental Health consultee did not object to the proposed extended opening hours. Nevertheless, this does not persuade me that extending the opening hours and allowing customers to eat and drink on the premises, would not result in harm to the living conditions of the neighbouring occupiers.

Accordingly, and in the absence of evidence to indicate otherwise, I conclude that the conditions remain reasonable and necessary to safeguard the living conditions of neighbouring occupiers with regard to noise and disturbance. Without this control, there is a risk that the development would result in conflict with Policies WD10 and WD23 of the Wirral Local Plan. Amongst other things, the policies require proposals to be harmonious with neighbouring uses, to adequately address issues such as unacceptable noise and disturbance, and to incorporate adequate noise insulation and attenuation where appropriate.

There would be local economic benefits from the proposal, the seating would assist customers with impaired mobility and evening opening would allow a greater range of customers to use the shop. However, this does not outweigh the specific harm that would be caused to the living conditions of the neighbouring occupiers.

An interested party refers to anti-social behaviour incidents at the convenience store, stating that an additional shop with later opening would lend support. However, this is not supported with evidence, which limits the weight I attribute to this assertion.

There are no highway safety concerns. However this is not a factor that weighs in favour of allowing the appeal.

For the reasons given above, I conclude that the conditions remain reasonable and necessary. I find that the proposal would be contrary to the development read as a whole, and there are no material considerations to outweigh that conflict. I therefore conclude that the appeal should be dismissed.