Appeal 6002454

The appeal is dismissed.

The Council failed to respond to the appellant’s case. In the absence of a statement, I have assessed the appeal with reference to the Council’s officer report.

The application is for a temporary change of use, or ‘meanwhile’ use, whilst awaiting further progression of an approved office scheme. The appellant has however confirmed that some unauthorised use of the building for the proposed purpose has already occurred, and this is also described within some of the appeal submissions. Notwithstanding both this and the description of development, if the appeal was allowed the duration of the permission would be time limited by a condition running from the date of approval.

How this would align with similar time limits imposed on the separately approved and partly implemented works required to enable the proposed change of use is unclear. So too is the reason for those works having been presented within a separate application. This lack of coordination raises some uncertainty over whether, if allowed, the proposed temporary use could fully operate over the two-year period in question.

In response to broader Council concern that a two-year period would be ‘excessive’, the appellant has otherwise indicated a willingness to consider any approval being time limited to one year rather than two. I have therefore taken this into account in my assessment below.

The main issues are: • whether the proposed use could be operated safely in relation to fire risk; • whether the proposed use would preserve a [name] listed building; • the effects of the proposed use on the living conditions of occupants of adjacent dwellings, and on users of [address] in relation to noise and disturbance; • the effects of the proposed use on the highway network; and • whether the use could operate with inclusive access.

The appellant’s fire safety report outlines a number of measures required prior to commencement of the proposed use of the building. They include the installation of a fire alarm system, emergency lighting and signage. However, no detailed scheme is set out. Given the date of the report and the absence of accompanying plans, it is unclear whether the report is fully up to date.

Fire safety requirements are separately covered by the Building Regulations. But whilst there may be no need for them to be addressed in detail within a planning application, the building in question is [name] listed. Even if using old screw holes, fixtures to a listed building can have a considerable impact on its character. As such I share the Council’s view that the measures outlined appear likely to require listed building consent. Given that no related application for, or approval of listed building consent is before me, the acceptability of the required works is unknown. Nor is it for me to speculate whether an application for listed building consent would be granted if made. Whether the proposed use of the building could operate safely in relation to fire risk therefore has yet to be demonstrated.

The Council has also raised concern over the use of a narrow flight of steps to exit the building into the yard off [site address] . In response, the appellant has provided a photo of a wider temporary staircase already installed. Planning permission has been separately granted for such a staircase. However, the staircase I observed during my visit was of a quite different design, incorporating a ramp. Alongside my findings above, a lack of clarity over the status of the staircase currently on site adds further uncertainty.

For the reasons outlined above I conclude that it remains to be demonstrated whether the proposed use could operate safely in relation to fire risk. It would therefore conflict with Policy D12 of the London Plan 2021 (the LP) which requires that all development proposals must achieve the highest standards of fire safety.

The listed building did not form an independent subject of any of the Council’s reasons for refusal. It is however a matter directly intertwined with that of fire safety, and one that I am otherwise required to consider.

Though the decision notice identified the need for listed building consent, the Council’s officer report concluded that the proposed change of use would have ‘no impact’ in heritage terms given the absence of operational development. The duty to have special regard to the desirability of preserving the building or its setting or any features of special architectural or historic interest which it possesses however applies generally when considering whether to grant planning permission. In this regard, the way in which a building is used can have impacts on significance and the ability to appreciate it. Consequential effects in terms of works required to enable a change of use to occur and to operate successfully are also relevant within this context even if they are subject of separate consent regimes.

Insofar as it is relevant to this appeal, the special interest and significance of the listed building reside in its midC19th date, architectural design, historic function, and its relationship with the contemporary and separately listed [address] and [name].

Given that the proposed use would see the building function as a place within which people would gather for events, it would share something in common with the historic use of the building. This would allow continued appreciation of its significance even if the character of the events themselves differed from that of collective worship. The proposal would also keep the building in active use whilst awaiting implementation of the previously approved office scheme. Though it is possible that the proposed use of the building might result in wear and tear, it might equally see it maintained, helping to avoid the risks associated with it standing empty. In the above regards the proposed use appears acceptable in principle.

The overall acceptability of the proposed use nonetheless remains incapable of proper assessment. Though some of the works required to enable the proposed use to operate have already been approved, as discussed above, the specific details, impacts and acceptability of measures required to secure the fire safety of the venue are unknown.

For the reasons set out above, given that the evidence before me is insufficient to allow me to fully discharge my statutory duty in respect of the listed building, I cannot conclude that it would be preserved.

The site is located within the [name] (CAZ) of London. This is a vibrant part of the city within which Policy SD4 of the LP indicates that cultural, arts, entertainment, nighttime economy and tourism functions should be promoted and enhanced. Given the historic value of the building, and fact that it was built to provide a place where people could regularly congregate, both it and the proposal appear to present good opportunities to realise the objective set out within Policy SD4, even if on a temporary basis.

Insofar as the CAZ contains residential accommodation, it cannot be expected that life within such an area will be entirely free from noise or disturbance, including at night. The same holds true of public open spaces within the area, including [address]. Though the site is not on a main thoroughfare, [site address] already hosts businesses which operate during the day and into the evening.

Within this context the proposed hours of operation do not appear unreasonable, with the use to cease at the latest by 23:30 on Fridays and Saturdays and either at 22:00 or 22:30 on other days. Notwithstanding the additional time likely to be taken for patrons to disperse upon closure of the venue, the hours proposed would avoid any significant potential for sleep disturbance of local residents.

Though objections make reference to noise generated by unauthorised events, the unauthorised nature of such events meant that they occurred in the absence of full and proper regulation and management. They do not therefore provide a particularly useful guide to the noise impacts likely to be generated if a change of use was authorised subject to restrictive conditions that were then properly enforced.

Clearly, large numbers of people arriving, departing and queuing would generate noise. Similar would also have been true when the building functioned as a church. Unlike then however, it cannot be safely assumed that interactions between those involved would be at normal conversational level, particularly if patrons had been drinking. For similar reasons it cannot be assumed that queue management and dispersal would necessarily be straightforward. In these regards some of the assumptions underpinning the appellant’s noise impact assessment appear overly optimistic.

As the main entry, exit and assembly point would be in the yard off [site address] , noise generated could potentially cause some disturbance to occupants of adjacent dwellings, and particularly those which back on to the church. Arrivals and departures would however occupy relatively short periods of time. The size of events would furthermore be generally restricted to 220 persons at most, with only 12 events per annum allowed to host 400. Set within the context of the proposed hours of operation, even if noise levels exceeded those modelled, it appears unlikely that they would reach the threshold of unacceptability.

The Council has raised additional concern that installation of a separately approved glazed link required to help contain noise generated by movement between the church and the outside toilets could not be secured as part of this application. However, I have little reason to believe that the link would not be installed. Indeed, if a condition was imposed requiring the use to operate in line with the noise impact assessment, the use could not operate in the absence of the link. This is similarly true in relation to proposed queue management measures which could not be implemented in the absence of the separately approved staircase.

The Council’s officer report accepts that conditions could be used to address vibration, bottle emptying and to require the use of a sound limiter to prevent internal noise from causing a statutory nuisance. I see no reason to take a different view. Though avoidance of a statutory nuisance would not mean that noise generated by the use was necessarily ‘imperceptible’, it would remove grounds for valid complaint. The simple ability to hear activities associated with the proposed use would not otherwise be unacceptable.

Interested parties have presented a number of criticisms of the appellant’s noise impact assessment. I have also offered criticism above. However, it remains the only expert assessment with which I have been presented, and its overall findings attract weight accordingly.

Interested parties have also raised concern that noise generated by the proposed use would have an adverse effect on occupants of adjacent dwellings who are neurodivergent, and whose bedrooms face towards the church. The specific concern in this regard is noise sensitivity. With reference to the Public Sector Equality Duty (PSED) contained in the Equality Act 2010 (EA 2010), I have had due regard under Section 149 of the EA 2010 of the requirement to take steps to meet the needs of persons who share a protected characteristic. As established above, the baseline in this case is the vibrant part of the city within which the site is located, and which is already subject of noise during both the day and night. I have also established that subject to restriction and proper management, operation of the proposed use during the hours proposed would not result in any significant potential for sleep disturbance. The additional noise generated by the proposed use might nonetheless remain more noticeable to persons who are noise sensitive than to persons who are not. However, I am satisfied that my findings indicate that the proposed use would not give rise to any unacceptable impact on persons who share a protected characteristic.

Representations were also made to the effect that the rights of nearby residents under Article 8 as set out in the Human Rights Act 1998 would be violated by noise generated by the proposed use. Again, my findings above indicate that the proposed use would not cause unacceptable harm to living conditions. Were the appeal to be allowed this would not unacceptably interfere with the right of the residents in question to a private and family life and home, and this would therefore be proportionate.

For the reasons outlined above, having due regard under Section 149 of the EA 2010, I conclude that noise and disturbance generated by the proposed use would not have an unacceptable effect on the living conditions of occupants of adjacent dwellings or users of [address]. No conflict would therefore arise with Policy LP2 of the Hackney Local Plan 2020 (the HLP) which, in relation to amenity, states that new development must be appropriate to its location; Policy LP38 of the HLP which amongst other things requires no negative impact on the amenity of adjacent residential accommodation as a result of noise disturbance; Policy LP58 of the HLP which requires demonstration that noise generated by a development will be effectively mitigated to prevent adverse impacts; and Policy D14 of the LP which seeks avoidance of significant adverse noise impacts on health.

The decision notice is vague in its reference to ‘unacceptable impacts on the local highways network’. Though multiple policies are also cited, there is no explanation of their relevance within the officer report. Insofar as the latter otherwise identifies a range of highway related concerns, I shall consider those below.

Insofar as the ability of a vehicle to turn within the yard off [site address] has been questioned, a swept path analysis has been submitted with demonstrates that this could be achieved by a box van. It appears that this satisfies the requirements for off-street deliveries/servicing within Policy T7(G) of the LP, and Policy LP45(D) of the HLP. Hours for servicing and delivery can be separately controlled by condition.

Concern has also been raised that increased parking pressure could arise given that the congestion charge and local on-street parking restrictions are lifted by 18:30. This would obviously only be relevant in relation to events being held in the evening, where a seemingly narrow window of opportunity would exist for patrons to find space to park and then walk to the venue. How practical this would be in reality is open to question. It is also unclear specifically why any increase in parking pressure would necessarily be problematic. Notably, Policy T6 of the LP in any case states that an absence of local on-street parking controls should not be a barrier to new development.

Given that the site has an ‘excellent’ PTAL score of 6b it is in one of the most accessible locations in London. Bus stops and tube stations lie within easy walking distance. This increases the likelihood that the majority of patrons would find use of public transport to be a far more attractive option than attempting to drive to the venue. The proposal thus meets the requirements of Policy LP43 of HLP which amongst other things requires development to be located where transport needs can be met in a sustainable manner, and minimises the need for car trips.

Some patrons might choose to arrive and depart by taxi. [site address] is effectively narrowed to a single lane by parking either side and operates one-way. As such, if a number of taxis dropped off or picked up at a similar time this could cause congestion. Given the context, it seems likely that this already occurs. Whilst the scale of potential impact would be increased by the proposed use, the effect would remain brief, highly localised, possible to by-pass and, given that [site address] is not well trafficked, far from severe.

Crowds leaving the venue might spill out into the street. This could again slow any traffic, compounding the effect of taxis stopping to pick up passengers. However, both this and the 20mph speed limit reduce the likelihood of accidents. Any effect on the free flow of traffic would again be highly localised and limited in duration.

Cycling has been identified as a travel option, and cycle parking has again been separately approved. Even if installed, access to it during large events would be difficult given its position within the yard and proposed queuing arrangements. Leaving large events by cycle might also be challenging given my findings above. Though on all occasions cycling might not therefore offer a wholly reliable means of travel to and from the venue, this does not alter the fact that the site is in a location that could be reached by cycle, or my broader findings above.

For the reasons outlined above I conclude that the proposed use would not have an unacceptable effect on the highways network. It would not therefore conflict with Policy T4 of the LP which requires that development should not increase road danger; Policy LP42 which requires new development to promote sustainable transport; and Policies T6 and T7 of the LP and Policies LP43 and LP45 of the HLP as considered above. [name] T3 and T5 of the LP and Policy LP44 of the HLP were also cited by the Council, none of these policies appears to address matters which have any obvious relevance.

There is no existing means of level access to the building, and nor are the floors within the building wholly level. This is not unusual given the age of the building and its past function. In this regard the Council’s expectation that a means of level access should exist is unclear. The policies cited otherwise appear to be more relevant to new build development than to changes of use.

Access is again a matter covered by the Building Regulations. Whilst requiring care in relation to a listed building, it does not necessarily require any physical alterations to be made. Indeed, the use of a demountable ramp to bridge the modest stepped access from [address] appears to be an obvious means by which wheelchair users, or other persons with limited mobility could gain access. Though requiring some segregation, this would utilise a historic main point of entry which is more attractive than that from the yard off [site address] . No disadvantage would therefore arise. It appears that a similar approach could be taken to access the toilets and other spaces where level changes occur. As previously noted, the status of the ramp installed as part of the temporary staircase within the yard is unclear. That does not however alter my assessment above.

As necessary, I have again had due regard to the PSED contained in the EA 2010 and the requirement to take steps to meet the needs of persons who share a protected characteristic. Based on the information available it appears that scope exists for reasonable adjustments to be made to enable access, and that the change of use could be achieved without having any adverse effect on persons who share a protected characteristic.

For the reasons outlined above, and having due regard under Section 149 of the EA 2010, I conclude that the proposed use could operate with inclusive access. To the extent that they are relevant, it would not therefore conflict with Policy D5 of the LP which seeks to secure development that achieves the highest standards of accessible and inclusive design, and Policy LP1 of the HLP, which amongst other things requires development to be inclusive and accessible.

The site is located within Shoreditch Conservation Area (the Conservation Area). Though the Council’s officer report again concluded that the proposal would have ‘no impact’ in heritage terms given the absence of operational development, the relevant duty set out within section 72 of the Planning (Listed Buildings and Conservation Areas) Act 1990 applies regardless of whether or not operational development is proposed.

Insofar as it is relevant, the significance of the Conservation Area centres on the historic network of streets, spaces and buildings on the north and south sides of [address]. Within this context the historic attributes of the listed building, as considered above, make a positive contribution to the character, appearance and significance of the surrounding Conservation Area.

Given that I found that the proposed use of the building would be compatible in principle, when also taking into account my findings in relation to the main issues, I am satisfied that the character and appearance of the Conservation Area would be preserved by the proposal.

The proposed use would help to keep the building in use, and both temporarily enhance the vibrancy of the area, and boost economic activity. However, these benefits cannot outweigh the failure to demonstrate that the use could be operate safely in relation to fire risk, or the related failure to provide sufficient information to enable me to properly discharge my statutory duty in relation to the listed building.

For the reasons set out above the proposed change of use would conflict with the development plan taken as a whole. As there are no other considerations which alter or outweigh these findings, I conclude that the appeal should be dismissed.