Appeal 6002512

The appeal is dismissed.

During my site visit I noted that some of the internal and external changes sought have already been carried out in line with the submitted plans. I have therefore taken the appeal to be part retrospective, and I have assessed the appeal on this basis.

There are various references in the evidence before me to ongoing or perceived issues with the existing operation of the appeal site, including in relation to breaches of compliance with the originally approved acoustic assessment. The appeal proposal relates solely to the proposed variation of conditions 2 and 7. It is therefore not within my remit to comment on ongoing enforcement matters. Irrespective of the outcome of this appeal, it remains within the Council’s gift to pursue enforcement proceedings relating to the extant permission.

Permission for a change of use to a gymnasium was originally granted in June 2020 subject to various conditions. Whilst the original application sought to operate the use from 6am, condition 7 requires the gym to not open before 7am on weekdays. The appeal proposal seeks to amend this condition to allow for the originally proposed 6am opening on weekdays, (with the car parking area remaining unavailable until 7am). Changes to the approved plans are also sought, primarily in relation to the internal layout.

The main issues are: • the effect that varying the opening hours and the approved plans would have on the living conditions of the occupiers of neighbouring properties, with particular regard to noise and disturbance; • the effect that varying the approved plans would have on the character and appearance of the area; and, • the effect that varying the approved plans would have on highway safety, with particular regard to emergency access.

The appeal site occupies a relatively large site area, between [address] and [address]. The characteristics of the wider area vary between a mixture of commercial uses, primarily fronting [address], and residential properties, along [address] and [address], including a dwelling which shares a party wall with the appeal building. Despite the car parking area being positioned along the [address] frontage, the main entrance to the gym is pedestrianised, via [address].

The proposed weekday opening time of 6am would coincide with a period when nearby residents are likely to be asleep. The additional hour therefore represents a more sensitive time in terms of neighbouring amenity. In an attempt to mitigate potential disturbance, car parking accessed from [address] would be unavailable between 6am and 7am through the installation of locking bollards.

However, the result of this would be that the use would not be served by any means of parking provision between the hours of 6am and 7am. Whilst some users may choose to access the site via means of public transport or walking, I cannot be satisfied that this would apply to all users. Users choosing to still access the site by private vehicle are likely to favour on street parking in the absence of specific parking provision within the site.

[address], the nearest road to the pedestrian access, is a red route which would strongly discourage on street parking. To the contrary, [address] and the adjacent [address] have single yellow lines, and residential permit parking bays, neither of which would be in force between the hours of 6am and 7am. Thus, despite the intentions of the bollards, I find that the actual decrease in vehicular activity and parking associated with the gym would be minimal. Notably, there would be little to prevent users parking along [address], including immediately in front of the demarked parking spaces.

As well as noise associated with additional vehicle traffic, this is likely to lead to adverse noise impacts such as car doors slamming and an increase in general activity such as conversations in close proximity to residential properties, as users walk towards the main gym access. The level of disturbance would be unacceptable to neighbouring living conditions noting that the additional hour of opening would be at a sensitive hour, when neighbouring occupiers would reasonably expect a quiet and peaceful living environment.

The original application was accompanied by an Acoustic Assessment (AA) dated March 2020. The appeal proposal was accompanied by a Noise Impact Assessment (NIA) dated March 2022.

The 2022 NIA acknowledges that the separate weight lifting area would be removed. Nevertheless, the document recommends options for the treatment of the party wall which would be capable of reducing noise transfer to the neighbouring dwelling, even in the context of activities such as weight dropping.

Whilst the vibration assessment in the 2020 AA does refer to the separated weight lift area, the conclusions of this section of the report do not rely on the separation in order for the development to be acceptable in relation to vibration impacts. The activity and measurement position was immediately adjacent to the party wall and therefore I find it reasonable that the 2022 NIA has relied on the conclusions of the 2020 AA in respect to an assessment of vibration impacts.

The 2020 AA referred to the replacement of the buildings roof with a ‘Trisomet’ roof, which then formed the basis for the acoustic calculations within the report. The evidence before me confirms that the insulated roof has been installed and therefore, noting that the proposed revisions show no further alterations to the roof, I find the content of the 2022 NIA reasonable in this regard.

It is not within the remit of the appeal before me to determine whether the mitigation measures outlined in the 2020 AA have been effectively implemented. [name] were otherwise minded to allow the appeal, then I am satisfied that I could condition the recommendations of the 2022 NIA. This would ensure that noise transfer from the gym itself would be acceptable, even in the context of the revised internal layout and minor external alterations (which relate in part to increased levels of glazing).

Notwithstanding that I have identified no specific harm arising from the changes to the internal layout and external alterations of the gym, I find that the increased noise and disturbance associated with the proposed earlier opening hour would have an unacceptable effect on the living conditions of the occupiers of neighbouring properties.

The proposal would therefore be contrary to Policy 119 of the Bromley Local Plan (2019) (BLP) which relates to noise pollution, aiming to minimise adverse impacts on noise sensitive receptors. It would also be contrary to Policy 37 of the BLP which states in part that developments will be expected to respect the amenity of occupiers of neighbouring buildings, including in relation to ensuring they are not harmed by noise and disturbance.

I also find that the proposal would be contrary to Policies D3, D13 and D14 of the London Plan (2021) (LP) which require amongst other matters, for proposals to avoid, manage and mitigate noise impacts, including those which adversely affect health and quality of life.

As above, the appeal site is within a mixed-use area where commercial uses are already interspersed with residential uses. [address] in particular, commercial uses are prevalent including shop fronts with a variety of forms and materials. During my site visit, I also observed more typically industrialised frontages such as roller shutter doors in relatively close proximity to the appeal site. Overall, this gives the character of the surrounding area a diverse and varied appearance.

There are various references within the evidence before me to replacement roller shutter doors. However, the submitted plans make no reference to roller shutters but instead refer to a triple glazed curtain wall to the [address] frontage of the appeal site. [name] cannot be certain as to precise level of glazing, I noted during my site visit that the [address] frontage featured an obscure glazed opening.

Policy D4 of the LP relates holistically to delivering good design, specifically stating that the design quality of large elements of a development should not be left to the consideration of a planning condition. However, even if the proposal did include additional roller shutter doors, I am satisfied that these would not constitute a large element of the development. Thus, subject to precise details which could be sought by condition, these (or indeed the existing glazed wall frontage) could be assimilated into the character and appearance of the area, noting the existing variety of materials within the surrounding area.

I have therefore identified no harm to the character and appearance of the area arising through the proposed variation to the approved plans. In relation to this main issue, I have therefore identified no conflict with Policy D4 of the LP or Policy 37 of the BLP which, in relation to general design, requires developments to complement the materials of adjacent buildings and areas.

The use of the appeal site has been accepted in principle by the extant permission. The appeal proposal does not seek to make changes to the vehicular or emergency accesses to the appeal site. The bollards proposed are intended to prevent the parking of vehicles within the appeal site during the proposed earlier hour of opening.

Whilst precise details of the positioning and operation of these bollards have not been provided, I find it entirely reasonable that these details could be sought by condition. Through these details the Council would have the opportunity to ensure that measures remain in place for emergency access into the site.

There is little before me to suggest that the proposed alteration to the approved plan condition would have a harmful effect on highway safety, including in regard to emergency access. In relation to this main issue, I have identified no specific conflict with Policy 30 of the BLP which primarily relates to parking provision in residential development, and is therefore of limited relevance to the appeal proposal before me. I have also not identified any conflict with Policy T6 of the LP, which in part requires adequate provision to be made for emergency access.

The appellant has referred to other similar businesses within the Borough which it is stated operate from 6am in a similar residential context. However, I have very limited details of the context of these sites, and therefore I cannot be satisfied that they are directly comparable to a degree which they would lead me to alter my overall conclusions above.

The proposal would lead to a benefit to the business through increased operation for an additional hour, widening the offer presented to users. Nevertheless, the economic benefits associated with the proposal are not sufficient to outweigh the harm which I have identified to the living conditions of the occupiers of nearby residential properties.

[name] have identified no harm relating to the amendments to the approved plan condition, the proposed amendment to the hours of opening would create a harmful effect on the living conditions of nearby neighbouring properties by virtue of an unacceptable increase in noise and disturbance.

The proposal is therefore contrary to the development plan when read as a whole, and material considerations do not indicate that a decision should be made other than in accordance with it. I therefore conclude that the appeal should be dismissed.