Appeal 6002722

The appeal is dismissed.

I have used the description of development given in the Council’s Decision Notice, as it is more concise and removes superfluous text from that set out in the application form. I have omitted the wording retrospective application, as it is not a description of development.

I observed during my site visit that the development has been carried out, which appears to accord with the plans before me. I have therefore considered the appeal on the basis that the development has already taken place.

The appellant has submitted correspondence indicating that an arrangement is in place for the disposal of refuse, generated from the appeal site, at a nearby premises, which has been agreed between the respective owners and is ongoing. Due to the nature of the information, the representations made on the application, and that the Council have had the opportunity to review the information, I am satisfied that taking it into account would not cause procedural unfairness to anyone involved in the appeal. As such, I have accepted the additional information.

The main issues are: • whether the development would preserve or enhance the character or appearance of the Tewkesbury Conservation Area (TCA), with particular reference to refuse bin storage; and • the effect of the development on the living conditions of nearby residents, with particular reference to noise and cooking smells.

[site address] is a small single storey premises with a flat roof on a narrow corner plot at the junction between [address] and [address], located within the TCA. I have been provided with the boundary of the TCA, which covers large areas of the town centre as well as expansive undeveloped areas such as the [name], but no Conservation Area Appraisal or Statement. From my observations, the significance of the TCA partly lies in the number and variety of buildings of architectural and historical interest in the town centre.

[address] and, to a lesser extent, [address] are busy town centre locations, with predominantly commercial uses to the ground floor. The Council raises no concerns regarding the principle of the use of the premises as a hot food takeaway (HFT). From the evidence before me and my observations, I have no reason to reach a difference conclusion.

The disagreement lies with the provision of refuse bin storage associated with the HFT. During my site visit I saw that there were no refuse bins positioned on the [address] within the vicinity of the site. The overall impression was a clean and well cared for street. There were refuse bins located within the footpath outside a small number of premises situated on [address]. This contributed towards the impression of a less looked after location as well as a more cluttered appearance.

Due to the constrained nature of the appeal site, I understand that refuse bin storage was previously located on the footpath on [address] and this is shown on the submitted plan. On my site visit there was no such bin visible, which indicates that the arrangement to use the waste facilities at a nearby premises is operational. However, there is no mechanism before me to ensure that this arrangement remains for the lifetime of the development. As such, there is a high probability that if the current arrangement were to cease, and in light of the volume of refuse such a use could generate, a refuse bin would be stored on [address]. This would compound the harmful impact of the external storage of refuse bins on [address] and the TCA.

Section 72 (1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 (the Act) requires special attention to be paid to preserving or enhancing the character or appearance of conservation areas. In addition, the National Planning Policy Framework (the Framework) requires great weight to be given to the conservation of heritage assets. In the terminology of the Framework the development results in less than substantial harm to the significance of the TCA as a designated heritage asset. I have found the harm to be at the lower end of the spectrum of ‘less than substantial harm’ but nevertheless of considerable importance and weight. Paragraph 215 of the Framework states that where a development proposal would lead to less than substantial harm to the significance of heritage assets, that harm should be weighed against the public benefits of the proposal.

Whilst the occupation of the premises by a commercial use within the town centre does represent some economic benefits, due to the scale of the development, I afford this limited weight. These limited public benefits would not outweigh the great weight to be attached to the conservation of heritage assets, and the development would therefore conflict with the Framework.

For the above reasons, the development fails to preserve or enhance the character or appearance of the TCA, with particular reference to refuse bin storage. It conflicts with Policy SD8 of the Gloucester, Cheltenham and [name] 2011-2031 (JCS) and Policy HER1 of the Tewksbury Borough Plan 2011-2031 (TBP). They require, amongst other things, proposals to have particular regard to the potential impact on the character of conservation areas.

The relevant reason for refusal refers to TBP Policy HER2. However, as this relates to listed buildings, this policy is not directly relevant to this main issue.

An odour risk assessment contained within the appellant’s ‘kitchen extraction noise and odour control report’ (the report) highlights a risk that the appeal premises will unreasonably and substantially interfere with the use or enjoyment of a home or other premises. The report identifies that the kitchen extraction system would require a high level of odour control and it makes suggestions in terms of odour mitigation so there would be a low risk to residents and nearby properties. This includes the provision of external ducting as part of the system layout that should terminate 1m above the eves via a high velocity jet cowl dispersing contaminated air vertically.

However, the report indicates that only an extraction canopy with grease baffle filters and an extraction fan have been installed. There is no evidence before me that all the elements of the recommended system have been installed, including the external ducting. I saw that there appeared to be an extraction fan positioned above the window to the work area facing [address], but I could not see any external ducting. On this basis, I conclude that cooking fumes are dispersed below the eves of the single storey building resulting in odour nuisance.

Whilst the report considers that the noise from the extraction fan is unlikely to cause a nuisance due to the appeal premises’ town centre location and its limited opening hours, there is an absence of predicted noise levels from the fan at the nearest residential property. Therefore, I cannot conclude with reasonable certainty that the development would not have an adverse effect on nearby occupiers in terms of noise nuisance.

Accordingly, the development has an unacceptable effect on the living conditions of nearby residents, with particular reference to noise and cooking smells. This is contrary to JCS Policy SD14 and TBP Policy RET6, which together require proposals for hot food takeaways not to have an adverse impact on the amenity of neighbouring uses with regard to noise and odour pollution.

Section 66(1) of the Act contains a statutory duty to consider whether to grant planning permission for development which affects a listed building or its setting. Special regard should be given to the desirability of preserving the building or its setting or any features of special architectural or historic interest which it possesses.

The appeal site is close to listed buildings at 39 and [address], and [address]. The latter is an early 19th century inn, and the former is a large 18th century house with an unusually grand wide symmetrical frontage with a broad central carriageway. Their significance rests primarily with historical and architectural interests. The Council has raised no concerns on the effect of the development on the setting and significance of these listed buildings. In the absence of contrary evidence and from my own observations, I have come to the same conclusion.

I acknowledge the appellant’s concerns, including reference to case law, over the Council’s handling of the application. However, this is not a matter that I can consider under a Section 78 planning appeal and does not alter my findings, in which I have had regard solely to the planning merits of the proposal.

The proposal conflicts with the development plan as a whole and the material considerations, including the Framework, do not indicate that the appeal should be decided other than in accordance with it. Therefore, the appeal is dismissed.