Appeal 6002821

The appeal is dismissed.

Planning permission has been granted for the change of use of the ground floor of the premises from a restaurant to a sports bar and restaurant. The appellant seeks permission to extend the opening hours on Friday and Saturday nights from 23.30 to 00.30 with the time allowed once the premises have closed for clearing, cleaning and other work associated with the approved use extended from 00.00 to 01.00 on these days.

Having regard to the Council’s reason for refusal and the representations received, the main issue in this appeal is whether condition 2 is reasonable and necessary having regard to the effect that extending opening hours would have on the living conditions of the occupiers of nearby residential properties.

The appeal site comprises a former chapel on the [address] in Battle Conservation Area. The area comprises development in a variety of uses including residential at first floor and commercial at ground floor. No residential premises are located above the appeal site but are located to the side. The buildings on the [address] abut each other with no obvious spacing dividing the buildings.

Noise emanating from inside the premises appears to be well controlled, however, anti-social behaviour has been experienced outside the premises associated with patrons arriving and departing late at night. [name] (SP) have raised no objection to the proposal subject to recommendations. However, SP have noted the extension of opening hours has the potential for people who are often intoxicated to remain on the streets into the early hours resulting in an increase in footfall, noise, litter and anti-social behaviour. I have also taken account of representations from residents of nearby premises highlighting anti-social behaviour outside the appeal site. Whilst the anti-social behaviour cannot be directly attributable to the appeal premises or controlled by planning condition, an extension to the opening hours of the premises would be likely to exacerbate the anti-social behaviour by giving patrons additional time to use the facilities.

I have been directed towards other commercial premises in similar uses within the town centre which the appellant states have longer opening hours and therefore provides justification for extending the opening hours of the appeal premises. There is discrepancy between the appellant and the Council regarding the opening hours of nearby commercial premises in similar use classes, however, the appellant has not provided substantive evidence of other premises having opening hours matching those requested or later. From the evidence before me ‘The Bull’, opposite the appeal site is open until midnight which is half an hour earlier than the appellants propose, evidence regarding the opening hours of other premises is inconclusive.

The appellants contend that early closure of the Chapel moves the clientele to ‘The Bull’ opposite which leads to anti-social behaviour moving patrons from one venue to another. Based on the evidence before me, ‘The Bull’ closes at midnight and therefore extending the opening hours of the Chapel until 00.30 on a Friday and Saturday would only bring the anti-social behaviour to the Chapel as patrons congregate in the facility open the latest. The extension in opening hours has the potential for patrons to be congregating outside the premises for an additional hour over and above the existing situation, extending the period of time residents of neighbouring properties would be exposed to anti-social behaviour.

I note that the Town Council and Environmental Health have raised no objection to the proposal, however, a point is reached beyond which later opening of premises on the [address] would unacceptably harm the living conditions of the occupiers of neighbouring properties and in my judgement, allowing the appeal premises to open until 00.30 would pass this point.

The licensed opening hours of the premises are more generous than those contained in condition 2. However, licensing seeks to prevent public nuisance, whilst planning applies a higher standard, namely achieving an acceptable level of residential amenity. As a result, the conditions of a planning permission may require that a premises closes earlier than its license requires.

For the above reasons, I consider the proposed extension to the opening hours would be harmful to the living conditions of the occupiers of nearby properties and would be contrary to policy OSS4 (ii) of the Rother Local Plan Core Strategy and policy DEN7 of the Development and Site Allocations Local Plan. These policies seek to permit development where there will be no significant adverse impact on local amenities, including noise amongst other considerations.

The appeal property is located within Battle Conservation Area. S72(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 requires special attention to be paid to the desirability of preserving or enhancing the character or appearance of that area. No external alterations are proposed to the building and the use is appropriate within this location. Therefore the character and appearance of the conservation area would be preserved and I find no conflict with the statutory presumption under s72(1) of the Act.

I note the appellants submitted a document entitled planning obligation. Whilst the contents are acknowledged, the document is not a legal document which would be legally binding on the appellant. I am therefore unable to take the document into account as a material planning consideration.

For the reasons given above, the appeal should be dismissed.