Appeal 6002863

The appeal is allowed and planning permission is granted for change of use of bank to a mixed ground floor convenience store (Use Class E(a)) and first floor single dwelling flat at [site address] [postcode] in accordance with the application Ref 25/01990/FUL without compliance with condition number 3 previously imposed on prior approval Ref 24/01490/EMU, dated 18 November 2024 and subject to the conditions set out in the attached schedule.

The Council granted prior approval for the development in November 2024 and in doing so attached a number of conditions, including condition 3, which restricts the opening hours of the ground floor shop. I saw that the shop is currently operating. The appellant subsequently applied to vary condition 3 in order to allow extended opening hours, which the Council refused.

The main issue is whether the effect of that varying the opening hours would have development upon the living conditions of current and future occupiers of nearby residential properties.

Paragraph 57 of the National Planning Policy Framework (‘the Framework’), as well as Planning Practice Guidance (‘PPG’) state that conditions should only be imposed where they are necessary, relevant to planning, relevant to the development to be permitted, enforceable, precise and reasonable in all other regards.

The proposal would seek to increase the opening hours of the convenience store to 0800 until 2200 Monday to Saturday and 1000 until 2000 on Sundays and [name]. This would result in the store remaining open for two additional hours Monday to Saturday, and for four additional hours on Sundays and [name].

Heslington is a village to the southeast of York, which despite abutting the large University of York campus to the north, nevertheless retains a quiet and semi-rural character. The village forms part of Heslington Conservation Area and [address] is wide and with large grass verges and historic buildings. At either end of [address] are public houses and on the eastern side of the road in a broadly central location is the appeal site, currently operating as a convenience store. A Post Office adjoins, and to the south is a bakery which I saw provides a limited amount of outside seating. There are residential properties addressing [address] on both sides of the road.

The character of the street is therefore mixed and whilst not overtly commercial in nature, there is a degree of activity focused around the small hub formed by the shops and bakery, as well as the public houses at either end of the street.

The convenience store is currently operating for large parts of the day. In doing so, it will generate visits and given the proximity of Heslington to the university campus, these may include customers attending the university site, as well as more local residents. The convenience store can already operate to 2000 on most days and associated activity will generate an amount of noise, whether that be from fridge and freezers, customers or other associated general retail activity.

Flats above shops are common in many areas and as identified within the Framework, represent an effective use of land in terms of meeting housing needs. Consequently, the proposed arrangement is not unusual. It is also not uncommon for convenience stores to operate into the evening in both urban and rural areas.

In this context, I mindful that, despite the comments of the Council’s Environmental Health Officer, there is no substantive evidence before me to demonstrate that noise generated by activity on the ground floor of the appeal property is currently unusually high or persistent, or that the operation of the premises is causing demonstrable harm to the living conditions of nearby occupiers, or likely to lead to unacceptable living conditions for future occupiers of the upstairs flat. Therefore, there is little to substantiate concerns that extending the opening hours would lead to material harm.

It is suggested that later opening hours would be likely to lead to large groups of students visiting the premises in order to purchase alcohol. Given the proximity of the store to the university campus, this cannot be ruled out. However, nor is it a certainty, regardless of whether the premises is marketed towards a student audience. In any case, such activity can also already occur up until 2000 on most evenings, and there is nothing before me to demonstrate that this scenario specifically is resulting in disturbance issues in the area, or that incidents of anti-social behaviour would be likely to significantly increase should the convenience store be open for longer.

It has been brought to my attention that the Council granted a premises licence at the appeal property on the basis of the current opening hours of the store. However, I am unaware of the detailed reasons for doing so, or the level of evidence, if any, that was before the Council when it reached that decision. The terms of the current premises licence alone do not demonstrate that longer opening hours would be inherently harmful, and any extension to the terms of the premises licence would remain within the control of the Council through separate legislation, regardless of the outcome of this appeal.

Equally, the fact that the appellant originally stated that the store would only open for the existing opening hours did not preclude them reconsidering these hours at a later date. The motivation for seeking to extend the operating hours is not a matter to which I can afford weight.

It is stated that the longer opening hours would add to noise and disturbance generated by the two public houses on [address]. However, I saw that these premises are located at opposite ends of the street and are well separated from each other. There is no substantive evidence before me to demonstrate that they are operating in an unusually noisy manner or that the local noise environment is such that the cumulative effects of public houses and appeal premises would be unacceptable.

Moreover, noting the Council’s specific concern in relation to effect of the operation of the convenience store upon the living conditions of occupiers of the upper floor flat, I am mindful of the requirements of condition 4 of the original grant of prior approval which requires noise mitigation measures to be installed in order to mitigate noise from the convenience store. Although there is some doubt as to whether such works in accordance with the condition have yet taken place, a point to which I return below, it follows that if such suitable mitigation were to be agreed and provided, that internal noise generated by the convenience store during operation should be adequately mitigated in any event, regardless of the opening hours.

Overall, I conclude that the effect of removing condition 3 and permitting longer opening hours would not lead to levels of noise or disturbance which would give rise to unacceptable effects on the living conditions of nearby occupiers. The proposal therefore complies with Policies D1 and ENV2 of the City of York Local Plan which together, and among other factors, state that development will only be permitted where it does not unacceptably harm the amenities of existing and future occupants of the site and in neighbouring communities, or the character of the area.

It is suggested by an interested party that the appellant has failed to comply with conditions originally imposed on the grant of prior approval, including carrying out sound attenuation works required by Condition 4. While such noise attenuation would reduce the possibility of noise and disturbance resulting from the shop operation, the subject of compliance with this condition, as well as all other conditions, is a matter within the control of the Council and falls outside of the scope of this appeal. Any failure to comply with a condition is not a matter which weighs against the proposal before me, as it has not been shown these conditions could not be adequately enforced, should the Council decide it was appropriate to do so.

It has also been put to me that the proposal would lead to further intrusion of late-night traffic in a residential area, however there is no substantive evidence before me to indicate that the premises is likely to attract harmfully high levels of traffic, or that it does so at present. Accordingly, this concern carries limited weight in my considerations.

The appeal property is located within Heslington Conservation Area (‘CA’) and interested parties have suggested that the variation of the condition would lead to harm to the character of the CA. The significance of the CA is derived, insofar as is relevant to this appeal from the historic form of the core of the village and its notably semi-rural character despite its proximity to the urban edge of York.

The proposed extended hours would not alter this character. No additional commercial premises are proposed and the small hub of businesses in the centre of the settlement would not expand. The appeal premises would be open for longer, but this, in itself, would not erode the atmosphere of the village to any material extent, given the relatively low level of activity that would occur and the nature of the operation of a convenience store. Although it is stated that the character of the CA has been acknowledged within previous appeal decisions, no further details or specific decisions have been put before me.

[name] acknowledge that the CA is likely to be quieter in character in the evening, than it is during the day, as I have set out above, it has not been substantiated that a limited extension of the opening hours into the evening would be likely to generate levels of activity, noise or disturbance such that it would harm the character of the CA.

Any physical alterations to the appeal property or display of signage fall outside of the scope of this appeal and remain within the Council’s control. Overall, the effect on the character and appearance of the CA as a result of extending the opening hours imposed by the original approval would be neutral, and the character and appearance of the CA would therefore be preserved.

PPG makes clear that decision notices for the grant of planning permission under section 73 of the Town and Country Planning Act 1990 (‘the Act’) should also restate the conditions imposed on earlier permissions that continue to have effect. [name] have little information before me about the status of the other conditions imposed on the original prior approval, including whether the proposed flat is occupied, I shall impose all those that I consider remain relevant. In the event that some have in fact been discharged, that is a matter which can be addressed between the parties.

I have not attached a time limit for the implementation of the development as it is evident that it has already occurred as the convenience store was operating at the time of my visit. I have amended condition 4 to require noise insulation measures to be implemented prior to the occupation of the flat rather than prior to the development commencing, on the same basis. I have amended the condition to remove the need to verify the mitigation works as this element is unnecessary given the required prior approval of the mitigation scheme.

Furthermore, as the appeal is made under section 78 of the Act, I am mindful that in allowing it, an express planning permission would be granted for the original proposal. In this circumstance, the conditions and limitations contained within Schedule 2 of the Town and Country Planning (General Permitted Development) (England) Order 2015 (‘the GPDO’) which apply to the original grant of prior approval, would not apply to the subsequent planning permission.

Accordingly, I have additionally attached two conditions which reflect the conditions set out at paragraph G.1 of Schedule 2, Part 3 of the GPDO in order to retain the appropriate level of control of the proposal and to avoid prejudicing any party.

Having regard to my findings above, I conclude that the appeal should be allowed and grant a new planning permission without the disputed condition but with an updated condition to refer the revised opening hours sought, and further additional conditions in order to ensure that the planning permission granted aligns with the restrictions imposed by the GPDO upon the original grant of prior approval. I have also retained those non-disputed conditions from the existing permission that appear to still be relevant and capable of taking effect.

The development hereby permitted shall be carried out in accordance with the following plans:- Proposed Block Plan; Reference: 125-003 dated 20/08/2024 Existing, Proposed and Location; Reference 125-004 [name] dated 08/08/2024.

The Ground Floor Convenience Store shall not operate outside of the following hours: Monday - Saturday - 08:00 - 22:00 hours Sunday and [name] - 10:00 - 20:00 hours.

Details of all machinery, plant and equipment to be installed in or located on the premises, which is audible outside of the premises, shall be submitted in writing to the local planning authority for approval prior to installation. These details shall include average sound levels (LAeq), octave band noise levels and any proposed noise mitigation measures. The machinery, plant or equipment and any approved noise mitigation measures shall be fully implemented and operational at the point of first use of the equipment and shall be appropriately maintained thereafter.

The first floor flat shall not be occupied until: (a) a detailed scheme of for adequately protecting the future occupants from noise internally generated by the [name] has been submitted to and approved in writing by the local planning authority, and; (b) any noise mitigation measures identified in the details approved under part (a) have been installed. The noise mitigation measures shall thereafter be retained and appropriately maintained.

The domestic bin storage area shown on the approved Existing, Proposed and Location Plan; Reference: 125-004 [name] dated 08/08/2024, shall not be used for any purpose other than the storage of domestic waste associated with the first floor flat hereby approved.

Prior to the occupation of the first floor flat hereby approved, a Management Plan for the domestic waste associated with the first floor flat shall be submitted to and approved in writing by the local planning authority. The Management Plan shall include details of how residents will access the domestic waste storage area shown on the approved Existing, Proposed and Location Plan; Reference: 125-004 [name] dated 08/08/2024. The Management Plan shall thereafter be implemented as approved.

The ground floor of the building shall not be used in whole or in part as a flat.

The flat hereby approved shall not be used otherwise than as a dwelling (whether or not as a sole or main residence) by a single person or by people living together as a family, or by not more than 6 residents living together as a single household (including a household where care is provided for residents). END OF SCHEDULE