Appeal 6003172

The appeal is dismissed insofar as it related to addition of Use Class Sui Generis ([name]) to existing Class E(a) (Display or retail sale of goods, other than hot food).

The appeal is allowed insofar as it related to erection of front kiosk and rear flue at [site address] in accordance with the terms of the application, Ref 2181/25, and the plans submitted with it, so far as relevant to that part of the development hereby permitted and subject to the following conditions:

The erection of front kiosk and rear flue hereby permitted shall be carried out in accordance with the following approved plans: J1-01, J1 -02, J1 -03, J1 -04, J1 -05, J1 -06, J1 -07, Location Plan and Noise Impact Assessment (Ref [postcode] Rev 01, 27th May 2025).

Within one month of the approval of the application, the mitigation measures set out in Noise Impact Assessment (Ref [postcode] Rev 01, 27th May 2025) shall be fully installed at the premises and evidence that this was done so, submitted to and approved in writing by the Local Planning Authority. The measures as approved shall be installed at the site and retained at the site thereafter in accordance with the approved details at all times.

The term ‘retrospective’ is not an act of development and on this basis, I have removed the word ‘retention’ and updated the description proposal. However, I noted that the development had already been carried out when I visited the site.

I have sought the views of both the Council and the appellant regarding paragraph 97 of the National Planning Policy Framework (Framework) and have considered both of their responses.

I have noted the appellant has asked for a split decision if the appeal was to be dismissed. The power under s79(1)(b) of the 1990 Act allows for a split decision on a s78 planning appeal. Given that the Council accepts the front kiosk as an extension to the existing butchers, Class E(a) (Display or retail sale of goods, other than hot food), and that this element is separate from the addition of Use Class Sui Generis ([name]). In addition, the noise mitigation via a condition for the rear flue is accepted by the appellant. On this basis, I have determined that a split decision is possible in this case as the front kiosk and flue of the development are clearly severable, both physically and functionally from the change of use.

The main issues are: • Whether the proposal would be suitably located having regard to relevant development plan policies concerning the health and wellbeing of residents, specifically children and young people. • The effect of the proposed development on the living conditions of the occupiers of [address], with particular reference to the potential for noise and disturbance. • The effect of the proposed hot food takeaway on the living conditions of nearby residents, with particular reference to cooking smells.

Policy E9 of The London Plan, The Spatial Development Strategy for [name], March 2021 (London Plan) states ‘hot food takeaway uses should not be permitted where these are within 400 metres walking distance from the entrances and exits of an existing or proposed primary or secondary school’. The policy further adds where hot food takeaways are allowed they should be encouraged to comply with [name] standards.

Policy LP11 of the Redbridge Local Plan 2015-2030 March 2018 (Local Plan) states that hot food takeaways will be resisted when within 400 metres of existing schools, youth centres or parks.

Paragraph 97 of the Framework states that hot food takeaways should be refused if it is within walking distance of schools or where children/young people congregate, unless it is within a designated town centre. The Framework clarifies that town centres are ‘city centres, town centres, district centres and local centres but exclude small parades of shops of purely neighbourhood significance’.

Both parties agree that the site is within [address] [name] and [name]. Therefore, the proposal does not comply with Policy E9 of the London Plan or Policy LP11 of the Local Plan.

However, the site is located within the designated [address] Local Centre (Local Centre), which has a range of shops, restaurants and other retail/professional service uses and could not be described as a small parade of shops. Therefore, there is a significant difference between the London Plan and Local Plan with the Framework.

I have noted the wording of paragraphs 34, 231 and 232 of the Framework that detail a local plan should be reviewed every 5 years and that the weight given to local plan policies should be based on their consistency with the Framework.

Given that in the circumstances of this appeal there is a significant difference between the wording of the Framework and the Local Plan/London Plan in so far as it relates to hot food takeaways in a local centre. On this basis, I have given the wording of the Local Plan/London Plan only limited weight in my determination.

I therefore conclude on this matter that the proposed hot food takeaway is acceptable in principle. On the basis it complies with the Framework, specifically paragraph 97 that allows hot food takeaways within town centres even if it is within walking distance of a school or other places where children/young people congregate. Living conditions of the occupants of [address]

The Council stated its appeal statement that Policy LP7 of the Local Plan mentioned in the reason for refusal, should have stated Policy LP11 of the Local Plan. On the basis that Policy LP11 was detailed clearly in the [name] and that the appellant has had chance to respond, I accept this was a typographical error.

The Noise Impact Assessment by [name] states that the proposal would cause significant adverse impact on surrounding dwellings, unless noise control measures that it details are put in place. The appellant agrees with this conclusion and the Council’s assessment that there would be significant harm to the occupiers of [address]. However, the appellant suggests a condition to ensure the mitigation measures are installed.

[name] accept the Council’s assessment of the appellants argument that while the mitigation measures are awaiting to be installed, there would be significant harm the living conditions to the occupiers of [address]. The condition could be worded to ensure that this is implemented within a relatively quick timeframe and on this basis I agree with the Council’s drafted condition of full implementation within one month.

I therefore conclude on this issue, subject to a condition, the proposal would not detrimentally harm the long-term living conditions of [address]. On this basis the proposal is considered to comply with Policies LP11, LP24 and LP26 of the Local Plan that in total protect residents from noise pollution. The proposal also is considered to comply with Policy D14 of the London Plan, which also seeks to prevent adverse impacts from noise pollution.

The Council, as detailed above, in its reason for refusal refers to Policy LP7 of the Local Plan, which should have referred to Policy LP11 in the Local Plan. As stated above I accept the updated policy and will determine the appeal on the corrected policy.

The Council in its appeal statement suggests an odour condition could be added, though still states all the reasons for refusal are well founded. In the [name] where the Council states that impacts of odour need to be provided prior to determination. On this basis, I still consider this issue to be in conflict between the parties.

Unlike the second reason for refusal, there is no report been submitted detailing level of harm and what mitigation measures, if any, are required. This is a significant unknown, as it might not be possible to provide or require material changes to the submitted drawings. This information should also be provided prior to determination to let neighbouring occupiers, as well as consultees being able to provide meaningful comments on the proposal. On this basis the condition suggested by the Council is not suitable and does not overcome the reason for refusal.

I therefore conclude on this issue that the proposal could be detrimental to the long-term living conditions of nearby residents from odour pollution. On this basis the proposal does not comply with Policy LP11 of the Local Plan that seeks to ensure effective extraction of odours and cooking smells. The change of use to allow a [name] is not acceptable on this basis.

While Policy LP24 of the Local Plan is referred to, I do not see how this policy seeks to control odour pollution. On this basis, I do not find any conflict with this policy.

With the part approval, conditions will be added to ensure the front kiosk and rear flue development is in accordance with the submitted plans.

The suggested condition to ensure the noise mitigation on the rear flue, as suggested by the Council, will also be added. However, I will update this wording to remove ‘otherwise agreed in writing by the Local Planning Authority’ as this is not good practice and there are formal ways to vary a condition.

For the reasons given above the appeal should be allowed in part and dismissed in part.