Appeal 6003352

The appeal is dismissed.

The appellant has submitted an award of costs application. This is determined under separate cover.

Westminster Council have informed me that they are currently undertaking a City Plan Partial Review in the subject areas of affordable housing, retrofitting and site allocation. The proposal before me was determined against the City Plan 2019 -2040 adopted plan policy, and therefore carries significant weight.

The description of the proposal within the banner above is referenced from the appellant’s appeal form that is consistent with the Council’s description of the proposal.

An appeal is determined on the same basis as the original application. I note the Procedural Guide: Planning Appeals, advises the appellant’s submissions, including the statement of case, should not normally include new evidence or additional technical data not previously seen by the local planning authority and interested parties at the application stage.

Throughout the appeal process, additional noise addendums from the appellant have been submitted. Information has also been provided by third parties by way of a peer review to the appellant’s submitted noise assessment, and further comments on this received from the appellant.

I have accordingly taken into account all the evidence before me in order to reach my decision. All parties have been made aware of the evidence and I do not consider any parties to be prejudiced as a consequence.

The main issue is the effect of the proposal on the living conditions of the local residents by way of noise associated with the boarding of dogs within the basement level of the appeal site.

The appeal site forms a ground floor unit together with another commercial unit called ‘tank’ as part of a larger residential building. The two commercial units sit either side of the ground floor entrance into the six storeys of the residential flats above the ground floor units. The building appears as a 1960’s concrete-constructed low-rise development.

The appeal site encompasses an element of dog retail products on the ground floor together with a dog grooming service, and at the time of my inspection, the basement was fully accessible to me. I could see that it was laid out with the intention of providing some dog agility space. It is within part of the area up to eight dogs would be boarded in pens overnight within a space with a low ceiling height that appeared to be under the pavement above, along [address]. The dogs would be boarded overnight from around 19:00 with all other associated activities occurring within the ground floor from 07:00 until 19:00.

Conflict arises between all parties in respect of whether or not BS 4142:2014 or BS 8233:2014 should be used as a technical specification to determine noise levels arising from the proposed use. In this case, the appellant has adopted a methodology based on BS 8233:2014 including comparison with recommended noise levels for indoor ambient noise.

They have predicted the noise levels of up to twelve barking hounds within the ground floor level, and the effect of this on noise levels inside a flat directly above the retail ground floor space, as a worst-case scenario. Given the appellant’s noise consultant was able to provide measurements of noise insulation performance of the building envelope from the receptor first floor flat and took into account the frequency characteristics of dogs barking, I agree that it was a reasonable methodology to apply in this situation. Therefore, it is not necessary for the appellant to adopt a BS4142 approach to identify a rating level. I concur with the appellant in this regard.

The noise survey within the appeal site was undertaken within the ground floor retail area and sources of noise escape identified from internal flanking with potential mitigation measures submitted. In order to control noise egress from the main access to [address], a single stud partition with fully rated acoustic door is proposed to be set back from the main entrance. I have no reason to disagree with this noise attenuation measure.

The dogs would board overnight within the basement space where no noise survey has been produced by the appellant. [name] accept that the ground floor is closer to the first floor residential flat as a noise receptor, the basement has a significantly greater footprint compared with the ground floor as it extends below both the external pavement level outside the building along [address] and across the centre core of the main building associated with the residential flats.

I understand the appellant’s reasoning to survey the ground floor space as it is closest to a residential noise receptor. Be that as it may, as the basement area where the dogs would be boarded has a larger floorplate than the ground floor area that was surveyed, no sources of noise escape have been formally surveyed in this space. I note the flanking walls are not entirely the same as the ground floor above. Furthermore, the residential lift shaft runs vertically through all floors of the building and the basement walls abut this lift run where the lift pit is located. It may have plasterboard surrounding it on this side of the appellant’s space, it is nonetheless a potential noise pathway. Without sufficient evidence, it cannot be substantiated that the transmission through this path ‘is not considered likely to be significant’, according to the appellant.

Even if the flats above have secondary window glazing, the occupants can open windows at any time of day or night and without the precise data, I cannot say for certain that the living conditions of the occupants of the flats above would be safeguarded.

Therefore, with no precise noise escape routes identified and without robust evidence to illustrate that all noise pathways are correctly identified within this basement through a suite of accurate test results, it has not been demonstrated that no harm would arise to the living conditions of the occupants of the residential flats above arising from the sound of barking dogs.

I have considered the appellant’s suggestion to impose a pre-commencement planning condition requiring supplementary acoustic information to be submitted and further to this, targeted mitigation. Given the onerous nature of this as a planning condition, I would not be satisfied that the use of conditions would adequately meet the six tests of paragraph 57 of the National Planning Policy Framework as it may not be reasonable to make the scheme acceptable in planning terms. This is also echoed within [name] use of planning conditions.

To conclude on this main issue, the proposal would not safeguard the living conditions of the local resident’s, contrary to the objectives of Policy 33 of the City Plan that aims for development to minimise noise impacts. I find no direct relevance to Policy 7 of the City Plan as this does not directly relate to the effects of noise disturbance on local occupants’ living conditions.

There is some discrepancy brought to my attention by third parties with regards to the presentation of data that the appellant’s acoustician completed upon their first assessment. I note that the applicant corrected the calculations. Nevertheless, these figures surround the surveys within the ground floor and are not representative of the basement level.

The Council explain that the use of the site to operate as a retail and dog grooming service operates under a lawful Class E use. I have no reason to come to a different view on this matter and therefore the lawful use does not require any noise surveys to be completed.

As the site is located within the [address] Conservation Area (CA) I am mindful of my statutory duties in respect of 72(1) of the Planning (Listed Buildings and Conservation Areas) Act (the Act). The architecture of [address] Conservation Area has an 18th century Georgian core with a number of later infills, most notably some elaborately detailed buildings and mansion flats from the Victorian and Edwardian eras. The area has an overall dense, urban feel. [address] the townscape is largely late Victorian and Edwardian; built form is of a consistent scale. There is a wider variation in age and type of townscape on the eastern and western fringes.

The appeal site is a 20th century building and is a set piece in this location. In this circumstance given the works proposed before me, they would result in a neutral impact on the character or appearance of the CA.

I am aware of the support received to the proposal and the positive provision of being able to board dogs within the city. Be that as it may, it does not outweigh the harm I have already identified.

I understand this will be a disappointing outcome for the appellant who has gone to much length to satisfy the Council’s concerns. Be that as it may, I have considered all matters that have been raised and conclude that the proposal would conflict with the development plan as a whole and there are no other material considerations which lead me to determine the appeal otherwise than in accordance with it. Therefore, for the reasons given, the appeal is dismissed.