Appeal 6003585

The appeal is dismissed.

Planning permission was granted on the 1 April 2025 under reference 25/0112/FUL for a change of use of the ground floor from a restaurant Class E(b) to a retail shop Class E(a). At the time of my site visit, the retail use had commenced, and the unit was not in use as a restaurant. Condition 3 of the permission states that the Class E(a) Retail use shall not be open to members of the public before 07:00am or after 11:00pm Monday-Sunday including Bank and Public Holidays. The Council considers the condition to be necessary to safeguard the amenities of occupiers of adjoining residential properties. The appellant, however, objects to the condition as they consider it to be unreasonable and seeks a variation to increase opening hours to 07:00am to 02:00am Monday-Sunday including Bank and Public Holidays.

The main issue is the effect of the proposed change to the opening hours on the living conditions of adjoining residential occupiers, with particular regard to noise and disturbance.

The appeal site comprises a ground-floor corner commercial unit within a modern mixed-use development, with commercial uses along the ground floor and residential uses on upper storeys. The building fronts [address], with Colindale underground station located nearby. The surrounding area is dense in built form, with mixed-use developments opposite the site comprising of a similar composition of uses.

Numerous objections have been submitted by nearby residents, raising concern that the extended opening hours would result in unacceptable noise and disturbance. Given the close proximity of residential properties, it is fair to envisage the permitted retail use has the potential to cause noise disturbance to nearby residences through the comings and goings of patrons, as well as from loitering outside the premises. The hours of opening as proposed would allow for the public use of the premises and extra patronage at night-time when surrounding residents, even within a mixed commercial setting, should reasonably expect a level of peace and quiet.

The extended opening hours would occur during night-time hours, when it is reasonable to expect the local background noise environment to be quieter than the daytime. The appellant suggest that the area is already busy and noisy during the night. However, from the evidence provided, it would seem the supermarket situated opposite the site on [address] and the adjoining commercial uses operate within the same opening hours as those permitted under the original planning permission at the appeal site. Within this quieter night-time context, noise from additional patronage between 11.00pm and 2.00am could be more noticeable to adjoining residential occupiers than noise during the daytime.

The previous restaurant use of the site was licensed for extended opening hours, but the licensing regime is distinct from planning legislation and has differing considerations. Moreover, the delegated report on the application leading to planning permission reference 25/0112/FUL indicates that the restaurant use was subject to a planning condition that prevents public use after 11.00 pm. As such, it is likely the retail use with the proposed opening hours would be more disruptive at nighttime compared to the previous restaurant use.

Planning Practice Guidance (PPG) advises on how to recognise when noise could be a concern. At a significant observed adverse effect level, potential for sleep disturbance and - or quality of life is diminished. The PPG sets out that this effect level should be avoided by the use of appropriate mitigation. At the highest extreme, where above the significant observed adverse effect level is found, noise exposure results in regular sleep deprivation and psychological stress. At this effect level the adverse effect would be unacceptable.

A noise impact assessment has not been submitted with the application. Without this or a mitigation scheme to address potential noise to adjoining noise-sensitive residential uses, I find the proposed variation in opening hours would have a potentially detrimental and harmful impact on the living conditions of adjoining residential occupiers. Moreover, in the absence of technical data or proposed mitigation measures, there would be potential for a significant observed adverse effect to adjoining residents due to noise caused through the proposed late-night hours of opening. The appellant suggests the unit is constructed of solid materials that prevent noise transmission through the building structure. Even if this is accepted, noise mitigation within the unit would not address the noise outside the unit from customers up to 2.00 am.

For the above reasons, the proposed variation of condition 3 would have the potential to significantly harm the living conditions of adjoining residential occupiers, with particular regard to noise and disturbance. Given the absence of a noise impact assessment and/or proposed mitigation, it has not been demonstrated that a significant observed adverse effect to adjoining residents would not occur due to the proposed late-night opening hours of the retail unit. This is contrary to the provisions of Policy ECC02 of The Barnet Local Plan 2021-2036 (2025) (BLP) in so far as it seeks to avoid generation of unacceptable noise levels close to noise sensitive uses. I also find conflict with Policy CDH01 of the BLP which, amongst other matters, requires development to mitigate adverse noise impacts on the surrounding environment and amenity through design, layout, and insulation, in accordance with the agent of change principle.

I further find conflict with Policy D13 of The London Plan (2021) (LP) which relates to the Agent of Change principle, in so far as it requires that new noise and other nuisance-generating development proposed close to residential and other noise-sensitive uses should put in place measures to mitigate and manage any noise impacts for neighbouring residents and businesses. Additionally, the proposal is contrary to Policy D14 of the LP which, amongst other matters, sets out that in order to reduce, manage and mitigate noise to improve health and quality of life, proposals should manage noise by avoiding significant adverse noise impacts on health and quality of life and reflect the agent of change principle set out in Policy D13 of the LP.

The appellant has referenced a number of benefits, including that the proposed extension of opening hours would enable the business to compete with similar businesses in the area and benefit from late-night footfall. It is claimed that this would make a significant contribution to the viability of the business, the vitality of the area, and community safety through increased natural surveillance. Support from interested parties highlight that the retail unit would provide an important role in the community, providing a range of specialist and affordable Turkish products that are not otherwise available locally, and would enable shopping at convenient times. Later opening hours are additionally cited as helping with traffic congestion.

However, these benefits do not outweigh the harm identified to the living conditions of nearby residential occupiers, in relation to noise and disturbance during night-time hours. The presence of adjoining residential uses already provides a level of natural surveillance within the locality, and I do not have substantive evidence that the current operating hours of the premises contribute to traffic congestion in the area.

For the reasons given above, and having regard to all other matters raised, I conclude that the appeal should be dismissed.