Appeal 6003754

The appeal is dismissed.

Outline planning permission (ref 2019/36241) was granted subject to conditions in December 2020 for the development of up to 617 residential units and mixed-use zone to include retail/ food and drink uses ([name] A1; A2; A3; A4 and A5), Hotel (Use Class C1), [name] (Use Class C2) and [name] (Use Class D1) with details of access only (all other matters are reserved for subsequent approval) at Phase 4-7, [name], Warrington [postcode] . Condition no 31 imposed on the permission requires the operating hours of commercial units be approved in writing prior to the commencement of use.

Condition no 31 has been discharged (ref 2021/39771) insofar as it relates to the appeal premises, which operates from 0600 to midnight seven days a week. The covering letter from Savills to the Council, dated 30 May 2025, indicates the appellant now wants to trade 24 hours a day, seven days a week. However, the application subject of the appeal sought permission for the continued use of [site address] without compliance with condition no 31. With regard to the Planning Practice Guidance (PPG), this is an application under section 73 for development without compliance with original conditions. However, while the appeal relates to the removal or variation of conditions, no varied wording of condition no 31 has been suggested. I have thus determined the appeal on the basis that permission is sought to remove condition no 31 which would allow unrestricted trading.

The main issue is whether condition no 31 is necessary in the interests of the residential amenity of the area, with particular regard to noise and disturbance.

The [site address] appeal site comprises a restaurant and drive through. It is in a designated local centre, together with a Lidl supermarket and a Costa coffee shop. These are arranged around a car park accessed via [address]. The local centre is close to the roundabout junction of [address] and [address] and it is surrounded by existing and under construction housing development.

Upon entering the local centre car park, drivers must pass [name] to reach [site address] . The drive through lane loops from the car park around the rear of the appeal premises, which is separated from the [address] footway by a low wall. Drivers collect their orders from servers at the rear of the building, having placed their orders using the communication operating device system (COD).

A Noise Impact Assessment ([name], 14 May 2025) (NIA) has been submitted. This assesses the potential impact of the proposal, with particular regard to the future closest residential properties which will be only around 40m to the north of the drive through. It assesses 4 principal noise sources, namely people, vehicles, COD/ store noise and plant.

In the absence of predicted customer counts for the proposed extended operation, the NIA predicts likely customer numbers based on data from other [site address] sites. No details have been provided to demonstrate they are directly comparable to the appeal premises, but the NIA states that it is a worst-case estimate.

Attended noise surveys were carried out between 23:00 and 00:30 and between 05:30 and 07:00 on 27 and 28 February 2025. Unattended monitoring was also carried in the overnight period of 27-28 February in order to capture ambient and background noise levels in fixed positions corresponding to nearby properties.

The dominant noise was continuous road traffic from the nearby roundabout and [address]. Traffic waned overnight but did not stop. Pedestrian noise was low. Cars entering and exiting the premises were audible as discrete noise events, and drive through queuing as continuous idling noise, but did not noticeably stand out against the background traffic noise. Noise from the COD was audible but not particularly loud and plant noise was low level. On this basis, the NIA concludes that subject to advisory mitigation extended operating hours would result in an acceptable level of noise impact and no observable adverse effect. Recommended mitigation includes a premises noise management plan (PNMP) as well as a restriction on COD noise levels and the kitchen extractor.

The PNMP aims to minimise the risk of noise from people, including antisocial behaviour, during the overnight period. This requires staff to be vigilant, to record registration plates of vehicles involved in antisocial behaviour, to request people creating unreasonable noise be considerate to the neighbours and change their behaviour, and to challenge gatherings of people in the car park not waiting to be served. It also relies on CCTV recording, partnership working with local authorities, and advises that a store phone number would be provided to residents to report evidence of antisocial behaviour within the premises’ boundary.

The noise consultant did not observe any antisocial behaviour and considers the risk of such to be very low. However, the noise surveys took place over a single weeknight during winter when the temperature was between 2 and 5 degrees. There is little evidence this would be representative of activity throughout the year, at weekends or when the weather was warmer. Indeed, I understand that there have been incidents of antisocial behaviour at the appeal site and the local centre car park, including groups of young people using it late at night to play football and for car meets with resultant noisy, disruptive and antisocial behaviour. The associated noise of car engines and slamming doors, the playing of music and voices will be detrimental to residential amenity, particularly once the closest dwellings on the opposite side of [address] are occupied. The extended opening of [site address] would contribute to pedestrian and vehicle movements and car park use, and thereby cumulative adverse impacts on residential amenity.

The Cheshire Police Design Out [name] notes that extended operating hours would increase surveillance opportunities, but they have little confidence that [site address] employees would actively address adverse impacts on residential amenity arising from the business. They identify the need for a more robust antisocial behaviour policy and conflict management training plan to be secured by planning condition, together with the erection of bollards to prevent access to the car park in order to deter car meets during unsociable hours.

The appellant would accept a planning condition requiring approval of a site management plan to include best practice measures to help mitigate the effects of the proposal on nearby dwellings. However, I have not been provided with even an outline of what a robust policy or training plan would entail, in order to demonstrate that the valid concerns of the [name] would be addressed.

In any case, I understand there is already a site wide management strategy to address potential antisocial behaviour as part of the reserved matters permission (ref 2021/39681)1 for the local centre. Full details have not been provided, but it apparently includes the installation of locking bollards to restrict out of hours car park use. However, [site address] drive through could not be accessed if the local centre car park was closed. [site address] does not benefit from a dedicated highway access and it has not been demonstrated that the appeal site could be physically and functionally separated from the wider car park. Therefore, the proposal would allow unrestricted access to the local centre car park by all persons irrespective of whether or not there were [site address] customers. This would be likely to compromise the effective delivery of the site wide management strategy.

The appellant suggests that a site management plan could contain mitigation measures including ANPR, CCTV or other parking controls. However, no detail has been provided to explain how ANPR or how or what parking controls could be implemented, taking into account the car park and access arrangements. If, as the evidence suggests, only the Lidl store has CCTV surveillance over the entire car park, it is not clear how [site address] staff could monitor customer behaviour in the 1 Reserved matters application for development of supermarket (Use Class A1), drive thru restaurant/ café unit (Use Class A3/A5) and drive thru coffee shop (Use Class A1/A3) with associated car parking and infrastructure (details of appearance, landscaping, layout and scale) pursuant to outline application 2019/36241. wider car park or deter antisocial behaviour. I am not in any case persuaded that it would be reasonable to expect night staff to challenge antisocial behaviour associated with persons who were not [site address] customers but who were able to use the car park due to [site address] extended opening hours.

I have considered whether a condition could be imposed allowing for a temporary period of extended trading, such has been allowed elsewhere on appeal. The Council’s Environmental Protection Officer suggests a few months of observations to establish whether 24 hour opening would increase antisocial behaviour and to give [site address] the opportunity to development site specific noise management plans and to actively discourage antisocial behaviour overnight. However, neither party indicates what would be an appropriate duration of time for monitoring, how noise and disturbance would be objectively and rigorously monitored, or how the results of monitoring would be used to establish the acceptability of extended opening in the absence of robust baseline monitoring of the existing situation carried out over a similar period of several months.

The appellant considers that the potential for the extended operation of [site address] to result in antisocial behaviour could be further mitigated by restricting overnight operations to the drive through and outgoing customer deliveries. This is on the basis that customers would only be on site for a limited time if the in-store restaurant was closed. However, there is little evidence such a restriction would result in any materially different impact, given that people using the drive through could park in the car park and that access to the drive through would require that access to the local centre car park was unrestricted.

To conclude, notwithstanding the conclusion of the NIA, the proposal would result in an increase in activity in and around the local centre car park. It would contribute to and perpetuate unrestricted local centre car park use in the overnight period with associated cumulative adverse effects on residential amenity by way of noise and general disturbance. There is little compelling evidence that adverse cumulative adverse effects could be adequately mitigated by the imposition of conditions. The effect of removing condition no 31

The local centre that includes the appeal site is in the [name] 5 2 area. However, the outline planning permission on which condition no 31 is imposed relates to the entire Phase 4-7 [name] development area. Thus, the removal or variation of condition no 31 could have wider implications in terms of the potentially unrestricted operating hours of other commercial units in Phases 4-7.

The PPG explains that permission granted under section 73 takes effect as a new, independent permission to carry out the same development as previously permitted subject to new or amended conditions. The decision notice for the new permission should set out all of the conditions imposed on the new permission and for the purposes of clarity restate the conditions imposed on earlier permissions that continue to have effect. The new permission sits alongside the original permission, which remains intact and unamended. It is then open to the applicant as to whether to implement the new or the original permission.

No evidence has been provided in relation to the status of other conditions imposed on the outline planning permission. Thus, in addition to the Council’s suggested 2 Approved site layout drawing for permission Ref 2024/01267/REMM conditions, subject to amendment for the purposes of the National Planning Policy Framework tests for conditions, the earlier conditions except for condition no 31 would all need to be imposed on a new permission in the interests of clarity.

However, the outline planning permission was also granted subject to a section 106 agreement. No new planning obligation has been submitted to cover a new permission nor has the original planning obligation been varied so that it would apply to a new permission. Consequently, if I was to allow the appeal and create a new planning permission, it could be implemented free from the planning obligations attached to the original permission in which case the new permission may be unacceptable in planning terms.

Therefore, having regard to the effect of unrestricted opening of the appeal premises and the implications for the wider development, I conclude that condition no 31 is necessary to ensure a satisfactory standard of local residential amenity. Non-compliance with condition no 31 would conflict with the residential amenity protection aims of policy ENV8 of the Warrington Local Plan Adopted December 2023 (the LP) and the Hot Food Takeaways Supplementary Planning [name] 2014 (the [name]). Taking into account the limitations of the NIA, there would also be conflict with the guidance in the Environmental Protection Supplementary Planning Document [name] 2024.

The appellant considers that the Council did not demonstrably consider whether the proposal would result in a significant adverse impact upon residential amenity, as per the requirements of LP policy ENV8. However, while the policy does refer to significant adverse impacts in relation to noise, more generally it requires development to avoid harmful or cumulative impact on general levels of amenity. In this regard, the [name] recognises that hot food takeaways have potential to detract from residential amenity and environmental quality through, among other things, litter, noise, general disturbance and traffic.

My attention has been drawn to other [site address] premises where extended hours have been allowed on appeal. However, I am not aware that they are directly comparable to this appeal in terms of the surrounding context, local centre or original planning permission that relates not only to the appeal premises and is the subject of a planning obligation. They do not provide a justification for the appeal.

Third party representations question the need for the proposal on the basis that there is already a 24 hour [site address] less than a mile away and on a large retail park with no nearby residents. The availability of similar premises elsewhere is not a matter that weighs against the proposal. However, dismissing the appeal does not deprive people of the opportunity to visit a [site address] overnight in this area.

Extended opening hours would result in some additional employment opportunities. This would be a limited benefit and carries little weight in favour of the proposal.

Therefore, for reasons given above, I conclude that the appeal should be dismissed.