Appeal 6003819

The appeal is dismissed.

The main issue is the effect of the proposal on the living conditions of the future occupants of the first and second floors of the building by way of noise and odour and the effect on the viability of adjacent businesses.

The appeal site is located above a restaurant within the urban core of Sunderland City centre and occupies the first and second floors of the building and virtually fills the perimeter of the site, on the corner with [address]. The proposal would change these upper floors to six self-contained flats intended by the appellant to be occupied by the student population.

Living accommodation in the city centre would be exposed to noise and disturbance associated with commercial activities including the nighttime economy. The existing restaurant at ground floor will generate noise and disturbance arising from the general restaurant experience. The kitchen extraction flue and commercial refuse collection is a matter in contention between the parties along with the noise climate associated with the existing night time music venue The Independent. More specifically, the external terraces to the rear elevation of the venue are located in close quarters to the appeal site.

Internal noise levels for both living spaces and bedrooms require differing dB levels in the interest of achieving a satisfactorily comfortable environment for occupants. Noise transfer from the operations of the ground floor restaurant can affect the living conditions of future occupants of the building, and as a whole, the appellant proposes to mitigate this through wall and floor enhancements.

There is an existing extraction flue located to the rear of the building that extracts cooking odours from the restaurant. The odour assessment demonstrated that in certain survey locations, odour levels would be ‘moderate’ or ‘substantial’ as is currently in situ.

In order to mitigate the effects of odour emitted from the flue, the submitted odour assessment recommends mitigation by repositioning of the extract flu in order to discharge emissions vertically into the atmosphere. Therefore, this would be extended vertically and higher than the existing flue above the ridgeline. It would also include mechanical ventilation inside the building together with a carbon filter in order to clean the air from pollutants before it enters the building.

Turning to noise levels associated with the mechanical nature of the flue, according to the noise survey, this generates noise that exceeds existing background noise levels by around +9dB. This is especially significant as there is nothing before me to indicate that the windows would not be available to open to the occupants and indeed the noise survey advises on improved glazing within well-sealed units but includes openable windows.

I am concerned that despite the extended position of the proposed flue and the suggested mechanical ventilation together with the enhanced window properties, there is no evidence before me to demonstrate this would protect the living conditions of the future occupants from adverse odour and noise effects. This is made more severe as there is a realistic prospect that their personal habitable space would be in high demand given there is limited communal space in the building for them to enjoy. Furthermore, as the end use of the appeal site is intended for student accommodation, there is a more than reasonable expectation that students use their bedrooms as study space and therefore, the occupant may not want to rely on mechanical ventilation and open the single bedroom window, at any time. Even if the upper floors were not intended for occupation by the student population, the living conditions of any occupant should be acceptable.

Turning to the location of The Independent, it has a late-night trading licence and can operate until 04:00. At the time of my visit, I was aware of audible noise levels within the back lane arising from the two external terraces at The Independent, until the early hours of the morning. This was heard close to the rear elevation of the appeal site. The rear windows would be available to open at any time, and therefore opening of the windows of the rooms would undermine the effectiveness of their intended mitigation.

There would be further noise and disturbance arising from the emptying of bottles into commercial waste bins associated with the ground floor restaurant and the collection of other commercial waste from the rear lane. The crashing of bottles and general bin wagon operations would produce noise. The fact that the Council’s Environmental Health officers receive complaints regarding early commercial collections would inevitably cause an adverse impact on the living conditions of the occupants whose flats face onto the rear service lane, especially if windows are opened by the occupants.

Residential use can co-exist close to these types of noise sources. However, as this is under consideration as part of the appeal, it is the duty of the appellant to ensure the premises are adequately mitigated to safeguard the living conditions of future occupants, and consequently avoid the degradation of existing local businesses that have established uses, even if the future occupant is made aware of their environment.

I am conscious of other permissions for changes of use to residential in this town centre location brought to my attention by the appellant. One of these permissions1 is some years old and relates to Number [address] to the appeal site and The Independent. This earlier permission for a residential use was based on the situation at that specific time, and I am not made aware of the surrounding noise climate. I am however fully aware of this environment in response to the appeal before me.

Another permission for a change of use at 21-22 Blandford Street2 is located on a different side of the street to the appeal site and the physical relationship with The Independent is not the same. Whilst that scheme was approved by the Council, it was also based on its own merits. I am obliged to consider the proposal before me based on its individual merits.

I understand this will be a disappointing outcome to the appellant. However, the sensitivities of the location of the site and relationship to noise generating development must be satisfactorily addressed.

Therefore, all things considered, to conclude on this main issue, the living conditions of future occupants should be safeguarded. To that end, the proposal would not meet the expectations of Policies HS1 and BH1 of the [name] and Development Plan in their objectives to protect the living conditions of occupants and other broad aims to create sustainable and mixed use communities, as well as the National Planning Policy Framework in its expectations to integrate new development into the climate of the surrounding environment.

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.