Appeal 6003934

The appeal is dismissed.

Planning permission1 has been granted for 9 use class E commercial units, and associated development, at the site. Condition 2 of the planning permission restricts the opening hours of the units to between 06:00 and 23:30 every day of the week. The appellant applied to the Council2 to carry out the development without complying with condition 2 - preferably to remove condition 2 in its entirety or, as an alternative, to vary condition 2 so that it permitted [address] at 02:00 every day and, unit 4 only, at 04:00 every day. The Council refused that application on the basis that the extended opening hours would have the potential to give rise to unacceptable levels of noise and disturbance, and the appellant has subsequently lodged this appeal. 1 Planning application 2025/0788/01/DET 2 Planning application 2025/0788/02/RVC

Therefore, the main issue is the effect that the proposal to remove or vary condition 2 would have on the living conditions of neighbouring occupiers, having particular regard to the levels of noise and activity which would result from it.

The site contains [site address] - a large building with commercial floorspace set across 2 storeys of accommodation. Although close to Newcastle city centre, and the likes of a church and sports centre are adjacent to it, the site is located within an area with a predominantly residential character. Given this, whilst [site address] benefits from a generous plot, and [address] to its front is quite wide, residential properties are, nevertheless, closely located in its surroundings. This includes, on the opposite side of [address], those at [address] and [address] and, on the same side of [address], those on [address], some of the occupiers of which have submitted objections during the appeal process. The site contains a carpark, accessed from the [address] side, and parking bays are located in front of [site address] as well.

The submitted [name] Assessment3 (the NIA) includes, amongst its content, a graphical depiction of the noise measurement data undertaken at the site (Figure 3). This presents the site’s background noise level as being at its lowest between approximately 00:00 and 04:00. Forming much of the overnight period, when many people will be asleep, fewer activities are generally undertaken and fewer vehicles are on local roads, this is to be expected.

The appeal seeks permission for the consented commercial units to be able to open during the overnight period, a period characterised by its lower background noise levels. This means that the prevailing noise climate in the area during the overnight period would be less effective at masking the effects of the site’s comings and goings and activity. Given that the unrestricted or extended opening is sought across all 9 commercial units, and within a building of considerable floorspace, there is the clear potential for the quantum of those comings and goings by people and vehicles to be quite high.

Customer actions and behaviours are hard to predict. Doubtless many will act in a very courteous manner and, the likes of mobile private hire booking applications would assist in reducing dwell time outside. Even so, during the overnight period, when background noise is low, the likes of talking, car doors shutting, and engines starting or idling are likely to be distinguishable and abrupt, and consequently intrusive for nearby occupants, even if site users act respectfully.

The layout of the site and its surroundings also means that there would be the clear potential for noise to arise from activity in different locations. For example, noise may arise from people entering or leaving the building’s different units and elevations, from the shutting of car doors and from engine noise within the car park out the back, the side access road leading to it, or the parking bays out the front. This means that the occupiers of residential properties on the various sides of the site would be affected.

For these reasons, the extension of, or removal of the restrictions on opening hours would result in the generation of levels of noise and activity which would not 3 BS4142 Assessment of [site address] , 20 [name], [address], [site address] , [postcode] , by E2 Consultants Ltd, dated 5 March 2025 be acceptably subsumed into the existing noise climate. This would harm the living conditions of neighbouring occupiers.

If condition 2 were removed or varied as proposed, the units would not be required to close by 23:30. The appellant submits that this would flatten demand curves and avoid a concentration of activity at closing time. However, permitting occupation well beyond 23:30 would shift noise-generating activity into the overnight period, when background noise levels are lowest and residents can reasonably expect less disturbed conditions and respite from commercial activity. The intrusion of commercial activity into this sensitive timeframe represents the more significant harm.

The appellant cites the NIA as evidence that noise impacts would be limited for the nearest residents. However, the NIA focuses mainly on balcony‐related noise, and it does not present to me a substantive analysis of all the noise-related effects which the proposal would be likely to result in - such as the movement of people and vehicles. Therefore, the NIA does not address my concerns.

Although the appellant asserts that the unrestricted or extended opening hours would not be utilised to their fullest every night, the removal or variance of condition 2 as proposed would provide no control over this being the case. The appellant has set out that greater restriction could be placed on the use of the building’s external balcony. However, I have limited information of what this would entail and, regardless, it would not in itself sufficiently mitigate the harm I have described.

During my visit, I noted the petrol station to which I was referred and understand that it operates on a 24‐hour basis. However, the appeal site is located amongst other residential properties, farther from the petrol station. The proposal would give rise to the noise generating effects I have described, altering the living conditions of the occupiers of those properties in a harmful way. That the petrol station operates in its established way, in its own particular setting, does not provide justification for the effects which would be brought about by the proposal in its particular context.

I have been provided with no compelling evidence as to how the separate licensing regime could regulate the units on the site, including their hours of opening. The effects of developments on the noise and disturbance experienced by local residents is clearly a relevant material planning consideration, and clearly relevant in this case. It has not been demonstrated to me that condition 2 is unnecessarily replicating control which licensing can exert over the units.

For the reasons given above, I conclude that removing or varying condition 2 would result in unacceptably harmful effects on the living conditions of neighbouring occupiers, having particular regard to the levels of noise and activity which would result from it. Consequently, the proposal conflicts with Policy CS14 of the [name] and Urban Core Plan for Gateshead and [site address] 2010-2030 (2015) and Policies DM23 and DM24 of the [site address] Development and Allocations Plan 2015-2030 (2020). Altogether, in summary and amongst other matters, these Policies seek to ensure that the wellbeing and health of communities is maintained and improved, that development provides for a good standard of residential amenity for existing and future occupants with any negative impacts, including noise and disturbance, prevented or mitigated. Furthermore, the proposal conflicts with policy within the National Planning Policy Framework which sets out that development should promote health and well-being and ensure a high standard of amenity for occupiers.

Occupation of [site address] with commercial units brings with it economic benefits, including through their trade and employment generation. Social benefits are derived from the provision of some local services to residents as well. The proposal to permit extended opening would create the conditions to generate more economic benefits whilst services would be more available to the customers seeking them. I have had regard to these additional benefits, however, they are not of sufficient weight to outweigh the harm I have identified in my main issue.

I have been presented with no substantive evidence that the permitted opening hours of the units contribute in any way to any anti-social behaviour manifesting or persisting in the area, or that extended opening would result in a safer environment. Consequently, the proposal’s potential to contribute towards informally policing the area, does not weigh in its favour to any meaningful extent.

The appellant has supplied a newspaper article concerning a proposal to relax licensing rules for pubs. However, it details a proposition only, seems to relate to licensing rather than planning permission and concentrates on pubs and bars. Again therefore, this matter does not weigh in the proposal’s favour to any substantive degree.

The appellant refers to overseas countries not controlling the opening hours of commercial units to the same extent as is the case here and some history on the origins of such control. However, I must determine the planning application on its own merits, having regard to the planning regime presently in force, not least the provisions of the development plan.

I conclude that the proposal to remove or vary condition 2 would result in unacceptably harmful effects on the living conditions of neighbouring occupiers, having particular regard to the levels of noise and activity which would result from it. As a result, the proposal conflicts with policies within the development plan, and the proposal conflicts with the development plan as a whole. The material considerations do not indicate that the appeal should be decided other than in accordance with the development plan. I therefore conclude that the appeal should be dismissed.