Appeal 6004086

The appeal is dismissed.

The description of the development, set out in the heading above, is taken from the decision notice to reflect that the proposed development was amended during the application process and that the number of bedrooms was reduced from 21 to

I have, however, omitted ‘retrospective application’ as such wording is not a description of development.

I acknowledge the appellant’s comment that the Council has referenced floor plans in its decision notice that show twenty proposed rooms. It is, however, apparent from the Officer report that the assessment that was undertaken by the Council was in respect of an 18-bedroom House in [name] (HMO) and I have determined the appeal on that basis.

The main issue is the effect of noise from nearby commercial premises on the living conditions of future occupiers of the proposed development.

The appeal building sits within a courtyard adjoining several commercial buildings including The Venue, a licensed premises that hosts live music and other events. It is accepted by both parties that The Venue will generate noise that will affect the appeal building. Paragraph 200 of the National Planning Policy Framework (the Framework) requires new development to integrate effectively with existing businesses and community facilities, such as music venues, without imposing unreasonable restrictions on their operation as a result of development permitted after they are established. It further states that where the operation of an existing business would have a significant effect on new development nearby, the provision of suitable mitigation is required as part of the development.

In response to concerns from the Council’s Environmental Protection Team (EPT), [name] 1 and bedrooms 2.2 and 2.6, which are closest to The Venue, are now proposed for use as office and temporary staff accommodation. [name] suggest that the intention is to bring these rooms into residential use the appeal must be determined based on the plans before me, which clearly indicate that they will not be used for that purpose.

A BS8233 and NR15 Assessment supports the proposed development. This includes the results of background noise monitoring undertaken over Friday, Saturday and Sunday in July 2024 within bedrooms 2.4 and 2.11 and [name] 2, which I find would provide a fair representation of the noise that would be experienced in all the proposed flats/bedrooms. The monitoring was undertaken with the windows closed and vents open and its findings indicate compliance with BS8233:2014 and NR15 guidance levels.

While the noise monitoring took place during a confirmed event at The Venue, the operator has stated this did not involve live music and was not in the room closest to the appeal building. I note the appellant’s assertion that, during the monitoring period, speakers were positioned in the fire escape corridor of The Venue directly adjoining a shared wall. However, although the activity was measured, this is not where events take place and therefore is not representative of the noise that would be experienced by the occupiers of the proposed development. Accordingly, there remains uncertainty as to whether the noise monitoring reflects a representative worst-case scenario for noise impact within the proposed accommodation.

Consequently, whilst there is separation between The Venue and all the proposed bedrooms, and equivalent sound insulation has been installed to those that would be closest to it, including bedroom 2.4 where the noise monitoring took place, the evidence doesn’t robustly demonstrate that future occupiers would be protected from harmful noise. This concern is reinforced by the results showing noise levels in bedroom 2.4 was at the BS823.2014 limit, the recommended value to avoid increased chances of sleep disturbance.

Although the proposed development passed an overheating assessment this relies, in part, on windows to some rooms being open between 9am and 9pm. There is nothing before me that indicates that activities at the principal noise source, The Venue, do not occur during the daytime or evenings. Therefore, it is reasonable to expect that noisy events could take place at times when the Report indicates that windows to certain rooms may need to be open, to ensure that they do not overheat.

Thus, any reliance on closed windows for noise mitigation is likely to be compromised in practice as future occupiers are likely to open them in the absence of any alternative means of ventilation. This could not be prevented by the Council and the appellant.

Although mechanical ventilation could be secured by condition within all bedrooms, as recommended by EPT, this would not fully overcome the risk of unacceptable living conditions arising due to noise exposure. In addition, the appellant’s suggested condition to prevent the residential occupation of bedroom 2.1 would not fully address the harm that I have identified.

I have had regard to the Council’s decision at [address] and the appeal decision on [address] cited by the appellant. [name] acknowledge that the sites in both such cases are in the city centre, and [address] is next to a bar with a first-floor roof terrace, there are no details of the nature of the noise sources or the prevailing noise climate in those locations. Therefore, I cannot be certain that such cases are comparable to the one before me, where there is a live music venue extremely close to the appeal building. As a result, I can give limited weight such

Consequently, insufficient evidence has been provided to demonstrate that noise from The Venue would not harm the living conditions of the future occupiers of the proposed development. It would therefore conflict with saved policies GD5 and H13 of the City of Derby Local Plan Review, January 2006, and Policy CP10 of the Derby City Local Plan Part 1 [name] (CS), January 2017. Such policies, amongst other things, seek to ensure a satisfactory level of amenity and a high-quality living environment is provided for future users, and seeks to protect existing businesses. In addition, it would not accord with the similar aims of the Framework.

The appellant states that the current housing land supply is, at best, 2.73 years which is not disputed by the Council. Accordingly, the balance in paragraph 11 d) ii) is engaged.

The appeal site is within an accessible location. I have, however, found that the proposed development would not integrate effectively with The Venue. Thus, it has the potential to inhibit an existing business and, therefore, would not be supported by Policy AC2, which promotes city centre living.

Although the proposed development would reduce the number of occupiers from the previously registered HMO at the appeal site, it would contribute to the supply and mix of housing. In addition, it would provide economic benefits through the generation of Council Tax and employment, and through its occupation. Such benefits carry moderate weight.

However, the adverse impacts on the living conditions of future occupiers of the proposed development would, when assessed against the policies in the Framework taken as a whole, significantly and demonstrably outweigh the benefits. Therefore, the presumption in favour of sustainable development does not apply.

The proposed development conflicts with the development plan when considered as a whole and there are no material considerations, either individually or in combination, which outweigh the identified harm and associated development plan conflict. I conclude that the appeal should be dismissed. [planning inspector] INSPECTOR