Appeal 6004185

The appeal is dismissed.

Planning permission was granted in September 20251 (‘the original permission’) for the change of use of the ground floor of the appeal property to a hot food takeaway (‘the takeaway’) subject to various conditions. The takeaway is not yet trading.

Condition 5 of the original permission limits opening hours to safeguard the amenities of local residents. The appellant now wishes to amend Condition 5 as originally imposed, to allow the takeaway to open between 4pm and 11pm Monday to Sunday, including bank holidays. Flexibility in the approval of external extraction equipment is also sought by an amendment to Condition 4 to include the phrase ‘such other details as may be agreed in writing with the Local Planning Authority.’ 1 [name]. 25/00472/FUL

The main issues are: • the effect that varying Condition 5 would have on the living conditions of occupiers of nearby residential properties, with particular regards to noise and disturbance; and • whether Condition 4 is necessary and reasonable having regard to safeguarding the amenities of local residents.

[site address] (No 4) is a two-storey property at one end of a short terrace formed with 6 and [address] (No 6 and 8), which are dwellings. It is located just outside the town centre boundary of Chorley on the southern side of [address]. There is an existing takeaway (‘[name]) and plumbing business on the opposite side of the road, but as it extends away from the town centre [address] comprises predominantly tight-knit terraced housing.

Extending the opening of the takeaway to 11pm would be to a time in the evening when neighbours should reasonably expect a lower level of activity, even close to a town centre and where other commercial uses exist. It would realistically increase noise and disturbance from customers and delivery drivers stopping, parking and entering/exiting the premises. This would be most keenly felt by the close-by neighbouring occupiers of No 6 and 8, and there is potential for customers to gather or wait outside the takeaway, and close to the living room window of No 6, relatively late in the evening. The absence of an objection from the occupiers of these dwellings does not amount to an absence of harm.

I observed that parking along much of the length of [address] is restricted to residents permit holders, but those bays either side of the road outside No 4 would be available for customers of the takeaway. At the time of my late afternoon site visit these bays were fully occupied. I have not been provided with any information regarding the expected number of delivery drivers, or the modes of transport which would be used. However, given the popularity of home delivery, even in residential areas, I would also expect there to be a reasonable number of delivery movements to and from the takeaway. The increase in the duration of use of the closest parking bays and associated vehicle movements would be clearly noticeable to residents along this part of [address]. It would result in a level of additional noise and disturbance which would cause harm to their living conditions.

The appellant would be prepared to accept a condition which would restrict the opening hours of the takeaway to 10.30pm, but this would nevertheless be relatively late in the evening particularly on a weekday. Furthermore, it would still likely coincide with customers leaving licensed premises in the wider town centre. Such a reduction in opening hours would not therefore reduce activity, noise and disturbance associated with the takeaway to an acceptable level.

The ‘[name] takeaway diagonally opposite No 4 operates between the hours of 4.30pm to 10.30pm Tuesday to Sunday, but I note the Council’s evidence is that this is an historic use, as are its hours of operation. I accept that consistency in decision-making in the planning system is important, but every case must be assessed on its own merits with regards to the development plan and other considerations in effect at the time of each decision.

I acknowledge that the Council’s Environmental Health Officer raised no objection to the proposed longer opening hours and the appellant asserts that no complaint history exists for the appeal property. However, it does not follow that if the hours of opening were extended, this would not give rise to future complaints regarding noise and disturbance given the nature of the use and proximity of neighbours. Therefore, whilst it may be considered precautionary, I find the opening hours of the original permission strikes an acceptable balance between additional activity associated with a new takeaway use, in an area where there is already some evening activity, and the need to protect the amenity of residents of [address].

It is also proposed to amend Condition 5 such that the takeaway could open half an hour earlier in the afternoon at 4pm, seven days a week. I visited on a weekday at a similar time of day and observed this end of [address] to be relatively busy with vehicles using the short-term parking bays outside the appeal property and pedestrians walking to and from [address]. Customers would be largely consumed in this existing activity, and the earlier opening of the takeaway would not therefore harm the living conditions of neighbours. I note the Council’s evidence that the opening hours on the original permission sought to avoid school leaving times, but I have no evidence to demonstrate that there is a school in walking distance of the appeal property.

Nevertheless, for the above reasons, I conclude that varying the evening opening hours as proposed would have a harmful effect on the living conditions of occupiers of nearby residential properties, with particular regards to noise and disturbance. Consequently, it would conflict with Policy BNE1 of the Chorley Local Plan 2012-2026 (2015) in so far as it requires that proposals do not cause an unacceptable degree of noise and disturbance to surrounding land uses. Condition 4

Condition 4 is proposed to be amended to include the ‘tailpiece’ phrase ‘such other details as may be agreed in writing with the Local Planning Authority.’ Such wording should be avoided where possible, because it can create a risk that significant changes could be made to the development and/or to circumvent the statutory routes to vary conditions, depriving third parties of the opportunity to comment. The inclusion of such a tailpiece in the proposed wording of Condition 5 raises the same concerns.

The appellant accepts and does not dispute the reason for refusal in respect of Condition 4. In the absence of any further evidence before me, I therefore find Condition 4 as worded on the original permission to be necessary and reasonable having regard to the need to safeguard the amenities of local residents.

I acknowledge that extending the opening hours may better reflect local demand, supporting the viability of the business as well as local economic activity, but this does not outweigh the harm I have found to living conditions.

The proposal conflicts with the development plan and material considerations do not indicate that the appeal should be decided other than in accordance with it. For the reasons given above, I conclude that the appeal should be dismissed.