Appeal 6004236

The appeal is dismissed.

The main issues in this appeal are the effect of the proposed development upon; i) the living conditions of neighbouring occupiers, with particular regard to noise and disturbance and privacy; ii) the character and appearance of the area; and iii) highway safety.

The appeal site comprises a 2-storey dwelling sited in a generous plot. Neighbouring properties include bungalows, dormer bungalows and 2-storey dwellings in a mixture of individual designs, as well as repeated house types. Dwellings along [address] are typically set back behind landscaped front gardens of varying depths but with generally low hedges or boundary walls. The lane although recently resurfaced, retains some narrow, grassed margins and no pavements. It has the appearance of an informal, spacious, suburban lane. The surrounding area is residential with a peaceful and tranquil character. As one such dwelling, the appeal site contributes positively to this character. Living Conditions

The proposal would introduce a commercial childcare use in proximity to existing dwellings. The nursery would provide for up to 39 children aged between 0 and 5 years, together with 7 staff. It would operate on weekdays between 07:00 and 18:00 hours.

During my visit, there was very little background noise occurring within the vicinity of the appeal site. Birdsong was clearly audible, with some low-level background traffic noise from the M18. Although a snapshot in time, my observations are consistent with interested parties’ representations and the appellant’s Noise Impact Assessment (NIA). Activity was limited to only very occasional vehicular movements associated with neighbouring dwellings and a small number of pedestrians. These comings and goings were typical of a low-key residential environment. The rear garden of the appeal site, and those of neighbouring dwellings, were observed to be quiet and peaceful spaces.

The NIA includes a 24-hour noise survey undertaken at a single location on the eastern boundary of the rear garden. During the hours of day when the nursery would operate, the average ambient level of 45.5dB LAeq has been adopted by the NIA as the baseline condition at neighbouring gardens.

The NIA relies on average noise metrics derived from library data relating to a primary school playground, taking into account reduction and uncertainty factors including the number of children expected to be outdoors at any one time, to inform a worst-case scenario. It concludes that as the noise level generated from outdoor play would be less than 50dB LAeq, which is considered desirable for gardens, no adverse effect would arise on an absolute basis. The predicted change in noise level is said to be around 0.5dB above existing conditions, which the NIA describes as insignificant and imperceptible. However, there is little evidence before me to demonstrate that the noise generated by primary school pupils is a reliable proxy for noise from nursery-age children, who are generally less able to regulate their behaviour and volume, particularly when excited or distressed. Moreover, school related noise is generally confined to short duration break times and outdoor lessons during term-time only.

While metrics may be suitable for assessing steady or continuous sounds, they are a less reliable indicator where noise is irregular, impulsive or characterised by frequent peaks. Nursery-age children are capable of generating high maximum noise levels through shouting, screaming or crying. Outdoor play is also likely to include activity-related noise from the use of toys and equipment. For example, this might include sounds such as the banging or clanging of pans associated with a mud kitchen. These forms of noise would be intermittent but highly noticeable, and more likely to attract attention than continuous background sounds such as distant traffic.

The NIA does not meaningfully address the likelihood of repeated high-level peaks for the duration the garden would be in use, including scenarios where more than one child becomes excitable or distressed at the same time. Nor does it assess how such noise would be perceived in the particular context of the quiet residential area or how seasonal variation may apply. This is important when considering the effect of development on the living conditions of neighbouring residents.

The outdoor play would take place close to the private amenity areas of neighbouring bungalows either side of the appeal site, as well as the dwelling to the south whose rear elevation lies in proximity to the top end of the rear garden. While a boundary fence would remain in place, it has not been demonstrated that this would satisfactorily attenuate airborne noise. In the event of a child crying or screaming, such noise would be clearly audible to neighbouring occupiers, particularly those using their gardens. The frequency of disturbance would materially affect the use and enjoyment of both neighbouring outdoor amenity space and internal rooms during the day.

The Noise Management Plan (NMP) proposes measures including restricting the number of children outdoors at any one time to a maximum of 8, staff supervision and the logging of complaints. While these measures indicate an intention to manage activity responsibly, they rely heavily on staff judgement and behavioural control. They would not prevent disturbance from occurring and measures such as staff taking children indoors, would only operate once noise had already been generated and neighbours adversely affected. There is no explanation of how repeated or ongoing disturbance would be addressed. In the context of a use generating frequent and unpredictable noise events, I am not satisfied that these measures would provide a reliable or effective means of safeguarding the living conditions of neighbours. I am particularly mindful that both local and national planning policy seek to avoid adverse effects on living conditions, not simply to manage them after they arise.

The NIA also considers the effect of car park activity. It takes a source power level and applies a distance of 13m from the centre of the car park to the façade of the receptor. This results in an expected noise level of 34dB LAeq which the NIA considers acceptable. I have a number of concerns with this data. The receptor is identified in the NIA as the existing residential properties closest to the site. However, No 36 is sited closer to the boundary of the appeal site than No 42. Moreover, the loudest individual noise events such as doors slamming, engines starting, or people congregating are likely to occur at the edges of the car park, much closer to neighbouring dwellings than the centre point. While an impulse correction is included, this is applied in generic terms and does not assess a realistic worst-case scenario, such as a car door being slammed in the parking space closest to the boundary and to the habitable rooms of No 36. Given that spaces would be re-used during peak times, it does not consider the level of disturbance from such activity being repeated frequently.

With up to 39 children attending, together with an accompanying parent plus staff and deliveries, there would be frequent activity in and around the appeal site, particularly during drop off and collection periods. Taken together, the proposal would introduce a materially greater level of activity and a greater degree of noise than would arise from the use of the site as a dwelling. In the context of an area that is presently quiet in nature, these noises would be perceptible, intrusive and disruptive. This would particularly be the case during warmer months when neighbouring residents are more likely to have windows open or use their gardens during the day.

The existing residential use of the appeal site would generate some noise and activity. However, this would be low-key and consistent with surrounding dwellings. Even if children were to occupy the dwelling and use the garden, any associated noise would be more sporadic and far less intensive than that arising from a commercial nursery operating throughout the week.

The Council’s first reason for refusal on its decision notice and officer report raise concerns that the proposal would give rise to a loss of privacy for neighbouring residents. The occupation of the building and garden during the day by staff is referenced but there is no analysis of what the effects of this would be. It seems to me that although the occupation of the building would increase over and above what may occur if the appeal site remained as a dwellinghouse, there would be no material change to the relationship between buildings. Although there would be more people visiting the proposed nursery, the boundary treatments to the front and rear gardens would be retained as existing. These provide a good degree of privacy with neighbouring dwellings. Based on the evidence before me, I am not satisfied that the proposal would result in a loss of privacy.

The NIA recognises that the subjective nature of noise means that there is not a simple relationship between noise levels and the impact on those affected. Although it provides some useful baseline information, it places undue weight on average noise levels and underplays the importance of qualitative factors such as character, unpredictability and context.

I find that the character, frequency and impulsive nature of outdoor play noise, together with comings and goings associated with a commercial childcare use, would materially erode the tranquillity currently experienced by neighbouring occupiers. The proposal would not avoid significant adverse impacts on residential amenity, and I have found that the NMP would not wholly mitigate the impact of the proposed development, sufficient to protect the living conditions of neighbours.

[name] have not found harm with regard to the effect of the proposal on the privacy, the proposal would nevertheless result in harm to the living conditions of neighbouring residents, with regard to noise and disturbance. It would therefore conflict with Policies 10, 46, 52 and 54 of the Doncaster Local Plan (DLP) 2021, which amongst other things, seek to support new development that does not have any unacceptable negative effects upon the amenity of neighbouring land uses. It would also conflict with paragraph 135 of the National Planning Policy Framework (the Framework) which seeks to ensure that new development has a high standard of amenity for existing users.

The proposal would result in the entire front garden being hard surfaced to accommodate off-street car parking for 6 vehicles and associated turning space. While some properties within the street scene have extended areas of hardstanding within their front gardens, they are in the minority and typically relate to the smaller plots. Even where they do exist, they have generally retained a landscaped border to soften their appearance.

The proposed hard surfacing would result in a more utilitarian character, detrimental to the established suburban quality of the area as described above. The visual harm would however, be mitigated to some extent by the presence of the hedges to the front and side boundaries which the landscaping plan indicates are to be retained.

It is suggested that the front garden could be hard surfaced under permitted development rights afforded to the dwelling. To not require planning permission, any new hard surface area larger than 5sqm, would be required to be constructed of porous/permeable materials or drainage made to a lawn, border or soakaway within the boundary. Even if these conditions could be met, the need for the car parking area and associated surfacing is driven by the proposed nursery use and it would be unlikely that the entirety of the front garden area would need to be hard surfaced were it not for the proposal.

More significantly, the proposed nursery would introduce a regular and intensive level of vehicular and pedestrian movement throughout the day and particularly during peak periods. Even if I could accept that there was a realistic fallback position for the hard surfacing of the front garden, the functional effect of using the car parking and turning area would erode the prevailing quiet, suburban residential character of the area where existing movements and activity are significantly lower. The presence of the hedgerows would not mitigate the level of activity that would be generated.

The proposal would therefore be harmful to the character and appearance of the area. It would conflict with Policies 41, 42 and 46 of the DLP which amongst other things, seek to ensure that development is of a high quality and responds positively and sympathetically to local character.

[address] is an unadopted no-through residential road. In planning terms, the lane is a highway, albeit not one maintainable at public expense. The existing access into the appeal site would be retained and widened to 5m. The entire front garden would be surfaced to provide 6 car parking spaces accessed via an internal loop to enable entry and exit in a forward gear.

The appellant’s [name] (TS) indicates that the scale of the proposed nursery would result in 87 new vehicle trips per day. For a quiet, suburban lane this is not insignificant. Peak activity would relate to concentrated drop-off and pick-up periods in the morning and afternoon between 07:30-09:30 and 15:00- 18:00 hours. The trip generation related to the proposed development has been estimated using the TRICS database. The TS states that this predicts there would be 17 2-way movements in both the AM (08:00-09:00) and PM (17:00-18:00) peaks. This is a shorter period than the predicted peak activity for the nursery. The analysis does not however, appear to consider half day arrangements for childcare which would generate visits in the middle of the day. It also places heavy reliance on assumed behaviour.

Whilst it is suggested that parent’s visits would rarely coincide and dwell time on site would be low, this cannot be guaranteed. The timing of parents’ visits will depend on what time they begin or finish work, or other commitments they may have. Arriving at the same time as other parents could not be prevented or controlled. The suggestion that it would take a maximum of 5 minutes to drop off or collect a child or children appears very optimistic. Numerous factors can affect a visit, such as the time taken to remove a child from or position them in a car seat, store their belongings, conduct parent or carer briefings at handover and the availability of staff to deal with arrivals and departures immediately in every case, amongst other things. Children that are distressed at leaving their parent(s) may take longer to drop-off.

Although reference is made to all deliveries being carried out within the appeal site, no quantifiable data has been provided to indicate the timing, frequency or duration of such visits, in addition to those made by parents. For these reasons, I am not satisfied that the proposed number of on-site car parking would be sufficient to meet peak demand.

The appellant relies on a Car Park Management Plan (CPMP) to regulate parking and vehicle circulation within the site. While such plans can be effective in some circumstances, in this case the strategy relies heavily on behavioural compliance rather than physical capacity. In my view, this would be an inherently fragile arrangement, particularly during the peak periods.

Despite widening the access, it would not be of sufficient width to accommodate 2 vehicles simultaneously. The tracking information shown on the submitted site plan indicates that the proposed car parking layout and circulation space would be constricted. The internal loop would be so tight to the access point onto [address], that leaving vehicles would be required to cross over into the lane of oncoming traffic to exit. If a car was waiting to make a right hand turn into the access, it would be in direct conflict with an exiting vehicle. With no compelling evidence to persuade me otherwise, I am not satisfied that this would be a safe arrangement given the volume of peak movements to the proposed nursery, in addition to those that could also be made to neighbouring dwellings.

I accept that the appeal site is located within a residential area which may enable parents to walk to the nursery from their homes. Bus services are also accessible on [address]. However, [address] does not have a dedicated pavement and only very limited street lighting, such that it is not particularly conducive as a safe walking route for parents with prams and/or small children, particularly during the reduced hours of daylight in winter. Moreover, pedestrians would share the relatively narrow entrance with vehicles. Whilst vehicle ingress and egress speeds would likely be low, the presence of retained boundary hedges would nonetheless restrict the visibility of cars and pedestrians within the appeal site from those outside, and vice versa. This is a considerable safety concern given the reliance placed on parents accessing the appeal site by means other than the car.

It is likely that parents would find accessing the site by vehicle difficult and may find it easier to park on the street, particularly when in a rush during morning drop-off periods. [address] is generally of a sufficient width to allow a car to be parked on the roadside and another to pass without incident and its straight alignment allows good forward visibility. However, the frequency and irregularity of accesses to dwellings, means that there are few places where vehicles could park on the street in this locality without blocking a driveway. In addition, the width of the road narrows from the appeal site to the east, with it ultimately splitting into 2 single track lanes divided by a metal fence. There is therefore limited room for turning in the lane at this point.

It seems to me that the lack of dedicated on-site parking and/or its particular arrangement, is likely to cause overspill onto [address]. Queuing, waiting or parked vehicles would interrupt the informal shared nature of the lane and reduce its convenience and safety for existing users. When multiple cars arrive simultaneously or the car park is full, drivers would have to carry out multiple point turns or reverse back towards The Lings. Taken together I find that visitors, staff and local residents would be put at an unacceptable highway safety risk.

A parking agreement with [name] would permit nursery staff parking on its car park between 07:30 and 18:00 hours Monday to Friday. Although this is said to be a 10-minute walk away and within 800m walkable neighbourhood distance, I found it to be slightly longer in practice. Moreover, it is a convoluted route through the housing estate, such that I am not convinced that it represents convenient alternative staff parking that would be realistically used. Staff are more likely to park on a street closer to the appeal site within the estate, particularly during inclement weather.

Interested parties have suggested that the car park is not owned by the football club and therefore cannot be sub-let. Whether or not that is the case, the off-site parking arrangement is not within the appellant’s ownership or control and there is no evidence before me that it would be available for the lifetime of the development proposed. The informal agreement could be withdrawn at any time and there is no wording in the management plan to secure alternative provision if this were to happen. It is unknown whether there would be an alternative viable option close to the appeal site.

The cumulative effect of these arrangements would be to introduce a level of activity, manoeuvring and parking pressure that would be out of keeping with the function and capacity of the appeal site and [address]. [name] do not find that the proposal would lead to a severe impact on the wider highway network in the sense described by the Framework, this is not the sole test in this case. The particular characteristics of [address] mean that intensified movements including drop-off and pick-up activity would give rise to conflict or inconvenience of a degree that would translate into an unacceptable impact on highway safety. Reliance on management measures and off-site staff parking do not overcome these concerns due to their lack of certainty, enforceability and long-term reliability.

The proposal would therefore conflict with Policies 13, 46 and 52 of the Doncaster Local Plan. Together these policies seek to ensure that development provides safe and suitable access, appropriate parking provision, and does not give rise to an unacceptable impact on highway safety, an objective shared with the Framework.

The shortfall in early years places in Armthorpe, of 62 places for babies aged 9 months to 2 years and 32 places for children aged 2-3 years is accepted by the Council and a number of interested parties. Although the particular breakdown is unknown, the provision of 39 early years childcare places would make an immediate and meaningful contribution to addressing the unmet need. As directed by the Framework, I give great weight to the provision of new early years places1.

The appellant has modified their proposal to reduce child numbers and has sought to provide plans to show how the appeal site would be managed. However, I am not satisfied that these amendments would prevent harm from occurring or that the proposed measures would be sufficiently robust to avoid adverse effects on neighbouring residents and highway safety.

I recognise that other nurseries exist in residential areas. However, each one will have its own particular context and set of circumstances. Of the 4 permissions granted by the Council that I am referred to, only 1 at The Secret Garden (82 High 1 With reference to paragraph 100a) of the Framework. Street, Dunsville) related to the change of use of a dwelling to a nursery2. I am advised by the Council and interested parties that this site is located on a main road with other commercial uses nearby. The number of child places is also less than the appeal scheme. The circumstances are not therefore comparable.

The remaining examples relate to proposals to increase child numbers at existing nurseries at Small World Day Nursery, [name] and [name] Nursery3. In those instances, the Council’s assessment would have been limited to the effects of the changes from the increased numbers of children, rather than the introduction of an entirely new use, as is the case here. All but 1 of these decisions were made prior to the adoption of the DLP and the current iteration of the Framework4. As such, they were determined under a different local and national planning policy context. The examples cited do not affect my findings.

Support for a proposal does not indicate a lack of harm and there are a number of objections from interested parties and statutory consultees with which I have also had regard.

The proposal would generate employment and contribute to the identified shortfall in early years provision, a matter to which I give great weight. Although the proposal would not cause harm to privacy, it would have a significant adverse effect on the living conditions of neighbouring residents with regard to noise, would harm the character and appearance of the area as a result of intensified activity, and would have an unacceptable impact on highway safety. These harms carry significant weight and therefore outweigh the great weight attached to the benefits of the scheme.

The proposal therefore conflicts with the development plan and there are no considerations that indicate a decision should be taken otherwise than in accordance with it. Consequently, the appeal is dismissed.