Appeal 6004314

The appeal is dismissed.

An application for an award of costs has been made by [name] against Northumberland County Council. The outcome of that application is the subject of a separate decision.

The application seeks to vary an approval that was in itself a variation of conditions relating to a previous permission. In terms of the substance of what is being considered, the ‘original’ permission appears to relate back to a Beach style cafe, restaurant and stand alone storage container.

The cafe, known as the [name], was in place and in operation at the time of my site visit. It occupies a coastal location and is set down a grassed bank adjacent to the promenade, immediately fronting onto [name]. Nearby residential properties are set up and across [address] away from the cafe.

I am advised that the appeal site has proximity to the Northumberland Coast Special Protection Area (SPA) and Ramsar Site which is situated 20m from the site boundary. This is an internationally important site for overwintering birds including [name] and Turnstone. The evidence indicates that the site is immediately adjacent to the Northumberland Shore Site of Special Scientific Interest (SSSI) which is a nationally important site for birds.

The application was in part refused around concerns as to how the variation of condition would affect the living conditions of nearby residential occupiers. Given the stated reason for which the condition was added to the approval for which variation is sought, which was not based around the amenity of neighbouring residents, I afford this matter very limited weight and will not consider it further.

The application in particular relates to the second limb of condition 7. This states ‘No new external lighting, music or entertainment will be permitted’. The application seeks to vary that condition to read ‘No new external lighting, external music or external entertainment will be permitted’.

The other limbs of the same condition which do not appear to draw disagreement relate to the avoidance of major construction activities during the overwintering period and the provision of signage.

The reason for the condition as a whole was to avoid direct and indirect impacts on the interest features of the [name]/Ramsar Site, the Northumberland Shore Site of Special Scientific Interest (SSSI), the Coquet to St. Mary's Marine Conservation Zone (MCZ) and Berwick to St. [name], in accordance with Policy ENV2 of the Northumberland Local Plan.

The main issue is the effect of permitting the alteration to the condition when considering nearby ecological interests and whether the condition as existing meets the conditions tests.

The Council consider that the condition as existing serves to prevent external lighting as well as any music or entertainment whether that be internal or external.

The appellant considers that the condition prohibits external lighting and only serves to prohibit external music and external entertainment but not internal music and internal entertainment. The appellant suggests that by adding the word ‘external’ before the words ‘music’ and ‘entertainment’ existing issues around suggested ambiguity could be resolved.

I shall consider the wording of the condition with regards to the particular characteristics of the site and within that important context, against the relevant tests1.

The location of the appeal site itself as well as the design of the building is an important matter to consider. The Needles Eye Cafe occupies a building with a coastal facing elevation that incorporates a significant array of openings which include large windows as well as doors facing closely out onto [name]. 1 Frequently referred to as the tests for conditons – set out within Paragraph 58 of the National Planning Policy Framework and Paragraph: 003 [name]: 21a-003-20190723

The levels of sound transfer that could occur are unknown and I accept these are likely to vary depending on the nature of the music or entertainment and whether any doors or windows were open.

However, even with regard to internal music and entertainment, there is likely to be the potential under the right conditions for significant sound transfer from the inside of the premises to the outside. The impact of that noise transfer could be notable, within the context of the setting of the site which is isolated from other development and which is likely to be generally quiet for significant periods of the year.

An impact pathway would be present and likely significant effects on the protected habitats nearby could not be ruled out. I am therefore required to carry out an Appropriate Assessment. However, I am required to adopt the precautionary principle. This applies the assumption that an effect would be significant, unless there is objective evidence to the contrary. There is nothing within the evidence which would enable me to conclude that the proposal would not undermine the integrity of the protected habitats nearby. Natural England have advised that the level of information provided was insufficient for them to reach a conclusion within their consultation response.

On my reading of the condition within the context of the site, the first part of the limb of the condition first prohibits any new external lighting. This has to be considered separately as otherwise the reference to ‘new’ would not make sense within the context of the original approval for a Beach style cafe, restaurant and stand alone storage container.

A comma is included to assist in offering separation and I consider that the second part of this limb can reasonably be interpreted separately from the latter limb of the condition. This serves to prohibit music and entertainment at the site, whether that be internal or external.

I therefore consider that the condition meets the relevant tests2 for conditions including with regard to precision, enforceability and necessity when the condition is considered, as it should be, with proper regard to the reason for its inclusion and the particular location of the appeal site.

The proposal before me to alter the condition would conflict with Policy ENV 2 of the Northumberland Local Plan (2022) which requires that development proposals affecting biodiversity demonstrate that adverse impacts will be adequately mitigated for.

I note that the proposal is not the subject of objection from nearby residents and that the proposal benefits from some support including the Town Council on the basis that they feel the proposal would clarify the condition. I note that permitting the variation of the condition as sought could provide economic and social benefits through the provision of music and entertainment at the cafe.

There are reports from those in the area that the existing operation of the cafe has not adversely affected ecological interests close to the site, but that evidence is not substantive and I afford this limited weight. 2 Set out within Paragraph: 003 [name]: 21a-003-20190723 of Gov.uk Planning Practice Guidance.

I am advised that internal music and internal activity are acceptable under the premises license and have not been identified as giving rise to harm by the Council’s Environmental Health Team. However, it could reasonably be the case that the relevant regulations within that area are concerned with other matters than which I have to deal with, particularly in reference to protected habitat sites.

I have considered and had regard to the principles identified within the cited legal judgements within the appeal. However, as only limited summaries have been provided, the weight to which I afford to those matters in support of the scheme is limited and, in any event, the stated outcomes on those cases do not alter the position at which I have arrived.

For the reasons given above the appeal should be dismissed.