Appeal 6004381

The appeal is allowed and planning permission is granted for the conversion of an existing car park to the north-east side of the existing public house to form an external customer and landscaped area as shown on the Location Plan, Proposed Site Plan - Drawing no. 02 [name] and [name] - Drawing no. 04 [name] at [site address] in accordance with application Ref 7/2025/2097, without compliance with [name] 4 previously imposed on planning permission Ref 7/2021/2348, allowed at appeal on 1 August 2022 (Ref: APP/Q9495/W/22/3297944) and subject to the conditions in the attached Schedule.

The appeal relates to an external area associated with a public house. Planning permission for it was given in 2021. This was subject to a condition that the use of the external customer area cease by 1800 hours on any day. Subsequently a further planning permission was granted at appeal in 2022 which extended the hours of use until 2000 hours (Ref: APP/Q9495/W/22/3297944). The proposal is to increase the end time until 2300 hours.

An earlier application to convert an existing car park and passage to a beer garden was dismissed at appeal in 2019 (Ref: APP/Q9495/W/18/3211393).

This is whether restricting the use of the external area to no later than 2000 hours is necessary having regard to the living conditions of nearby residents and those staying in tourist accommodation in [address].

The appeal site is on the edge of the central shopping area in Keswick and is adjacent to a well-used main car park. [address] is one of the vehicular routes through the town centre. Retail and other commercial uses are nearby. However, there are flats above the shops in [address] as well as guest houses on the opposite side of the road. There are also flats set back at [name] and residential properties in [address]. The external customer area is below road level and enclosed by walls, a balustrade and railings.

It is a common theme of previous appeal decisions that there is less activity in this part of Keswick in the early and late evening than during the daytime when more shops are open and traffic flows are higher. However, the question is whether it is necessary to cap the use of the external area to 2000 hours rather than compare evening and daytime noise levels. Furthermore, as noted by the last Inspector, the location is one where those living and staying cannot reasonably expect the same ambience as an exclusively residential area.

The appellant’s Noise Impact Assessment (NIA) sought to predict that arising from additional use of the external terrace area on the nearest sensitive receptors on the other side of [address]. The octave band input data was based on a capacity of 108 patrons all with raised voices. The Assessment concluded that the maximum increase in ambient level LAeq would be 0.1dB. This is categorised as below the [name] and therefore the NIA states that there would be no negative noise impact associated with the proposal.

However, the value of this finding in assessing the proposed extended hours is limited. The acoustic environment predominantly comprises noise from frequent passing cars on [address]. The main source of noise associated with the use of the external area is raised human voices. These have an entirely different tonal quality to moving vehicles. Furthermore, although the technical conclusions of the NIA are not disputed, they relate to the notional steady sound level over a stated period of time rather than the sudden outbursts that might arise when large numbers of people are congregated outside.

[name] visited before 2000 hours, the external area was in use for eating and drinking. From across [address], the hum and buzz of conversation and socialising was largely drowned out when vehicles went by. After [address] was closed but there was noise emanating from a live music venue, those waiting outside it and from others walking along [address] and along the passage between the public house and the appeal site to the public car park. It was still a busy area.

Indeed, this part of the town is already fairly lively in the evenings. The public house stays open until midnight on most days and until 0100 hours on Fridays and Saturdays. Representations refer to intoxicated patrons leaving the premises with elevated noise levels all year round, especially during warmer weather and at peak visitor periods. The concern is that shouting, singing and other antisocial behaviour already committed by customers outside on the street would be exacerbated, especially as the noise is said to echo along [address].

The appellant recognises that the use of outside areas by their customers gives rise to a potential risk that noise and disturbance would be caused to those who live in the vicinity of the premises. To that end, a management plan has been provided. Whilst the measures it contains would not prevent unwanted behaviours, this does provide some assurance that the use of the appeal site would be monitored. [name] raise no objections. No amplified music would be played in line with the condition on the 2022 permission. It is also claimed that there is a high staff to customer ratio although local residents suggest that this is insufficient to challenge disorderly behaviour.

There is something of a delicate balance in this case between supporting the vitality of Keswick and creating places with a high standard of amenity for existing users. The actual implications of the proposal will be dictated by human behaviour which cannot be anticipated precisely. However, whilst the appellant refers to attracting a broad range of customers, including families, it would be unreasonable to assume that none of them would be boisterous at times. Indeed, the first-hand evidence of those living nearby is that this is already the case in the vicinity of the public house and along [address].

This is a town centre location. Even if the appeal were dismissed, there would still be late night activity in the vicinity. The use of the outside seating area after 2000 hours would be unlikely to be all year round and would not add significantly to the existing episodes of disturbance. However, the measured noise levels show some tailing off in both the average minimum and average maximum over the period from 2000 to 2300 hours. In addition, 2200 hours is a time when those nearby might reasonably expect the background noise climate to reduce.

Therefore, having regard to the living conditions of nearby residents and those staying in tourist accommodation in [address], it is not necessary to restrict the use of the external area to no later than 2000 hours. However, the use of the existing terrace should be limited to 2200 hours. On this basis, the proposal would accord with Policy 06 (design and development) of the Lake District National Park Local Plan 2020-2035 as there would not be an unacceptable impact on the amenity of adjoining residents due to noise.

The external area exists and is already in use. This part of Keswick Conservation Area has a mixed residential and commercial character, including evening activity. As such, increasing the times when it would be open to customers would preserve the character and appearance of this designated heritage asset.

The 2019 appeal was concerned with an external area of more than double the size of the existing one. In 2022 the Inspector was only considering the requested extension of hours until 2000. Therefore, they can be distinguished from this case and there is no contradiction between the outcome here and the decisions made in those appeals.

Other Local Plan policies and the National Planning Policy Framework provide support to the proposal. These include the benefits to the town centre by expanding the times the external area can be used as a nighttime venue and extra employment. It is also contended that community facilities would be improved and that a more efficient use would be made of land. These have been taken into account but do not justify allowing the external area to be used until 2300 hours when it is more likely to give rise to a nuisance. The advantages referred to would be realised by restricting use to 2200 hours in any event.

During the course of the application, the Council declined to entertain changing the description of development to refer to 2200 hours instead of 2300 hours. However, imposing a condition to this effect would not prejudice the interests of affected persons since the end time is earlier than that originally applied for.

The Planning Practice Guidance indicates that if permission is given under section 73 then conditions that continue to have effect should be repeated. Of those on the 2022 permission, conditions are required to control opening hours, to prevent amplified music and other sound sources and to require adherence to the management plan. However, the end time in the management plan should refer to 2200 hours. All of them are necessary to protect living conditions.

As the use has commenced there is no need for a condition specifying the works to be done in advance. Furthermore, details of external materials are no longer required. The approved plans can be specified in the permission itself. There are on-going requirements in respect of landscaping but the previous wording has been adjusted to reflect the current position. The lighting was previously agreed to be switched off at 1900 hours. No detailed evidence has been provided in this respect and therefore a revised time should be agreed by the Authority.

Amending the disputed condition to allow for the external customer area to be used until 2200 hours would accord with the development plan. There are no other material considerations to the contrary. Therefore, for the reasons given, the appeal should succeed on this basis.

The planting shown on the Proposed Site Plan - Drawing no. 02 [name] shall be maintained and any planting which, within a period of five years of planting dies, is removed or becomes seriously damaged or diseased shall be replaced in the next planting season with others of similar sizes and species unless the local planning authority gives written consent to any variation.

The external customer area hereby permitted shall not be used by customers otherwise than between the hours of 09:00 and 22:00 on any day.

The external lighting fixtures approved by the local planning authority on 27 September 2021 (Ref:7/2021/2264) shall be operated in accordance with times previously agreed in writing by the local planning authority.

No amplified music, televised events, commentary or any other broadcast shall be shown or played within the external customer area hereby permitted.

The external customer area hereby permitted shall be managed in accordance with [site address] Premises Management Plan May 2025 at all times when open to customers, except all references in that document to 23:00 hours should be read as 22:00 hours.