Appeal 6004661

The appeal is dismissed.

An application for costs was made by the appellant against the Council. This is the subject of a separate decision.

I have used the description of development set out on the appeal form in the banner heading above, as it more clearly sets out the development proposed.

The main issues in this appeal are the effect of the proposal on: • the living conditions of residents of the [name], with specific regard to noise and disturbance arising from the use of the proposed outdoor seating area; and • the living conditions of occupants of nearby dwellings, with specific regard to the noise and emissions arising from the proposed generator.

The Boat Café is moored within the [name] at [name], adjacent to a mixed-use building of the same name. Ground floor uses within the part of the [name] building directly opposite the [name] include the rear of a convenience store and residential apartments. The quay at this point is relatively narrow, resulting in a limited separation distance, approximately 5 metres, between the outer edge of the quay and the nearest residential windows. There is currently no outdoor seating along this stretch of quay.

There is no dispute between the parties that [name] functions as a lively leisure environment, as evidenced by the appellant’s sound level data. During my visit, the area exhibited a consistent level of activity, with frequent pedestrian and cycle movements across [address] and along the quay between [address] and [address], as well as people using public seating and nearby cafés and bars. The prevailing background noise arose primarily from these movements and associated conversations, supplemented by intermittent sounds from gulls and other birds, together with occasional boat engine noise within [site address] .

While positioned close to the thoroughfare linking [address] and [address], activity along the quay between the [name] and the [name] building, extending towards [name], was notably reduced. The absence of outdoor seating in this section limits opportunities for people to stop. Consequently, this stretch of quay was noticeably quieter and more tranquil, albeit still influenced by the wider vibrancy of [site address] , which remained perceptible but more detached.

The Boat Café was open during my visit, with a small number of customers present within the vessel. The windows were closed, although the entrance door remained open. Notwithstanding this, no discernible noise emanating from the café use was apparent at the time of the visit.

The proposal would introduce a floating platform for an outdoor seating area to accommodate up to 36 customers of the [name]. Unlike the enclosed environment of the canal boat, these patrons would be situated in the open. As such, the use of the seating area would inevitably give rise to a noticeable level of noise, including that associated with the movement of chairs and tables, the handling of crockery and glassware, and customer conversation.

There is no substantive evidence before me to demonstrate that the overall noise generated by the proposal would not give rise to an adverse effect on the living conditions of residents of the [name], in particular occupants of the nearest ground floor apartments. While the appellant has submitted sound level data for [name], the quay between the [name] and the [name] building is characterised by a comparatively lower baseline of background noise than other areas. Furthermore, the precise locations at which the appellant’s measurements were taken have not been clearly identified, limiting the weight that can be afforded to this evidence.

Conversational noise, although often perceived as incidental, can be variable and difficult to control. Where multiple conversations occur simultaneously, as would reasonably be expected within an outdoor seating area of this scale, the cumulative effect typically results in an increase in overall noise levels, thereby making such activity more readily perceptible to nearby receptors. I recognise that the existing vessel could accommodate numerous patrons and operate with its windows open. Nonetheless, that environment would still be more enclosed than the proposed floating platform.

Noise is a complex technical matter. However, aside from the dataset of sound level recordings, there is no robust technical evidence before me, such as a noise impact assessment, to demonstrate that noise levels at the nearest residential receptors would remain within acceptable limits. The evidential burden rests with the appellant to show that the proposal would not give rise to adverse effects, rather than with the Council to demonstrate that harm would occur.

Notwithstanding the historically active character of [site address] , and irrespective of any original intentions for the [name] development or the expectations of existing residents, the [name] building and its uses do not comprise new development. The Boat Café is an established business; however, it post-dates the [name] development. Accordingly, Paragraph 200 of the National Planning Policy Framework is not engaged.

While there are other nearby businesses with outdoor seating of a similar scale, including [name], [name] and [name], their circumstances differ. [name] and [name] are located on [address] along a busier quay route, characterised by a higher level of activity and background noise. [name] is situated further along the quay, set around a corner and adjacent to a public square opposite [name]. Furthermore, the nearest residential receptors to all these outdoor seating areas are at first-floor level. These differing contexts limit the comparability with the appeal proposal.

The appellant also refers to other noisy events that take place within [name], close to the appeal site. Nonetheless, these events are temporary in nature and, although not far from the [name], typically occur in parts of [site address] with a higher baseline level of activity and associated background noise. As such, they are not directly comparable to the proposed permanent use in a quieter location.

The appellant contends that any adverse noise impacts arising from the proposed outdoor seating could be mitigated by planning conditions, including controls over amplified music, adherence to a noise management plan, layout restrictions, acoustic screening and limited opening hours. Reference is made to a previous appeal1 where conditions were used to balance vitality and residential amenity. However, as the appellant acknowledges, there are notable differences in site context, as well as the nature and scale of development. As such, the weight I afford this example is limited and it does not lead me to allowing the appeal given the harm I have identified. In any event, no detailed or precise condition wording has been provided and, on the evidence before me, it is uncertain whether such measures would be effective in practice.

In conclusion, the evidence does not demonstrate that unacceptable effects on the living conditions of nearby residents, in terms of health and quality of life, would be avoided. Furthermore, the extent of any harm has not been adequately assessed, such that it remains unclear whether effective and proportionate mitigation could be secured.

In the absence of compelling evidence to the contrary, the proposal would conflict with Policies SD4 and SD14 of the Gloucester, Cheltenham and [name] (2017) ([name]), which seek to ensure proposals for development avoid or mitigate potential disturbances, including noise, so that they result in no unacceptable levels in this regard. The proposal would also conflict with Policy B4 of the Gloucester City Plan (2023) (Local Plan), which supports accessibility and recreational uses at [site address] , but only where there is no significant adverse impact on the amenity of local residents, a requirement not demonstrated in this case. 1 Appeal Reference: APP/X5990/W/24/3350517

The appellant advises that the proposal would include the replacement of the existing generator. From the evidence, I understand that power was previously derived from the boat’s engine, with a temporary generator currently in use pending a permanent supply. This position is not disputed by the Council.

Irrespective of whether a permanent supply is ultimately secured, the evidence indicates that the proposed generator would comprise a modern, silenced unit with a maximum noise output of 54 dBA. This is lower than the boat engine, which is stated to generate up to 60 dBA.

The Council was provided with details of the proposed generator, including a web link to its specifications. Although no formal noise assessment was submitted, the generator would be housed within the engine bay, and its output would be lower than that of the existing engine. In addition, the introduction of the floating platform would increase the separation distance to the nearest residential receptors. Taken together, it is reasonable to conclude that the resulting noise levels at those receptors would be lower than under the existing arrangement. As a modern diesel marine generator, it would also be reasonable to conclude that it has been designed to run more efficiently and produce less emissions than the boat’s engine. These matters could therefore reasonably be secured by condition.

In this context, the Council’s position that the information relating to the generator is limited, anecdotal, or lacking in specificity is not clearly supported by the evidence before me.

Accordingly, for the reasons above, based on the evidence before me and my observations on site, noise and emissions arising from the proposed new generator would not harm the living conditions of occupants of nearby dwellings. The proposal would therefore accord with Policies SD4 and SD14 of the [name] and Policy B4 of the Local Plan in this regard.

The Boat Café benefits from an extant permission2 which includes outdoor seating located less than 1 metre from the ground floor residential windows within the [name] building. Nevertheless, the appellant has found themselves in an unfortunate situation where they are unable to secure the necessary agreement from the landowner to implement this seating on a permanent basis.

[name] have sympathy in this regard, and I am mindful that the floating platform sought to address any issues with the approved seating arrangement, the approved arrangement is appreciably smaller in scale than that now proposed. Although the proposed seating would be set further from the nearest residential receptors, such that sound would attenuate with distance, this would likely be offset by the increase in seating capacity and the number of simultaneous conversations. In the absence of technical evidence to the contrary, I find it unlikely that the effects of the proposal would be comparable to, or less harmful than, the approved outdoor seating arrangement. Consequently, the fallback position carries limited weight. 2 Application Reference: 15/00015/FUL

I recognise that the proposal has received a significant amount of support from the wider community, including from some residents that live nearby. It would also contribute to the ongoing viability of the business and improve accessibility for people with disabilities. However, notwithstanding these benefits and the proposal’s attractive and distinctive offer, alternative café facilities accessible to people with disabilities exist nearby. These considerations do not therefore outweigh the harm I have identified.

I also note the potential environmental benefit arising from the installation of a sea bin. Nonetheless, this is contingent upon securing an electricity supply, which, in this case, is not guaranteed. As such, I afford this benefit limited weight.

I have found, based on the evidence before me and my observations on site, that it has not been demonstrated that the cumulative noise arising from the proposal would avoid adverse effects on the living conditions of residents of the [name]. While the noise and emissions associated with the proposed generator would not, in themselves, be harmful, this does not outweigh or justify the likely harm arising from the outdoor seating area. The proposal would therefore conflict with the development plan read as a whole.

It has not been demonstrated that there are any material considerations of sufficient weight to indicate that a decision should be taken otherwise than in accordance with the development plan. The appeal is therefore dismissed.