Appeal 6004817

The appeal is dismissed.

The Council has made reference to the Pre-Submission Portsmouth Local Plan 2024 (emerging plan) which was approved for public consultation on the 28 May 2024 and has recently been submitted for examination on the 18 March 2026. Paragraphs 48 and 49 of the National Planning Policy Framework 2024 (the Framework) state that due weight should be given to such policies according to the stage of preparation of the emerging plan, alongside the extent to which there are unresolved objections to relevant policies and the degree of consistency of the relevant policies in the emerging plan to the Framework.

The evidence indicates that the emerging plan has not yet reached adoption stage and is at an early stage of plan preparation. Therefore, the policies within it, as material planning considerations, are of limited weight and cannot at this stage be afforded full weight in decision making terms. I am therefore required to determine this appeal in accordance with the relevant saved policies of the Portsmouth City Local Plan 2001-2011 (PLP) in accordance with Section 38(6) of the Planning and Compulsory Purchase Act 2004.

The description of development in the banner heading is taken from the planning application form. However, the Council has used a different form of wording on the decision notice which states ‘Part retrospective application for change of use from public house ([name]) to convenience store (Class E(a)) including associated external alterations and works to fenestration’.

At the time of my site visit, I observed that a ground-floor window on the front (west) elevation had been covered with a render finish, which extended above the window and wrapped around the main corner entrance of the building to the south elevation. Regardless of what has been constructed to date, I have determined this appeal based on the proposed plans submitted to the Council, and any works carried out not in accordance with those plans would be a matter between the Council and the appellant.

The appellant has submitted amended plans for this appeal. These plans have been submitted to respond to the first reason for refusal on the Council’s decision notice, relating to the infilling of the ground floor west elevation window, and other external alterations. Additionally, the appellant has requested a revision to the proposed opening hours of the proposal with suggested conditions in response to the second reason for refusal given by the Council. The proposed opening times differ substantially from those set out in the planning application form.

Crucially, the amended plans and revised opening hours were not submitted to the Council at the application stage, and I find that the changes are substantive in nature. I cannot be assured that this submission has been reviewed by all parties with an interest in this appeal, including relevant consultees within the Council and neighbouring occupiers. This is tantamount to the submission of new information. The Planning Inspectorate Appeals’ Procedure Guide makes it clear in chapter 16 that the appeal process should not be used to evolve a scheme, and it is important that what is considered by the Inspector is essentially what was considered by the Council. I have not therefore considered this new information in this appeal as it would prejudice the Council, its decision and any interested parties.

The main issues are: • the effect of the proposed development on the character and appearance of the host property and the surrounding area; and • whether the development would provide satisfactory living conditions for adjoining occupiers, with particular regard to noise and disturbance; and • whether the proposal would be acceptable with regard to the loss of a public house in the locality, with particular regard to marketing evidence; and • whether the site represents a suitable location for the proposed development, having regard to the proximity of other retail uses in the local area and the provision of an active frontage.

The appeal site comprises an attractive two-storey period property situated on a prominent corner at the junction of [address] and [address] within a predominantly residential area. Whilst the site is not located within a conservation area, the locality displays a coherent pattern of development, with consistent building lines and attractive period properties that contribute positively to its established character and visual interest.

The building’s frontage is predominantly constructed of red brick, with some sections painted. The south elevation, facing [address], features decorative window and door surrounds. The Council describes the building as a non-designated heritage asset. Although it is not included on the Council’s local list, I consider that the building nonetheless contributes positively to the character of the area, forming a distinctive and characterful feature within the locality.

The proposal includes a number of external alterations. The changes sought to the rear of the building, including the removal of a ground floor canopy structure, would not be harmful to the significance of the building. Alterations to the west elevation facing [address] include a window being blocked up, in addition to a door to the south elevation fronting [address]. The Council has raised concern regarding the proposed changes and comment that the window previously displayed ornate detailing, including columns which formed a positive feature in the building and the street scene. Further, they have commented that insufficient detail has been provided to assess the impact of blocking the door in the south elevation.

The proposed west elevation fenestration would appear unbalanced as a result of the proposal. Additionally, although I do not have full details of the window that has been removed, the evidence indicates that the original fenestration and its surround were rich in architectural detail. Its removal results in an unsympathetic alteration to the period property and, given the prominence of this elevation within the street scene, would have a detrimental impact on the character and appearance of the locality.

With regard to the removal of the south elevation door, I find that further details are required with regard to the materials proposed to block up the opening, to ensure that the change would be visually acceptable. Additional clarification is also needed as to whether the existing lintel above the doorway is to be retained. In the absence of this information, there is potential for harm to the visual interest of the characterful property and the wider area.

Turning to the dispute regarding the areas set aside for signage on the west and south elevations, whilst the details would be covered under separate legislation for advertisement consent1, the areas delineated on the proposed plans would appear excessive for the display of advertisements. The appellant sets out that these areas do not extend the full width of the building on either the west or south elevations; however, the extent shown is still expansive and the eye would be unacceptably drawn to these areas, to the detriment of the visual interest of the period property and its surroundings.

I therefore conclude that the proposal would have a harmful effect on the character and appearance of the host property and the surrounding area. This is contrary to saved Policy PCS23 of the PLP which amongst other matters, requires development to achieve excellent architectural quality in new buildings and changes to existing buildings; appropriate scale, density, layout, appearance and materials in relation to the particular context; alongside protection and enhancement of the city’s historic townscape and its cultural and natural heritage. As indicated in the preliminary matters section of this appeal, limited weight is given to the emerging plan. 1 The Town and Country Planning (Control of Advertisements) (England) Regulations 2007 (as amended).

The evidence provided by the appellant suggests that the previous trading hours of the vacant public house were 1:00pm to 11:30pm Monday to Friday and 1:00pm to 10:00pm on Sundays. The proposal would extend the opening hours of the premises every day from midnight to 11:59pm, and as such the retail use would be open throughout the day and night. An objection has been submitted by a nearby resident, raising concern that the hours of opening would result in unacceptable noise and disturbance. Given the close proximity of residential properties, including a residential flat above the ground floor of the building, it is fair to envisage that the proposed retail use has the potential to cause noise disturbance to nearby residences through the comings and goings of patrons, as well as from loitering outside the premises. The hours of opening as proposed would allow for the public use of the premises and extra patronage at night-time when surrounding residents should reasonably expect a level of peace and quiet.

Whilst the previous use as a public house would have been invariably noise-generating and that there will already be a degree of noise and disturbance associated with the building in its lawful use, it would appear that the existing use operated within restricted opening hours, as set out in my reasoning above. The extended opening time of the premises would include night-time hours, when it is reasonable to expect the local background noise environment to be quieter than the daytime. Within a quieter night-time context, noise from additional patronage beyond these existing opening times could be more noticeable to adjoining residential occupiers than noise during the daytime. As such, it is likely the retail use with the proposed opening hours would be more disruptive at nighttime compared to the previous public house use.

Planning Practice Guidance (PPG) advises on how to recognise when noise could be a concern. At a significant observed adverse effect level, potential for sleep disturbance and - or quality of life is diminished. The PPG sets out that this effect level should be avoided by the use of appropriate mitigation. At the highest extreme, where above the significant observed adverse effect level is found, noise exposure results in regular sleep deprivation and psychological stress. At this effect level the adverse effect would be unacceptable.

A noise impact assessment has not been submitted with the application. Without this or a mitigation scheme to address potential noise to adjoining noise-sensitive residential uses, I find the proposed opening hours would have a potentially detrimental and harmful impact on the living conditions of adjoining residential occupiers. Moreover, in the absence of technical data or proposed mitigation measures, there would be potential for a significant observed adverse effect to adjoining residents due to noise caused through the proposed late-night hours of opening. Whilst the Council’s environmental health regulatory services have suggested that a pre commencement condition could be added to address noise transmission from plant and noise generating equipment to the first floor flat through a sound insulation scheme, this would not mitigate the external noise created by customers during the night.

For the above reasons, the proposal would have the potential to significantly harm the living conditions of adjoining residential occupiers, with particular regard to noise and disturbance. Given the absence of a noise impact assessment and/or proposed mitigation, it has not been demonstrated that a significant observed adverse effect to adjoining residents would not occur due to the proposed late-night opening hours of the retail unit. This is contrary to the provisions of the saved Policy PCS23 of the PLP in so far as it requires protection of amenity and the provision of a good standard of living environment for neighbouring and local occupiers as well as future residents and users of the development. As set out in the preliminary matters section of this appeal, limited weight is given to the emerging plan.

The evidence indicates that the ground floor of the building is currently vacant and was last in use as a public house. Whilst the emerging plan contains a policy requiring marketing information over a 12-month period to support change of use proposals that would result in the loss of an existing community facility, I find no reference to this requirement within the saved policies of the PLP in the Council’s reason for refusal. As indicated in the preliminary matters section of this appeal, limited weight is given to the emerging plan.

I acknowledge that the appellant has provided information in their appeal statement which demonstrates that there are several public houses located within a reasonable walking distance of the proposal. Additionally, it is stated that the restricted size of the premises creates constraints where the previous business had difficulties competing with larger public houses that could provide a more comprehensive food offering. I have not been provided with details of the length of vacancy; however, the proposal would return an unused premises to an active use.

Moreover, whilst I acknowledge the representations received from interested parties that the public house comprised a valued community facility, given that the property is currently vacant and within reasonable walking distance of other drinking establishments, I am satisfied that justification has been provided in relation to the change of use of the ground floor of the property.

Accordingly, I find that the proposal would be acceptable with regard to the loss of a public house in the locality and having had regard to evidence of marketing. As indicated in the preliminary matters section of this appeal, limited weight is given to the emerging plan, and I find no conflict with the saved policies of the PLP.

The emerging plan contains a policy which restricts proposals for small local shops or services outside the City, Town, District, Local and [name] where there is no such facility within a reasonable walking distance and requests an active shopfront or other frontage with a well-designed and appropriate display window. However, I find no reference to this requirement within the saved policies of the PLP in the Council’s reason for refusal. As indicated in the preliminary matters section of this appeal, limited weight is given to the emerging plan.

Moreover, I find that the proposal is small scale in nature and would not appear out of place in its predominantly residential surroundings, where it could serve the day-to-day needs of local residents. Additionally, the proposed use would provide an active frontage to [address] and [address], where fenestration overlooks the public realm.

I therefore find that the proposal would be acceptable with regard to the proximity of other retail uses in the local area and the provision of an active frontage. As indicated in the preliminary matters section of this appeal, limited weight is given to the emerging plan, and I find no conflict with the saved policies of the PLP.

The appellant draws my attention to a number of examples of retail shops with advertisements in the wider area. This includes a convenience store on the corner of [address] and [address], in addition to a retail unit located on [address], where both properties are said to feature full width banner advertisements. As set out in my reasoning above, although an area is shown on the proposed elevations for the display of signage, the appeal does not relate to the details of any advertisement, which is covered by separate advertisement legislation. Furthermore, I have not been provided with full details of the cited schemes, and I note that both addresses are located some distance from the appeal property and do not share the same site context. Moreover, their existence does not alter my findings.

The appellant also states that the Council is unable to demonstrate a five-year supply of deliverable housing sites and that the proposal would provide an additional residential unit through the first floor flat, previously ancillary to the public house use. However, the residential flat above the premises is registered as a separate address in the neighbour consultation list and, from my observations at the site visit, appears to be occupied independently of the vacant ground floor premises. I therefore find that the proposal would not increase the residential provision at the site, and accordingly Paragraph 11d) of the Framework is not engaged.

For the reasons given above, I find that the proposal would conflict with the development plan as a whole and the material considerations do not indicate that the appeal should be decided other than in accordance with it. Accordingly, I conclude that the appeal should be dismissed.