Appeal 6005125

The appeal is allowed and prior approval is granted under the provisions of Article 3(1) and Schedule 2, Part 3, Class MA of the Town and Country Planning (General Permitted Development) (England) Order 2015 (as amended) for Change of use to 31 apartments within Use Class C3. Works include alterations to external doors and windows including some new windows, and demolition of 2 modern extensions to Buildings 13 and [site address] which are the subject of a separate planning application. Internal alterations at [site address] in accordance with the application 25/00877/PNRIA and the details submitted with it and subject to the conditions set out in the attached schedule.

Schedule 2, Part 3, Class MA of the Town and Country Planning (General Permitted Development) (England) Order 2015 (as amended) (GPDO) permits development consisting of a change of use of a building and any land within its curtilage from a use falling within Class E (commercial, business and service) of Schedule 2 of the Use Classes Order (UCO) to a use falling within Class C3 (dwellinghouses) of Schedule 1 to that Order.

[name].1 of the GPDO sets out circumstances where such development is not permitted. [name].2(2) indicates that development is permitted under Class MA subject to the condition that before beginning the development, the developer must apply to the local planning authority for a determination as to whether its prior approval will be required as to several considerations.

The Council does not suggest that the proposal does not accord with the limitations and restrictions set out at paragraph MA.1. Based on the evidence before me, I have no reason to disagree.

As to the considerations set out at paragraph MA.2(2), the Council has concluded that prior approval is required and should be refused in respect of (b) contamination risks in relation to the building and (d) impacts of noise from commercial premises on the intended occupiers of the development.

The decision notice includes references to policies of the development plan for the area. The principle of development is established by the GPDO and the provisions of Schedule 2, Part 3, Class MA and I am required to assess the proposal as a prior approval application as set out within the parameters of the GPDO. Regard can be given to development plan policies insofar as they are material considerations, however they are not in themselves determinative.

The main issues are whether prior approval should be granted in respect of: • Impacts of noise from commercial premises on the intended occupiers of the development; and • Contamination risks in relation to the buildings.

The appeal buildings are located within [address], a business park accessed from the busy [site address] . The surrounding area is characterised by a mix of commercial uses within [address] and Sawley Park adjacent to the site. Residential properties are situated on the opposite side of [site address] .

The appeal is supported by a Noise Assessment (NA) that includes surveys undertaken at two external locations, covering day and night-time periods. Measurements were recorded between 12.30pm and 5pm and 7.30pm and 9pm on Monday, 8 September 2025 and between 5am and 7.30am on Tuesday, 9 September 2025. I consider that this provides a reasonable representation of typical noise conditions.

The NA identifies intermittent road traffic from nearby local routes as the dominant noise source at the site, with occasional commercial noise sources audible during quiet periods. This aligns with my observations during a daytime site visit. The NA also confirms, without dispute, that few of the businesses in [address] operate in the evenings and none between 5am and 7am. Furthermore, there is nothing within the evidence that suggest that activities at Sawley Park, which occur at ground levels significantly lower than those at the appeal site, would generate unacceptable noise during the evening or night.

In the absence of compelling evidence to the contrary, I am satisfied that the NA is comprehensive and robust, and that it adequately considers daytime and night-time noise. I am persuaded that the occupants of the development would experience relatively low noise levels and that their living conditions would be acceptable subject to the incorporation of sound insulation measures that is recommended within the NA.

I conclude, the impacts of noise from commercial premises on the intended occupiers of the development would be acceptable subject to suitable mitigation measures, and that prior approval should be granted in this regard. The proposal would comply with the requirements of saved H14, E12 and GD5 of the City of Derby Local Plan Review, January 2006 (LP) insofar as they relate to this consideration.

A Phase 1 Land Contamination Risk Assessment dated January 2026 (2026 Assessment) accompanies the appeal and directly addresses the Council’s concerns regarding the robustness of the Phase 1 Environmental Assessment (Initial Assessment) which supported the planning application. The Initial Assessment was limited in scope, examining only one unit, and was prepared in support of a change from industrial to office use, therefore assessing a less sensitive end user than the residential use that is proposed.

In contrast, the 2026 Assessment provides a comprehensive review of all buildings within the appeal site and explicitly evaluates their suitability for residential reuse. It identifies several potential contamination risks associated with both historic industrial activity and recent vehicle workshop usages, confirms that the assessment has been undertaken in accordance with the Environment Agency’s procedures and concludes that the site represents an estimated moderate level of risk to the development. Additionally, it sets out a recommendation that a proportionate Phase II Intrusive Site Investigation is carried out to determine any risks relating to groundwater contamination and ground gas or vapour migration.

The Council did not seek advice from its Environmental Protection Team (EPT) on the 2026 Assessment, and its views are therefore unavailable. Nevertheless, I find no reason to dispute its findings. In the absence of compelling evidence to the contrary, I am satisfied that, subject to a suitably worded condition requiring a [name] and any necessary mitigation, the site would not be contaminated land as described in Part 2A of the Environmental Protection Act [address].

I find, based on the evidence before me and in the absence of any substantive evidence to the contrary, that any contamination risks in relation to the buildings could be addressed and that prior approval should be granted in this regard. The proposal would comply with the requirements of saved LP policies GD5, H14, and E12 insofar as they relate to this consideration.

The permission granted by Class MA is subject to the conditions set out in paragraph MA.2. It is not necessary to repeat them in full here, but of particular note are those set out at MA.2.(5) and MA.2.(6). These state, respectively, that development must be completed within a period of 3 years starting with the prior approval date, namely the date of this decision, and that any building permitted to be used as a dwellinghouse is to remain as a dwellinghouse within Class C3 of Schedule 1 of the UCO, and for no other purpose except to the extent that the other purpose is ancillary to use as a dwellinghouse.

Furthermore, paragraph W(13) of the GPDO allows prior approval to be granted subject to conditions reasonably related to the subject of the prior approval. The Council has suggested conditions that the appellant has had the opportunity to comment upon and which I have considered against the advice in the National Planning Policy Framework and Planning Practice Guidance. As a result, I have made amendments where necessary for clarity and consistency.

I have not imposed the suggested condition that would secure a Phase 1 ground contamination study as one has been provided with the appeal. I have, however, imposed the other related conditions, which I have amended where necessary, to ensure that contamination is suitably addressed and does not pose a risk.

To protect the living conditions of nearby residents, a condition is necessary to require the submission, approval and implementation of a construction management plan. I have also imposed a condition securing noise insulation to ensure adequate living conditions for future occupiers.

A condition to secure cycle parking has also been imposed to encourage sustainable transport.

For the reasons given above, I conclude that the appeal should be allowed and prior approval should be granted.

Where the Phase 1 Land Contamination Risk Assessment, Reference 4186D P1 MMOC – Derby dated January 2026, a Phase II Site Investigation shall be carried out to determine the levels of contaminants on site that could pose a risk to the development. A risk assessment will then be required to determine the level of potential risk to end users of the development and to controlled waters. A detailed report of the investigation shall be submitted to the local planning authority for written approval prior to commencement of the development.

In those cases where the agreed [name] has detailed significant contamination risks exist on site, a [name] will be required in order to identify measures needed to mitigate the identified risks. The Remediation Strategy shall be submitted to the local planning authority for written approval prior to commencement of the development.

The risk reduction measures detailed within the agreed [name] shall be implemented in full. A Validation Report shall subsequently be produced which adequately demonstrates that the measures have been implemented in full and that all significant risks to users of the development and controlled waters have been removed. The Validation Report shall be submitted to the local planning authority for written approval prior to the development being occupied.

Development shall take place in accordance with a site-specific Construction Environmental Management Plan that has been submitted to and approved in writing by the local planning authority. The plan must demonstrate the use of the best practice means to reduce the effects of noise, vibration and dust through the development phase and include details of proposed working hours as well as a site plan identifying where any materials including stockpiles are to be located. In addition, low emission non-road mobile machinery should be utilised wherever possible.

No building shall be brought into residential use until a detailed scheme of noise insulation measures, to include an enhanced mechanical ventilation system, has been implemented, in accordance with full details which have been submitted to and approved in writing by the local planning authority. The scheme of noise insulation measures shall be prepared by a suitably qualified consultant/engineer and shall take into account the provisions of BS8233:2014 Guidance on sound insulation and noise reduction in buildings. The approved scheme shall be implemented prior to the commencement of the use and be permanently retained thereafter.

No buildings shall be brought into residential use until cycle parking has been provided for use of the residents in accordance with details that have been submitted to and approved in writing by the local planning authority and thereafter shall be kept free of obstruction and available for the parking of cycles for the lifetime of the development. End of Schedule