Appeal 6005506

The appeal is allowed and planning permission is granted for the installation of internal plant, erection of flue on existing outbuilding, and installation of external fuel tank related to consented under-pitch infrastructure (part retrospective) at [site address] , [site address] , Beckenham, Bromley [postcode] in accordance with the terms of the application, Ref 24/04744/FULL1, subject to the attached schedule of conditions.

The description of development set out in the banner heading above is taken from the application form. However, the appeal form and decision notice refer to the proposal being part retrospective. A flue and external fuel tank have already been installed and appear to be consistent with the proposed plans. Much of the internal plant has also been installed but the proposed trellis and some proposed internal ductwork are not in situ. For the avoidance of doubt, I have determined the appeal based on the submitted plans considered by the Council and on the basis that the proposal is part retrospective. My decision in paragraph 1 above reflects this.

There are references to the planning history of the site. Parties include reference to the original permission for the pitches including the conditions imposed1, previous applications for proposals similar to the appeal scheme2, and an enforcement notice and upheld appeal in respect of the fuel tank3. Nonetheless, I have considered the proposal on its merits based on the information before me.

The main issues in this appeal are the effect of the proposed development on: 1 Planning application ref: 19/04644/FULL1 2 Planning application refs: 21/03379/FULL1 and 23/01759/FULL1 3 Appeal ref: APP/G5180/C/25/3361255 • the appearance of [name]; • the living conditions of neighbouring occupiers, with particular regard to odour and noise; and • air quality.

The appeal site lies between domestic gardens and the main vehicular access to the wider football academy grounds which consist of sports pitches, a large parking area and associated buildings. The site comprises a double pitched brick building and yard bounded by a timber fence/gate. Most of the academy site is within [name] (MOL) under Policy 50 of the London Borough of Bromley Local Plan 2019 (BLP), but the yard is outside it.

Policy 53 of the BLP requires proposals on land abutting MOL to not detrimentally affect the visual amenity of the adjacent designated area, amongst other things. The supporting text to this policy recognises that many sites include open space which adjoins MOL, and the Council wishes to see such land retained as a buffer between built development and the open land to ensure that the character and visual amenity of MOL is maintained.

The proposal includes a 2.6m high under-pitch heating tank in the yard which is largely screened in views from the MOL by the adjacent building, though the top is visible above the existing fence. The proposed trellis would ensure that it is not evident in views from the adjacent MOL and nearby properties, and this could be secured by a suitably worded condition. Thus, although it is a large bulky structure, the tank with the proposed screening would not detrimentally affect the visual amenity of MOL.

Consequently, I conclude that the proposed development would not harm the appearance of MOL. It would accord with Policy 53 of the BLP.

The appeal site is close to residential properties fronting [site address] , lying immediately adjacent to the rear gardens of two residences. The proposal provides a pitch heating system including combustion plant comprising two boilers, with exhaust gases discharging via the flue through the boiler room roof. It is proposed to fuel the boilers using hydrogenated vegetable oil (HVO), a term used interchangeably with hydrotreated vegetable oil.

The proposed heating system is to increase soil temperature to protect against forecast drops in temperature that could result in ground frost or light snow. Based on London frost day averages, the appellant indicates that it is anticipated to operate for between 20-30 days per annum. It is expected that the plant would be used on full power for 18 hours a day for around 10 days per year and 30% power for 18 hours per day for a further 20 days each year, though clearly this would depend on prevailing temperatures.

The Dispersion Modelling Assessment (DMA) states that detailed odour assessment is not normally required for boiler flues fired using conventional heating oil. It indicates that emissions from the proposed HVO boiler are not anticipated to have a significantly greater impact that those using conventional heating oil. The DMA notes that the closest residential properties lie south east of the flue location and as the dominant wind direction is from the south west, the residential receptors do not lie downwind of the proposed plant. Given these factors, it considers that there is a low risk of significant impacts on neighbouring residents in terms of odour.

Local residents have made representations regarding odour, but the Council’s Environmental Health team has not raised concerns in this respect. Based on the information before me, the proposal does not cause undue odour nuisance to occupiers of residential properties nearby.

The appellant’s Acoustic Impact Assessment (AIA) was undertaken in accordance with BS 4142:2014 Methods for rating and assessing industrial and commercial sound. It makes various assumptions, including the use of the under-pitch heating at any time of the day and its operation in cooler weather when nearby residents are less likely to have windows open or use private gardens, particularly at night. On site noise testing was taken when the heating system was operating at full capacity, and the AIA takes account of the proposed installation of a noise attenuator to the flue. Based on the measurements and assumptions, the AIA finds that complaints of noise from the under-pitch heating system would be unlikely.

There is reference to the lived experience of residents in the vicinity who have experienced sleep disturbance due to noise from the operation of the powerful boilers since the plant was installed. There is concern that the proposed attenuator would not overcome the low frequency throbbing tone which residents have found emanates from the proposed equipment. However, the author of the AIA confirms that all such sound management systems are calibrated to 1kHz in accordance with British standards and whilst the noise attenuator would reduce higher frequencies more than lower frequencies, it would still significantly reduce lower frequencies. Further, the noise measurements taken from the site when the system was operating suggest that the likely frequencies of concern are where the proposed attenuator is much more efficient.

Given the evidence, the Council’s Environmental Health team do not object to the proposal subject to conditions requiring the installation of the flue attenuator and demonstration that the noise levels from the scheme do not exceed those outlined in the AIA. With this mitigation in place, I am satisfied that the proposed development would not cause harmful noise or disturbance to residents nearby.

Consequently, I conclude that the proposal would not harm the living conditions of neighbouring occupiers, with particular regard to odour and noise. It would accord with Policies 37 and 119 of the BLP. Amongst other things, these require proposals to provide healthy environments and respect the amenity of occupiers of neighbouring buildings, including ensuring that they are not harmed by noise and disturbance. It would also comply with Policy D13 of the London Plan 2021 (LP) which seeks to ensure that measures are put in place to mitigate impacts from noise generating development close to residential uses.

The appeal site lies within an Air Quality Management Area where Policy 120 of the BLP states that developments should incorporate ultra low NOx boilers and avoid the use of biomass boilers unless emission standards can be met. The supporting text to this policy indicates that the main causes of air pollution problems in Bromley arise from traffic, domestic heating and cooking, restaurants and commercial cooking and heating, industrial emissions and construction. The proposed boilers would be fuelled by HVO rather than kerosene.

The DMA establishes baseline air quality at the site and undertakes dispersion modelling of emissions from the flue serving the proposed combustion plant. As the exhaust gas velocity has been provided by the manufacturer of the attenuator, there is no evidence that the attenuator has not been taken into account in the assessment. It assesses whether the predicted concentrations are likely to result in a breach of the Air Quality Objectives (AQO) and the impact at existing nearby sensitive receptors, recommending mitigation measures if necessary. The DMA sets out data for annual mean concentrations of nitrogen dioxide (NO2) and uses a baseline figure from the [name] for residential receptors close to the road network. Modelling is then based on continuous operation of the boiler at full load. It takes into account meteorological data and models the impact on eight residential receptors nearby.

According to the DMA, the predicted annual mean increase in NO2 concentration would have a negligible impact at all except one of the modelled receptors where it would have a slightly adverse impact. However, as the modelling is based on several conservative assumptions, including in relation to the baseline NO2 figure and the amount of boiler operation time, the DMA considers that in reality the impact on all modelled residential receptors would be negligible.

The DMA also predicts the increase in NO2 concentration on the modelled receptors over a short-term averaging period, which relates to whether the hourly mean AQO would be exceeded more often than the permitted 18 hours per year. As the predicted short-term concentrations would be less than 10% of the AQO, it screens out this impact as insignificant for all residential receptors.

Based on this submitted information, the Council’s Environmental Health team do not object to the proposal. This is subject to conditions requiring the flue to be used only in connection with the proposed combustion plant specified in the DMA, the use of HVO which meets a certain standard, and the maintenance of the combustion plant. I afford this expert view significant weight, and on this basis am satisfied that the proposed scheme would not cause unacceptable concentrations of NO2.

Nearby residents have seen plumes emanating from the flue when the boilers have been in operation and the Council’s Environmental Protection Officer has confirmed that this was water vapour.

Interested parties are concerned that there has been no modelling of particulates or sulphur dioxide. However, where combustion plant operates on gas oil, Environment Agency guidance states that such modelling is only needed for liquid or gaseous fuels, other than gas oil or natural gas. The approach to only model emissions of NO2 is consistent with this guidance.

Consequently, I conclude that the proposed development would not harm air quality. It would comply with Policy 120 of the BLP where it seeks to ensure that occupiers are not exposed to pollutant concentrations above AQO levels. It would also accord with Policy SI1 of the LP where proposals should avoid unacceptable risk of high levels of exposure to poor air quality, amongst other things.

The site is within an Area of Special Residential Character (ASRC) which comprises a distinctive and coherent Victorian and Edwardian enclave of around 20 houses. BLP Policy 44 requires development in ASRCs to respect their special and distinctive qualities. The flue and fuel tank are largely screened in views from [site address] , and the proposed trellis would provide further screening. As such, the proposal would not harm the distinctive quality of the ARSC.

There are concerns about the potential hazard of the large fuel tank and fuel deliveries, but the Health and [name] previously confirmed that as the tank’s capacity is less than 2,500 tonnes, there would be no requirement for a [name].

In terms of water pollution, the storage of oil is subject to separate legislation. As the enforcing authority for this, the Environment Agency do not object to the proposal subject to a condition relating to the control of pollution.

There is reference to the siting of the fuel tank relative to an old cesspit, and the plans indicate the position of a below ground septic tank. However, there is separate legislation around the maintenance of cesspools which falls outside the planning system.

It is suggested that there are more sustainable solutions for generating heat, such as ground source heat pumps, and there is concern that the palm oil used in HVO causes wider environmental degradation. Nonetheless, I have found that the scheme would comply with development plan policies, and a condition would ensure that the HVO used to power the plant would meet the recognised standard.

Some parties also consider that there are more suitable places for the location of the plant within the academy grounds. However, the yard is outside MOL, and the proposed plant is largely within existing buildings. Siting it elsewhere would have consequent impacts on MOL which is given significant protection from development under Policy 50 of the BLP.

I have had regard to the Council’s suggested conditions and considered them against the statutory tests outlined in the National Planning Policy Framework and the advice in the Planning Practice Guidance. I have made minor amendments, where necessary, to ensure that the conditions comply with the relevant tests.

I have imposed a condition requiring that the development is carried out in accordance with the supporting documents, specifications and proposed plans within two months of the decision date (1). This is necessary to protect the appearance of the area and to ensure that the development does not harm the living conditions of neighbouring occupiers.

I have included conditions relating to noise levels from the plant and the provision of the attenuator (2), the use of the flue and a certain standard of HVO (4), the maintenance of the combustion plant (5) and records of fuel delivery (6). These are necessary in the interests of protecting the living conditions of nearby residents and to maintain local air quality.

A condition requiring the submission of a Pollution Management Plan (3) is necessary to prevent the pollution of controlled waters.

I have not imposed the Council’s suggested condition to restrict the hours, months, number of days and period of operation. This is because the proposed mitigation measures, secured via other conditions, would ensure that the proposed scheme would not harm the living conditions of neighbouring occupiers, and the imposition of such a condition would mean that the proposed plant could not operate as intended. Therefore, such a condition would not be necessary or reasonable.

I conclude that the proposal would accord with the development plan and there are no material considerations that outweigh this finding. Accordingly, the appeal should be allowed.

Within two months of the date of this decision, the development hereby permitted shall be implemented in complete accordance with the supporting documents, specifications and the drawing numbers: 19873-KSS-UP-ZZ-DR-A-9001 Revision P1; 19873-KSS-UP-00-DR-A-9101 Revision P2; 19873-KSS-UP-RF-DR-A-9102 Revision P2; 19873-KSS-UP-ZZ-DR-A-9303 Revision P3; 19873-[name]-9301 Revision P3 and 19873-KSS-UP-ZZ-DR-A-9201 Revision P3, including the installation of the noise attenuator within the flue and the trellis. The development shall be retained as such thereafter in accordance with the approved details.

Within three months of the date of this decision, the applicant shall demonstrate, to the satisfaction of the local planning authority, that the noise levels from the plant and equipment do not exceed those quoted in section 5.2.4 of the Acoustic Impact Assessment Report No. H4093 – NV – v2. For the avoidance of doubt, this includes the provision of the noise attenuator within the flue to ensure that the attenuation quoted in Table 5.1 of the Acoustic Impact Assessment has been achieved. The plant should be maintained so that these levels are not exceeded at any time.

Within two months of the date of this decision, a Pollution Management Plan shall be submitted for approval in writing by the local planning authority. The plan shall outline what monitoring and surveillance procedures are in place to mitigate the risks to the environment from fuel spillages at the site, and what provisions are available on site to deal with a spillage. Once approved by the local planning authority, the development shall thereafter be managed in accordance with the approved plan.

The flue hereby permitted shall be used only in connection with the combustion plant identified in section 5.3.2 of the Dispersion Modelling Assessment DMA- 25026-24-438 REV 1 and the combustion plant shall only be fired using [name] that adheres to the EN 15940 standard.

The combustion plant specified within the application documents shall be maintained in accordance with the manufacturer’s recommendations at all times. Records of the combustion plant maintenance shall be kept at all times on a rolling one year basis and shall be made available to the local planning authority upon request.

Records of fuel delivery including invoices verifying the time, date and fuel type shall be kept at all times on a rolling one year basis and shall be made available to the local planning authority upon request.