Appeal 6005667

The appeal is dismissed.

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

The appeal was accompanied by additional acoustic evidence that was not taken into account by the local planning authority at application stage. That evidence does not alter the description of development, introduce new mitigation measures, or seek to amend the proposal. Instead, it expands upon and seeks to clarify the noise evidence relied upon in relation to the single reason for refusal. As such, there is no procedural reason why it should not be taken into account, and I have had full regard to it in determining the appeal.

The development benefits from permitted development rights under Class MA of the GPDO and the principle of the change of use is therefore established. The appeal falls to be determined solely by reference to the matters set out in Class MA.2(1). In this case, the only issue in dispute is whether the proposal would be acceptable in respect of the impacts of noise from commercial premises on the intended occupiers of the development under MA.2(1)(d).

In light of the above, the main issue is whether the proposal would be acceptable in respect of the impacts of noise from commercial premises on the living conditions of the intended occupiers of the development, with particular regard to the occupiers of Flat 1.

The appeal site lies within a busy urban environment on [address]. Nearby commercial uses include a hot food takeaway, a public house and, of particular relevance in this case, a café-bar at [address]. That premises shares a party wall with the appeal building and includes first-floor commercial floorspace directly adjoining the proposed Flat 1. As a result, Flat 1 occupies a materially different position to the other units, with sleeping accommodation immediately adjacent to a lawful commercial use capable of operating into the evening.

The appellant’s acoustic evidence concludes that road traffic noise is the dominant source in the area, that mitigation required to control that noise would also attenuate other sources, that the party wall construction is likely to provide substantial acoustic separation, and that the café-bar is subject to planning and licensing controls which limit its noise-generating potential.

Notwithstanding those conclusions, Flat 1 would share a party wall with the adjoining café-bar, with first floor commercial floorspace directly alongside the proposed sleeping area. In that context, a potentially significant pathway for noise would be transmission through the shared structure, rather than solely airborne noise affecting the external facade. Noise arising from internal activity within the neighbouring premises, such as patron noise, movement of furniture or equipment, or general operational activity, may therefore have the potential to affect living conditions within Flat 1 in a manner distinct from external environmental noise.

The appellant’s acoustic evidence does not include any direct assessment of noise transmission through the party wall or associated flanking elements between the premises. There are no internal noise measurements, no testing or verification of the performance of the separating structure, and no modelling of likely transmission pathways at junctions or through the building fabric. While the evidence refers to the likely mass and construction of the wall and expresses professional judgement that it would provide substantial sound insulation, those conclusions are not supported by robust site-specific testing or empirical analysis.

I acknowledge that the proposed mitigation measures, including secondary glazing and alternative means of ventilation, are likely to be effective in controlling external noise at the facade, particularly from road traffic. However, such measures are directed at airborne noise ingress and would not address noise transmitted through the shared structure between the appeal property and the adjoining commercial premises, which is the critical concern for Flat 1.

The adjacent café-bar is capable of operating in a variety of ways within the lawful scope of its planning permission and associated controls, including variations in internal layout, levels of activity and intensity of use over time. The likely impact on future occupiers of Flat 1 therefore depends, to a material extent, on assumptions about how that neighbouring use would operate in practice. Those assumptions are not secured by the proposal and are not supported by detailed acoustic evidence.

In these circumstances, the absence of targeted assessment of structure-borne and internally generated noise gives rise to a degree of uncertainty as to whether appropriate living conditions would be achieved for the occupiers of Flat 1. Given the close physical relationship between the proposed bedroom accommodation and the adjoining commercial floorspace, and the limited scope for mitigation within the appeal site should issues arise, a robust evidential basis is necessary at the prior approval stage.

Drawing these matters together, the evidence before me relies to a significant degree on assumptions regarding the performance of the separating structure and the operation of the neighbouring commercial premises, which have not been adequately tested or substantiated. I am therefore not persuaded that it has been robustly demonstrated that the occupiers of Flat 1 would be protected from undue noise impacts arising from adjacent commercial uses.

There is nothing before me to indicate that similar concerns arise in relation to the other proposed flats. Nevertheless, Flat 1 cannot be disaggregated from the proposal. Since acceptable living conditions for the occupiers of that unit have not been satisfactorily demonstrated, the proposal fails to comply with the requirements of Class MA.2(1)(d). For this reason, the appeal is dismissed.