Appeal 6006043

The appeal is dismissed.

I have taken the address of the site from the Council’s decision notice, which better reflects the location than that used in the application form. The appellant has used the same address in the appeal form and so I am satisfied that no party would be prejudiced as a result.

Planning permission for the supermarket was granted under a 2015 permission, with conditions that amongst other things restricted the hours of deliveries, loading and unloading (hereafter referred to as deliveries). Subsequently, an application to extend these hours on Sundays and Public Holidays was allowed on appeal1. The authorised hours for deliveries are therefore as set out above.

The appellant now seeks to expand the period when deliveries can take place, to permit an earlier start time and a later finish time, on weekdays and weekends. The hours sought are 06:00 to 23:00 on Mondays to Saturdays, and 07:00 to 23:00 on Sundays and Public Holidays. The main issue is the effect of the proposed hours on the living conditions of nearby occupiers, in respect of noise and disturbance. 1 PINS ref APP/C1760/W/21/3279607

The supermarket is set back from [address] behind its large car park. It has a loading and delivery bay to one side of the site. Immediately adjacent to the bay is a long boundary with a dwelling and its gardens, number [address] (No. 276). There are other commercial uses nearby including a Business Park. On the opposite side of [address] to the car park are residential uses in [address], some of which have windows facing towards the loading bay.

Policy E8 of the Test Valley Borough Local Plan (TVLP), adopted January 2016, relates to pollution. The policy supporting text states that the Council will not restrict the future intensification of development that generates noise, provided that the changes would not be likely to result in significant adverse impacts on nearby land uses. However, the policy itself makes clear that development will not be permitted if it results in pollution which would cause unacceptable risks to human health or general amenity. If it would or could generate pollution, development is only permitted if there were demonstrably no adverse impacts.

At paragraph 187, the National Planning Policy Framework (the Framework) makes clear that planning decisions should prevent existing development from being put at unacceptable risk from noise pollution. In relation to new development, Framework paragraph 198 requires decisions to mitigate and reduce to a minimum the potential adverse impacts from noise, and to avoid significant adverse impacts. Framework footnote 72 refers to the explanatory note to the Noise Policy Statement for England2 (NPSE).

Relevant to this appeal, NPSE identifies concepts applicable to noise impacts. The Lowest Observed Adverse Effect Level (LOAEL) is the level above which adverse effects on health and quality of life can be detected. The Significant Observed Adverse Effect Level (SOAEL) is the level above which significant adverse effects occur. Where the impact lies somewhere between LOAEL and SOAEL, it requires that all reasonable steps should be taken to mitigate and minimise adverse effects. This does not mean that such adverse effects cannot occur.

In granting planning permission for the supermarket, a range of measures were put in place to minimise the effects of noise on residential uses. These included restrictions on vehicle engines and refrigeration units during unloading, and the erection of a tall acoustic fence on the boundary. Furthermore, the service door is designed to create a seal to the vehicle, and the company uses modern, quiet vehicles, with drivers made aware of the need to drive considerately.

The submitted Environmental Noise Assessment records and considers noise levels taken at a point adjacent to No. 276, the closest affected dwelling. Using the British Standard3, the effects of the proposal would be around the level of an adverse impact, even with the current mitigation measures, having regard to uncertainties and the context of the proposal.

Whether the [name] or the World Health Organisation (WHO) guidance4 is used, delivery noise levels during the extended hours would be between LOAEL and SOAEL. On this basis, the proposal would not result in the significant adverse 2 Department for Environment, Food & [name], 2010 3 BS4142:2014+A1:2019 4 World Health Organisation Community Noise Guidelines, 2000 impacts which the Framework and NPSE requires to be avoided. I am mindful however that Framework paragraph 198 relates to the location of new development, whereas the supermarket here is already established.

In any case, based on the evidence before me, the proposal would be likely to result in some adverse noise effects. The predicted peak delivery noise levels during the proposed hours would be above the WHO guideline noise value, where effects could include the depth of sleep being altered. [name], the Planning Policy Guidance5 (PPG) advises that noise would be present and intrusive. It refers for example to occupiers having to close windows because of the noise, and the potential for some reported sleep disturbance. The PPG requires mitigation and the reduction of noise to a minimum.

Existing background noise levels are already high. Nevertheless, starting deliveries before 07:00 would extend into the period defined by WHO guidance as the night-time. The NPSE advises that the protection of quiet times will assist with delivering its third aim of improving health and quality of life, where possible. The existing planning conditions, including in respect of the hours of delivery, already provide reasonable mitigation and reduction of adverse effects to a minimum. Consequently, extending the delivery hours, including to before 07:00, would go below the minimum acceptable level necessary to protect the living conditions of nearby occupiers.

The appellant has suggested further measures could be imposed to reduce the effects of noise. These might include signage and instructions to drivers and staff, careful driving, preventing the use of radios during deliveries, and scheduling deliveries to ensure no overspill of vehicles. Even so, some of these measures would be difficult if not impossible to enforce, or reflect existing operations presumably captured by the noise survey.

I give significant weight to the need to support economic growth and productivity, as required by Framework paragraph 85. The proposed extended hours would give greater flexibility to the logistics planning process of the company and the efficiency of delivery routes. This would have benefits by reducing the distances travelled, thus reducing emissions. That said, these advantages have not been quantified, and I give greater weight to the need to protect the amenity of neighbouring properties.

For the reasons given above, I conclude that the proposed hours would have a harmful effect on the living conditions of nearby occupiers, in respect of noise and disturbance. As such, the proposal would conflict with TVLP policy E8 and Framework paragraph 187, as well as with the PPG and the NPSE.

For the reasons given, I have found conflict with the Development Plan as a whole. The material considerations in this case do not indicate a decision other than in accordance with it. This leads me to conclude that the appeal should be dismissed. [planning inspector] INSPECTOR 5 Paragraph: 005 [name]: 30-005-20190722