Appeal 6006180

The appeal is dismissed.

Article 3(1) and Schedule 2, Part 3, Class G of the Town and Country Planning (General Permitted Development) (England) Order 2015 (the GPDO) permits development consisting of a change of use of a building from a use within Class E (commercial, business and service) of Schedule 2 to the Use Classes Order, to a mixed use for any purpose within that Class and as up to 2 flats. Development is permitted under Class G subject to certain conditions set out at paragraph G.1. The Council are satisfied that the development would comply with the conditions under paragraph G.1(a) – (c). On the evidence before me I see no reason to take a different view.

Where a proposal meets all conditions under paragraph G.1(a) – (c), condition G.1(d) requires that, before beginning development, the developer must apply to the local planning authority for a determination as to whether the prior approval of the authority will be required in respect of several matters.

The Council consider that the scheme would fail to comply with condition G.1(d)(iii), in that the submitted noise mitigation strategy does not adequately demonstrate that noise from the commercial premises below would be adequately mitigated.

Therefore, the main issue is whether the proposed development would comply with condition G.1(d)(iii) in respect of impacts of noise from commercial premises on the intended occupiers of the development.

The appeal site relates to the loft space of an existing commercial premises. The ground floor of the building is currently in use as a restaurant. There are several condenser units and a kitchen extraction system, which serve the restaurant, positioned on the rear of the building.

The proposed studio flat would be served by a number of windows. One of the windows would be positioned one metre away from an extraction outlet. Four condenser units are also located 7 and 20 metres away from the proposed flat. The submitted noise impact assessment (NIA) sets out that the dominant noise source is plant noise from the existing plant to the rear of the site.

The restaurant is open seven days a week, from midday each day to 10pm Monday to Thursday, 11pm Friday and Saturday and until 9pm on Sunday. During the restaurants opening hours, and possibly before it opens, it is likely that the extraction systems would be in use and making noise as food is being prepared and cooked. The noise would be perceptible to future occupiers of the flat, particularly given the proximity of the extraction outlet to the window. Given the opening hours of the restaurant, future occupiers would have little respite from this noise, particularly during the day when the restaurant is open and into the evening when it is likely to be at its busiest.

The NIA sets out that in order to mitigate the excess noise, appropriate glazing and mechanical ventilation to negate the need to open windows are specified. The appellant’s appeal statement similarly explains how with the closed windows, and use of an air con unit, the acoustic levels within the accommodation would be satisfactory.

Whilst a user manual for an air conditioner unit has been submitted, this mainly relates to how to install and operate the unit. There is limited site-specific information in relation to it before me. I therefore cannot be sure that it would sufficiently negate the need to open windows. Additionally, the thermal analysis report appears to show the results for a predominately naturally ventilated dwelling, utilising openable windows at all allowable periods (all occupied periods). However, the NIA and the appellant set out that windows should remain closed to ensure acceptable noise levels within the flat.

Therefore, based on the evidence before me, I cannot be sure that the appellant would be able to ensure that windows were kept closed. This, coupled with the proximity of the extraction units to the proposed flat, and the opening hours of the restaurant, would mean future occupiers would be subject to noise from the units for a considerable part of the day. This would be harmful to their living conditions.

Whilst the NIA also suggests other measures such as sound insulation upgrade treatment to the separating walls and floors, I am not satisfied that such measures alone would be sufficient to ensure acceptable acoustic levels within the flat.

Consequently, I therefore find that the proposed development would have a harmful effect on future occupiers, by way of noise from the commercial premises. As a result, it would not satisfy condition G.1(d)(iii) of the GPDO.

In reaching my findings, I have had regard to the conflict with Policies 10 and 119 of the London Borough of Bromley Local Plan and Policy D14 of the London Plan, only in so far as they relate to the matters for which prior approval is sought. Collectively, amongst other matters, these policies seek to ensure good quality living accommodation and minimise adverse impacts on noise sensitive receptors.

The appellant has suggested the use of a planning condition to require the submission of a new noise report prior to the occupation of the flat, if the appeal were to be allowed. However, there is a lack of evidence before me to demonstrate that such a condition would be capable of being met and thus whether it would be reasonable. It would therefore not be appropriate to use this

The scheme may be acceptable in relation to other matters set out under condition G.1(d). This is however a neutral consideration and does not weigh in favour of, nor against, the appeal.

The appellant sets out how the scheme would utilise a vacant storage space and provide new affordable accommodation for the community, in an easily accessible area. The site is also not within a conservation area, and the property is not listed. They’ve also drawn my attention to Paragraph 11 of the National Planning Policy Framework and the presumption in favour of sustainable development. However, as the appeal relates to prior approval, the matters for consideration are restricted to those set out in the relevant paragraphs of the GPDO. Therefore, these other points raised fall outside the matters I can consider.

I acknowledge the appellant’s concerns over the Council’s handling of the application. However, this is not a matter that I can consider under a Section 78 planning appeal and does not alter my findings set out above.

For the reasons given above, I conclude that the appeal is dismissed.