Appeal 6007530

The appeal is dismissed.

The appeal proposal was submitted retrospectively, with the application form indicating that the use commenced in September 2025. At the time of my site visit, part of the area for which approval is being sought for was not in use. However, I acknowledge that my site visit represents a snapshot in time and may not be truly reflective of the current use of the appeal site. For the avoidance of doubt, I have therefore considered the appeal on this basis of the submitted plans.

It is not disputed that there is a lawful beer garden, which was granted approval1 in November 2000. However, the evidence before me indicates that the area currently in use extends beyond that originally approved. I have also been referred to a planning condition restricting the use of the grassed and landscaped areas for this purpose. However, whilst I have had regard to the planning history of the appeal site, any alleged breach of condition is not a matter for this appeal.

The appellant has also referred to evidence suggesting a longstanding intention to extend the beer garden and to historical use of the areas in question. However, the proposal before me seeks planning permission for that use. The appellant has confirmed that no application for a Lawful Development Certificate has been made. Nevertheless, irrespective of the outcome of this appeal, it remains open to the appellant to apply to the Council for a determination under Sections 191 or 192 of the Town and Country Planning Act 1990.

The main issue is the effect of the proposed development on the living conditions of neighbouring occupiers with particular regard to noise and disturbance. 1 Planning Application Ref: APP/2000/6774

The appeal site relates to [site address] , [site address] which is an existing public house, with beer garden. The existing beer garden comprises a patio area which is adjacent to grassed and landscaped areas. It is these landscaped areas to which the appeal proposal seeks planning permission to use as a beer garden, alongside the existing area. Whilst there is some uncertainty regarding the extent of the lawful area, as the proposal relates to the entirety of the external space, and I have considered the appeal on this basis.

The appeal site lies within a predominantly residential area. It is bordered by a two-storey end-terrace dwelling at [address] and [name], a three-storey building containing three flats. These properties have windows overlooking the appeal site, and the rear garden of No. 8 adjoins the boundary. Further residential properties are located nearby on [address] and [address].

In considering whether the proposed extension of the existing beer garden would have a harmful effect on the living conditions of neighbouring properties, I have had regard to the existing use of the appeal site together with its existing beer garden provision. The proximity of the existing residential properties to the public house and the existing beer garden means that it is reasonable for residents of these homes to expect a higher level of activity and ambient noise, particularly during warmer months of the year. However, the proposed extension, including additional seating, would be likely to intensify use, resulting in increased noise and disturbance. This has the potential to harm neighbouring residents’ living conditions and reduce their enjoyment of their homes. Accordingly, I must consider whether the extended use would have an acceptable impact, particularly in terms of noise and disturbance.

The proposal was supported by a Noise Assessment2, which concluded that noise levels from the extended beer garden would be unacceptable given the proximity to neighbouring residential properties and that mitigation measures would not be effective. The Noise Assessment was prepared on the basis that the beer garden would be open at all times when the public house is open and this is also the basis on which the Council considered the application.

The appellant contends that errors were made in the submission and that the Council did not adequately consider whether planning conditions could be used to overcome their concerns. However, I am satisfied that the Council determined the application on the evidence before it, including the Noise Assessment which identified harm but proposed no mitigation or conditions to address it.

In their appeal submission, the appellant has suggested that a suitably worded planning condition could be used to restrict the number of customers to a maximum of twenty at any one time, and a further condition could be used to restrict the hours of operation to 11am to 7pm daily. These conditions would apply to the extended area, but not to the existing area.

The appellant has also suggested that a condition could be imposed to require the submission and approval of Noise Management Plan, which the appellant has indicated could cover the entirety of the outdoor spaces, not just the area subject 2 Prepared by [name] dated 12 September 2025 of the appeal proposal. However, as noted above, these suggested conditions were not before the Council at the time the decision was made.

Although the appellant states that the use of these conditions would not give rise to any noise pollution that would harm human health and safety nor the built environment, this is not supported by any substantive evidence. [name] appreciate that noise pollution would be much greater in the evening, that does not change the fact that neighbouring occupiers would likely to experience significant noise and disturbance throughout the day, seven days per week. The conditions whilst reducing the hours of operation and seeking to restrict the maximum number of customers, it has not been demonstrated that these would be effective in reducing the level of harm experienced during these hours to an acceptable degree.

Therefore, whilst I have had regard to the suggested conditions, there is no substantive evidence that either individually or taken together the suggested conditions would satisfactorily overcome concerns relating to noise and disturbance for neighbouring residents. The Noise Assessment did not identify any suitable mitigation measures, including the potential use of planning conditions, which would overcome the harm arising from noise and disturbance and no further evidence has been provided to demonstrate that the conditions would be effective.

I also have concerns as to whether the suggested conditions would be enforceable, particularly given the challenges in controlling movement of customers between different outdoor areas, as well as between the indoor and outdoor areas of the premises. Furthermore, relying upon a planning condition to require further details of noise management measures to be provided after planning permission has been granted means that I cannot be certain whether the proposal would prevent unacceptable harm to the living conditions of neighbouring properties.

I have also had regard to whether a condition limiting the change of use to a temporary period could be used to assess any impacts of the proposal, and the appellant has suggested a period of twelve months would be appropriate. However, based on the evidence before me, the use has already commenced and concerns relating to noise and disturbance have already been raised. On this basis, I cannot be satisfied that the proposal would not cause unacceptable harm to the living conditions of neighbouring occupiers, even for a temporary period.

I have had regard to the support within the National Planning Policy Framework (the Framework) for existing businesses including by encouraging decisions to create conditions win which businesses can invest, expand and adapt. The appellant states that the provision of an appropriate level of external customer space is critical to the commercial success of the business. However, no specific details have been provided to demonstrate how the extended outdoor area would support the existing business, its commercial viability or its growth. The existing premises has an outdoor area, and whilst the appellant states that demand for such areas has increased since the Covid-19 Pandemic, there is no substantive evidence to demonstrate that the existing space is insufficient or adversely affecting the business.

The economic benefits are stated to be the enhancement of the outdoor space to support the viability of the business and attract more customers. They also state that there are social and community benefits arising from the on-going maintenance and up-keep of the premises, as an important local community leisure facility. Nonetheless, whilst the appellant states there are compelling public benefits, I find that the benefits in this case would be modest and do not outweigh the significant adverse harm to the living conditions of neighbouring occupiers.

I note that the appellant has raised concerns that the Council did not consult with the Licensing Authority or [name], prior to making a decision on the application. Whilst the Supplementary Planning Document 3: [name], Restaurants, Cafes and [name] (the SPD3) states that the Council will consult prior to determination of the application, the Council accepts that these consultations did not take place. However, based on my findings above, I am satisfied that this has had no bearing on the decision made by the Council in relation to the effects of the proposal on living conditions of neighbouring occupiers nor would it alter my findings.

Accordingly, I therefore conclude that the proposed development would have a harmful effect on the living conditions of neighbours, with particular regard to noise and disturbance. Thus, it would fail to comply with Policies WS7, WD10, WD14 and WD23 of the Wirral Local Plan 2022 to 2040, adopted 31 March 2025 which seek, amongst other things, to ensure that there is no unacceptable impact on neighbouring uses through noise and disturbance, that it has been demonstrated that all practical measures have been taken to minimise potential risks and adequately address issues of noise likely to arise from the use.

It would also be contrary to the guidance contained within the SPD3 which supports these aims.

The proposed development would conflict with the development plan when taken as a whole. There are no material considerations which indicate that the decision should be made other than in accordance with the development plan. Therefore, for the reasons given, I conclude that the appeal should be dismissed.