“Change of use of 23 Southgate from Class A1 (retail) to Class A3 (food and drink) at ground floor with ancillary hotel bedroom accommodation at 1st floor and external works.”
“3. The building shall be used for A3 (food and drink) purposes on the ground floor with ancillary hotel accommodation and manager’s flat on the first floor and for no other purpose (including any other purposes in classes A3, C1 , C3, orD2 of the Schedule to the Town and Country Planning (Use Classes) Order 1987 or in any provision equivalent to that Class in any other statutory instrument revoking and re-enacting that Order). Reason: To ensure the use of the building does not have a harmful environmental effect in the interests of amenity.” “5. The A3 food and drink use hereby permitted shall not be operated at any time otherwise than between the hours of 10.00 am and 12.00 midnight with last orders being taken before 11.00pm except on January 1st of each year when the use may be operated until 1.00 am and customers and the public shall vacate the premises by 01.00am with last orders being taken before 12.30am. Reason: To safeguard the amenities of neighbouring properties.” “14. At no time shall any amplified music (whether live or recorded) from the building be audible from the public highway. Reason: To protect the character of the Conservation Area and the amenities of residents.” “17. The floor and roof of the proposed hotel accommodation shall be constructed or altered to ensure ambient noise is limited to 25-30bD (A) in accordance with details first to be submitted to and agreed in writing by the District Planning Authority. Reason: In the interests of amenity for future occupiers.”
“is a nightclub environment and as such makes a great deal of noise until the small hours”
“Use as a public house (Class A4 Drinking Establishments) with ancillary live and/or recorded music at ground floor level with ancillary bedroom accommodation at first floor level.”
“[S]hould the occupiers of the Vestry seek to regularise (by submitting a planning application) their current use and opening hours it will be necessary for them to, amongst other things, demonstrate what the impact of the proposed activities would be on both the existing and prospective residential occupiers. In this respect it is reasonable to assume that a likely pre-requisite of any planning permission to broaden the Vestry’s use and opening hours would be that any potential noise and disturbance would be mitigated by, for example, additional noise insulation and/or the adoption of appropriate management practices.”
“[o]ur objective… is to ensure that appropriate and viable control measures are secure so that neighbouring activities to the Vestry’s operations are afforded adequate amenity. If this is unable to be realised, then we would not be in a position to support any application”
“The key consideration here is the impact on neighbouring amenity. Paragraph 127(f) seeks to ensure that decisions create places that are safe, inclusive and accessible and which promote health and well-being with a high standard of amenity for existing and future users...' To the south of the site there are presently no occupiers, however there is consent for a number of residential flats as part a redevelopment of the entire building. These are currently under construction. As part of their consent, a new party wall was to be constructed which would provide sound insulation between the two premises and assist in mitigating against any noise disturbance between the two units. As part of this application a noise assessment has been carried out by the applicants and the Councils Environmental Health officers have undertaken a thorough site visit looking in detail at all aspects of the Noise Management Plan (NMP) and the accommodation provided within the premises. The officers were happy with the principle of the change to the opening hours subject to some points explored further below. The applicant's noise consultant proposed the use of Noise Rating Curves (NRCs) as an appropriate music noise threshold. CDC EH officers have undertaken further research about the use of NRCs and are happy these would provide for an appropriate way managing noise. A condition is proposed which seeks to ensure that noise control measures will have been implemented in accordance with the NMP and maintained to ensure that music noise levels as measured in any residential neighbouring habitable room, used for resting and sleeping do not exceed Bedrooms: Noise Rating Curve NR20 Living Rooms: Noise Rating Curve NR30 Officers are happy these levels would allow the appropriate level of amenity for the occupiers of the neighbouring properties. The site is located within a mixed urban area, where there are a number of other A4 and A3 uses which open later in the evening. Policy 10 of the CLP refers to development within the city centre and seeks to support and strengthen the vitality and viability of the city centre and enhance the city's existing entertainment and leisure offer, including the 'evening economy'. There is therefore an existing ambient noise environment within the vicinity of the application site. The premises has opened past midnight for a number of years with minimal noise complaints, and controlled by licensing, including the NMP.”
“Notably a new sound system has been installed and the system includes a limiter which is set and locked so that it cannot operate beyond a pre-set maximum level. The areas in the building are zoned to create lower sound levels near the front door and thus reducing the noise escaping when people leave the premises. The limiter provides restrictions to the noise levels ensuring that the NR20 curve can be met and thus mitigating against any impacts on neighbouring properties. EHO have concluded that subject to appropriate conditions this would mitigate against impacts on neighbouring amenities. Overall there are a number of measures in place to assist in mitigating any noise disturbance to neighbouring properties and the wider area. The premises is located within an area characterised by A3 and A4 uses which are open later in to the night and this site has been operating for a number of years, without many complaints, past midnight. The city does not have many venues that open late into the night and there are also no nightclubs. Regularising the late night opening of the premises would contribute to the night time economy within the city centre. With the appropriate noise mitigation conditions in place, the principle of the late night opening is considered to comply with local and national development plan policies.”
“2) Condition 11 provides ultimate control for safeguarding the amenity of neighbouring residential dwellings, from music noise, in that, the level of activity in the venue shall be restricted or controlled as to attain the criteria. 3) Prior to occupation of the residential dwellings at Number 19 Southgate the music noise limiter, at the venue, shall be set and maintained at a music noise level approved by the Environmental Protection Team. It shall be recognised that the setting of the noise limiter will require the involvement of an appropriately qualified Acoustic Consultant, commissioned by the applicant. It is acknowledged that the applicant shall not be beholden to the aforementioned informative, however it is considered important that they are specified on any final decision notice in order that the reasoning for the conditions are explicitly explained. It also documents the expectation that a sound test should take place once no 19 has been constructed. The last point is recommended as an informative, rather than a condition, as it is recognised that access to number 19 may not be available to the applicant.”
“2) The building shall be used for A4 (food and drink) purposes on the ground floor with ancillary hotel accommodation and managers flat on the first floor and for no other purpose (including any other purpose in Classes A, C1, C3 or D2 of the schedule to theTown and Country Planning (Use Classes) Order 1987 or in any provision equivalent to that class in any other statutory instrument revoking and re-enacting that Order. Reason: To ensure the use of the building does not have a harmful environmental effect in the interests of amenity 3) No part of the A4 food and drink use on the ground floor shall be used for the sale of takeaway food unless a specific planning permission is granted for such a use. Reason: In the interests of amenity and highway safety 4) The public house with ancillary live and/or recorded music at ground floor level shall not be operated at any time other than between the hours of 07:00 and 00:00 midnight on Sundays to Wednesdays. On Thursday to Saturday evenings, Christmas Eve and New Year's Eve the premises shall not be open except between the hours of 07:00 and 02:00 the following morning, and all customers shall vacate the premises by no later than 02:30 on the morning following Thursday to Saturday evenings, Christmas Eve and New Year's Eve. Reason: To safeguard the amenities of neighbouring properties. … 10) Within 1 month of the date of this permission, all the noise control measures as identified within the approved Noise Management Plan (19.11.2019) shall be implemented and thereafter maintained fully in accordance with the approved plan. Any alteration to the plan will first require written consent from the Local Planning Authority. Reason: In the interests of neighbour amenity and the protection of the Chichester Conservation Area. 11) Music Noise Levels, as measured* in any residential neighbouring habitable room, used for resting and sleeping, shall not exceed the following criteria: Bedrooms: Noise Rating Curve NR20 Living Rooms: Noise Rating Curve NR30. *The Noise Rating Curves shall be measured as a 15 minute linear Leq at the octave band centre frequencies 31.5 Hz to 8 kHz. Reason: In the interest of neighbouring amenity.”
“42. The principles on which the court will act when criticism is made of a planning officer's report to committee are well settled. To summarise the law as it stands: (1) The essential principles are as stated by the Court of Appeal in R v Selby District Council, Ex p Oxton Farms[2017] PTSR 1103 : see, in particular, the judgment of Judge LJ. They have since been confirmed several times by this court, notably by Sullivan LJ in R (Siraj) v Kirklees Metropolitan Borough Council [2011] JPL 571, para 19, and applied in many cases at first instance: see, for example, the judgment of Hickinbottom J in R (Zurich Assurance Ltd (trading as Threadneedle Property Investments)) v North Lincolnshire Council[2012] EWHC 3708 (Admin) at [15]. (2) The principles are not complicated. Planning officers’ reports to committee are not to be read with undue rigour, but with reasonable benevolence, and bearing in mind that they are written for councillors with local knowledge: see the judgment of Baroness Hale of Richmond JSC in R (Morge) v Hampshire County Council[2011] PTSR 33 , para 36 and the judgment of Sullivan J in R v Mendip District Council, Ex p Fabre[2017] PTSR 1112 , 1120. Unless there is evidence to suggest otherwise, it may reasonably be assumed that, if the members followed the officer's recommendation, they did so on the basis of the advice that he or she gave: see the judgment of Lewison LJ in R (Palmer) v Herefordshire Council[2017] 1 WLR 41 , para 7. The question for the court will always be whether, on a fair reading of the report as a whole, the officer has materially misled the members on a matter bearing upon their decision, and the error has gone uncorrected before the decision was made. Minor or inconsequential errors may be excused. It is only if the advice in the officer's report is such as to misdirect the members in a material way—so that, but for the flawed advice it was given, the committee's decision would or might have been different—that the court will be able to conclude that the decision itself was rendered unlawful by that advice. (3) Where the line is drawn between an officer's advice that is significantly or seriously misleading—misleading in a material way—and advice that is misleading but not significantly so will always depend on the context and circumstances in which the advice was given, and on the possible consequences of it. There will be cases in which a planning officer has inadvertently led a committee astray by making some significant error of fact (see, for example R (Loader) v Rother District Council [2017] JPL 25), or has plainly misdirected the members as to the meaning of a relevant policy: see, for example, R (Watermead Parish Council) v Aylesbury Vale District Council[2018] PTSR 43 . There will be others where the officer has simply failed to deal with a matter on which the committee ought to receive explicit advice if the local planning authority is to be seen to have performed its decision-making duties in accordance with the law: see, for example, R (Williams) v Powys County Council[2018] 1 WLR 439 . But unless there is some distinct and material defect in the officer's advice, the court will not interfere.”
“33. Faced with the imposition of such a condition there can be little doubt that Marks & Spencer would have replied to the local planning authority: ‘Whilst you have purported to grant planning permission for one variety store the condition negates the effect of that permission. You may not lawfully grant planning permission with one hand and effectively refuse planning permission for that development with the other by imposing such an inconsistent condition.’ If that was the extent of the council's powers in response to the application in 1998, as in my judgment it was, I do not see how the council can claim to be entitled to impose such a fundamentally inconsistent condition under section 73. It is true that the outcome of a successful application under section 73 is a fresh planning permission, but in deciding whether or not to grant that fresh planning permission the local planning authority, “… shall consider only the question of the conditions subject to which planning permission should be granted.” (See section 73(1) and Powergen above). Thus the council is able to impose different conditions upon a new planning permission, but only if they are conditions which the council could lawfully have imposed upon the original planning permission in the sense that they do not amount to a fundamental alteration of the proposal put forward in the original application. I bear in mind that the variety superstore was but one element of a very large mixed use scheme, nevertheless it is plain on the evidence that it was an important element in the mix and this is reflected in the retail implications of its removal. … “… shall consider only the question of the conditions subject to which planning permission should be granted.”
“43. If the inspector had left the description of the permitted development intact, there would in my judgment have been a conflict between what was permitted (a 100 metre turbine) and what the new condition required (a 125 metre turbine). A condition altering the nature of what was permitted would have been unlawful. That, no doubt, was why the inspector changed the description of the permitted development. But in my judgment that change was outside the power conferred by section 73.”
“If the criteria cannot be met by limiter alone, it has to be acknowledged that additional structural measures may be required.”
“Nevertheless, it seems to us that the court should still bear in mind that Parliament has not altered the fundamental relationship between the courts and the executive. In particular, courts should still be cautious about straying, even subconsciously, into the forbidden territory of assessing the merits of a public decision under challenge by way of judicial review. If there has been an error of law, for example in the approach the executive has taken to its decision-making process, it will often be difficult or impossible for a court to conclude that it is "highly likely" that the outcome would not have been "substantially different" if the executive had gone about the decision-making process in accordance with the law. Courts should also not lose sight of their fundamental function, which is to maintain the rule of law.”