R Parkview Homes Ltd v Chichester District Council

Hearing date: 15 September 2020

(By video link)

Approved Judgment

David Elvin QC (Sitting as a Deputy Judge of the High Court)

Introduction

The Claimant (“ the C”) brings this judicial review against the decision of Chichester District Council (“ the Council”) dated 9 December 2019, to grant planning permission (ref: CC/19/01288/FUL) (“ the s.73 Permission”) under s. 73 of the Town and Country Planning Act 1990 (“ TCPA”) for development at 21–23 Southgate, Chichester, PO19 1ES (“ the Premises”), without compliance with conditions attached to a previous grant of permission granted on 22 May 2000 (ref: CC/00/00107/FUL) (“ the Original Permission”). The s. 73 Permission as granted on the application of Sussex Inns Limited, the Interested Party (“ the IP”) which owns and operates “the Vestry”, which is a bar and music venue, at the Premises.

The Original Permission allowed:

“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 1 ^st floor and external works.”

The Original Permission was granted subject to a number of conditions, which included:

“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, or D2 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.”

C owns the adjoining property at 19 Southgate, Chichester PO19 1ES, which is under development for residential accommodation pursuant to a number of planning permissions granted in 2018 and pursuant to permitted development rights confirmed by a lawful development certificate in 2019.

The Premises are currently operated by the IP as “The Vestry” under a premises licence issued by D (ref: 17/00850/LAPRE3) for the exhibition of a film, the performance of live music, the playing of recorded music, the performance of dance; late night refreshment and also for the sale by retail of alcohol. That premises licence does not restrict the level of noise generated at the Premises.

On 16 November 2017 in response to a planning application made by C (ref: 17/02777/FUL), the IP stated that the ground floor of the Premises:

“is a nightclub environment and as such makes a great deal of noise until the small hours”

On 17 December 2019 the IP also stated that the Premises were:

“a music & dance venue, therefore the noise from our premises is not conducive to residents on an adjoining wall”.

In response to a threat of enforcement action by the Defendant, the IP applied for and obtained a certificate of existing lawful use or development (“the CLEUD”) from D dated 12 November 2018, which certified the following use of the Premises as lawful:

“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.”

The CLEUD stated that it did not confirm that the conditions attached to the Original Permission were being complied with.

The C's reason for bringing these proceedings lies in its concern for the noise impact of the Vestry on the residential accommodation it is developing. This issue arose during the process of the grant of the residential planning permissions to C and, whilst the environmental health officer on the first application was satisfied that noise mitigation provided by the proposed development would be adequate for the likely noise levels created by the development lawfully permitted at the Vestry, namely “a pub/restaurant type environment, where lower levels of amplified music co-exist with raised voices and laughter” this would not be true of the Vestry's current activities. There, the EHO considered the —

“level of sound transmission here is of a different order of magnitude where sound levels at source are approaching 100dB(A) with powerful bass tones … It is debateable whether any reasonable noise mitigation between the properties would be totally effective in protecting new dwellings from intrusive noise from music levels found in a nightclub. … The protection of residents from excessive noise intrusion through the party wall is dependent on the adjacent property reverting to its lawful planning use and significantly reducing sound levels generated within to a level more typically expected within a pub/restaurant environment.”

The delegated planning report accepted this assessment but concluded that the issue of noise impact should be determined on the basis of the authorised use of the Vestry. It added:

“[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.”

The report into the second residential application noted that the circumstances had not materially changed.

The IP submitted the application for, and obtained, the s. 73 Permission (having withdrawn an earlier application). In consultations on this application, the EHO stated in an email dated 12.6.19 that:

“[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”

It also stated that although the Environmental Health department accepted that appropriate conditions and noise control measures could facilitate an extension of the opening hours at the Vestry it did not consider that all of the proposed conditions were viable, suitable or enforceable. Moreover, it set out a number of technical reasons why it was not considered that the adverse impact on residential amenity was unlikely. This included the view that the separating structure at 19 Southgate approved as part of the residential development has been designed to mitigate against anticipated levels in the Vestry of 70dB. Internal music levels measured by the IP's noise consultant exceed this and give rise to a real potential for disturbance. Therefore, the EHO advised that sound testing of the separating structure should be undertaken as soon as possible once it has been constructed. The EHO consultation response was provided to the C's consultants.

The C submitted an objection to the IP's s. 73 application on the basis that the IP was operating as an unauthorised drinking establishment or night club and had been described as such by agents acting for the IP in the context of the premises licence, that the proposed variation would intensify the noise impact on 19 Southgate and that it was unlikely that any level of mitigation could be provided to safeguard the amenity of the residential units. It also pointed out that day trade was nominal as was the provision of food, and it was apparent that the kitchen had been removed at some stage.

The importance of protecting future residents from noise generated by the Vestry was acknowledged not only in the earlier grants of permission for 19 Southgate but by and exchange of emails by officers with the IP leading up to the decision under challenge:

(1) On 16 August 2019, the case officer informed the IP that the EHO considered that a sound test was necessary —

“so we can confirm the...