Agenda item

S.73 application for the removal of Condition No.3 (Outside seating) to permit outside seating within the rear garden on a permanent basis pursuant to DM/19/01789/VOC.

The Senior Planning Officer, Leigh Dalby, gave a detailed presentation on the report relating to the abovementioned planning application, a copy of which had been circulated (for copy see file of minutes).  Members noted that the written report was supplemented by a visual presentation which included photographs of the site.  The application was a S.73 application for the removal of Condition No.3 (Outside seating) to permit outside seating within the rear garden on a permanent basis pursuant to DM/19/01789/VOC and was recommended for approval, subject to conditions.  The Senior Planning Officer noted the previous trial period had not been for the full 12 months, due to the pandemic, however, Officers were satisfied in terms of the test in respect of noise nuisance.

The Chair asked Councillor R Ormerod, Local Member to speak as regards the application.

Councillor R Ormerod noted his belief in the freedom for people to be able to run a business, and also the freedom for people to enjoy their properties without noise nuisance.  He noted he was small business friendly and added the business did add value to the local area.  He added it was a residential area and noted there had not been a full 12 month period to assess the impact of noise and therefore it would be for the Committee to consider in coming to a full and balanced decision on the application.

The Chair thanked Councillor R Ormerod and asked Mr F Newton, local resident to speak in relation to the application.

M F Newton explained his family had lived adjacent to the application site for 23 years and added that he refuted the implication within the applicant’s statement he was a serial objector, explaining he only objected when there were serious adverse implications for his family.  He noted his objections to the application were limited to two issues, the application for the deli in 2010 and the subsequent application as regards outside seating.  He explained in 2021 he had objected as he had concern as regards what might have potentially developed from that application.  He noted that at that time the applicant had stated that the garden would only be used for the cultivation of produce for the deli.  Mr F Newton noted that, as the current application was regards outdoor seating, his concerns had not been without foundation.  He explained the Planning Officer’s report had failed to identify three key aspects in respect of the application.  He noted the close proximity of the seating area to his property, eight metres, with his living room and bedroom being only 12 metres away.  He added that the proposed maximum number of customers was up to 25, a number that could clearly generate a large noise and that had not been experienced over the trial period.  Mr F Newton noted the seating area was bounded on all sides by buildings, except the side facing his garden and home.  He explained that sound generated from the seating area would rebound from the masonry walls towards his and neighbours’ gardens.  He added that an acoustic specialist would advise that the transmission of sound could only be reduced by physical barriers and noted that a tree belt could only be effective if dense and of considerable depth.  He explained that as most of the shrubs and trees between the properties were deciduous, the existing planting barrier would be absent for a large part of the year.  Mr F Newton noted the temporary, one-year use for the outdoor seating area was given on the basis that the noise management plan would be adhered to.  He noted he would contend that the applicant had failed to adhere to two key parts of the plan, including communication with neighbours. 

He noted it was stipulated that residents would be provided with ‘phone number and designated contact in the event of excessive disturbance’ and explained that he felt the applicant’s assertion that he had been unable to fulfil this due to the pandemic was not credible.  He noted he and his neighbours had been receiving post throughout the pandemic without issue.  Mr F Newton added the applicant implied that if residents wished to complain they could look up his details in the phone book or on the internet, adding that was not within the letter or spirit of the noise management plan. 

Mr F Newton noted the applicant had stated that the boundary fence for the seating area would be a 1.8 metre high close-boarded fence for the purpose of ‘extra privacy and noise reduction’.  He added that the photographs submitted showed this applied to the site boundary to the east and not to the side of the seating area which faced his property.  Mr F Newton noted the applicant had stated that, due to the pandemic, large numbers had been using the external seating area, however, the applicant had not explained how, with limited seating capacity, this would have been possible.  He noted that while the area was only a short distance from the city centre, it was a quiet residential area, with the deli being the only commercial property with a rear garden on that side of upper Claypath.  Mr F Newton noted the applicant had failed to demonstrate that the proposal offered a facility to the community that was not available within a five minute walk.  He added the nearest facility with outdoor seating was Millennium Square, three or four minutes away, which boasted numerous food outlets which had outdoor seating in situations that did not affect residents.

Mr F Newton noted his garden was very small and noted he had the right to enjoy it in accordance with the Council’s policy on amenity and the Human Rights Act.  He noted the application would affect his use of his garden for up to eight to ten hours a day, seven days a week.  He reiterated that even within the conditional period the applicant had failed to comply with the noise management plan and added that did not bode well for the future.  He concluded by noting there was no justification for the application and asked that Members refused the application.

The Chair thanked Mr F Newton and asked Mr Rory Handy, the applicant, to speak in support of his application.

Mr R Handy noted, in response to Mr F Newton, that there was ample space for 25 people to sit in the rear garden and added that there had been so on a number of occasions.  He explained that the garden was a peaceful place, the business was not a pub, it did not serve alcohol and the space was a place for local residents to meet over a tea or coffee, or to read a book.  He noted there had been no noise complaints whatsoever and added that the original application for the seating area had received a few more objections, however, the majority had not objected to this application. 

He noted those objecting were Mr F Newton and another neighbour who objected stating the area overlooked his property.  M R Handy explained he did not know what he needed to do in order to reassure Mr F Newton and added that the deli was a community place, that he was community minded person who lived locally and concluded by noting that if the business was ran by different people then there would be a completely different outlook for the business.

The Chair thanked Mr R Handy and asked the Committee for their comments and questions.

Councillor J Elmer asked for clarification in respect of the trial period as it appeared to largely overlap with the pandemic restrictions.  The Senior Planning Officer noted the period ran from September 2020 to September 2021, with pandemic restrictions being in place from November 2020.  He added that had meant it had not been possible to operate over that winter period, November 2020 to April 2021.

Councillor C Hunt asked if the seating area had helped the business, Mr R Handy noted it had helped as people felt safe meeting outdoors.  The Chair noted that the issue was not a planning matter.

The Senior Planning Officer referred Members to the photograph showing the extent of the close-boarded fencing around the seating area and noted it did not extend beyond the seating area as the use and mitigation were for the seating area.  He further explained that, in respect of the trial period, the site had operated for 259 days out of the year and there had been no reported complaints as regards noise or disturbance to the business or the Council.

The Solicitor – Planning and Development, Neil Carter noted that the objector had referred to the Human Rights Act and he explained that Article 8 was the right to respect for private and family life, home and correspondence and therefore it was a right that would be engaged as regards this particular situation.  He added that, however, it was not an absolute right, it was a qualified right which meant that it could be interfered with insofar as in accordance with the law (normal planning law and principles) and where it was proportionate to do so.  He noted that if Members were minded to approve the application, his advice would be that, in accordance with normal planning principles, it would not be something that infringed Article 8 of the Human Rights Act.

The Chair noted five letters of support for the application, though noted he was not aware if any of those were neighbours to the property, though the objectors were neighbours. 

He noted that those using the facility would be deli customers, speaking at normal levels, however noted that up to 25 people speaking a normal level could be quite loud.

Councillor D Brown asked, through the Chair, if the objector could quantify the noise issues, noting he had stated eight to ten hours when addressing the Committee.  The Chair asked Mr F Newton if he could respond.  Mr F Newton noted that some supporters would no doubt be considerate and noted some people may be louder than others.  He noted the proximity to his property with no barrier to block the intrusive noise, and reiterated as regards the surrounding buildings, effectively a canyon, amplifying the noise.  He noted on occasion he had been able to make out conversation from the seating area.  He reiterated his concerns was if 25 people were all speaking together that this would compound the issue.  He reiterated he had not been provided with a number to complain to and added he did not feel his relationship with the applicant was such that he could go round to the deli and Environmental Health had been unavailable. 

Councillor J Elmer noted that he felt surely a solution could be put in place to allow both activities to continue.  He suggested that perhaps the application was too soon given the evaluation period had not been the full 12 months.  He noted that there was a threshold in terms of noise level to cause a nuisance and that such require monitoring of levels to establish whether that was the case.  He asked if any actual measurements had been taken, as that would be important for Members to be then able to decide whether any additional measures, such as acoustic fencing may be required.  The Senior Planning Officer noted that in respect of the 2019 application for the 12 month temporary use, the Environmental Health Officer assessed that application and had noted while there was set guidance in relation to some cases, such as pubs, there was not in terms of a café.  He added that therefore the advice from Environmental Health at that time was for temporary use, to draw out any issues or complaints.  The Chair noted that was not the same as an assessment.  The Principal Planning Officer noted the principle of the development had been established through previous permissions and that there would have been an amount of work undertaken in terms of whether the principle of development was acceptable.  He added that the application was granted, with a 12 month period in which to establish whether or not those mitigation measures were found to be adequate.  He noted that the question was had there been sufficient time, given the pandemic, to be able to clearly demonstrate any issues in terms of noise nuisance.  He added that clearly the objector did not believe so and also had mentioned the area not being at capacity.  The Principal Planning Officer noted that the applicant stated the area had operated at capacity. 

He noted the question for Committee was whether they considered that the premises had been operating sufficiently robustly within the 12 month period to be able to say that there would be no further impact in terms of residential amenity, qualifying that impact in terms of reasonableness, with one person’s tolerance being different to another’s.  The Principal Planning Officer added that, in relation to assessment of noise, there was no requirement set out within the conditions, and also the noise management plan did not require such an assessment.  In terms of compliance with the noise management plan, the objector had believed it had not been complied with, with the applicant having given an explanation in that regard.

Councillor J Elmer noted he felt the Committee could not make a decision as they did not have details of a measurable level in terms of noise and therefore, he would be minded to move against the application and ask for further assessment in terms of noise.

The Senior Planning Officer noted that at the time of the original application the Environmental Health Officer had noted that they were sceptical as regards the ability of a noise assessment to be undertaken as it would be difficult to control the noise level and external noises and there were issues in terms of whether equipment would be able to adequately assess the noise levels.  He added this had led to the suggestion as regards a temporary period, initially put forward as a six month period, which was increased to 12 months to encompass the summer months.  Councillor J Elmer added he felt it would be possible to conduct an assessment and that acoustic engineers would disagree with that advice from Environmental Health. 

Councillor K Shaw asked it would be possible to clarify whether the business was open for use by patrons from April 2021 through to September 2021.  The Chair noted the applicant may answer, Mr R Handy noted the premises was open as soon as it had been able to do so, in line with Government legislation.

Councillor K Shaw noted he had listened to the comments from all and proposed that the application be approved as per the recommendation.  He was seconded by Councillor A Surtees. 

Upon a vote being taken it was:

RESOLVED

That the application be APPROVED subject to the conditions as set out within the report.