Unsuitable noise mitigation scuppers prior approval for flats

Prior approval for 21 residential apartments from an office use in central Birmingham has been refused for harm to the amenities of future occupiers of the flats from noise disturbance from nearby commercial properties.

The sole matter in dispute was the efficacy of the noise mitigation measures proposed by the appellant and the effect that noise from nearby premises in commercial use may have on the future residents of the proposed flats. Adjoining and opposite the appeal building were several licensed premises that held licences for live and recorded music until 3 a.m. on certain days. The inspector referred to paragraph 182 of the NPPF which stated that where the operation of an existing business would have a significant effect on new development nearby, the applicant/appellant should be required to provide suitable mitigation as part of the development. The appellant was proposing openable secondary glazing to existing windows and sound insulation to internal party walls. The council’s primary concern was that these mitigation measures would result in future occupiers of the building having to keep the windows of the flats and the secondary glazing closed to prevent noise ingress, which would result in unsuitable living conditions. The inspector noted Planning Practice Guidance identifies that if proposed noise mitigation relies on windows being kept closed this may have an effect on living conditions. 

The inspector noted the key issue was not whether sealed glazing would lead to unacceptable living conditions but the effect of noise from commercial premises on the future occupiers and whether that noise could be suitably mitigated in order to integrate the proposal with existing businesses. The appeal proposal specifically did not include sealed windows or fixed secondary glazing. The ability to open the windows and secondary glazing would, in his view, fatally undermine the effectiveness of the proposed mitigation scheme. He considered the matter of noise mitigation was in itself a condition of the development permitted by the GPDO, was the principal matter in dispute between the parties, and went to the heart of the main issue in this appeal. On this basis he held it would not be appropriate to require the submission of a further noise mitigation scheme as this would, in effect, reopen the prior approval process. He concluded that the appeal proposal would not suitably address the effect of noise from nearby commercial premises on the future occupiers of the proposed development. 

An award of costs against the council and appellant by a third party was refused, the inspector determining the actions of neither of the main parties was unreasonable or amounted to exceptional circumstances where an award of costs to a third party would be warranted. 

Inspector: John Dowsett; Hearing


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