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Planning Rebuttal to Lpa's Proof of Evidence

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Planning Rebuttal to Lpa's Proof of Evidence TOWN AND COUNTRY PLANNING ACT 1990 SECTION 78 APPEAL BY THE WELLINGTON PUB COMPANY PLC PROOF OF EVIDENCE – PLANNING REBUTTAL TO LPA’S PROOF OF EVIDENCE MARK BATCHELOR BSc (Hons), MSc, MRTPI THE WHITE HART, 184 NEW CROSS ROAD, LONDON, SE14 5AA PINS REF: APP/C5690/W/19/324119 LPA REF: DC/18/106613 3 MARCH 2020 1 Rebuttal of LPA’s Planning Evidence | The White Hart, 184 New Cross Road, SE14 5AA Report Control Project: The White Hart Client: The Wellington Pub Company Reference: 17.5061 File Origin: J:\17.5061\4 Boyer Planning\4.02 Reports\Appeal Primary Author DT Checked By: MB Issue Date Status Checked By 1 03/03/2020 Final MB 1. PLANNING REBUTTAL TO LPA’S PROOF OF EVIDENCE 1.1 This rebuttal statement should be read in accordance with my initial proof of evidence dated 18 February 2020 and submitted to PINS on the same date. It seeks to address and clarify the statements made in the Council’s Planning Proof of Evidence (PoE). It will primarily comment on the Agent of Change principle, where the Council, in paragraph 10.4 of their PoE, consider this to be relevant in this instance by virtue of the necessity for conditions to be imposed on the public house to prevent adverse noise and disturbance to future residents. Intend to Publish London Plan policy D13 (Agent of Change), in line with NPPF paragraph 182, states that development should be designed to ensure that established noise and other nuisance-generating uses can continue to operate or grow without having unreasonable restrictions placed on them. 1.2 My view is that the application of the Agent of Change principles is misconceived as hotel use and residential C3 use are held to the same noise standards. Section 4 of the Appellant’s Noise PoE, prepared by KP Acoustics and submitted to PINS on 18 February 2020, evidences that a hotel bedroom would constitute a ‘room in residential use’ within the meaning of British Standard document BS8233:2014 ‘Sound insulation and noise reduction for buildings’. This is by virtue that for the duration of the guests’ stay they would be entitled to a level of amenity as would be expected in a standard residential environment, and in particular a bedroom during the hours when they would reasonably be expected to be asleep. A relevant extract from BS8233 outlining this is included in Appendix 3 of the Appellant’s Noise PoE, dated 18 February 2020. 1.3 The proposal will improve the situation at the Site by installing noise insulation, where none currently exists and combined with the use of appropriately worded conditions, would allow the pub operation to continue beyond 11pm. 1.4 There is no fundamental change in the way the uppers are used which will affect the White Hart Pub. For either the existing or proposed instances, occupants of the upper floors above the pub are entitled to an acoustic environment which enables them to sleep. The pub is already causing a nuisance to hotel occupiers in breach of its lease and licence as explained in my initial PoE dated 18 February 2020. 1.5 Agent of Change policy applies to new development and ensures that it can be integrated effectively with existing businesses (para 182 NPPF). The Appellant owns the freehold of the entire Property and operates a noise sensitive hotel use on the upper floors. The noise emitted from the pub which is operated by the tenants’ is regulated by the terms of their lease (of which they are currently in breach, as noted at paragraph 1.19 to 1.20 below). The Appellant as freeholder owner of the pub is therefore entitled by private law to control the operation of the pub as they see fit in accordance with the terms of their lease. This is a decision that may be taken by the Appellant as freehold owner of the site without consultation with the local planning authority. As a tenant of the pub the current operators have never had the freedom to lawfully create noise nuisance. 1 Rebuttal of LPA’s Planning Evidence | The White Hart, 184 New Cross Road, SE14 5AA 1.6 The purpose of the Agent of Change principle is not to protect those who are emitting noise unlawfully, it is to prevent bona fide cultural uses from being disrupted by new noise sensitive uses. Applying the Agent of Change policy in this way would on the face of it undermine the Appellants private rights to control the use of its property. However, in reality it would not lead to the protection of the existing cultural use, because private law could be used to sanction the noise emitting use for breach of lease. Agent of Change 1.7 It is important to recognise that the wording in the London Plan and the NPPF is about managing change, not preventing it. It requires new developments to respond to surrounding uses where the introduction gives rise to impacts upon the way in which existing businesses operate and demonstrate how noise impacts will be mitigated and managed. Through the use of conditions and the implementation of the options specified in the Revised Planning Strategy (letters dated 30 January 2020 and 12 February 2020) and explained in the Planning PoE and Noise PoE (both dated 18 February 2020), the proposal complies with these policy objectives as mitigation measures based on acoustic surveying and evidence will be installed. 1.8 This mitigation will ensure the proposal is effectively managed and will be a significant improvement on the current situation. Such measures are required irrespective of whether or not the use of the upper floors is hotel or residential as they are held to the same noise standards as set out in section 4 of the Appellant’s Noise PoE. 1.9 In terms of sound insulation requirements, which paragraph 1.2 above touches on, Building Regulations Document E ‘Resistance to the Passage of Sound’ classifies flats as ‘dwelling houses’ and hotels as ‘rooms for residential purposes’. Please see extract from Document E as APPENDIX 1. Internal noise requirements from external sources are treated the same for both uses and internal noise transfer, when the different uses are operated separately, are treated in a similar fashion. In this instance separating floor treatments are required to be the same standard for both uses. 1.10 As a result the noise levels generated by the pub are too high for the existing approved hotel use to provide acceptable sleeping accommodation. The Council appears to suggest, in paragraph 10.6 to 10.10 of its PoE, that the existing pub operation is not incompatible with the current approved hotel use on the upper floors. Paragraphs 3.6-3.8 of the Appellant’s Noise PoE sets out that the same intolerable environment created by the pub would exist for the hotel users as well as for the proposed residential occupiers, with the additional concern that no insulation currently exists between the ground and first floors of the premises. 1.11 KP Acoustics confirm in Section 3 of their PoE that current noise levels being generated within the public house would constitute a significant breach in acceptable noise levels when considering the existing hotel use or proposed residential use. While this breach could have been managed by way of a suitably worded condition, the Council were unwilling to impose such a condition by virtue of it curtailing the current operations of the pub. 2 Rebuttal of LPA’s Planning of Evidence | The White Hart, 184 New Cross Road, SE14 5AA 1.12 The Appellant’s Noise PoE makes clear that the level of noise emanating from the property creates an unsuitable environment for people to sleep due to the significant exceedance in the recommended internal noise levels during night-time hours as stipulated in BS8233:2014. This is described in further detail in section 4 of the Appellant’s Noise PoE. Excessive noise is an issue at the property in terms of both its current and proposed use and noise attenuation is therefore necessary in any event. It is the Appellant’s acoustician’s professional opinion that steps to ensure compliance with the Noise Rating targets (which provide an absolute limit value in each single octave frequency band, as explained in more detail in section 4 of the Appellant’s Noise PoE) used for the three options of the Revised Planning Strategy (30 January and 12 February 2020) would be appropriate in ensuring the amenity of existing hotel guests and/or future residents. 1.13 The measured acoustic environment within the upper floors is unequivocal – i.e. that the pub operations would be considered a nuisance to the hotel use and adjoining premises and is in breach of the Tenants’ Lease obligation, as cited in paragraphs 1.19-1.20 below. 1.14 Agent of Change principles place the responsibility for mitigating the impact of noise on the new development if it creates the impact which warrants such measures, rather than the existing noise generating use. The hotel use, approved in February 2005, was approved with the public house use already established and at a time when new developments were not responsible for mitigating the impact of noise. The impact has arisen from the manner in which the public house tenants have chosen to operate which, as the reason for refusal recognises, is incompatible with persons seeking to sleep above it. 1.15 Therefore, the number of complaints received is of little relevance, the point is that a current residential noise sensitive use operates on the site already and the proposal would not change this.
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