Decision details

The Principal Planning Officer (AC) delivered his report.

        The Chair thanked the officer and invited any questions from the committee.

        The Chair invited Ms Zoe Rhodes to address the committee. 

        Ms Rhodes explained that she lived directly adjoining the rear of the premises and that she was also speaking on behalf of other residents.  She cited the reasons why the previous applications had been refused and asserted that these reasons were still valid.  The unpleasant odours of hot food establishments could be smelt some distance from the premises and she feared that this would be the case here and would adversely affect the amenity of nearby residences, especially the neighbouring flats.  The proposed extraction system was incredibly close to the windows of these flats.  She stated that this would mean windows would need to be kept closed with the adverse effect on ventilation and air quality.  She added that there had been no consideration of any smells emanating from the kitchen windows and door of the restaurant.  She felt that her garden would become undesirable to use.

        She was concerned that the hours were excessive and would further harm the amenity of local residents.  Additionally, associated parking would block the access to her own house. 

        Ms Rhodes went on to express concerns about the lack of any fire mitigation to protect the flats and her own house. 

        The lack of adequate bin storage area meant that the bin was chained very near to her windows causing problems with unpleasant odours, litter and vermin. 

        She concluded her presentation with references to light pollution, noise and disruption and abusive behaviours that had already been experienced. 

        The Chair thanked Ms Rhodes, but pointed out that many of the issues raised were to do with the operation of the premises and the committee had no authority to deal with this area.  Due to fairly recent changes in planning legislation, the premises could move from a sandwich bar to a restaurant without needing to apply for planning consent.  But he agreed that the issue of the smells associated with the flue were a valid consideration. 

        The officers were asked why there was no health impact assessment and the Head of Planning and Development explained that there was no requirement to submit a health impact assessment for the application. 

        The committee expressed considerable sympathy for Ms Rhodes’s situation and expressed concern that this might have adverse effects upon mental health and wellbeing.  The officers were asked if the situation became untenable for the residents, whether the matter would return to planning or to environmental health.

        The Principal Planning Officer pointed out that the flue was not overhanging Ms Rhodes’s property.  The proposed use was for a café/restaurant and not a hot food takeaway.  If the premises became a hot food takeaway, it would require a planning application.  He added that if the concern over the bin meant that it was a statutory nuisance, then environmental control was the enforcement agency.

        The Chair asked for clarification as to what was primary and what was secondary use.  The Head of Planning and Development said this was a matter of fact and degree and it would require an investigation in order to determine the planning use. 

        The Head of Planning and Development pointed out that Environmental Health were of the opinion that, providing all the conditions were followed, this should reach the required standard to mitigate the noise and the odours.  Furthermore, the officer had included a condition that required the flue to be installed and operated in line with all the mitigation required by Environmental Health.   This would give any enforcement action a clear line to follow. 

        Ms Rhodes was advised to monitor the situation regarding smells, noise and any other nuisance issues. 

        The debate continued ranging around the concerns that if approved this might blight the residents’ amenity.  Some members of the committee gave consideration to wording a motion to refuse the application, but after consideration, could not find suitable policies and grounds to support such a motion.  

        The Chair noted that there was no condition to maintain the flue and asked if one could be added.  He also asked about the procedure, should the standards suggested by the Environmental Health not be met.  

        The Head of Planning and Development stated that if required, the proposed conditions could be amended to strengthen the requirement for maintenance. 

        The officers were asked if the matter could be approved on a time-limited basis.  The Head of Planning and Development stated that this would be very unusual and unless there was a clear reason why it should be temporary it could be challenged and overturned on appeal.  He recommended that should the conditions not be complied with, the correct procedure would be enforcement if the conditions are not met. 

        It was noted that there were many similar restaurants nearby and any valid reason to refuse would be difficult to find.  Committee members expressed their frustration at the lack of reasons to refuse the application. 

        The Head of Planning and Development pointed out that this committee was only considering the flue and not the use of the premises. 

        There was a final question about visual impact and the officer explained that the flue would be between the buildings and protrude no higher than the chimneys.  Also it was to be painted a dark colour.  The Head of Planning and Development also noted that previous similar applications had not been refused on the grounds of visual impact.

        The Chair moved that conditional planning permission be granted subject to the conditions contained in the officer’s report and also subject to the conditions being strengthened to include the proper maintenance of the installation for its life.

        RESOLVED –

        That, conditional planning permission be granted subject to the following conditions subject to the conditions being strengthened to include the proper maintenance of the installation for its life.

        Conditions

1.     The development to which this permission relates shall be begun within a period of three years commencing on the date of this permission.

2.     The development shall be carried out in accordance with the following drawings, unless otherwise approved in writing by the Local Planning Authority:

        Site location plan

        Unnumbered drawing (Amended 1/4/2021)

3.     The approved flue shall only be installed in accordance with the full mitigation measures set out in the following documents:

Noise Impact Assessment by Nova Acoustics dated 18/02/2021

Odour Risk Assessment by Silsoe Odours dated 05/07/2021

Design and Access Statement by S A York Design Facilities dated 06/07/2021

These mitigation measures shall be retained and maintained at all times, unless otherwise agreed in writing by the Local Planning Authority.

4.     The external surfaces of the approved flue shall be painted in a dark brown colour (RAL 8014 or similar) and retained as such at all times, unless otherwise agreed in writing by the Local Planning Authority.

        Informatives

1.     IN907 Positive and proactive statement GRANT

2.     IN910 Building Regulations

3.     IN911 Party Wall Act

4.     IN912 Hours of Construction

5.     Under the provisions of Use Class E of the Town and Country Planning (Use Classes) Order 1987 (as amended), the ground floor commercial unit can only be used as a cafe or restaurant serving hot food. Use of the commercial unit as a take-away (sui generis) as the primary use will require a separate planning permission from the local planning authority.