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Colchester Borough Council
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Your Ref:
Our Ref: APP/A1530/C/15/3006603
01 December 2015
Dear Sir/Madam,
Town and Country Planning Act 1990
Appeal by Mr Paul White
Site Address: Bures Road, West Bergholt, Colchester, Essex, CO6 3DN
I enclose a copy of our Inspector’s decision on the above appeal(s).
If you have queries or feedback about the decision or the way we handled the appeal(s), you
should submit them using our “Feedback” webpage at http://www.planningportal.gov.uk/
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above.
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Court on 020 7947 6655.
The Planning Inspectorate cannot change or revoke the outcome in the attached decision. If
you want to alter the outcome you should consider obtaining legal advice as only the High
Court can quash this decision.
Yours faithfully,
Kevin Plummer
Kevin Plummer
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appeals/online/search
Appeal Decision
Site visit made on 9 November 2015
by K R Saward Solicitor
an Inspector appointed by the Secretary of State for Communities and Local Government
Decision date: 1 December 2015
Appeal Ref: APP/A1530/C/15/3006603
Land at Kinckhams Barns, Bures Road, West Bergholt, Colchester CO6 3DN
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The appeal is made under section 174 of the Town and Country Planning Act 1990 as
amended by the Planning and Compensation Act 1991.
The appeal is made by Mr Paul White (Quality Metalwork Services Ltd) against an
enforcement notice issued by Colchester Borough Council.
The notice was issued on 13 February 2015.
The breach of planning control as alleged in the notice is without the benefit of planning
permission the change of use of the land from a B1 (light industrial) use to a B2
(general industrial) use.
The requirements of the notice are:
Cease the B2 (general industrial) use of the land
Remove the B2 use from the land
The period for compliance with the requirements is 6 months.
The appeal is proceeding on the grounds set out in section 174(2)(a) of the Town and
Country Planning Act 1990 as amended. Since an appeal has been brought on ground
(a) an application for planning permission is deemed to have been made under section
177(5) of the Act.
Decision
1. It is directed that the enforcement notice be corrected by the deletion from
paragraph 5 of the words “Remove the B2 use from the land” and from the
address at paragraph 2, deletion of the word “Kinkham” to be substituted by the
word “Kinckhams”. Subject to these corrections the appeal is dismissed and the
enforcement notice is upheld, and planning permission is refused on the
application deemed to have been made under section 177(5) of the 1990 Act as
amended.
Procedural Matters
2. It is uncertain what is meant at paragraph 5 of the enforcement notice where it
requires “Remove the B2 use from the land”. I saw on my site visit that there is
various plant, machinery and equipment inside the building, but it is unclear from
the notice whether it is that which is being attacked. Having consulted the
parties, the Council has confirmed that this second requirement of the notice can
be deleted. I am satisfied that this can be done without causing injustice to
either party as can correction of the error in the address at paragraph 2 of the
notice which should read “Kinckhams” instead of “Kinkham” Barns.
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Appeal Decision APP/A1530/C/15/3006603
Main Issue
3. The main issue is the effect of the development on the living conditions of the
neighbouring residential occupiers with particular regard to noise and
disturbance.
Reasons
4. The appeal site is located outside the village settlement for West Bergholt and is
in the countryside for the purposes of planning policy. It forms part of a complex
of buildings at Kinckhams Barns where there are also barns occupied by the
appellant’s landlord who runs an agricultural business. The access is shared by
both businesses as is the central hard surfaced yard area. These are identified
on the enforcement notice plan as forming part of the appeal site. Adjacent to
the appeal site is a dwelling occupying a large plot at ‘Kinkhams’ and there is
another dwelling opposite. The surroundings are otherwise rural.
5. The authorised use of the barn at the appeal site is for a use falling within Class
B1 (light industrial) of the Use Classes Order (UCO). The appellant’s company
operates a steel fabrication business from the premises, being a B2 (general
industrial) use under the UCO. Irrespective of whether the appellant has been
led to believe that this is a lawful use of the premises, the fact remains that it
does not currently have planning permission for a Class B2 use.
6. The main operations are undertaken in the substantial barn which has large
metal shutter doors at the front and side. When I first arrived at the site, both
shutter doors were shut. The noise from within was mostly drowned out by the
loud sounds of a lorry being unloaded by a fork-lift in the shared yard area taking
a delivery for the farm. Once the main door was opened, the sounds of drilling
and extremely loud banging of metal resonated around the yard.
7. The Council’s environmental protection team has issued an abatement notice in
respect of statutory noise nuisance arising from activities associated with the
steel fabrication and other metal work. This is a separate regime, but it supports
the Council’s stance that the Class B2 use has caused unreasonable disturbance
to neighbours.
8. The appellant contends that the B2 use does not significantly increase the noise
over and above the existing activities associated with the farming business.
From my own observations, it is plausible that some of the noise disturbance to
neighbours may have arisen from the farm related activities. Given the shared
areas, it would not be easy to distinguish between the sounds of lorries and forklifts being used by the different businesses. I also note that not all complaints
from neighbours correspond with the working patterns of the appellant’s
business.
9. However, by its very nature a B2 use and one involving steel fabrication will
invariably generate very noisy activity. Indeed, I noted that the loudest and
most jarring noise audible from some distance was that of metal banging on
metal which emanated from within the barn. It is clear from the notice that it is
this metal grinding and banging that is the main cause for the Council’s concern.
It is not difficult to see how the sound of drilling and banging of metal throughout
the day has adversely affected the living conditions of residential occupiers living
nearby. Even though intermittent noise associated with the farm may have
contributed towards that disturbance, it does not mitigate or negate the
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Appeal Decision APP/A1530/C/15/3006603
significant harm arising from the B2 use. Nor is it offset by ambient traffic noise
from Bures Road. This is a main road with a national speed limit, but the traffic
flow does not create constant noise nor is it comparable to the levels generated
from activities in the barn.
10. The barn is separated from the shared boundary with the nearest dwelling at
Kinckhams by a gravelled area. When I visited this area was in use by the
appellant for the storage of pallets, a couple of trucks and other items. The
appellant has offered to install an acoustic screen along this side boundary which
could be secured by a planning condition. As a noise management measure, it
may alleviate noise generated by activities near to the boundary. However, in
the absence of specialist evidence, I am not persuaded that it would address
sufficiently the noise emitted from the barn.
11. There is some suggestion from the Council’s Environmental Officer’s that the
barn could be sound-proofed to contain the noise source. I have no information
before me to indicate that such an approach would be either effective or
practical. The appellant has not proffered this as a solution and in the absence of
the detail I cannot be satisfied that it would be reasonable to impose a condition
requiring those works. I have also considered whether the development could be
made acceptable by the imposition of any other conditions including those
suggested by the Council. It would not be reasonable to require the
windows/doors to be kept shut at all times when to do so could restrict
ventilation particularly during warmer spells. Furthermore, limiting the hours of
operation would only avoid noise disturbance outside of those times, it would not
alleviate the problem during the working day.
12. Consequently, I conclude that the development has a significant adverse effect
on the living conditions of the neighbouring residential occupiers with regard to
noise and disturbance and if the appeal were allowed it would continue to do so.
As such, the development is contrary to Policy DP1 of the Council’s Local
Development Framework Development Policies document, 2010 insofar as it
seeks to protect existing residential amenity from noise and disturbance. It also
conflicts with the aim of Policy DP9 of the same document which provides that
employment development uses in the countryside outside of designated local
employment zones should not have any detrimental effects, such as noise. There
is also conflict with the core planning principle in Paragraph 17 of the National
Planning Policy Framework which promotes a good standard of living conditions
for all existing and future occupants of land and buildings.
Other Matters
13. Neighbouring residents have also raised concerns regarding the suitability of the
access for heavy goods vehicles and the associated highway safety implications.
Those concerns are affirmed in a highways report commissioned by the occupiers
of Kinckhams. I have taken into account these matters, but they do not affect
my conclusions on the main issue.
Conclusion
14. For the reasons given above I conclude that the appeal should not succeed. I
shall uphold the enforcement notice with corrections and refuse to grant planning
permission on the deemed application.
KR Saward
INSPECTOR
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