Appeal Decision - Francis Taylor Building · The waste is transported in skips to the appeal site,...

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Appeal Decision Inquiry Held on 21 - 24 February 2017 and 27 – 28 June 2017

Site visit made on 21 February 2017

by J A Murray LLB (Hons), Dip.Plan Env, DMS, Solicitor

an Inspector appointed by the Secretary of State for Communities and Local Government

Decision date: 27 July 2017

Appeal Ref: APP/R5510/C/15/3129089 Old Coal Depot, Tavistock Road, Yiewsley, Middlesex, UB7 7QT

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 Powerday PLC against an enforcement notice issued by the

Council of the London Borough of Hillingdon.

The enforcement notice, numbered ENF/279/13, was issued on 5 June 2015.

The breach of planning control as alleged in the notice is without planning permission,

the change of use of land from General Industrial (B2)/Storage and Distribution (B8) to

a Skip & Waste Container Transport Operation (Sui Generis) at Powerday PLC, Old Coal

Depot, Tavistock Road, Yiewsley, Middlesex, UB7 7QT.

The requirement of the notice is to cease the use of the land as a Skip and Waste

Container Transport Operation between the hours of 18:00 and 08:00 on any day.

The period for compliance with the requirement is 3 months.

The appeal is proceeding on the grounds set out in section 174(2)(a), (b), (c), (d), (f)

and (g) of the Town and Country Planning Act 1990 as amended.

Summary of Decision: The appeal is dismissed and the enforcement notice

is upheld with a correction and variations.

Procedural matters

1. The inquiry sat initially for four days in February 2017 and then for a further two days in June 2017.

2. I carried out an accompanied site inspection on 21 February, having walked the surrounding area unaccompanied on the previous evening. On 27 June,

between 19:15 and 20:00, I also visited the second floor flat at 3A Tavistock Road, in the company of the occupier and of Mr Volley and Mr Pope for the Council and Mr Evans for the appellant. This was the flat from which Mr Pope

had conducted his noise monitoring for the Council.

3. All witnesses gave evidence under oath or affirmation.

The allegation

4. Before the inquiry opened, the Council suggested an amendment to the alleged breach of planning control to insert the word “material” before “change of use”,

but also to delete reference to the former use of the land. This was described in the notice as “General Industrial (B2)/Storage & Distribution (B8).” This

amendment was requested because the Council believed the site had been substantially cleared in 2010 and that the current use did not commence until 2013, such that the site had a nil use at that point.


Appeal Decision APP/R5510/C/15/3129089

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5. The insertion of the word “material” is uncontroversial; a change of use will not

constitute development and therefore planning permission will not be required unless that change is material. I will make that correction, being satisfied that

no injustice will result, as the appellant’s evidence addressed the question of materiality anyway.

6. I will consider the remainder of the suggested amendment under ground (c),

but would make two points at this stage. First, whilst specifying the previous use can make it easier to judge whether any change is material, it is clear that

a notice does not have to identify the previous use. Secondly, the reference to Use Classes B2 and B8 in the allegation may be unhelpful anyway. As drafted, the allegation appears to indicate that the previous use was a mixed use and,

as such, it would not fall within any Use Class; it would be sui generis. Describing the elements of a previous mixed use by reference to particular Use

Classes might suggest that, if there was a change to a different mix of uses within those same Use Classes, then no development was involved. However, the Town and Country Planning (Use Classes) Order 1987 (UCO) has no

application to sui generis mixed uses.1

Ground (b)

7. I indicated in a pre-inquiry note that, to succeed on this ground, the appellant must prove on the balance of probability that the change of use alleged in the notice has not occurred as a matter of fact. The parties did not offer a different

formulation at the inquiry, but having heard the evidence and submissions, I am satisfied that it makes more sense to restrict ground (b) to the following

issue, namely: whether the appellant has proved on the balance of probability that the site is not being used as a Skip & Waste Container Transport Operation (Sui Generis).

8. The question of whether there has been a change of use is more logically part of the issue of whether there has been a breach of planning control, namely a

material change of use. That question really falls within the province of ground (c), as it is difficult to separate consideration of whether there has been a change from the issue of whether that change is material. This adjustment to

my approach does not prejudice either party; it does not alter the issues, but merely the headings under which they will be considered.

9. For the appellant, Mr James said he did not know what was meant by the term “skip and waste container transport operation” and in closing, Mr Shadarevian QC characterised this description as “self-serving and

meaningless.”2 However, he did not contend that the notice was a nullity. That would arguably be the natural line to take if it was considered that the

description was hopelessly ambiguous and uncertain, so that the appellant could not tell in what respect it was alleged that it had developed the land

without permission. Furthermore, no better or alternative succinct description of the current use was proffered, beyond the contention that it was a mix of Class B2 and B8 uses, a formulation which I do not favour in principle, for

reasons already given.

1 See inquiry document 30, paragraphs 5 and 6. Mr James accepted this point when giving evidence. 2 Inquiry document 31, paragraph 6.




10. However, in his proof3 and oral evidence, Mr Bensted detailed the activities

carried out by the appellant on the appeal site. Mr Bensted has only been involved since May 2010, but when Powerday PLC took up occupation of the

site in late 2009, it entered into a contract with the Council to provide ‘Golden Weekends’. This is a waste and recycling initiative to enable local residents to dispose of household and garden waste on one weekend per month. The

appellant operates these Golden Weekends and provides all necessary skips/waste receptacles at the site. Mr Bensted said the appellant prepares the

site two days prior to the event, including ensuring a sufficient number of “20 yard skips” are available. It then requires up to two days after the event to break down the site.

11. These Golden Weekends take place at the eastern end of the site, in a roughly circular area delineated during the events by bins, as shown on an aerial

photograph taken on 27 June 20104. As a temporary use of land, this is permitted development under Schedule 2, Part 4, Class B of the Town and Country Planning (General Permitted Development) Order 2015.5 Class B

effectively allows up to 28 changes of use on each of the days permitted per year. Thus there is a grant of as many planning permissions as there are

changes of use up to that level.

12. However, Mr Bensted says that, on taking occupation of the appeal site, in addition to providing the Golden Weekends, the appellant started using the site

for its general operations and stored skips and roll-on-roll-off (RoRo) waste bins, along with containers storing maintenance equipment. After a Golden

Weekend, skips are taken to the appellant’s Old Oak Sidings site in Willesden, so the materials can be recycled. The skips are then either cleaned and used for general business or returned to the appeal site, where they are cleaned

using mobile equipment, stored in containers, and made ready for general business use or for the next Golden Weekend. Mr Bensted said the site is also

used 24 hours a day for “sporadic” parking of vehicles and the storage of RoRo bins, skips and wheelie bins associated with the general business.

13. In April 2010, the appellant was awarded a contract to collect and remove

construction and demolition waste from Heathrow Airport terminals. The waste is transported in skips to the appeal site, where it is stored on trailers6 and

then transferred to the appellant’s waste processing plant at Willesden. The contract runs 24 hours a day and the appeal site enables drivers to make short shuttle runs to and from the airport, rather than a long round trip from the

airport to Willesden. Mr Bensted confirmed that this was initially “intermittent” work, but said it steadily increased from 2011 to 2013, as the construction of

Terminal 2 progressed. He said the site was also used for: (a) the storage, cleaning, maintenance, repair and refurbishment of wheelie bins; (b) the

stencilling and respraying of skips; (c) the repair and testing/inspection of skips; (d) general welding repairs; (e) load testing of bins; (f) the parking of lorries; and (g) the general minor repair of vehicles.

14. The appellant characterised its use of the site as a mix of storage and distribution and industrial uses and incidental parking.7 However, from what I

3 At paragraph 4.1 to 4.10. 4 CD 14 and inquiry document 1. 5 See Mr Volley’s proof, paragraph 2.3 and Mr Bensted’s response to question 4(a) of the Planning Contravention Notice (core document 12). 6 Neither the waste, nor the skips containing the waste ever touch the ground. 7 Inquiry document 31, paragraphs 22 and 24.




saw on site and heard in evidence, it seems likely to me that the industrial,

activities described by Mr Bensted are ancillary to the primary use relating to the operation of the Heathrow contract. I am not persuaded that skips and bins

are cleaned, stencilled, resprayed, maintained, repaired, inspected and tested on the site except in connection with the delivery of the Heathrow contract and perhaps the Golden Weekends. One wheelie bin was apparently being repaired

at the time of my site visit, but frankly that had the feel of a token display.

15. Furthermore, I conclude that the appellant’s use of the site is not really a

“storage and distribution” use. In reaching the view that it is not storage, I have had regard to the Court of Appeal’s judgement in Crawley BC v Hickmet Ltd [1998] JPL 210, to which I drew the parties’ attention at the inquiry. As

suggested by Mr Shadarevian QC, I have approached that judgement with caution, because it concerned the question of whether vehicle parking

amounted to storage, but it nevertheless provides some useful principles. In this case, I am not persuaded on the evidence that the skips and waste containers or bins are brought onto the site for the purpose of being stored

there. They are not being put away on the site, because they are not needed; they are in use in the delivery of the Heathrow contract and, at times,

Golden Weekends. To the extent that it can be said that there is temporary storage, this is ancillary to the primary use.

16. Similarly, the term distribution is not apt to describe the appellant’s use of the

site. It is not distributing skips and waste containers to others or to retail outlets; it is simply utilising them in its business. The skips and waste

containers come to this site on lorries from its other sites, or via Heathrow, they travel onto the appellant’s Willesden processing plant and in due course return to the appeal site.

17. Whether or not there was any significant use of the appeal site for the appellant’s general operations immediately after 2009/2010, the evidence

indicates to me that, by around 2013 and certainly at the time the enforcement notice was issued, the site was primarily being used for the Heathrow contract. As Ms Kabir Sheikh put it in oral closing submissions, skips and waste

containers come onto the site and are transported on to the appellant’s main management site. I am satisfied that the description of the use as a skip and

waste container transport operation is adequate, accepting that this brings with it a range of ancillary activities. The use is not a Class B8 use and whilst there may be ancillary activities of an industrial character, it is not a Class B2 use

either. I am satisfied that it is not in any Use Class, but is sui generis.

Conclusion on ground (b)

18. For the reasons given, I conclude that the appellant has failed to prove on the balance of probability that the site is not being used as a Skip & Waste

Container Transport Operation (Sui Generis). The appeal must therefore fail on ground (b).

Ground (c)

19. To succeed on this ground, the appellant must prove on the balance of probability that the matter alleged in the notice does not constitute a material

change of use, such that there has been no breach of planning control.




20. As indicated, part of the Council’s case is that, between 2010 and 2013, the

site was cleared, such that it had a nil use, prior to the commencement of the skip and waste container transport use. Whether or not a “nil use” label would

be appropriate in any event, I will first look at the history of the appellant’s use.

21. In 2009, the appellant was negotiating with DB Schenker Rail (UK) Ltd (DBS)

to acquire a lease of the 5.57 ha Old Coal Depot site at Tavistock Road, because it wished to develop that entire site as a waste material recycling and

recovery facility (MRRF). Two planning applications for use of the site as a MRRF were ultimately refused in March 2014 and August 2016 respectively and that proposal is not being pursued.8 However, as the appellant was incurring all

fees and obligations associated with that proposed development, DBS had orally agreed that, pending completion of the lease, the appellant could occupy

the appeal site. This comprises 0.99 ha of hardstanding in the north east corner of the Old Coal Depot. The appellant took occupation of the appeal site in late 2009.

22. Subsequently, it was agreed with DBS that, should planning permission be granted for the MRRF, a 30 year lease of the overall Old Coal Depot site would

be granted. However, to enable the appellant to progress its planning application, a Short Term Lease of the overall site was granted on 29 July 2013. According to Mr Bensted, that lease defined the agreed use of the overall

site as:

“The storage of static containers and for the parking of roadworthy motor

vehicles and as a compound for the storage of non-hazardous or non-flammable materials or as a separate use, any use relating to the storage and distribution or processing or manufacturing ALL in connection with the

tenant’s business together with activities associated with site clearance and ground investigations for the purposes of preparation for future use of the

Property as a material recycling facility and including the parking of vehicles on the Property and continuation of a weekend Civic Amenity site as agreed from time to time with the London Borough of Hillingdon.”9

23. Whilst this somewhat chaotic provision defined the activities permitted by DBS on the overall site, the actual use of the relevant planning unit (PU) needs to

be identified. I saw during my site visit that, though it shares the same access road, the appeal site is separated from the rest of the Old Coal Depot site by pre-cast concrete retainers. These are each about 1m wide and some 3m high

and, together with the access gates, they form an effective, continuous barrier around the main body of the appeal site, excluding the shared access road.

Those retainers could be moved by machine, but are very heavy and do not appear to have been moved in recent times. Indeed aerial photographs show

them in the same position back to 199910 and Mr James accepted during cross examination that they had probably not been moved.

24. Notwithstanding the stance taken in his proof11, Mr James agreed in oral

evidence that the main body of the appeal site was physically separate from the rest of the Old Coal Depot and, furthermore, the use the subject of this

8 Inquiry document 2, paragraphs 3.4 – 3.5. 9 Mr Bensted’s proof, paragraph 2.10 10 Core document 14 and Mr James’ proof, appendix 2. 11 At paragraphs 4.4 and 5.5.




appeal was contained within it, such that there was also functional separation.

Having regard to the judgement in Burdle v Secretary of State for the Environment and another [1972] 1WLR 1207; [1972] 3 All ER 240, Mr James

accepted that the main body of the appeal site constitutes a separate PU and, as a matter of fact and degree, I am satisfied that this is the case.

25. There is no dispute over when the Golden Weekends started, but the point at

which other activities commenced, or became more than de minimis, is disputed. From 2000 to 2015, Eurostorage Ltd had a lease of the Old Coal

depot site and I have a statutory declaration12 from the Manging Director of that company, Mr Melville. He says the appellant took occupation of the north-west corner of the overall site in late 2009. Presumably he meant the north-

east corner but, in any event, he said they used the land for “their own business activity, which involved parking of vehicles, storage of skip units” and

“running the civic amenity facility…at nominated weekends.” He makes no reference to the range of industrial activities to which Mr Bensted referred.

26. Mr Bensted acknowledged that the Heathrow contract activity intensified from

2011 – 2013, but the scale and intensity of all the activities in the first years of the appellant’s occupation is not clear. Whilst they are literally snapshots in

time, I have nevertheless been provided with a number of aerial photographs.13 I shall comment on these in chronological order.

1/2010 This photograph is clearly incorrectly dated. As discussed at the inquiry there are too many leaves on the trees for it to have been

taken in January and it is identical to a photograph dated 12/09/2010, referred to below.

27/06/2010 This shows skips positioned to delineate a rough circle at the eastern end of the site, consistent with arrangements for a

Golden Weekend. There are some items concentrated in what was described during the inquiry as a “notch” in the northern site boundary. It is not possible to identify those items from the

photograph but, to the west of that notch, there appears to be a container. Other than this, there may be a few vehicles and

indistinct objects near the western boundary, but the site is otherwise largely empty and there is nothing to clearly indicate much activity, over and above the Golden Weekends.

12/09/2010 This is similar to the previous photograph, but without the activity at the eastern end of the site associated with the Golden

Weekends.

07/03/2011 The site is not set up for a Golden Weekend and the majority of it

appears clear. However, there are skips apparent along the western boundary, a few skips and possibly vehicles in the

eastern corner and some items along the northern boundary and

12 Mr Bensted’s appendix 2. 13 See in particular: Mr James’ appendix 2; Mr Bensted’s appendix 10; core document 14; and, inquiry

document 1.




in the notch, but these cannot be identified from the

photographs. Mr James suggests there are wheelie bins14, but these are not obvious.

11/07/2011 This shows fewer items and indicates less activity on the appeal site than the previous photograph. Mr James’ suggests it shows

some skips, containers, cars and wheelie bins, but it is not at all clear.

01/10/2011 This is the same photograph as the previous one. This is obvious from details such as the positions of vehicles on and near the access road alone.

30/03/2012 This photograph is not very clear, but shows nothing on the site apart from some items on the northern boundary and a few on

the western boundary.

19/07/2013 There is no Golden Weekend activity evident in this photograph

but, in addition to items in the notch and along the northern boundary as usual, it shows: a significant number of skips and

containers on the western part of the site; some vehicles parked at the eastern end; and a significant number of small blue items that look like wheelie bins, in the northern part. Mr Bensted

confirmed that these were indeed wheelie bins and said that more of these were going to Heathrow by this stage. Overall, this

photograph suggests a marked increase in activity compared to previous years.

28/08/2013 This is the same as the 07/03/2011 photograph. The earlier date is most likely correct as it is specified as the “date flown.”

13/02/2014 This image is too dark to be of assistance.

09/03/2014 Though a little blurred, this photograph shows a significant

number of skips, containers and possibly vehicles around the edges of the site and on the raised section across the middle, without the site being set out for a Golden Weekend.

04/06/2015 This is clearer than the previous image. It nevertheless shows a similar number of items and level activity, but with a significant

number of blue wheelie bins. Several vehicles can also be clearly discerned.

10/08/2015 This photograph is not very clear, but shows at least as many items and as much activity as the 09/03/2014 photograph,

without any apparent Golden Weekend activity. It also shows the rest of the Old Coal Depot site cleared and indeed Mr Bensted confirmed that Eurostorage Ltd had been given notice to quit by

then.

27. I am aware of the need for caution when interpreting and drawing conclusions

from aerial photographs. However, whilst the site was not entirely cleared from 2010 to 2013, as the Council suggests, the above photographs are consistent

with there being limited activity on the site from early 2010 to early 2011,

14 Mr James’ proof, paragraph 3.4.




apart from the Golden Weekends. They then indicate a modest increase in

activity in 2011 and a marked increase by the middle of 2013, which is sustained thereafter.

28. There is no other significant corroborative evidence, apart from invoices and delivery notes from a tyre company proving that vehicle tyres were repaired15 on the site on some 8 separate occasions between 1 November 2012, and

14 May 2013. This supports the conclusion that there was a significant increase in overall activity in 2013, but does not point to a primary industrial use,

particularly since the appellant was not carrying out these repairs itself.

29. Furthermore, in the replies he gave on 19 November 2014 to questions 2(a) and (b) on a Planning Contravention Notice16 (PCN), Mr Bensted said that the

use of the site for Golden Weekends began in October 2009, but its use for “vehicle parking, skip and bin storage and exchange for waste collected in West

London” commenced on 10 June 2013. When cross-examined about this, Mr Bensted said this was an error; he answered question 2(b) in the context of question 1, which concerned the leasehold arrangements and 10 June 2013

was the date of the lease of the whole site. This is not entirely satisfactory, given that the questions were quite straightforward, as were the answers.

Mr Bensted also referred to a file note of a meeting with Jim Craig of the Council on 8 January 2015, which said “Powerday use of the site commenced in 2009.” However, this may just refer to the appellant’s use of the site for the

Golden Weekends.

30. An email from the Council’s Revenues Manager17 confirms that the appellant

was liable for business rates on the site from 10 June 2013. Other Revenues Department notes and correspondence are a little difficult to follow.18 For example, a typed inspection form19, for an inspection scheduled for 14 March

2011, bears a handwritten annotation suggesting the land is vacant. However, there is another handwritten note which says “never inspected”, but then this

is crossed out. In any event, if the site was inspected, it is not clear who inspected it, or whether they actually went onto it. The aerial photograph dated 7 March 2011 shows some skips on the western part of the site but, even if

these were still there on 14 March, they would not have been visible from the gate, because of the raised area across the centre of the site.

31. A record of an inspection on 7 March 201420 records “Current Exemptions and Prescribed Discounts…Land vacant with no buildings”, but a hand written annotation says “Powerday in occupation.” A manuscript file note dated

9 October 201421 indicates that DBS’ agent had advised that a lease had been granted to the appellant commencing 10 June 2013, but he could not advise of

the date on which the appellant actually occupied. The note adds that the officer called Powerday but it says: “Bloke I spoke to unable to advise date – so

I’ve emailed Fred @ Powerday.co.uk…the Operations Manager.” There is no indication of how this was resolved, but the Revenues Department appears to have proceeded on the basis that the appellant’s occupation of the site began

on 10 June 2013.

15 Mr Bensted’s appendix 11. 16 Core document 12. 17 Inquiry document 16. 18 Core document 11. 19 Ibid, at page 365, also numbered 22 at the bottom. See also Mr Volley’s proof, paragraphs 2.19 – 2.22. 20 Core document 11, at page 367 21 Ibid, at page 370.




32. The Heathrow contract was awarded in April 2010. This and the fact that aerial

photographs indicate some activity in addition to the Golden Weekends from March 2011 suggest that some use of the site over and above the Golden

Weekends began earlier than 2013. On balance though, the evidence indicates this was at a low level until 2013; to adopt Mr Bensted’s expression, this additional use was “intermittent”. Whilst there is no dispute that the appellant’s

cleaning and repair apparatus was on site from 2009/201022, Mr Bensted said that skips used for the Golden Weekends were cleaned on site anyway and

“made ready” for the next such event. The mere existence of that cleaning and repair equipment on site does not show extensive general activity from 2010.

33. I am satisfied on the balance of probability that the use of the site changed to

a sui generis skip and waste container transport operation during the appellant’s occupation and in about 2013. However, even if the uses described

by Mr Bensted began by, or shortly after late 2009, such that there was no change of use during the appellant’s occupation and the site was never cleared as claimed by the Council, the appellant would still need to show that there was

no change from the previous use of the site. I will therefore consider the earlier history of use.

34. Planning permission was granted in 1961 for the use of the overall Old Coal Depot site and it was used as a coal depot until the 1990’s. Mr Melville’s statutory declaration23 indicates that, from 2000, Eurostorage Ltd had operated

the overall site as flexible workspace, offering small yards to local businesses. On average, he said there were upwards of 70 small lots/yards let to a variety

of users. He described these as “ranging from hauliers parking their vehicles and trailers and carrying out minor repairs and maintenance, coach companies, waste companies parking their vehicles and storing their skips, storage

containers, pallet storage and repair companies etc.” He said the “lots/yards had temporary flexible boundaries which were moved dependent on the

business user’s specification/demand. This meant that the site as a whole was ever changing.” Mr Melville added that the lack of operational restrictions proved attractive to some tenants who ran and operated 24 hours a day. I

have also been provided with copies of some of the licenses granted to companies over the years.24

35. However, Mr Melville’s statutory declaration did not deal specifically with the appeal site, which is a separate PU, with boundaries that do not appear to have changed since 1999. It is not possible to tell whether any of the licenses

related specifically to the appeal site, as opposed to other parts of the Old Coal Depot. Mr James accepted during cross examination that what was going on

within the appeal site must be the focus of attention, not the wider site. Mr Melville was not present at the inquiry to specifically describe the previous

use of the appeal site itself and none of the appellant’s witnesses had personal knowledge of this.

36. Mr James referred to aerial photographs to indicate the previous use and I shall

comment on these, as well as those in core document 14, in chronological order:

22 Inquiry document 31, paragraph 10. 23 Mr Bensted’s appendix 2. 24 Mr James’ paragraph 3.6 and appendix 3.




09/09/1999 There are numerous trailers, skips, containers, lorries and other

vehicles and miscellaneous unidentifiable items across the appeal site and indeed the entire Old Coal Depot site.

13/10/1999 This shows numerous bays arranged around the north-western corner of the appeal site of the type commonly used for storing

different types of coal or aggregates. This is consistent with the statement in Mr Melville’s statutory declaration that, when Eurostorage Ltd first leased the Old Coal Depot site in 2000,

Charringtons were still using a small part of the site for coal distribution, though their business soon stopped as demand for

coal disappeared. This photograph indicates very little activity on the remainder of the Old Coal Depot site. (Despite being dated just a month later, the differences between this and the previous

photograph are so extensive that the date of at least one of them is probably incorrect).

01/01/2002 There are numerous trailers, skips, containers, lorries and other vehicles and miscellaneous unidentifiable items across the appeal

site and the entire Old Coal Depot site.

01/01/2003 This is the same as the previous photograph, so the dates are

questionable.

16/09/2003 This is the same as the previous two photographs, but the

September date is more likely to be correct, given the extent of leaf cover.

04/09/2004 This is a different photograph, but there are still numerous trailers, skips, containers, lorries and other vehicles and miscellaneous unidentifiable items across the appeal site and the

entire Old Coal Depot site.

09/06/2005 As above.

01/01/2006 As above

29/01/2006 This is the same photograph as the previous one dated 01/01/2006.

03/08/2007 Again, there are still numerous trailers, skips, containers, lorries and other vehicles and miscellaneous unidentifiable items across the appeal site and the entire Old Coal Depot site.

37. Given the level of duplication, there are relatively few photographs covering this 8 year period. They nevertheless provide some indication that the appeal

site was used to store various items and to park vehicles. However, they do not enable a judgement to be made about the particular nature of the business

being carried on. In terms of the appellant’s description of its operations, including the various “industrial activities” (see paragraph 13 above), Mr James accepted that the aerial photographs do not demonstrate that those activities

were previously undertaken. Even if they relate to the appeal site, the licences referred to by Mr James25 appear to indicate storage and parking uses only. I

25 Mr James’ paragraph 3.6 and appendix 3.




have concluded that the use of the site is as a sui generis skip and waste

container transport operation and the evidence does not show that this was the use before the appellant took on the site.

38. Accordingly, even if I were to accept that there has been no change in the use of the site since the appellant went into occupation, it has not proved on the balance of probability that there has been no change from the previous use.

The aerial photographs and licences, so far as they might be relevant to the appeal site, are consistent with storage use, but it is unlikely that it was the

same as the current sui generis use. Furthermore, although Mr Melville said some tenants ran and operated 24 hours a day, there is no clear indication of the extent of any 24 hour working, or whether it took place on the appeal site

itself. By contrast, 24 hour working is an essential element of the appellant’s use of the site.

39. The onus is on the appellant to show that there is no significant difference in the character of its current activities from what has gone on previously such that, as a matter of fact and degree, there has been no material change of use.

It is not able to discharge that burden, given that it cannot describe the character of the previous use with any authority.

40. The Council is only concerned about, noise and disturbance from night time working, as is evident from its decision to under-enforce. Whilst the question of whether the use is acceptable in planning terms falls to be considered under

ground (a), it is clear that the appellant’s use could potentially be detrimental to neighbours’ living conditions. Together with the uncertainty over the precise

nature of the previous use, this is sufficient for the threshold purpose of deciding whether planning permission is required, as opposed to whether planning permission should be granted.

41. The officer’s report recommending enforcement action indicated that, prior to the appellant’s occupation, the appeal site was used for light industrial

purposes and storage. However, that is not clear from the evidence I heard. Given the uncertainty over the precise nature of the activities being undertaken on this particular planning unit before the appellant’s use commenced, it is

appropriate to amend the allegation to delete reference to a previous B2/B8 use. As I have said, the description of a mixed use by reference to Use Classes

may be unhelpful anyway. I am satisfied that this amendment will not cause injustice, as the appellant had a full opportunity to address the nature of the previous and current uses.

Conclusion on ground (c)

42. Whilst I shall correct the allegation in the notice as indicated, I conclude on

ground (c) that the appellant has failed to prove on the balance of probability that the matter alleged in the notice does not constitute a material change of

use, such that there has been no breach of planning control. Ground (c) must therefore fail.

Ground (d)

43. To succeed on this ground, the appellant must prove on the balance of probability that the use of the land changed to use as a Skip & Waste Container

Transport Operation (Sui Generis) on or before 5 June 2005 and that such use then continued for at least 10 years after that change with no significant




interruption. It follows from my conclusions on grounds (b) and (c) that the

appellant has not demonstrated this. The appellant’s case on ground (d) depended on there having been no change from the previous use. This ground

therefore fails.

Ground (a)/the deemed application for planning permission

44. As corrected, the notice alleges a change of use to a Skip & Waste Container

Transport Operation (Sui Generis). That defines the terms of the deemed application for planning permission. However, the notice only requires

cessation of that use between 18:00 and 08:00. Accordingly, if the notice were upheld and then complied with, planning permission would be granted for the use outside those hours by virtue of section 173(11) of the 1990 Act.

45. The main issue is the effect on neighbours’ living conditions, in terms of noise and disturbance, of the use of the land as a Skip & Waste Container Transport

Operation (Sui Generis) between the hours of 18:00 and 08:00.

46. The relevant development plan policies are detailed in the Statement of Common Ground on Noise.26 They are found in: the London Plan, adopted 2011, with

Revised Early Alterations, adopted in October 2013 and Further Alterations, adopted in March 2015 (the London Plan); the Borough of Hillingdon Unitary

Development Plan (UDP), adopted 1998; and the Hillingdon Local Plan: Part 1 Strategic Policies (LP), adopted 2012.

47. London Plan Policy 4.4 seeks to ensure that there is a sufficient stock of industrial

land, but the appeal site is not part of any London Plan designated “Preferred Industrial Land” or “Industrial Business Park.” Under saved UDP Policy LE2, the

Old Coal Depot Site, including the appeal site, is designated for “Business, Industrial and Warehouse Purposes and for Sui Generis uses appropriate in an Industrial area.” Saved Policies Pt 1.23 - 1.26 together encourage industrial and

warehousing developments and urban regeneration in such areas.

48. However saved UDP Policy OE1 states that planning permission will not normally

be granted for uses which are or are likely to become detrimental to the character or amenities of the area because of factors such as noise, unless sufficient measures are taken to mitigate environmental impacts. This is further

reinforced by saved UDP Policy OE3 and LP Policy EM8.

49. Policy SA.37 of the Hillingdon Local Plan: Part 2 Revised Submission Version27

seeks to de-allocate the Old Coad Depot site from industry, warehousing and sui generis uses. However, this document is at an early stage in its progress towards adoption and Policy SA.37 is subject to objection. The Council accepts

that it carries limited weight.28

50. The London Borough of Hillingdon Supplementary Planning Document Noise

(SPD) was adopted in 2006. This sets out recommended noise levels derived from BS 8233:1999 and the World Health Organisation (WHO) ‘Guidelines for

Community Noise’ 1999.29

51. In terms of national policy, the Noise Policy Statement for England (NPSE) indicates that noise control should be directed towards the avoidance of

26 Inquiry document 20. 27 Core document 7. 28 Inquiry document 2, paragraph 4.7. 29 Core document 28.




significant adverse impacts and the reduction of other adverse impacts on

health and quality of life. This is reflected in the National Planning Policy Framework (the Framework). The NPSE30 confirms that there are currently no

European or national noise limits which have to be met, but indicates that noise should be considered alongside other relevant issues. It should not be viewed in isolation and the wider benefits of a particular policy, development or other

activity should be given adequate weight when assessing noise implications. Whilst I did not identify this as a main issue, clearly I will consider any wider

benefits alongside any identified harm.

52. The Council’s concern is noise generated by the comings and goings of heavy goods vehicles (HGVs) to and from the appeal site, between 18:00 and 08:00.

All vehicles accessing and exiting the appeal site do so via the single access point directly off Tavistock Road. Between that access and the junction with

Yiewsley High Street to the east, vehicles travel along a 45m section of Tavistock Road.31 I will come back to the question of what can properly be characterised as night time. However, the NPSE notes that annoyance and

sleep disturbance can give rise to adverse health effects, as well as impacting on quality of life.

53. The NPSE defines the following concepts32:

“NOEL – No Observed Effect Level

This is the level below which no effect can be detected. In simple terms, below

this level, there is no detectable effect on health and quality of life due to the noise.”

“LOAEL – Lowest Observed Adverse Effect Level

This is the level above which adverse effects on health and quality of life can be detected.”

“SOAEL – Significant Observed Adverse Effect Level

This is the level above which significant adverse effects on health and quality of

life occur.”

54. Taking account of the guiding principles of sustainable development, the first aim of the NPSE is to avoid SOAEL. The second aim is to mitigate adverse impacts on

health and quality of life, where the impact lies between LOAEL and SOAEL. The third aim is to contribute to the improvement of health and quality of life through

effective management and control of noise, where possible.

55. The National Planning Practice Guidance (PPG) refers to the aims of the NPSE in respect of the ‘Observed Effect Levels’. It emphasises that the subjective

nature of noise means that there is not a simple relationship between noise levels and the impact on those affected and it cites various factors which might

combine in any particular situation.

56. The PPG provides further guidance to determine the relevant effect level. It

states that once LOAEL is reached:

30 See core document 3, at paragraphs 2.7, 2.9 and 2.14. 31 Inquiry documents 20, paragraphs 3.1 – 3.2. 32 Core document 3, at paragraphs 2.20 – 2.21.




“Noise can be heard and causes small changes in behaviour and/or attitude, eg

turning up volume of television; speaking more loudly; where there is no alternative ventilation, having to close windows for some of the time because

of the noise. Potential for some reported sleep disturbance. Affects the acoustic character of the area such that there is a perceived change in the quality of life.”

57. Once SOAEL is reached:

“The noise causes a material change in behaviour and/or attitude, eg avoiding

certain activities during periods of intrusion; where there is no alternative ventilation, having to keep windows closed most of the time because of the noise. Potential for sleep disturbance resulting in difficulty in getting to sleep,

premature awakening and difficulty in getting back to sleep. Quality of life diminished due to change in acoustic character of the area.”

58. Though reflected in the SPD, the WHO Guidelines do not enshrine specific standards in national policy and judgement must be exercised.33 Nevertheless, the parties accept34 that, to protect against sleep disturbance, those guidelines

say a noise limit of 60 dB LAFmax, when measured outside bedrooms, should be targeted in order to meet an internal noise limit of 45 dB LAFmax. This is on the

basis that people may choose to sleep with their bedroom window open and the agreed noise reduction from outside to inside of a partly open window is typically 15 dB. It is further agreed that, for a good sleep, the WHO guidelines

suggest that 10 – 15 occurrences per night (23:00 – 07:00) of the limiting maximum noise level of 45 dB LAFmax may be considered acceptable.

35 In his

supplementary proof,36 Mr Evans says this acknowledges the notion that the louder and/or the greater the number of events, the greater the likely average response and impact on the local population, depending on the context.

59. The Council relies on data obtained from a survey37 by its consultant noise expert, Mr Pope, between 16 and 23 June 2016 and during the hours 23:00 –

07:00 (the June 2016 survey). This was undertaken at a location overlooking the site entrance on Tavistock Road, where there are 1st and 2nd floor flats above a parade of shops. There are 10 or so residential units in this block.38

The monitoring equipment, which included night-vision CCTV cameras looking towards the site entrance and east towards the Tavistock Road/High Street

junction, was located outside the northernmost 2nd floor window, which serves a bedroom of the 2nd floor flat, 3A Tavistock Road (Flat 3A). Mr Evans conducted surveys for the appellant from 53 Merrivale Mews,

26 Weirside Gardens and 106 Fairway Avenue39. However, these were aimed at measuring noise emanating from the appeal site itself, rather than from vehicle

movements associated with the site, as he had understood the Council’s concern to be restricted to activities within the site.40 Mr Pope confirmed that

he did not present a case in relation to on-site noise, given the distance attenuation.

33 Inquiry document 6, paragraph 4.5. 34 Inquiry document 20, paragraphs 7.7 – 7.8. 35 Ibid, paragraph 7.11. 36 Inquiry document 18. 37 Core document 26. 38 Inquiry document 20, paragraph 5.7. 39 Mr Evans’ proof, paragraph 8.2. 40 Inquiry document 6, paragraphs 5.5 and 5.6.




60. When considering the impact of the appellant’s use of the land on the occupiers

of Flat 3A, it is necessary to appreciate the prevailing noise climate. Yiewsley town centre is just to the east, the M25 is some 1.5 km to the west and the M4

is around 1.9 km to the south. Heathrow airport is about 3.8 km to the south. The Great Western Railway (GWR) West Wales to London Paddington main lines pass just 100 m to the south of the appeal site, accommodating both

intercity and local trains, with a frequency of one train every 2 – 3 minutes during the day and every 5 – 10 minutes at night. There is also a single freight

railway line, which diverges to the east, north, then west of the appeal site and carries around 3 trains per day.

61. Accordingly, the noise climate at Flat 3A is dominated by: persistent road

traffic, both as a distant constant noise and local noise of more distinct character and direction from traffic on Tavistock Road, Yiewsley High Street

and Station Road, to the south of the railway bridge; the generally temporally regular noise arising from trains moving along the GWR main lines; noise from distant aircraft; and general human activities in the area.41

62. The Council says the June 2016 survey revealed that the 60 dB LAFmax sleep disturbance noise level was exceeded 789 times over the 7 nights of

monitoring. Although Mr Pope initially suggested 175 of those exceedances were due to Powerday vehicle movements, the appellant was able to review the CCTV footage.42 When he gave his evidence in chief for the Council, Mr Pope

accepted Mr Evans’ evidence that 143 exceedances identified by him were due to Powerday vehicles. Of the remaining exceedances, 447 were related to non-

Powerday road vehicles and 199 were railway related. Accordingly, 18% of the exceedances were attributable to the appellant. On the basis of those figures, the 60 dB LAFmax sleep disturbance noise level would be exceeded on average

92 times per night without the appellant’s night time working, but the appellant’s operation adds to this an average of 20 exceedances per night; an

increase of some 22%.

63. However, in his supplementary proof43, Mr Evans provided an alternative analysis based on the “1 second resolution” noise data provided by Mr Pope. By

treating each second for which the 60 dB LAFmax sleep disturbance noise level was exceeded as a separate event, he says the criterion was exceeded 155,232

times over the 7 nights of monitoring, rather than just 789 times. On this basis, Mr Evans says that 21 Powerday vehicles per night would represent just 0.09% of the total.44 However, for this to be a valid comparison, it would be

necessary to treat each of those 21 Powerday vehicle movements as multiple separate events, based on a 1 second resolution. In oral evidence, Mr Evans

revised the 0.09% figure to 4.5%, based on assumed exposure times. I am not persuaded that these precise figures are robust, but I accept that, using the

“1 second resolution” approach, Powerday vehicles would give rise to significantly less than 18% of the total exceedances. Mr Pope accepted in cross examination that it could be somewhere between 4.5% and 18%.

64. Mr Evans also says45 that Mr Pope only evaluated noise events connected with Tavistock Rd and the GWR mainline. He says this ignores the wider

41 Inquiry document 6, paragraphs 5.1 – 5.7. 42 Inquiry document 17. 43 Inquiry document 18, at paragraph 5.2 et seq. 44 Ibid, paragraph 5.9. 45 Ibid, paragraph 5.2 et seq.




environmental noise events which dominate the noise climate at Flat 3A, in

particular the noise from the much more heavily trafficked Yiewsley High Street. He points out that the 60 dB LAFmax level was exceeded 77% of the night

time period. In his rebuttal proof46, Mr Pope compared the average traffic noise from Tavistock Road with that from High Street and found Tavistock Road to be the dominant source. In oral evidence, Mr Evans argued the opposite, by

challenging assumptions made about vehicle speeds and disputing the angle of view correction. He said that he had been “playing around with the figures” and

suggested that the average noise level at Flat 3A, attributable to High Street, would be 65 dB LA10,18hr.

65. Mr Pope said that Mr Evans overstates the impact of the High Street. He could

not say that the High Street does not cause exceedances over 60 dB LAFmax, but that, being the closest noise sources to Flat 3A, Tavistock Road and the GWR

mainline dominate the LAFmax noise levels here. Mr Pope said he believed maximum noise levels from the High Street are 15 dB below those from Tavistock Road.

66. I visited Flat 3A in the company of both parties between 19:15 and 20:00 on 27 June 2017. The bedroom outside which the noise monitoring equipment had

been located was occupied by a child, so I observed conditions from the adjacent bedroom. Traffic from the High Street appeared to be the dominant contributor to the overall background noise. However, I was listening from a

point closer to the High Street than the monitoring position and at a time when traffic flows on the High Street were still relatively high. It was also raining, so

that water on the roads added to general vehicle noise. Even then, when two Powerday vehicles passed, they were discernible above the background noise and of course vehicles travelling along Tavistock Road pass within a few metres

of the façade of Flat 3A and the others in the block.

67. I have due regard to Mr Evans’ point that the 60 dB LAFmax sleep disturbance

noise level is exceeded for 77% of the night time and that, in many areas, it would not be possible to meet the WHO Guidelines without banning all transportation activity at night.47 However, I consider that maximum noise

events are important, along with the numbers of such events.

68. In this regard, The Council drew my attention to Professional Practice Guidance

(ProPG) published by the Association of Noise Consultants, the Institute of Acoustics and Chartered Institute of Environmental Health in May 2017.48 Annex A of that document says assessing “the impacts of noise on sleep only in

terms of overall energy averaging metrics, such as LAeq,T, can be insufficient to address all noise related sleep impacts…many studies have shown clear

exposure response relationships between the maximum level of individual noise events and impacts during sleep such as, arousals, awakenings or body

movements. Consequently, when assessing impacts of noise on sleep it is often appropriate to supplement the assessment of the overall noise levels at night measure using the LAeq,T index by also considering the noise from individual

noise events, typically described as the LAmax…”

46 Inquiry document 21, paragraph 26. – 2.7. 47 Inquiry document 6, paragraphs 4.3 – 4.4. 48 Inquiry document 24.




69. The June 2016 survey49 shows that the exceedances attributed to Powerday

vehicles fell within the range 60.2 dB LAFmax to 92.8 dB LAFmax. Furthermore, of the 175 exceedances originally attributed to Powerday vehicles by Mr Pope, the

vast majority were above 70 dB LAFmax; a substantial majority exceeded 75 dB LAFmax; approaching half were above 80 dB LAFmax; and a significant minority above 85 dB LAFmax. The Council now accepts that only 143 of those

175 exceedances were actually attributable to Powerday vehicles, but this is unlikely to significantly alter those ranges or proportions of events within them.

Even if Mr Evans’ suggestion that the average noise level at Flat 3 attributable to the High Street is 65 dB LA10,18hr is correct, the substantial majority of exceedances which can be attributed to Powerday are above 75 dB LAFmax.

A 10 dB + increase over 65 dB represents more than a doubling of loudness and is likely to be an indication of a significant adverse impact, depending on

context.50

70. Whilst the WHO guidelines suggest that 10 – 15 occurrences per night (23:00 – 07:00) of the limiting maximum noise level of 45 dB LAFmax (60 dB LAFmax at the

façade) may be considered acceptable, ProPG indicates that a significant effect on sleep disturbance, e.g. behavioural awakening, is likely to occur where the

maximum sound level at the façade of a building with partially open windows is above: “85 dB LAFmax (where the number of events exceeding this value is ≤ 20; or 80 dB LAFmax (where the number of events exceeding this value is > 20).” In

his oral evidence, Mr Pope pointed out there were levels above 85 dB LAFmax from Powerday vehicles on all but one of the nights monitored. It is also clear

from the survey results that when all sources of noise are taken into account, the 80 dB LAFmax level is exceeded by sources other than the appellant’s operation on many more than 20 occasions per night. However, the appellant’s

operation significantly exacerbates this position.

71. On the Council’s evidence, even without the appellant’s operation, the 92

exceedances per night are already well above the 10 – 15 occurrences deemed acceptable in the WHO Guidelines. In this context, an extra 20 exceedances, resulting from the appellant’s operation might not seem significant. However,

when setting out other relevant factors, the PPG advises that “the cumulative impacts of more than one source should be taken into account….” Furthermore,

it says in cases “where existing noise sensitive locations already experience high noise levels, a development that is expected to cause even a small increase in the overall noise level may result in a significant adverse effect

occurring even though little to no change in behaviour would be likely to occur.” Having regard to the thresholds in the WHO Guidelines and the higher

thresholds considered in ProPG, the evidence from the monitoring at Flat 3A is that high levels of noise are already experienced, but the appellant’s operation

increases this to a degree likely to result in a significant adverse effect.

72. I only have data for Flat 3A. It is probable that noise from traffic on Tavistock Road will have an even greater impact on the flat immediately below,

as it is closer to the road. Mr Pope said he believed that Flat 3A was representative of the whole block. This was not specifically challenged in cross

examination. However, I noted that Flat 3A may not be entirely representative of others in the block, which are closer to and angled towards Yiewsley High

49 Core document 26. 50 Inquiry document 20, paragraphs 7.14 and 7.18 – 7.19.




Street. These may therefore experience higher background noise levels and

more maximum noise levels attributable to the High Street.

73. However, as well as the cumulative impact of multiple sources, the PPG advises

that account should be taken of the spectral content of the noise and its tonal characteristics and features. In this regard, whilst I note that many of the loudest noise events (over 90 dB LAFmax) recorded on the June 2016 survey were related

to train movements, Mr Pope said it is generally accepted that noise from road traffic is more likely to lead to annoyance than noise from rail sources.51 He said

this was because people have an instinctive reaction to road traffic noise as a danger. This was not challenged and I accept it.

74. Furthermore, Mr Pope maintained that Powerday vehicles have a “distinct and

attention attracting characteristic which is clearly discernible”52, namely the banging of skips and the clanging of chains. When cross examined, he said it was

the combination of the maximum levels and the character of the noise which gave the greater scope for sleep disturbance.

75. On 20 February 2017, Mr Pope made recordings of Powerday and non-Powerday

vehicles entering and leaving the site access. These were played at the inquiry and indeed, having been provided with the sound files, I have been able to listen

to these again at home. I could not detect the clanging of chains and indeed Mr Bensted said these are now sheathed as a matter of course to eliminate or minimise any such noise. However, over and above engine and breaking sounds,

there were marked banging and rumbling noises coming from Powerday vehicles. This clearly distinguished them from the non-Powerday vehicles and added to the

intrusive nature of the sound.

76. Local residents have consistently identified banging and rumbling noises as being characteristic of Powerday vehicle movements.53 When giving his formal

evidence, Mr Evans stated he did not believe Powerday vehicles had any distinct and attention attracting characteristics, but this was somewhat contradicted by

his comments during the round table discussion on conditions. It had been put to Mr Pope in cross examination that noise from skips could be reduced by placing them on a neoprene bed. Mr Pope said he had no experience of that and its

effectiveness would need to be proved. During the conditions session, Mr Evans said first that a neoprene bed would not last but, in any event, the problem is the

surface area of an empty skip that is free to reverberate, resulting in a booming sound.

77. Though this relates specifically to empty skips, it fits very much with what I heard

on the sound recordings and the phenomenon described by residents. I am satisfied that the Powerday vehicles do have tonal characteristics and features

which make the noise more intrusive, at least when they are carrying empty skips. However, even though this additional factor may not always apply, I still

consider significant the number of exceedances over 60 dB LAFmax and the number of events very substantially above that level.

78. I note that there have been no recorded complaints from the past or present

occupants of Flat 3A. The June 2016 survey nevertheless indicates that that there is a problem in that location. Whilst they have not been verified by

51 Mr Pope’s proof, paragraph 3.25 and his evidence in chief. 52 Inquiry document 21, paragraph 6.2. 53 See the complaints logs at CD21 and inquiry documents 10, 19 and 25. See also the statements of residents

and elected members at inquiry documents 5, 11, 12, 13, 14, 26, 27, 28 and 29.




surveys, there have also been many complaints from many other locations,

albeit that some of those locations are surprising. I accept that some complaints may be inextricably linked to general opposition to the appellant’s

past MRRF plans for the Old Coal Depot site and many of them do not particularise effects. However, a significant number of complaints have been logged in the early hours of the morning, when most people would be asleep.

79. Furthermore, I was impressed by the way in which the local councillors gave evidence at the inquiry. Elected members are inevitably subject to local

pressure, but they had clearly applied some objective judgement to the many complaints communicated to them. Councillor Duncan said: “In my experience as a councillor numbers of people do not persistently complain or report noise

disturbance and loss of amenity for no genuine reason.” That may not be a universal truth but, in this case, I am satisfied that the objective technical

evidence tends to bear out the objections.

80. I do need to comment on the hours of operation attacked by the notice, namely 18:00 to 08:00. The survey and expert evidence has focussed on the period

23:00 to 07:00. This is the period which the WHO Guidelines say is normally defined as night time.

81. I note Councillor Edwards’ statement54 that account should be taken of the impact of noise on children, as well as on residents seeking to enjoy their leisure. However, the evidence has concentrated on the potential for sleep disturbance

and the WHO Guidelines say “children have a higher awakening threshold than adults and therefore are often seen to be less sensitive to night noise.”

Furthermore, as the PPG acknowledges, the adverse effect of noise at night can be greater “simply because there is less background noise at night.” From the evidence and my own observations, certainly in the vicinity of the Tavistock

Road/Yiewsley High Street junction, significant background noise is likely to continue well into the evening. In terms of impact on leisure, the notice does not

seek to prevent activity during prime leisure time at weekends and on public holidays anyway. The evidence before me indicates significant harm between 23:00 and 07:00, but not otherwise.

82. Directly opposite the Old Coal Depot site a mixed development including 308 residential units is under construction in accordance with planning permission

granted in December 2015.55 The appellant notes that noise from the appeal site was not raised as a material concern on that application.56 However, the Council considered the appellant’s operation unlawful and the enforcement notice had

already been issued in June 2015. Furthermore, I do not know what sound insulation measures will be incorporated within that development. In these

circumstances, the fact of that development does not weigh significantly for or against this appeal.

Conclusion on the main issue

83. Having regard to the PPG, WHO Guidelines, ProPG and the Council’s SPD, I find on the evidence before me, that the noise arising from the use of the land as a

Skip & Waste Container Transport Operation (Sui Generis) gives rise to a Significant Observed Adverse Effect Level. As a result, there is conflict with saved

54 Inquiry document 28. 55 Inquiry document 2, paragraph 2.6 and inquiry document 18, paragraph 4.7. 56 Inquiry document 18, paragraph 4.7.




UDP Policies OE1, OE3 and EM8 and the NPSE and the Framework together

advise that SOAEL should be avoided.

84. When considering the weight to be attached to the harm in this case, I have

had further regard to ProPG which indicates that, even if a person does not become fully awake, fragmentation of sleep, or redistribution of time spent in different stages of sleep can affect e.g. “waking psychomotor function, next

day performance, memory, creativity, risk-taking behaviour, mood, signal detection performance, daytime fatigue and tiredness and…increase accident

risks.” I conclude that the development causes unacceptable harm to neighbours’ living conditions in terms of noise.

85. However, the evidence and guidance only supports a finding of SOAEL or

significant harm in relation to operations between the hours of 23:00 and 07:00, rather than the 18:00 to 08:00 period, to which the notice relates. That can be

addressed by varying the requirement under ground (f), on the basis that compliance with the notice would give rise to a planning permission through section 173(11). Given its decision to under-enforce, the Council is clearly

content with an unconditional planning permission outside the hours 18:00 to 08:00. Whilst conditions could be attached to a planning permission granted on

the deemed application to cover the periods 18:00 to 23:00 and 07:00 to 08:00, I am not satisfied that any57 would be necessary or reasonable, given the absence of any clear evidence of harm during these periods, whether at SOAEL or

LOAEL.

Any benefits of the development

86. The appellant’s use of the appeal site on a 24 hours basis assists in dealing with Heathrow’s waste. In his evidence58, Mr Bensted said that preventing that 24 hour operation would mean other Powerday sites would have to be used

during the night, resulting in longer, less efficient journey times. This would be less cost effective, and could potentially make the contract no longer financially

viable, as well as less environmentally sustainable.

87. I give this factor due weight as an important material consideration, but it is insufficient in this case to overcome the harm identified on the main issue. A

further balancing exercise will need to be undertaken under ground (g).

Overall conclusion on ground (a)/the deemed application for planning

permission

88. The appeal site is currently part of an area designated in the UDP for “Business, Industrial and Warehouse Purposes and for Sui Generis uses appropriate in an

Industrial area”. That area contributes to the stock of industrial land required by London Plan Policy 4.4. In general terms, saved UDP Policy LE2 says such areas

are suitable for business, industrial, warehousing and appropriate sui generis uses. However, the appellant’s use of the appeal site during the hours 23:00 to

07:00 causes unacceptable harm to neighbours’ living conditions. This is contrary to saved UDP Policies OE1 and OE3 and, in terms of NPSE, that harm falls within the SOAEL category. This should be avoided and whilst the imposition of

57 I have had regard to the suggested conditions set out in core document 20, along with additional conditions discussed during the inquiry concerning the imposition of a speed limit on the access road and the improvement of the surface of that road. 58 Mr Bensted’s proof, paragraph 8.2.




conditions might reduce that harm to some degree, I am not satisfied that they

could avoid it.

89. I conclude that the development is contrary to the development plan as a whole,

as well as national policy and, notwithstanding the economic benefits, there are no other considerations of sufficient weight to indicate that planning permission should be granted. The question of permissible hours can be addressed under

ground (f).

Ground (f)

90. This ground is that the requirements of the notice exceed what is necessary to remedy any injury to amenity caused by the breach of planning control.

91. The evidence has only satisfied me that there is unacceptable harm to

neighbours’ living conditions during the hours 23:00 to 07:00. It follows that the requirement should be varied to reflect this.

92. As drafted, the notice might be taken to require the site to be cleared at night, rather than just the cessation of activity. That is not the intention and the requirement can be further varied to make that clear. To this extent, the

appeal succeeds on ground (f).

Ground (g)

93. This ground is that 3 months falls short of what should reasonably be allowed for compliance. The appellant seeks 12 months.

94. Dealing with construction and demolition waste from Heathrow poses a

significant problem and enabling a solution is clearly in the public interest. Furthermore, cessation of night time working may undermine the viability of

the appellant’s contract. It is therefore important to do what is reasonable to enable a proper transition. However, given that I have identified significant harm to neighbours’ living conditions, it would not be reasonable to sanction

the continuation of that harm for a further 12 months. In all the circumstances, I consider 6 months a reasonable period for compliance. To this extent, the

appeal succeeds on ground (g) and I will vary the notice accordingly.

Decision

Appeal Ref: APP/R5510/C/15/3129089

95. It is directed that the enforcement notice be:

(i) corrected by deleting the allegation in section 3 and substituting:

“Without planning permission the material change of use of the land to a Skip & Waste Container Transport Operation (Sui Generis) (“the breach”)”; and

(ii) varied in section 5 by: (a) deleting requirement (i) and substituting: “Cease the use of the land as a Skip and Waste Container Transport

Operation between the hours of 23:00 and 07:00 on any day provided, for the avoidance of doubt, that this shall not require the

land to be cleared during those hours”; and (b) substituting “Six (6) Months” as the period for compliance.




Subject to this correction and these variations 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.

J A Murray INSPECTOR




APPEARANCES

FOR THE APPELLANT: Paul Shadarevian QC, instructed by Clyde & Co LLP

He called

Laurence Evans, MIOA CMCIEH

Mark Benstead, I.Eng

A.M.I Struct E, Managing Director of Powerday PLC

Adrian James,

BA(Hons), MPhil MRTPI CMIWM MIMgt, Barton Wilmore

FOR THE LOCAL PLANNING AUTHORITY: Saira Kabir Sheikh QC, instructed by the solicitor to the London Borough of Hillingdon

She called

Kirsten Berry, BA(Hons), PGDip Planning and

Environmental Management, MRTPI,

Hendeca Ltd Daniel Pope, BSc, Atkins

Stephen Volley, MSc,

DIPTP, MRTPI, Enforcement Appeals Manager




INTERESTED PERSONS:

Keith Saunders, 31 Tavistock Road, Yiewsley

Sylvia Roberts-Steadman, Flat 33, Bridge House, 3 Humber Close, West Drayton

Ceri Morgan, 6 Lawn Avenue, West Drayton

Alan Atkinson, 21A Frays Avenue, West Drayton David Andrew, Chair of Garden City Estate Residents’ Association

Jean Imrie, 17 Wimpole Road, Yiewsley

DOCUMENTS SUBMITTED DURING THE INQUIRY

1

Aerial Photograph taken 27.6.10 and cropped copy missing from Mr James’ appendices

2 Statement of Common Ground (planning matters)

3 Appellant’s opening submissions

4 Council’s opening submissions

5 Statement of Keith Saunders, of 31 Tavistock Rd

6 Mr Evans’ Rebuttal proof

7 Mr Evans’ plans (Fig 1 – 4) showing locations of complainants

8 Complete copy of petition as at 21.2.17 (see separate red folder)

9

Table from Environmental Statement submitted with planning application for Materials Recovery and Recycling Facility (December 2015) showing

projected vehicle movements at 2020

10 Latest version of complaints log (CD21)

11

Statement of Sylvia Roberts-Steadman of Flat 33, Bridge House, 3 Humber Cl, West Drayton

12

Statement (with 8 photographs) of Alan Atkinson of 21A Frays Ave, West Drayton

13 Statement of Jean Imrie of 17 Wimpole Rd, Yiewsley

14

David Andrew’s statement (chair of Garden City estate Residents

Association)

15

Sworn Statutory Declaration of Mark Melville (unsworn copy appended to

Mr Bensted’s proof as MB2)

16

Email dated 24 February 2017 from the Councils Revenues Manager

concerning business rates

17

Notes and CCTV still photographs indicating 33 events in the Council’s

noise survey which did not involve Powerday vehicles

18 Supplementary proof of evidence of Lawrence Evans

19 Further updated complaints log (CD21)

20 Statement of Common Ground re Noise

21 Rebuttal poof of evidence of Daniel Pope

22 Mr Evans’ traffic noise calculations




23 Mr Evans’ spreadsheet

24

ProPG: Planning and Noise Professional Practice Guidance on Planning & Noise – new Residential development May 2017 (Appendix A – dealing

with noise events)

25

Further updated noise complaints log complied by Keith Saunders, of 31

Tavistock Rd

26 Cllr Sweeting’s written statement

27 Cllr Duncan’s written statement

28 Cllr Edwards’ written statement

29 Letter from Francis Ruddy of 41 Weirside Gardens

30 Council’s closing submissions

31 Appellant’s closing submissions

32

Email from Mr Pope attaching sound samples played at the inquiry on 27 June 2017

Appeal Decision - Francis Taylor Building · The waste is transported in skips to the appeal site,...

Documents

Transcript of Appeal Decision - Francis Taylor Building · The waste is transported in skips to the appeal site,...