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The site represents the curtilage of a ground floor hot food take away outlet situated on southern side of Church Road next door but one to the junction with Cherry Orchard Walk.
The site lies within an area designated as Mixed Use on the Port Erin Local Plan which was approved by Tynwald in 1990.
Previous applications submitted in respect of this site include:
PA 95/0529 - change of use to include cafe area within premises together with the use classes 1 & 2 - permitted (see attached; classes 1 and 2 are for the sale of hot food and food other than hot food for consumption off the premises)
PA 05/0802 - retrospective application for the installation of flue (refused) and installation of a canopy (permitted).
The application proposes retrospective permission for the installation of the flue from the ground floor to the roof of the premises. This is now largely hidden from public view behind the existing parapet and the angle of view from the pedestrian level in Church Road. The flue is no longer visible to those living in the flats alongside the site.
The relocation of the flue has been the subject of discussion with Simon Renton, the Environmental Protection Unit’s noise officer who prepared a report on 21st September, 2005 in respect of the new siting. This responded to complaints from residents at Northview, 30, Church Road to him in respect of noise nuisance from the operation of the flue. His inspection and report consider the impact of noise from the fan, the air flow within the ducting and from the motor and that this noise can be transmitted from the duct terminal, through the ducting, the fan casing and structural noise transmitted through supports where the system is attached to structures including the separating wall between the Mandarin and Northview and via the flat roof.
The new siting does not result in a visual nuisance and indeed there are no objections to this element of the proposal.
Simon Renton’s report concludes that at full volume the ventilation system noise would be considered a nuisance to Northview. At low to medium volume levels this is not likely to be so although the noise of the system could be audible above the ambient background levels in the absence of traffic or noise from within the flat.
He concludes that if the system were to operate at or below medium volume during the evening and night-time, the Environmental Protection Unit is unlikely to consider action in respect of statutory nuisance. There is no suggestion that this cannot be achieved or that the fan or any part of the system should not be operational at any time. A condition is recommended which requires that The broadband level of the noise emitted from the mechanical ventilation system at the Mandarin Takeaway shall not exceed LAeq, 1 hour - 30dB daytime (0700-2300hrs) and LAeq, 5 minute - 25 dB night-time (2300-0700hrs). This shall be measured inside any adjacent residential premises and he also includes a recommendation for low frequency audible tonal noise from the system.
There is no reference in this report to smell nuisance.
If the proposal does not result in a nuisance to residents alongside as appears to be being advised by the Environmental Protection Unit, there is no justification to attach a condition which will control when the system is operational. As permission was granted for the use of the premises under PA 95/0529 without any restriction on hours of operation, it is, in my view, inappropriate and would be unlawful to now try to restrict such hours of operation. Problems of disruption, noise and litter from customers coming and going at certain times is not associated with the installation of the flue and cannot be addressed through this application. Noise levels may be controlled by condition and the installation of appropriate equipment and later hours, when there tend to be lower ambient noise levels are subject to more stringent noise controls.
There is now a supplementary report from Simon Renton, dated January 2006. This report concludes that there has not been any evidence of a statutory noise nuisance as a result of the operation of the fan or rowdy behaviour. This still omits any reference to smell. A supplementary report from Simon Renton recommends that in order to prevent a smell nuisance from the outlet it needs to be directed upward not downward and at least 1m above the roof ridge which it is not presently. He then recommends a series of conditions which, in order to be satisfied will probably result in more expenditure for the applicant.
I have contacted the agent for the applicant a number of times to try to obtain information on the need to move the flue to achieve the 1m height for discharge. However, despite being advised that the further information would be available I have received nothing. As such, there is insufficient information to satisfy me that a flue could be installed so as not to give rise to either smell nuisance which would warrant refusal of the application or, in trying to overcome this, a visual intrusion from a flue which discharges at 1m above roof level.
Enforcement action should be taken in respect of the flue which has been installed which effectively has no planning permission.
As the occupants of the flats alongside the premises are directly affected by the proposal, I would recommend that they and representatives thereof and those who own these premises should be afforded party status to this application. Port Erin Commissioners are statutory authority and should be afforded party status in this instance.
Recommended Decision: Refused
Date of Recommendation: 31.07.2006
C: Conditions for approval N: Notes attached to conditions R: Reasons for refusal O: Notes attached to refusals
R 1.
There is insufficient information to satisfy the Planning Authority that a flue could be installed so as not to give rise to either smell nuisance which would warrant refusal of the application or, in trying to overcome this, a visual intrusion from a flue which discharges at 1m above roof level.
Decision Made: Refused Committee Meeting Date: 10.8.06
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