Paul Tucker QC and Stephanie Hall were instructed for the Appellant by CMS to appear at an inquiry into the conversion of the upper floors of a listed public house to residential use.

The Council refused planning permission for the change of use and enabling works on the basis that noise attenuation measures, which would be required to ensure appropriate noise levels for future occupiers of the flats above the pub, would cause harm to the character of the public house use through the inability to continue late night music events in the pub. The Appellant proposed noise measures which would require physical works and would prevent the pub from operating music events beyond 11pm. The reduction in live music nights was said to result in heritage harm to the listed public house by endangering its viability and to cause harm to the character and vitality of the night time economy in New Cross.

The Inspector allowed the appeal and agreed with the Appellant that the change in the type of operation would not amount to an unreasonable restriction on the use, nor would it harm the vitality and viability of New Cross as the pub could still operate for the same opening hours as previously and could host music events prior to 11pm. The Council had also sought to argue that the appeal proposals did not represent the optimum viable use and argued that the pub, without the works, amounted to the optimum viable use. The Inspector agreed that the optimum viable use was as a pub and the precise type of pub operation was not relevant.

The decision is an interesting application of the relatively new “agent of change” principle in paragraph 182 of the NPPF and concerning how fine a grain should be considered in relation to defining the ‘optimum viable use’.

View the appeal decision here.

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