Case Reference: 3353962

Appeal Decision
Site visit made on 4 March 2025
by N Teasdale BA (Hons) DipTP MRTPI
an Inspector appointed by the Secretary of State
Decision date: 27th March 2025
Appeal Ref: APP/M4510/W/24/3353962
173-175 Chillingham Road, Newcastle Upon Tyne NE6 5XN
• The appeal is made under section 78 of the Town and Country Planning Act 1990 (as amended)
against a refusal to grant full planning permission.
• The appeal is made by [APPELLANT] against the decision of Newcastle Upon
Tyne City Council.
• The application Ref is 2024/0051/01/DET.
• The development proposed is described as, ‘first floor change of use from Sui Generis to HMO (Use
Class C4 - 1 x 5 Bedroom) with attic conversion to create three bedrooms with bathroom. Reinstate
original windows to front elevation to match neighbouring properties. Create two conservation roof
lights to the front elevation and one to the rear. Create rear external staircase for HMO with bike
store and refuse storage area. Ground floor main unit to remain as current use class Sui Generis’.
Decision
1. The appeal is dismissed.
Procedural Matters
2. The description of development in the above banner heading has been taken from
the original application form. The Council’s decision notice includes insertion of 4
no roof lights to the front and rear and retrospective installation of 2 no. air
conditioning units on flat roof to rear. The rooflights are shown on the proposed
plans and these have been taken into account in reaching my decision. I
understand that the 2 air conditioning units have been removed from the site and
placed inside of the property and I was not able to see any in situ at my site visit.
The appellant has submitted a number of plans with this appeal which removes the
air conditioning units from the scheme entirely and given the nature of the change,
I do not find my acceptance of these plans to be prejudicial to any party. The 2 air
conditioning units do not therefore form part of this appeal and thus I do not need
to consider this matter further.
3. An update to the National Planning Policy Framework (the Framework) has been
published dated 12 December 2024 but there are no material changes relevant to
the substance of the appeal.
Main Issues
4. The main issues are:
• The effect of the proposed development on the living conditions of existing
surrounding residential land users and future residential occupiers of the
appeal site with particular regard to noise disturbance and health;
• The effect of the proposed development on the living conditions of existing
occupiers of No 177 Chillingham Road (No 177), No 88 and No 90
Rothbury Terrace (88 and 90) with particular regard to privacy; and
• The effect of the proposed development on highway safety.
Reasons
Living conditions – noise disturbance and health
5. The appeal site comprises a two-storey commercial property located along
Chillingham Road in Newcastle Upon Tyne. It forms part of a row of terraced
properties which front onto Chillingham Road to the east with their rear elevations
and amenity space extending westwards. The appeal site is located close to the
junction where the access lane serving the rear of the properties along Rothbury
Terrace (to the northwest) and Meldon Terrace (to the south) meets Chillingham
Road. The appeal site benefits from a two-storey rear offshoot and a large flat roof
single storey rear extension that covers most of the rear yard area at ground floor,
except for a narrow alleyway providing pedestrian access to the rear access lane
to the south. Both ground and first floors are within the Sui Generis Use Class with
the ground floor operating as a hot food takeaway with the first floor not being
accessible, as the internal staircase has been removed. Adjoined to the north is
No 177 and 179 Chillingham Road which features a ground floor commercial
property and residential flat at first floor level. Adjoined to the south is No 169 and
171 Chillingham Road, a two-storey property featuring a hot food takeaway at
ground floor with the first floor falling within the Sui Generis Use Class. Further
south and beyond the rear access lane are residential properties along Meldon
Terrace and to the rear/west of the appeal site are residential properties along
Rothbury Terrace.
6. The proposed development seeks amongst other works, planning permission for
the change of use of the first and second floor from a hot food takeaway to a 5
bedroomed House in Multiple Occupation (HMO) with attic conversion. The
proposed HMO would be accessed via the rear access lane to the rear/south and
a proposed external staircase would provide access to an elevated first floor
platform.
7. Whilst there are many commercial properties surrounding the appeal site, there
are also many residential properties including a residential flat in the upper floor
property adjoined to the north and those to the west and south. The existing
ground floor of the appeal site would remain as a hot food takeaway which benefits
from planning permission allowing for late night operation up to 23.45 Monday-
Thursday, up to midnight Friday and Saturdays and 23:30 on Sundays. The
Council’s Environmental Health section has confirmed that the ground floor hot
food takeaway benefits from a license allowing operation, including delivery and
servicing, up to 02.00.
8. The appellant has submitted a Noise Impact Assessment. However, this
assessment included the external air conditioning units which no longer form part
of this appeal. I cannot therefore be certain of the results of the assessment, or the
need for any sound insulation to mitigate any impact for the future occupiers of the
upper floor residential use. Additionally, and whilst the air conditioning units do not
form part of this appeal and thus not determinative, the assessment did identify
that the air-conditioning units would result in an adverse impact on existing and
proposed dwellings. These have been repositioned internally and I am not
convinced that this would address the noise impacts as set out in the assessment.
This is because the noise and vibration from the installed air-conditioning units
would transmit through the appeal site to the proposed upper floor residential use
and to surrounding neighbouring properties.
9. The Noise Impact Assessment would need to consider the ‘agent of change’ as set
out in the Framework of introducing a residential use above the established
existing hot food takeaway at the appeal site which I currently do not have in
relation to the appeal proposals. The scheme has therefore failed to demonstrate
that the development would not result in an unacceptable adverse impact on
residential amenity for the proposed upper floor residential use above an existing
hot food takeaway.
10. The ground floor use features existing high-level extraction and ventilation
equipment, in the form of flues that extend up the rear/west elevation. The
proposed development would introduce a door on the first-floor rear/west
elevation, in addition to rooflights on the rear roof slope which is above the
termination point of the existing flues allowing odour to be blown upwards.
11. The Noise Impact Assessment fails to assess the impact of the existing flues or
recommend if any mitigation is required. Consequently, I cannot be confident that
the proposed development would not result in harmful impacts upon the residential
amenity and have the potential to result in unacceptable health impacts on existing
surrounding residential land users and future residential occupiers of the appeal
site. The flues may have been in place for some time and there may have been no
objections from existing occupiers, but this does not mean that the development
would not be harmful nor justify the scheme. Additionally, I understand that the
appellant has not submitted a Lawful Development Certificate to demonstrate that
the flue has been in situ for over 10 years.
12. For the reasons given above, the proposed development would unacceptably
harm the living conditions of existing surrounding residential land users and future
residential occupiers of the appeal site with particular regard to noise disturbance
and health. The proposed development would therefore be contrary to Policy
CS14 (iii) of the Planning for the Future Core Strategy and Urban Core Plan for
Gateshead and Newcastle Upon Tyne 20210-2030, 2015 (CS) and Policies DM23
(v) and DM24 (ii & v) of the Newcastle Upon Tyne Development and Allocations
Plan 2015-2030, 2020 (DAP). Amongst other matters, these policies ensure that
noise, disturbances, smells, fumes, and other harmful effects from surrounding
land uses and/or associated operations will not have an unacceptable adverse
impact on residential amenity. For the same reasons, the proposed development
would also be contrary to paragraphs 187 e), 198 a) and 200 of the Framework
relating to conserving and enhancing the natural environment.
Living conditions – privacy
13. The proposed access to the first floor of the appeal site would be via an external
staircase and raised platform on the rear/west elevation of the property. Its overall
height and projection have the potential to result in overlooking and a perception of
overlooking to surrounding residential properties. This is because the neighbouring
properties of No’s 177, 88 and 90 are located to the side/north within very close
proximity of the proposed staircase and raised platform. Such properties feature
upper floor residential flats, with habitable room windows in their respective rear
elevations. Due to the relationship that exists, these windows would be readily
visible from the proposed staircase and elevated platform in very close quarters
allowing for clear and unobstructed views into these habitable rooms. This would
result in a loss of privacy for existing occupiers.
14. There may have been no objections to the external staircase and elevated
platform from existing neighbouring occupiers but again this does not mean that
the development would not be harmful. I also note the appellant’s comments
regarding the likelihood of loitering on the stairs or any elevated platform. Even so,
this would be the sole access for the proposed development and would still allow
for overlooking opportunities which is unacceptable. Some overlooking may be
present at the appeal site given the relationship of windows to surrounding
residential properties but the existing windows at the property are not directly
comparable to an external staircase which would significantly increase the loss of
privacy for existing occupiers of surrounding properties. Existing levels of
overlooking would not justify further levels of overlooking.
15. For the above reasons, the proposed development would unacceptably harm the
living conditions of existing occupiers of No’s 177, 88 and 90 with particular regard
to privacy. It would therefore be contrary to Policy CS14 of the CS and Policy
DM23 (Part 2, criterion iii) of the DAP which together, amongst other matters,
ensures development will maintain a good standard of privacy for all existing and
future occupants of buildings. For the same reasons, the proposed development
would also be contrary to paragraph 135 f) of the Framework relating to achieving
well designed places.
Highway safety
16. The proposed development would feature a sole pedestrian access from the rear
access lane to the side/south. The access lane does not benefit from a footpath for
pedestrians to access the upper floors. The rear access is used for service and
delivery vehicles, parking and access to residential parking in rear yards. At my
site visit, I observed a number of cars being parked along this access along with
bins storage and other domestic and commercial paraphernalia such as planters
etc.
17. The proposed development would see an increase in movements along this
access which given the lack of footway could result in conflicts between
pedestrians and vehicles and thus would be prejudicial to highway safety. The
obstruction of bins and other paraphernalia would also impact how people move
across the access lane which could prove difficult for disabled/visually impaired
people etc. It is also not the safest and most welcoming route and whilst the bins
would slow traffic, this cannot be relied upon as a traffic calming measure, and I
am not convinced that increasing its usage would make the access lane safer. The
proposed development therefore fails to provide a safe and suitable access to the
site.
18. The properties located along Rothbury Terrace and Meldon Terrace do have
access out onto the back lane, but this is understood to be a secondary access
only as their main access is from the roads in which they face. This would not
therefore justify using this lane as the sole access to the site and any approved
cycle stores in rear yards and gardens would not alter this. The appellant claims
that No 169 Chillingham Road has sole access to the upper floor via a side door
from the access lane. This may be the case but there is no planning history
associated with this and thus the historic arrangement would not justify using this
lane as the main access to properties. Additionally, this door is located closer to
the main footpath and has double yellow lines across the front preventing
obstructions. The appeal site would not benefit from double yellow lines meaning
that obstructions could indeed take place for the only exit point which would be
unacceptable.
19. For the above reasons, the proposed development would unacceptably harm
highway safety. It would therefore be contrary to Policy CS13 part 3 (vii) of the CS
and Policy DM10 of the DAP which together, amongst other matters, ensures
development provides for direct, safe, secure and continuous pedestrian and
cycling links. For the same reasons, the proposed development would be contrary
to paragraphs 115 b) and 116 of the Framework relating to promoting sustainable
transport.
Other Matters
20. The appellant explains that an alternative access to the first floor is not possible,
and I am aware of difficulties in this regard as well as the arrangements in place
for the ground floor unit. Even so, this would not alter my findings on the above
main issues, and I am mindful that the existing access was indeed removed. I am
not therefore sufficiently convinced that such could not be reinstated via internal
works to the ground floor. There may be a long lease on the property, but this
would not be sufficient to justify the scheme, and discussions would need to take
place between the main parties as a separate matter.
21. The appellant sets out some other local policies relating to choice of housing,
effective use of land etc although the proposed development would still need to
comply with the above-mentioned policies which this scheme does not. I do not
dispute that there would be some minor economic, social and environmental
benefits associated with the scheme from provision of housing, contributing
towards housing numbers and bringing the site back into use. The extent to which
this would however be beneficial is limited given the small-scale nature of the
proposals and thus would not be sufficient to outweigh the harm identified.
Conclusion
22. The proposed development would conflict with the development plan when
considered as a whole. There are no material considerations, either individually or
in combination, that would outweigh the identified harm and associated plan
conflict. I conclude that the appeal should therefore be dismissed.
N Teasdale
INSPECTOR