Soundproofing Advisory Report for Members ... - Lambeth Council

Soundproofing Advisory Report
1.0 Introduction
1.1 Concern has been raised by Members of the Planning Applications
Committee in relation to proposals to convert houses into flats, and in
particular the adequacy of soundproofing to prevent noise transference
and to ensure the amenity of existing neighbours and future occupiers
of the units are protected - both in terms of the internal stacking of
rooms and in relation to adjoining properties, e.g. bedrooms adjacent to
living rooms.
1.2 Planning Officers have previously advised the soundproofing of
properties is generally considered to be outside the remit of planning
control and is dealt with under Part E of the Building Regulations.
Hence a condition requiring soundproofing between floors and party
walls (unless in exceptional circumstances) is unreasonable, therefore
unenforceable because it is considered to be unnecessary as
soundproofing is covered under separate legislation.
1.3 The recent history is important when referring to this matter. At the
Planning Application Committee on the 11th July 2006 Members raised
concerns in relation to an application at 232 Coldharbour Lane. The
application was for the change of use of the ground and basement
floors from a Shop (Class A1) to a Cafe (Class A3), including the
erection of 3 storey rear extension, together with the use of the upper
floors as a two bedroom self contained flat, and external works
including the formation of a roof terrace and a lower level courtyard at
rear.
1.4 The application included the installation of an internal flue (as means of
extraction). The application was recommended for approval. Conditions
were added to the Officer report with regard to the proposed kitchen
extract system and for the need to install a scheme of soundproofing
and insulation for all party walls and the ceiling/floor between the
ground and first floor.
1.5 Previously to this, similar soundproofing issues had arisen on 29
Arodene Road in May 2005 when Members instructed officers that a
condition be imposed in order to ensure the property was adequately
soundproofed as part of the conversion of the dwelling house.
Members advised that the soundproofing should include floors and
party walls. Following approval of the planning application, details of
the soundproofing in relation to the imposed condition was submitted to
the Council. As planning officers have no expertise with such matters
Building Control officers were consulted and following no objection
being raised by them the condition was discharged on the 5 th
September 2005.
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1.6 Following conversion of the property Councillor Clyne received
complaints from the adjoining occupier at number 31 Arodene Road in
relation to alleged noise penetration through the party wall into their
property. A sound test carried out between Nos 29 and 31 revealed an
airborne sound insulation between the properties was 47 db. This
figure was within the accepted limits given in the Approved Document
Part E of the Building regulations 2000.
1.7 Councillor Clyne also raised noise issues concerning 97 Babington
Road where planning permission had been granted for a change of use
from a single dwelling house to an adult care home for people with
mental health problems and learning difficulties. A condition had also
been attached to that decision with regard to soundproofing which also
included party walls
1.8 At the Planning Applications Committee on the 11th July 2006
Members agreed that a report to provide details on the issue of
soundproofing and potential noise penetration should be submitted to
the Committee. This report seeks to address the issue raised with
regard to the appropriate use of conditions on soundproofing between
properties.
2.0 Planning Legislation and Government Guidance
2.1 The primary legislation is the Town and Country Planning Act 1990 (as
amended). Guidance on conditions is found in Circular 11/95 (The Use
of Planning Conditions). Guidance on S106 Legal Agreements is also
found in Circular 05/05 (Planning Obligations)
Circular 11/95
2.2 With specific regard to conditions, on a number of occasions the courts
have laid down the criteria for the validity of planning conditions. In
addition to satisfying the court's criteria, the Secretary of State takes
the view that conditions should not be imposed unless they are both
necessary and effective, and do not place an unjustifiable burden on an
applicant. Central Government guidance therefore states that as a
matter of policy, conditions should only be imposed where they satisfy
all of the tests described in the Circular. In brief, these explain that
conditions should be:
i. necessary;
ii. relevant to planning;
iii. relevant to the development to be permitted;
iv. enforceable;
v. precise; and
vi. reasonable in all other respects.
2.3 Circular 11/95 relating to the use of conditions advises that it is
inappropriate to attempt to duplicate the controls under other
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legislation. It goes on to state that a condition, which duplicates the
effect of “other legislation”, will normally be unnecessary, and one
whose requirements conflict with those of other controls. If a Council
were to ignore this advice and impose a condition it would be seen as
being “ultra vires” specifically because the Council would be attempting
to place an unreasonable condition on a planning application where it
was not required. As such, the Council would be attempting to impose
a further burden on an applicant, when the issue the Planning
Committee was trying to restrict was already covered by other
legislation. In this instance the Building Regulations which is overseen
by building control officers.
2.4 It is also building control officers who have the expertise and the “on
site” knowledge to make sure that the physical works to complete the
development are carried out to the standard of the Building Control
Regulations.
Section 106 Legal Agreements.
2.5 In some instances, where officers have advised Members against the
imposition of a condition, Members have suggested that a legal
agreement under Section 106 of the Town and Country Planning Act
1990 should be sought seeking agreement from the applicant as to the
level of soundproofing to be implemented as part of the conversion.
However, Government Circular 05/05 (Planning Obligations) gives
clear guidance in this regard. Similar to that mentioned above the
advice contained in this Circular states that where other controls could
enforce a particular requirement, asking an applicant to enter into a
106 Agreement may very well be seen as being unjustified.
2.6 Therefore with reference to the imposition of a Planning Obligation, as
with the imposition of conditions mentioned above, the Circular states
that the following tests must be satisfied prior to requesting that an
applicant enters into a Section 106 Legal Agreement. In brief the
planning obligation should be:
i. relevant to planning;
ii.necessary to make the proposed development acceptable in
planning terms;
iii. directly related to the proposed development;
iv.fairly and reasonably related in scale and kind to the proposed
development; and
v. reasonable in all other respects.
2.7 Therefore, although it might be stated that some of the five points
mentioned above would be relevant and should result in an applicant
entering into a Section 106 Agreement, it has to be remembered that
this Circular specifically states that an applicant should not be forced
into such an Agreement if there is other legislation that could control
the issue. It is considered that asking an applicant to enter into a 106
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Agreement, which duplicates the effect of other controls, will normally
be unnecessary and as such would be Ultra Vires because it is
unreasonable.
Building Control Legislation
2.8 Legislation relating to the soundproofing of buildings is found in Part E
of the Building Regulations 2000. Part E gives details of the
acceptability of soundproofing across compartment floors and walls
and party walls in terms of the density and the suitability in respect of
airborne and impact sound insulation values. Approved Document Part
E of the Building Regulations 2000 provides, as an example,
information on undertaking sound tests to record the airborne sound
insulation between the floors and walls of flats. Part E states that
provided a sound insulation level of at least 43db is recorded across a
compartment or party wall the airbourne sound insulation across the
wall is acceptable, and whilst this would not prevent all noise, it would
provide a reasonable standard to the satisfaction of the Building
Regulations.
2.9 As part of Approved Document Part E, the adequacy of soundproofing
should be measured by undertaking sound tests within the adjoining
property. This is normally undertaken within the building that is being
converted where the wall of one flat abuts another within the premises.
This is easily undertaken, as building control officers would be visiting
the premises as they were being converted. However, it is not normal
practice to enter adjoining buildings that exist on either side of the
premises, especially as it is generally accepted that party walls are of a
sufficient brick thickness to prevent sound transmission. One of the
reasons is that Central Government would be of the view that it would
place an onerous burden on Councils and building control officers if it
were to demand that noise levels were to be taken from adjoining
buildings. This would also infringe on the protection of an individual’s
rights as an adjoining owner. Additionally, a noise assessment would
be difficult to undertake if access is denied by the adjoining owner. As
the legislation stands, building control officers have no authority to
require a sound test in such circumstances from within an adjoining
property, which does not form part of the application site.
2.10 It is considered that the Building Regulations provide for acceptable
sound insulation between dwellings and common areas and other
buildings. However, whilst there is good guidance on acceptable sound
insulation methods for between dwellings in the approved building
regulations, Part E relates mainly relates to the design and construction
of new dwellings. Part E also indicates that if a new flat is constructed
above a part of the same building where a commercial use exists, e.g.
a shop or restaurant, then a minimum value of 43 dB would apply for
airborne sound insulation. Given that Part E mainly refers to new
dwellings, it is considered acceptable to place a soundproofing
condition on a planning decision for the change of use of premises to
noisy uses when they are adjacent to residential units. The condition
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would then be discharged only when building control officers have
been consulted and those details were considered to be acceptable.
Environmental Health Legislation
2.11 With regard to the generation of noise nuisance, Environmental Health
powers lie with the Environmental Protection Act 1990. This legislation
refers to the ability to take action against noise nuisance and
disturbance, but such action can only be taken against the person
responsible for the noise, for example noise emanating from machinery
or music where the activities are unreasonable and beyond the norm.
An appeal case to the House of Lords in 1999 under this Act
established that inadequate sound insulation in itself could not be a
statutory nuisance. However, the case established that environmental
health powers would not be as strong as planning conditions, in
relation to the affect on such amenity and that there is a defence for
soundproofing of commercial properties with "best practicable means".
Planning Policy Guidance Note No 24 - Noise
2.12 Further guidance on noise penetration is found in Planning Policy
Guidance Note 24. This document guides local authorities in England
on the use of their planning powers to minimise the adverse impact of
noise. It outlines the considerations to be taken into account in
determining planning applications both for noise-sensitive
developments and for those activities which generate noise. In relation
to soundproofing between properties, the document states that:
“In some cases it will be particularly important for local planning
authorities to liaise with the relevant body because some part of the
activity for which planning permission has been sought may be subject
to another more appropriate means of control or licensing condition.
The planning permission should not seek to duplicate such controls or
conditions. For example, the Government considers that the Building
Regulations are the most appropriate means of control for sound
insulation between dwellings and local planning authorities should not
therefore use planning conditions to control sound insulation in such
cases”.
2.13 It can therefore be seen in all Central Government Legislation and
policy guidance, there is an emphasis not to use planning conditions
where this mater is controlled by other legislation.
3.0 Unitary Development Plan Policy
3.1 Policy 17 (Flat Conversions) of the Adopted UDP (2007) is the most
relevant policy in relation to conversions. The aim of the policy is to
protect the limited stock of small to medium sized dwellings with
gardens and to ensure that conversions only take place in dwellings
that are large enough to be converted; to create an adequate mix of
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dwelling sizes within the Borough; and to create a satisfactory standard
of accommodation in respect of safeguarding the amenities of existing
neighbours and prospective residents.
3.2 Part D (i) of Policy 17 requires that noise transmission is minimised
through the handing and stacking of similar types of room. Although not
explicitly stated in the policy, the handing requirement specifically
refers to the application site and an application relating to the creation
of two separate units on the same floor, and not to neighbouring
properties. This is because the original party wall between properties is
considered to be more substantial than internal partition walls, and
more resistant to noise.
3.3 However, there may be special or exceptional circumstances where a
condition may be needed to ensure that the property is soundproofed.
In these cases a condition would be added, with the details
subsequently submitted to discharge the condition being referred to
Building Control and Regulatory Services for comment. Should no
objections be raised, the condition would be duly discharged.
It is considered that the conversion of a property into flats would not fall
into the category of ‘special circumstance’ nor the conversion into a
care home, unless the residents had particular special needs which
made it ‘necessary’ to add a particular condition. However, as
mentioned above the creation of a flat above a commercial property
such as an A3 restaurant could be conditioned to provide
soundproofing between the commercial and residential unit being
created on the site.
4.0 The relevance of Planning Appeals
4.1 This view is supported by the Planning Inspectorate in the following
decisions and is cited as a means of reference on this issue.
4.2 Appeal decision ref (APP/C3105/A/04/1157469) Cherwell District
Council. Conversion of a house into 2 flats. The Inspector stated that:
"…, I am satisfied that appropriate sound insulation measures, which
would be secured under Building Regulations, would ensure that the
changes to the areas of living accommodation would not result in any
unacceptable additional disturbance to residents, and in particular the
occupants on No. 18, regarding existing noise and disturbance, but this
should be dealt with under other legislation."
4.3 In considering a soundproofing condition the Inspector said:
"Although the Council suggested a condition regarding noise insulation
should the appeal succeed, at the hearing it conceded that it no longer
considered the condition to be necessary. I am satisfied that noise
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insulation should be adequately provided under other legislation and
therefore agree that such a condition is unnecessary".
4.4 APP/U5360/A/04/1138193. Conversion of a house to two flats in
Hackney:
4.5 In that instance the Inspector stated:
"However, I consider that a condition is unnecessary to secure any
sound insulation, as this matter is covered by other legislation and
therefore the proposal should not fail in this regard.
4.6 London Borough of Lambeth - APP/N5660/A/03/1135575. 100
Streatham Vale
4.7 The appeal, which was undertaken in this Borough, resulted in the
Inspector stating that:
"The Council suggested a condition about soundproofing and
insulation. However, these are the subject of other controls under
building regulations and no exceptional reasons for the imposition of
such conditions were given at the Inquiry”.
4.8 London Borough of Lambeth – APP/N5660/A/07/2037459. Endsleigh
Mansions, Leigham Avenue, SW16.
4.9 In this instance, the Inspector in allowing the appeal for the erection of
a mansard roof and creation of 8 self contained flats within the building
concluded that:
“Concern has been raised by existing residents of the building that the
proposed floor layout would not result in rooms of similar uses being
stacked together. I accept that there would be potential for disturbance,
but the requirements of other legislation would ensure the provision of
appropriate sound-proofing.”
London Borough of Lambeth – APP/N5660/A/072035151. 136
Abbeville Road.
Whilst planning permission was granted for the conversion of the
property into flats, the appellant appealed against conditions attached
to the planning permission, namely condition 3, which stated:
Notwithstanding details shown on the approved plans, the internal
layout of the ground floor shall be rearranged / ‘flipped’ so that rooms
of a similar type are suitably stacked between the ground floor and first
floor flats. Details of the revised layout shall be submitted to and
approved in writing by the Local Planning Authority, and shall be
implemented thereafter prior to any residential occupation of the
converted property.
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In his decision, the Inspector wrote:
“The appellant indicates that the works complied with all relevant
standards. I assume therefore that the works met the requirements of
the Building Regulations and it has certainly not been suggested
otherwise. In my view, the provision of soundproofing will have been
sufficiently addressed under the Building Regulations. In the light of
this I conclude that condition [3] is unnecessary and that the appeal in
relation to condition [3] should succeed and that the condition should
be deleted.
Members attention is therefore brought to the fact that all of the above
suggest that where other legislation covers the issue of noise
transmission; a planning condition should not be imposed. It should
also be noted that if a condition were to be imposed and an applicant
were to appeal that condition there is a very good chance that costs
would be awarded against the Council if the applicant were to appeal
either via an Informal Hearing or by Public Inquiry. The same can be
said with regard to stacking arrangements.
It should also be noted that once planning permission has been
granted, it does not prevent the owner of the property from swapping a
bedroom so that it becomes a lounge and vice versa.
Having said that, the above does not rule out the fact that an applicant
could voluntarily insert soundproofing measures over and above that,
which is currently seen as being acceptable to officers within Building
Control. However, any increased or denser soundproofing techniques
used in a conversion would need to be accepted under a voluntary
code of conduct and overseen by officers within Building Control.
However, such an increased standard would not be enforceable under
planning legislation, but would merely be at the behest of the applicant
and the building company undertaking the conversion works on that
particular property. Any discussion on an increased density of
soundproofing would not be a planning matter, but would be for
Building Control officers to discuss with each individual applicant.
Although it should be noted officers within that section may very well be
reluctant to enter into discussions with an applicants if at the beginning
of the conversion works the applicant states he is unwilling to insert
soundproofing over and above the requirements of existing building
control regulations.
5.0 Conclusion
5.1 Officers are therefore stating for the benefit of Members that they
consider that a condition, which duplicates the effect of other controls,
will normally be unnecessary and therefore legally unenforceable.
Whilst there may be special circumstances where a condition may be
needed to ensure that soundproofing is carried out by a planning
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condition, such as over an A3 restaurant, it is considered that flat
conversions would not fall into this category.
5.2 Government guidance is clear - Building Regulations should be used to
control noise in flat conversions and that the addition of a sound
insulation condition on a planning permission for a conversion would
more than likely be ultra vires.
Given the above, officers advise that conditions requiring the
soundproofing of floors and party walls as part of the conversion of a
property into flats should not be added to planning approvals, unless
there are special circumstances such as with the location of an A3
restaurant use at the ground floor, where flats are to be located above.
It is considered that the imposition of soundproofing condition on
houses being converted would be inappropriate and would not be
within the remit of planning control.
However, if an applicant wishes to insert soundproofing over and
above that required by Building Regulations, this would be at the
behest of the individual applicant undertaking the conversion works on
a particular property.
REPORT AUTHOR
Sheree Bennett. Team Leader North Team
Jim Smith. Head of Development Control
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