Agenda item

Change of use of upper floors of Nos. 37 and 39 from mixed use restaurant and drinking establishment (Use classes A3/A4),  to drinking establishment (Use class A4) (retrospective). [Guildhall Ward] [Site Visit]

Members considered a full application from Mrs Pavlou for the change of use of the upper floors at no 37 and 39 from mixed use restaurant and drinking establishment (Use classes A3/A4), to drinking establishment (Use class A4) (retrospective).

Officers advised the Committee that the correct address for the premises is Vudu Lounge 39 Swinegate. They advised that proposed conditions 1 and 4 be deleted and the new conditions be proposed as follows. Condition 1 would restrict opening hours to 10:00 to 01:00 the following day between Sunday to Thursday and 10:00 to 03:00 the following day on Fridays and Saturdays to protect the living conditions of adjacent residential occupiers. Condition 2 would grant temporary planning permission until 13.09.13 for opening to customers between the hours of 1000-0400 hours the following day, after which the opening hours would revert to the times stated in condition 1. This is in order that the impact of this use on neighbouring residents, the effect of the noise management plan, and the impact on the character of the area could be monitored.

Officers proposed that additional conditions be required to restrict the emptying of bottles and glass into bottle bins and to prevent amplified, recorded or live music being played which is audible outside the building in order to protect the amenity of nearby residents.

Members discussed the opening hours of nearby premises including the Biltmore and Oscars and questioned why officers had suggested a temporary 4am closing time. Officers advised that this was what the applicant had requested and they had assessed this request and suggested the trail period. They stated that Members could impose whatever hours they felt suitable but they should take into account that permission for mixed use was granted in 2006 until 1am Mon to Fri and 3am Saturdays and Sundays.

Representations were received from a local resident in objection to the application. He stated that residents are disturbed by noise emanating  from the premises and the passageway. He asked Members to consider the following initiatives if they were minded to approve the application:

·        CCTV to cover the passageway between St Sampson’s Square and Swinegate

·        A gate should be installed at both ends of the passageway which should be closed at 7pm and reopened in the morning.

·        The premises should be soundproofed

·        No bottles should be emptied into bins between midnight and 8am

·        There should be better liaison between the club and residents.

Representations were also received from the Manager of the Roman Bath Public House. He explained that he had lived in the pub living quarters which were behind Vudu Lounge for 3 years and had experienced noise at ridiculous levels, and heard the throb of the heavy base music until 4am seven days a week. He confirmed that he and his young daughter were kept awake by the noise and rowdy behaviour from customers at closing time as well as by the bottles being emptied into bins until 3-4am. He accepted that he should expect some late night noise living in the city centre but believed that he should not have to experience this type of disturbance to these hours. In response to a question, he agreed that noise in this area after 2am could be attributed to the Vudu Lounge and he confirmed that paying guests staying at the pub were also disturbed by the noise. Officers advised the Committee that the impact of the disturbance on an adjacent business can be a planning consideration. 

Representations were also received from the applicant in support of the application. She explained that they had not been aware that they were trading in breach of planning conditions and apologised for this. She stated that Vudu Lounge had opened in 2005 with planning permission for A3/A4 mixed use but they had struggled with the restaurant side of the business and had made a loss. They had tried to market the restaurant but after much deliberation had taken the decision that running a bar was the best way forward. Bar trade had flourished and they now employed 24 staff, 9 of whom were full-time. They had applied to stay open until 4am in response to customer demand although they closed their doors to new customers at 3am. She advised Members that they asked their customers to respect neighbours amenity and leave quietly. Furthermore the building was now fitted with acoustic glass on doors and windows. With regard to emptying bottles into bins, she explained that they had started to use stronger bin bags to minimise noise when transferring them. She stated that if she had to revert back to old opening hours she would not be able to lay some staff off as they did not get busy until between midnight and 3am. She provided clarification the amount of trade between 3am and 4am.

With regard to music, she acknowledged that the base beat of the music had been an issue and advised Members that since this had been raised during a visit by environmental officers, she had turned this off. Members noted that work was planned to make improvements to the sound insulation of the current chipboard floor of the archway by the Roman Bath.

Members stressed the importance of considering the effect of establishments such as this on residents’ amenity, especially at a time when we are trying to attract residents back into city. The Three Cranes Passageway is very narrow which exacerbates the noise created by people in the passageway and the emptying of bins. The potential gating of the alleyway (as suggested by the speaker) would need to be investigated through another route as it is a public highway.

Members acknowledged that the Vudu Lounge remains open beyond the opening hours of other premises in the area so it is not surprising that people tend to gravitate towards it. The Micklegate area is classed as an Impact Zone but people are now gravitating to other areas and it may be necessary to consider other possible  impact zones in future.

With regard to opening times, they considered whether it would be  appropriate to grant planning permission until 4am when other premises in the area close at 2.30am and what the cumulative effect of granting a 4am closing time would be. The applicant had stated that the business would not be viable if they were forced to close any earlier than they currently do but residential amenity must take priority over the viability of the business. Granting a standardised closing time across premises in the area would be a better way forward.

Members considered that the premises could currently remain open until 3am at the weekend with the existing mixed use planning permission which only required them to serve food until 11pm and suggested that it would me unfair to take hours away from them. However Officers reminded them that the premises were currently operating with no planning permission as they were not operating as a restaurant/bar.

With regard to noise emanating from the premises, Members discussed whether a  condition requiring the owner to turn off the music at a specified time was  necessary. Officers advised that a noise management scheme was a condition and the advice from the noise consultant was that the measures planned, including sound insulation and improved flooring, should resolve the issue of noise emanating from the premises.

RESOLVED:             That the application be approved subject to the conditions listed in the report and the new conditions below:

                                    New Condition 1

The use hereby permitted shall only be open to customers between the hours of –

Sunday to Thursday ; 1000-0100, following day

Friday and Saturday : 1000-0300, following day

Reason: To protect the living conditions of adjacent residential occupiers in accordance with policy S7 of the Development Control Local Plan.

New Condition 2

Temporary planning permission is granted until 13.09.13 for opening to customers between the following hours :

Sunday -Thursday, 1000-0200, following day

Friday- Saturday, 1000-0300, following day

After 13.09.2013 the opening hours shall revert to those in condition 1 of this permission unless a further planning permission has been granted.

Reason: So that the Local Planning Authority may assess the impact of this use upon the living conditions of neighbouring residents by monitoring the effect of the Dragonfly noise management plan ( dated 8.8.2012), and the impact on the character of the area in accordance with policy GP23 of the Development Control Local Plan.

New Condition

Bottles and glass shall not be placed into bottle bins between the hours of 24.00 hours (midnight) and 08.00 hours on any day.

Reason: To protect the living conditions of adjacent residential occupiers in accordance with policy S7 of the Development Control Local Plan.

New Condition

No amplified, recorded, or live music shall be played which is audible outside the host building.

Reason: To protect the amenity of surrounding occupants and in the interests of the character of the conservation area.

REASON:                  The proposal, subject to the conditions listed in the report and the new conditions above, would not cause undue harm to interests of acknowledged importance, with particular reference to the vitality and viability of the city centre; the character and appearance of the Central Historic Core Conservation Area; and the amenity of surrounding residents. As such the proposal complies with Policies GP1, S6, S7 and HE3 of the City of York Development Control Local Plan ( 2005) and national planning guidance contained in the National Planning Policy Framework.