Agenda item

Variation of condition 3 of planning permission 12/01249/FUL to extend opening hours until 02:30 every day. [Guildhall Ward]

Members considered a full application from Mr Bora Akgul for the variation of condition 3 of planning permission 12/01249/FUL to extend opening hours until 02.30 every day.

Representations were received from Mr A Smart, local resident in objection to the application. He made the following points:

·        Residents living nearby continue to be disturbed by noise coming from Swinegate Court East – we need to ensure level of noise disturbance is reduced.

·        Owner has not adhered to conditions agreed at the last meeting and is continuing to operate outside the agreed opening hours.

·        The outside areas of other local bars have to be cleared earlier in the evening due to proximity to residential dwellings.

·        We cannot continue to be subjected to this level of disturbance, having to clear up broken bottles, vomit etc.

Representations were received from Mr B Crux, a York resident in objection to the application. He raised the following concerns:

·        Since the premises had been granted planning permission retrospectively for change of use to a drinking establishment in August they had flouted planning law by continuing to operate beyond midnight. The council failed to take enforcement proceedings regarding this.

·        The lack of direction offered by the Council with regard to the city centre’s future in view of the effect of future development at Monks Cross.

·        The mis-use of the planning system.

·        Approving this application could open up the floodgates to others wanting to convert from retail to drinking establishments.  

Representations were received from Ms H Ramli, the agent for the application. She made the following points:

·        Before change of use was granted, the premises could remain open until 1.30 am (including courtyard). When Members agreed the change of use they added a condition to require the premises to close at midnight. We were told that this was so we were in line with the closing times of other nearby premises but this is incorrect.

·        At the licensing hearing the Environmental Protection Unit and police had not raised any noise issues but imposed strict conditions on the licence.

·        Members need to consider how genuine the objections are – it is surprising that no objections have been made to other applications for change of use in the vicinity – however these other applications also demonstrate there is still a demand for late night drinking establishments in the area.

Representations were received from the owner of the restaurant in support of the application. He put forward the following points:

·        Don’t believe the disturbance is caused by his customers – there are many other bars nearby

·        Has a 400 signature petition signed by his customers who wish the premises to stay open until 2.30am.

·        Bora Bora is only a small bar. Music is not played in the outside area which is just used for people sitting.

Officers reminded Members that prior to August the premises had permission for A1/A3 mixed use rather than A1 and that their decision cannot take into account that the usage is retrospective but must deal with the application on its own merits.

Members acknowledged residents concerns regarding noise disturbance in the area but accepted that there was no evidence from officers or police to prove that the noise problems were due to one specific outlet. They noted that  as there were so many late night drinking establishments in the area now, it was very difficult to pin down the noise to one place. Furthermore they acknowledged that the disturbance was not just the result of music being played but also customers moving around in the street and going home.

With regard to this application, they agreed that noise and disturbance in the street late at night remained an issue. They noted that circumstances had not changed since the change of use was granted in August with a condition requiring the premises to close at midnight and felt there was no reason to change their minds on this.

RESOLVED:             That the application be refused.

REASON:                  The premises are within a mixed use area with a significant residential population which contributes to the character and appearance of the conservation area and the vitality of the city centre. The hours of operation proposed would lead to increased levels of noise disturbance late at night, as a consequence of noise from persons using the external seating area and the increased activity there would be in Swinegate Court and surrounding streets. The proposal would have an undue impact on the amenity of occupants of nearby residential property and also on the character and environmental qualities of the of the area, contrary to paragraph 17 of the National Planning Policy Framework and policies S6 and S7 of the Development Control Local Plan.