Agenda item

Variation of condition 5 of planning permission 12/01910/FUL for restaurant/bar to extend opening hours to allow premises to open till 02:00 every day. [Guildhall Ward]

Members considered a full application from Mr Osman Doganozu for the variation of condition 5 of planning permission 12/01910/FUL for restaurant/bar to extend opening hours to allow premises to open until 02:00 every day.

Officers advised that a further letter had been received from a resident of Grape Lane objecting as there are already problems with the volume of noise with people leaving Lucia’s and other bars especially at closing time.

Officers advised that checks had been made by the Environmental Protection Unit (EPU) on Esperanza during the first week of November and it had been confirmed that both the conditions relating to the noise limiter and the plant and machinery have been satisfactorily complied with.  EPU have advised that the external extraction/refrigeration equipment is now almost inaudible at residential properties when measured and the condition is complied with.  In addition, the internal sound limiter has now been set by Officers at a level where the music is inaudible within residential properties. A second report of sound measurements at Lucia & Esperanza was submitted on 13 November 2012 and  EPU commented that the report accurately reflected their observations on the night of the assessments.  Within the report, it stated that the audible bass music could have been from other licensed premises nearby.  After leaving the resident’s property, EPU tracked down the audible music to Bar 1331. EPU reiterated that following compliance with the two previously applied conditions, officers did not consider that the noise from the premises would be detrimental to the amenity of the area.

Officers drew Members attention to paragraph 4.7 of the report and stated that this did not accurately reflect the discussion by Members at the meeting. It should refer to the fact that Members had taken into account the general late night custom and noise in the street.

Representations were received from Mrs Jane Smart in objection to the application. She expressed the following concerns.

·         At the last meeting, a condition had been agreed requiring a closing time of midnight due to close proximity of nearby residential premises.

·         The applicant has continually breached any condition imposed – but no enforcement action has been taken even though several letters have been sent to the council.

·         We suffer from sleep deprivation – noise comes up through the ceiling of the premises into our home (presume ceiling is not insulated). Noise from courtyard rebounds off other buildings and is heard in our flat. 

·         Area used to be a good mix of residential, retail premises and bars but recently there has been a move in favour of late night drinking establishments.

Representations were received from Mr Barry Crux, a York resident, in objection to the application. He raised the following issues.

·         The approved change of use gives the operator  the option of operating the whole of the premises as a restaurant or the whole of the premises as a bar.

·         Activities undertaken by the applicant are in breach of the conditions.

·         Proper guidance is needed in making decisions or this situation will prevail elsewhere.

Representations were received from Matthew Pardoe, the agent, in support of the application. He made the following points:

·         Confirmed that the ground floor has A3 restaurant use and the first floor has A4 use.

·         The bar is integral to the overall venue  - it faces onto a private courtyard and in not overlooked. An adjoining venue is open until 2am.

·         Conditions imposed on the planning permission provide controls and these controls have been verified by EPU.

·         Application has the support of the police and Environmental Protection Unit.

Representations were received from the owner in support of the application. He explained what measures had been taken to reduce noise disturbance to neighbours and made the following points:

·         He has been open for three years and employs 38 staff. It was difficult enough to survive in current climate without restrictions on opening hours being imposed.

·         Customers normally come in his premises up to about 11pm. The courtyard is normally clear by midnight on weekdays.

·         It seems unfair that next door venue is able to remain open until 2am.

Members acknowledged that some modifications had been made by the owners to tackle noise issues and accepted the evidence provided by EPU. They however noted that objections were still being received from nearby residents. They agreed that the issue was the cumulative effect of the area and that this had not changed since the last meeting.

Councillor Orrell moved, and Councillor Riches seconded, a motion to approve the application subject to condition 1 being amended to bring the closing time forward from 2am to 1am (on a temporary basis until 15/11/2013). On being put to the vote, the motion fell.

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.