GLOUCESTER CITY COUNCIL

Transcription

1 GLOUCESTER CITY COUNCIL COMMITTEE : PLANNING DATE : 11 TH JUNE 2013 ADDRESS/LOCATION : 33 LONDON ROAD APPLICATION NO. & WARD : 13/00436/FUL KINGSHOLM AND WOTTON EXPIRY DATE : 22 ND JUNE 2013 APPLICANT : MR MUHAMMAD SHERA PROPOSAL : CHANGE OF USE FROM BAKERS (CLASS A1) TO HOT FOOD TAKE AWAY (CLASS A5) REPORT BY : ADAM SMITH NO. OF APPENDICES/ : SITE PLAN OBJECTIONS 1 REPRESENTATION 1.0 SITE DESCRIION AND PROPOSAL 1.1 This is a three storey property at the corner of London Road and Oxford Street with a vacant ground floor having shopfronts to both roads and an entrance on the corner. 1.2 The proposal is to change the use of the ground floor to a hot food take away. It also includes the installation of a metal grille in the Oxford Street side wall for the extraction vent. 1.3 The application is brought to the Planning Committee as a Class A5 hot food take away proposal and given the history of similar applications on the street. 2.0 RELEVANT PLANNING HISTORY 2.1 It appears from the planning history that there has been a shop here since at least the 1950s. 08/01180/COU 2.2 This was an application for the change of use from the existing bakery to a hot food take-away (A1 to A5). It was granted planning permission subject to conditions on 9 th December This was not implemented and as the 3 year implementation period has passed, this permission has now expired. 3.0 PLANNING POLICIES

2 3.1 The following planning guidance and policies are relevant to the consideration of this application: Central Government Guidance - National Planning Policy Framework 3.2 The National Planning Policy Framework (NPPF) should be taken into account as a material consideration in all planning decisions. It does not alter the requirement for applications to be determined in accordance with the development plan unless material considerations indicate otherwise. The NPPF is underpinned by a presumption in favour of sustainable development. The NPPF advises that authorities should approve development proposals that accord with statutory plans without delay, and also grant permission where the plan is absent, silent, indeterminate or out of date. This should be the case unless the adverse impacts of allowing development would significantly and demonstrably outweigh the benefits, when assessed against the policies of the framework as a whole, or specific policies in the NPPF indicate development should be restricted. Authorities should seek to approve applications where possible, looking for solutions rather than problems. Building a strong, competitive economy The Government is committed to ensuring that the planning system does everything it can to support sustainable economic growth. The NPPF retains a recognition of town centres as the heart of communities and encourages the pursuit of policies to support their vitality and viability. Promoting sustainable transport Seeks to ensure development generating significant movement are located where the need to travel will be minimised and the use of sustainable transport modes can be maximised. Decisions should take account of whether; The opportunities for sustainable transport modes have been taken up; Safe and suitable access to the site can be achieved for all people; Improvements can be undertaken within the transport network that cost effectively limit the significant impacts of the development. Development should only be prevented on transport grounds whether the residual cumulative impacts of development are severe. Conserving and enhancing the natural environment The aims of contributing to and enhancing the natural and local environment remain. Developments should be prevented from contributing to or being put at unacceptable risk from pollution. The Development Plan 3.3 Section 38 of the Planning and Compulsory Purchase Act 2004 has established that - The development plan is (a) The regional spatial strategy for the region in which the area is situated, and (b) The development plan documents (taken as a whole) which have been adopted or approved in relation to that area.

3 If to any extent a policy contained in a development plan for an area conflicts with another policy in the development plan, the conflict must be resolved in favour of the policy that is contained in the last document to be adopted, approved or published (as the case may be). If regard is to be had to the development plan for the purpose of any determination to be made under the planning Acts, the determination must be made in accordance with the plan unless material considerations indicate otherwise. 3.4 Local Plan: The statutory development plan for Gloucester remains the City of Gloucester Local Plan (Adopted 1983 and partially saved until the Local Development Framework is adopted). Subsequent to the 1983 plan there has also been the City of Gloucester (Pre-1991 Boundary Extension) Interim Adoption Copy October 1996), and City of Gloucester First Stage Deposit Local Plan (June 2001). Regard must also be had to the 2002 Revised Deposit Draft Local Plan. This has been subjected to two comprehensive periods of public and stakeholder consultation and adopted by the Council for development control purposes. This cannot be saved as it is not a formally adopted plan, however with it being adopted for development control purposes it is still judged to be a material consideration. Appeal reference APP/U1620/A/07/ dated 18 th March 2008 confirms the degree of weight that may be afforded to the 2002 Revised Deposit Draft Local Plan. It is considered that particular weight may be afforded to those policies that attracted a limited number of, or no objections during the consultation stages. In his decision the Inspector stated the following; Although the local plan is not part of the development plan it has been adopted for development control purposes and I give considerable weight to it having regard to the amount of public consultation that it underwent. Second Deposit City of Gloucester Local Plan The following policies are relevant from the Second Deposit Local Plan: FRP.10 Noise FRP.11 Pollution BE.21 Safeguarding of amenity TR.31 Road safety S.15 Shopping parades and single shops Emerging plan 3.6 In terms of the emerging local plan, the Council is preparing a Joint Core Strategy with Cheltenham and Tewkesbury Councils. To date the Developing the Preferred Options document was subject to consultation between December 2011 and February A preferred options consultation will be published later in In addition to the Joint Core Strategy the Council is preparing a its local City Plan which is taking forward the policy framework contained within the City Council s Local Development Framework Documents which reached Preferred Options stage in 2006.

4 3.7 On adoption, the Joint Core Strategy and City Plan will provide a revised planning policy framework for the Council. In the interim period, weight can be attached to relevant policies in the emerging plans according to: The stage of preparation of the emerging plan; The extent to which there are unresolved objections to relevant policies; and The degree of consistency of the relevant policies in the emerging plan to the policies in the National Planning Policy Framework. 3.8 All policies can be viewed at the relevant website address:- Gloucester Local Plan policies Gloucestershire Structure Plan policies and Department of Community and Local Government planning policies CONSULTATIONS 4.1 The Environmental Protection Officer is happy with the odour control proposed and the noise information provided. Ideally the extraction should be taken to a high level to allow optimum dispersal. This is requested by condition. Further conditions are proposed to control hours of construction/conversion, deliveries and opening. 5.0 PUBLICITY AND REPRESENTATIONS neighbouring properties were notified, including the three premises from which we received objections to the previous application, and a site notice was also posted. The last consultation period for these expired on the 24 th May No objections have been received. 5.2 One supporting representation has been received from the Landlord of the property. This may be summarised as raising the following issues; Such a facility is missing in the locality; The proposed seating area would be similar to that at the former bakery, and is a benefit not present in many take aways; The landlord has a preference for a shop tenant but it has become obvious there is no interest, nor as an office; The vacated property is currently a liability and has been broken into; There have been difficulties in gaining empty property insurance, and there is a requirement to board the property up, though the landlord is reluctant to do this. 5.3 The full content of all correspondence on this application can be inspected at Herbert Warehouse, The Docks, Gloucester, prior to the Committee meeting. 6.0 OFFICER OPINION

5 6.1 It is considered that the main issues with regards to this application are as follows: Economic issues Residential amenity Highways issues Conservation and design Economic issues 6.2 This part of London Road includes a short parade of commercial units. The adjacent units along London Road are a vacant premises (former photographers with planning permission for a take away), then a take away (the chip shop). Adjacent on Oxford Street is a bookmakers. On the opposite side of the road is an apartment complex but to either side there is a Tesco Express and a restaurant. 6.3 Policy S.15 of the 2002 Plan only allows for the change of use of shops outside designated centres where; The property is vacant and the developer is able to demonstrate that the property has been marketed unsuccessfully for a reasonable period of time, or The new development is a dwelling, or The new development would enhance the role of a shopping parade. 6.4 In terms of the first criterion, the current agent has been marketing the property since April 2011 via local press, to let board and the agent s and the Focus websites. While there have been enquiries and viewings none have been pursued. It has already been accepted in the 2008 application that the period of vacancy and marketing is sufficient to satisfy this policy test and with the ongoing vacancy this is only strengthened. In terms of the second criterion, clearly the proposal is not a dwelling. 6.5 This leaves the final test of enhancement of the role of a shopping parade. While a use may be better than vacancy, the question of the unit s vacancy is addressed partially through the first criterion. I do not consider there is a strong argument to say that a take away would enhance the role of the shopping parade, with substantial evening use likely as opposed to daytime and less active window frontage. The unit does, however, offer the scope for a seating area at the front, which could be preferable to a take away that just has a counter. 6.6 However only one test needs to be passed and in my view the first criterion is satisfied, therefore there is no policy objection to the loss of the shop. 6.7 Policy S.15 tests the loss of the shop not the acceptability of the proposed alternative use per se. I am aware that some Members implied concerns at the prospect of 3 take aways in a row when considering the change of use of no. 35. There are no Local Plan policies that relate directly to the introduction of uses into shopping parades such as this. The NPPF has also been introduced as a material consideration since that decision. This adopts a

6 presumption in favour where the development plan is silent unless any adverse effects would outweigh the benefits when assessed against the NPPF. The NPPF also places significant weight on the need to support economic growth through the planning system. 6.8 In terms of other economic considerations, the proposal in conjunction with the consented take away at no. 35 and existing take away at no. 37 would create a gap in retail frontage along this side of the road but I do not consider this would be seriously harmful to any local plan or NPPF objectives the local centre is spread out and Tesco opposite maintains the retail draw to this part of the street, besides which, this type of parade is going to include a range of uses, not exclusively retail. 6.9 It does appear realistic that prospective new retail tenants may be very limited at the moment, with the Tesco Express opposite, and other realistic alternatives would seem limited, borne out by the marketing report. Residential amenity 6.10 The ground floors in this row of properties are commercial. It is understood that there are six bedsitting rooms in the upper floors of no. 33, two flats in the upper floors of no. 35 (though they do not appear on the electoral register), and there appears to be upper floor accommodation in the other buildings of this row and also in no. 2 Oxford Street behind The Authority previously judged the change of use of this property to a take away to be acceptable in terms of residential amenity. The key change is that in the intervening period there has been a further permission for a hot food take away in the adjacent no. 35 (as yet unimplemented but the permission has 2 years to run) The proposed times of opening are 10am to 10pm Mondays to Saturdays, 12 to 8pm Sundays and Bank Holidays. Licensing legislation is now the primary control mechanism if hot food is to be sold after 11pm, though I consider a 10pm closing time is acceptable in this location This part of London Road has a range of commercial uses, including several public houses, restaurants and take aways which, in addition to the general vehicular and pedestrian traffic, means there is quite a degree of background noise and activity The take away use would be likely to increase the evening comings and goings over and above the existing retail use. There is an existing take away at no. 37 and no. 35 has permission for a take away. Tesco is open 6am to 11pm. There are other restaurants nearby and pubs in the vicinity. I do not consider the proposal would create unacceptable disturbance to local residents, as a result of evening usage The extraction equipment is proposed to vent to the side wall at ground floor level. The Environmental Protection Officer advises that this should ideally be routed to roof level. While there are some constraints on this due to window

7 positions around the building and the need to avoid it being on a wall facing the road, I recommend that this can be dealt with by condition as with the previous permission. Refuse bin provision is indicated to the rear/side of the building I consider it would be difficult to substantiate any objection based on residential amenity without any objection from Environmental Health, and where the difference from previously accepting a take away here in terms of amenity is having one further take away next door among a range of uses in the vicinity. Highways issues 6.17 The property is an A1 retail use currently, although vacant. The Highway Authority raised no objection to the previous application to change to a take away or to the change of use of no. 35 to a take away. There are lots of residential premises within walkable distance and many customers may be on foot. In terms of any vehicular traffic, there are on-street parking bays. It is not considered that the proposal would have a severe residual impact on the highway. Conservation and design 6.18 I do not consider the grille in the side wall would harm the character or appearance of the Conservation Area (if indeed this is agreed to as the method of extraction). Human Rights 6.19 In compiling this recommendation we have given full consideration to all aspects of the Human Rights Act 1998 in relation to the applicant and/or the occupiers of any affected properties. In particular, regard has been had to Article 8 of the ECHR (Right to respect for private and family life, home and correspondence) and the requirement to ensure that any interference with the right in this Article is both in accordance with the law and proportionate. A balance needs to be drawn between the right to develop land in accordance with planning permission and the rights under Article 8 of adjacent occupiers. On assessing the issues raised by the application no particular matters, other than those referred to in this report, warrant any different action to that recommended. 7.0 CONCLUSION 7.1 The property has been vacant for some time, and permission has previously been granted to change to a hot-food take away, but has expired. Since this time the adjacent unit no. 35 has gained permission for a take away and no. 37 is an existing take away. While I am aware that concerns have previously been expressed about extended numbers of take aways in a row, I do not consider there to be any economic or amenity policies or material considerations that would support refusal of the application. The highways and conservation/design issues are also considered acceptable. 8.0 RECOMMENDATIONS OF THE DEVELOPMENT CONTROL MANAGER

8 8.1 That planning permission is granted subject to the following conditions: Condition 1 The development hereby permitted shall be begun before the expiration of three years from the date of this permission. To comply with the requirements of Section 91 of the Town and Country Planning Act 1990 as amended by Section 51 of the Planning and Compulsory Purchase Act Condition 2 The development hereby permitted shall be carried out in accordance with the drawings on the amended plan referenced 13/1801/01 and the submitted extraction equipment details received by the Local Planning Authority on 27 th April 2013, except where otherwise required by conditions of this permission. To ensure that the development is carried out in accordance with the approved plans. Condition 3 During the conversion phase no machinery shall be operated, no process shall be carried out and no deliveries taken at or despatched from the site outside the following times: Monday to Friday 0800hours to 1800hours, Saturday 0800hours to 1300hours, and for the avoidance of doubt not at any time on Sundays, Bank or Public Holidays. To protect the amenities of local residents in accordance with Policy BE.21 of the City of Gloucester Second Deposit Local Plan 2002 and Paragraphs 109 and 123 of the National Planning Policy Framework. Condition 4 Equipment shall be installed to suppress and disperse fumes and/or smell produced by cooking and food preparation. Details of the equipment shall be submitted to and approved in writing by the Local Planning Authority prior to the commencement of the development and the equipment shall be installed to full working order prior to the commencement of use. To ensure that unsatisfactory cooking odours outside the premises are minimised in the interests of the amenity of occupiers of nearby properties in accordance with Policies FRP.11 and BE.21 of the Second Deposit City of Gloucester Local Plan (2002) and Paragraph 109 of the National Planning Policy Framework.

9 Condition 5 The extraction equipment installed shall be regularly maintained to ensure its continued satisfactory operation and the cooking process shall cease to operate if at any time the extraction equipment ceases to function to the satisfaction of the Local Planning Authority. To ensure that the use does not result in excessive cooking odours outside the premises and that the amenity of occupiers of neighbouring properties is protected, in accordance with Policies FRP.11 and BE.21 of the Second Deposit City of Gloucester Local Plan (2002) and Paragraph 109 of the National Planning Policy Framework. Condition 6 Noise generated from items of plant and equipment associated with this application shall be controlled such that the rating level, in accordance with BS 4142: 1997, measured or calculated at 1m from the facade of the nearest noise sensitive premises shall not exceed a level of 5dB below the existing LA90 background level with no tonal element to the plant. To safeguard the amenity of the area in accordance with Policies FRP.10 and BE.21 of the Second Deposit City of Gloucester Local Plan (2002) and Paragraphs 109 and 123 of the National Planning Policy Framework. Condition 7 The use shall not be commenced until noise insulation to the underside of the first floor / ceiling to the ground floor for the whole of the ground floor serving, kitchen and storage areas has been installed in full in accordance with details to be submitted to and approved in writing by the Local Planning Authority. To protect the amenities of occupiers of the upper floor flats of the building in accordance with Policies FRP.10 and BE.21 of the Second Deposit City of Gloucester Local Plan (2002) and Paragraphs 109 and 123 of the National Planning Policy Framework. Condition 8 The use hereby permitted shall not be open to the public outside the hours of 1000hours to 2200hours Monday to Saturday, 1200hours to 2000hours Sundays and Public Holidays.

10 To protect the amenities of local residents in accordance with Policies FRP.10 and BE.21 of the Second Deposit City of Gloucester Local Plan (2002) and Paragraphs 109 and 123 of the National Planning Policy Framework. Condition 9 The loading and unloading of service and delivery vehicles together with their arrival and departure from the site shall not take place outside the hours of 0700hours to 1800hours Monday to Friday and 0800hours to 1300hours Saturday and for the avoidance of doubt not all all on Sundays or Public Holidays. To protect the amenities of local residents in accordance with Policies FRP.10 and BE.21 of the Second Deposit City of Gloucester Local Plan (2002) and Paragraphs 109 and 123 of the National Planning Policy Framework. Condition 10 The refuse bin store area (as indicated on plan ref. 13/1801/01 received by the Local Planning Authority on 27 th April 2013) shall be retained as such for the duration of the use hereby approved. To ensure the provision of a refuse storage area in the interests of the amenities of the area in accordance with Policy BE.21 of the Second Deposit City of Gloucester Local Plan (2002). Condition 11 The use shall not be commenced until a waste management plan, including provisions for any waste oil, has been submitted to and approved in writing by the Local Planning Authority. The use shall only be undertaken in accordance with the approved waste management plan. To safeguard the amenity of the area in accordance with Policies FRP.11 and BE.21 of the Second Deposit City of Gloucester Local Plan (2002). for Approval The proposed change of use has been carefully assessed. It is considered that the loss of the retail unit has been justified, and that subject to conditions the proposal would not significantly harm the amenities of occupants of neighbouring properties, nor highway safety, and would preserve the character and appearance of the Conservation Area. It is considered that the proposal accords with Policies S.15, FRP.10, FRP.11, BE.21, BE.29 and TR.31 of the City of Gloucester Second Deposit Local Plan 2002 and the National Planning Policy Framework.

11 In accordance with the requirements of the National Planning Policy Framework the Local Planning Authority has sought to determine the application in a positive and proactive manner by offering pre-application advice, publishing guidance to assist the applicant, and publishing to the council s website relevant information received during the consideration of the application thus enabling the applicant to be kept informed as to how the case was proceeding. Note Any advertisements at the premises may require the express consent of the City Council as Local Planning Authority. If the applicant or any tenant intends to erect advertisements they are strongly recommended to contact the Development Control Department in early course for advice. Decision:... Notes: Person to contact: Adam Smith (Tel: )

12 APPLICATION MAP APPLICATION NUMBER: ADDRESS: 13/00436/FUL 33 London Road Gloucester GL1 3HF TARGET DATE: Crown copyright and database rights 2011 Ordnance Survey Unauthorised reproduction infringes Crown Copyright and may lead to prosecution or civil proceedings.

13 Planning Committee Tuesday, 11 th June 2013 Letters of representation 13/00436/FUL 33 London Road

14 Dear Sirs, I am writing in support of the planning application made by Mr Muhammad Shera councils reference number 13/00436/FUL. I am the landlord of this property and hope this letter will explain benefits of the current application, the great difficulty I have experienced letting the property for any use, be it a shop or office and why the previous use of the building as a Takeaway isn t operating. I have reviewed the application put in by Mr Shera and support this proposal, which would not only provide a takeaway but also a restaurant seating area for customers. Such a facility for socializing is missing from the local area particularly with the closure and conversion of the Victoria Pub to flats on Oxford Road and the conversion of the Welsh Harp to a Tesco Express on London Road opposite. The proposed seating would be similar to the café seating provided for customers by the former bakery at No.33. Additionally Mr Shera has proposed sensible opening hours of 10am to 10pm weekdays/saturdays and 12 noon to 8pm on Sundays. This predominantly daytime/early evening business would provide a great asset to the local community giving somewhere for local people to meet and relax during the day and evening. The property has been marketed on an on going basis as a retail shop/office by Bruton Knowles, a Gloucester company with considerable local market knowledge. My preference would be to see the building return to use as a shop but it has become obvious that there is no interest in such a business at the property particularly with the Tesco Express supermarket which recently was granted opposite no.33, and the proximity of the property to the city centre which itself has many vacancies. I have discussed the alternative options for the property with the agents at some length and their advice is that that the property best suits a hot food operator. This has become evident from the marketing of the property without

15 any sign of interest for use as a shop or office despite being advertised as a shop. By way of some background, the shop was occupied for nine years by Apperleys who operated a bakery shop with take-away hot snacks and a café/seating area for customers to sit and eat. The business terminated the lease in September 2006 and the property fell vacant. Save for its short occupation as a sandwich shop by a Mr Brown of London Road, this business only lasted between October 2006 and January 2007, as it was not viable. The shop was marketed by Bruton Knowles with the only interest being for a Takaway, culminating in a Mr Chavda applying for and gaining planning permission in December Mr Chavda, even with his permission, declined to take up the lease, which was eventually signed up by a Mr. Sahin in August Works to the shop subsequently took place and the cooking facilities were fitted out. Mr Sahin attempted to reassign the Lease to a Mr Javid in 2010/2011 but these negotiations fell through. During this time the leasee fell into arrears with his rent and I was forced to take legal proceedings, which resulted in the termination of the lease in 2012, in the mean time the permission lapsed during these actions. The vacated property is currently a liability and was broken into in August 2012, where metal pipes, equipment and cables were ripped from the walls and ceiling and serving counters smashed. The police investigated the incident but they were unable to secure any conviction. Since then I have invested a significant amount of time and money repairing the damage and making improvements to the unit in order to attract a tenant. The latest marketing has yet again failed to attract any interest as a shop or office, with the only interest being from numerous hot food operators. Even with the numerous expressions of interest, Mr Shera was the first person to proceed to making an application to the council.

16 I note that planning permission was granted for a takeaway at no. 35 London Road. This is a significantly smaller unit and only suitable for takeaway use. Even with the grant of planning they have been unable to secure a tenant, in part no doubt to the difficult economic times and also the restricted size of the shop unit and display window. I have looked on the council s website and Mrs Delves report published for the previous application at no.33 which was passed by the council and the report for no.35. It appear that the Gloucester planning policy for these shops is the same and Mr Smiths succinctly sets out in his report for no.35 that number S.15 is the policy which supports changes of use and I assume is still current today given the government s agenda to bring empty properties like this into use again. Mr Smith s report for No.35 explains that the Gloucester policy for these shops, promotes and grants changes of use on the basis that only one of the three requirements are met i.e. 1) the property has been marketed or 2) the application is for a dwelling or 3) the development would improve the area. In my reading of the Gloucester planning S.15, applies the same to this application at no.33 and should granted by the council as it meets Part 1 i.e. the property has been marketed by a reputable agent with extensive local knowledge and yet has remained vacant for a considerable amount of time without interest in any alternative use other than that proposed by Mr Shera. In addition and although not required by Gloucester planning S.15, as long as Part 1 of S.15 has been met, I believe that the current proposal for an eatery with a seating area, will also comply with Part 3 as it, will also provide activity within the storefront during the day (something Mr Smiths report was critical of and lacking on No.35) the restaurant area would be a valuable benefit for the local community as somewhere to sit eat/drink and socialise, marking it apart from other premises in the area where you have no other choice than to eat off the premises.

17 Please also note that I have encountered significant difficulty in securing empty property insurance. My insurer Axa is requiring a 2 monthly review of the occupation status of the ground floor and I am being required to board the property up for security and insurance cover purposes. This is something I have resisted to date due to the ugly appearance on this prominent corner unit, but is something I will be forced into in the absence of a tenant and in order to ensure adequate insurance cover for the unit. I hope that this note is of assistance to Mr Shera s application and your understanding of the difficulties faced with finding an occupier for the property. Yours Sincerely Mr S Ristic