Report by Executive Director of Development and Regeneration Services. Contact: Ms K Purves Phone:

ITEM 1 (a) PLANNING APPLICATIONS COMMITTEE 21st October 2014 Report by Executive Director of Development and Regeneration Services Contact: Ms K Purves Phone: 0141 287 6049 APPLICATION TYPE Full Planning Permission RECOMMENDATION Refuse APPLICATION DATE VALID 24.06.2014 SITE ADDRESS 311 Byres Road Glasgow G12 8UQ PROPOSAL Use of retail unit (Class 1) as cafe/restaurant (Class 3) (Retrospective) (0900-1800hrs, 7 days). APPLICANT Mountrose Properties Ltd C-O Agent 206 St Vincent Street GLASGOW G2 5SG AGENT WARD NO(S) 11, Hillhead COMMUNITY COUNCIL CONSERVATION AREA Glasgow West LISTED GVA James Barr Per Ian Gallacher 206 St Vincent Street GLASGOW G2 5SG 02_118, Dowanhill, Hyndland And Kelvinside ADVERT TYPE CITY PLAN Town Centre (DEV4) PUBLISHED REPRESENTATIONS/ CONSULTATIONS 179 letters of representation have been received from members of the public in support of this application; of which 14 contain no comment and 18 are entirely non-material. The grounds of support are as follows: The business encourages footfall to Byres Road and is a key part of the community, contributing to its vibrancy; The business is independent, not a generic chain and as such supplies original products and is innovative in its approach; The unit would otherwise be vacant, a charity shop or a chain coffee shop; The Council should support local businesses; Consultations: The business provides jobs, training, supports charities, and has a green agenda; The business was previously used as a café and the Council has been negligent in its dealings with the previous occupiers; to this end the current occupiers should not be penalised. LES Public Health Unit no response.

SITE AND DESCRIPTION The application site comprises a ground floor Class 3 food and drink unit located within the Partick /Byres Road Town Centre (Tier 2). The building is located on the west side of Byres Road, approximately 20m north of its junction with Roxburgh Street. The property is unlisted but falls within the boundary of the Glasgow West Conservation Area. Immediately above the property there are traditional blonde sandstone tenement flats over a further two storeys. The Planning application seeks retrospective consent for a change of use of this unit from a shop (Class 1) to a café/restaurant (Class 3). No external alterations are proposed. The extant outdoor seating has not been included in this application and requires a further separate application for planning permission. The opening hours proposed are 0900 1800, 7 days per week. The premises are located within a street block which is defined as 303 Byres Road (south) 337 Byres Road (north); the units/uses within the street block are as follows. From south: Optician (Class 1), Travel Agent (Class 1), hairdresser (Class 1), café (Class 3) (application premises), 4 shops (Class 1) and a café (Class 3). Of these 9 units, it is noted that 7 are currently Class 1 based uses with the remaining 2 uses in non-retail based uses. All units within this street block are occupied. PLANNING HISTORY/BACKGROUND An enforcement case was opened in January 2013 following complaints from members of the public and Councillor Wardrop regarding an unauthorised Class 3 use. The applicant was advised that a breach of planning control had occurred and was given 3 courses of possible action. The first was that the unit was reverted to a Class 1 (Shops) use which would have necessitated a significant reduction in seating, cessation of any cooking except by sealed methods, and a display of goods for sale in the window. However, the business could have remained, albeit with an altered offering on the basis that the café aspect would be scaled down to be ancillary to the main use of the property as a shop. The second option was to apply for a Certificate of Existing Lawfulness, and the third to apply for retrospective planning permission. The applicant was advised that the use contravened policy and that therefore it was unlikely that panning permission would be granted. In January 2014, the applicant submitted an application for a Certificate of Existing Lawfulness (14/00063/DC). Upon receipt the applicant was advised that the evidence submitted was inadequate and that the Council held evidence of the unit in Class 1 use within the 10 years prior to submission of the application. On this basis the application was withdrawn and an application for planning permission submitted. POLICIES DEV 4 - Town Centres SC10 - Non-retail uses in Tier 1, 2 and 3 Town Centres SC11 - Food, Drink and Entertainment Uses SPECIFIED MATTERS Planning legislation now requires the planning register to include information on the processing of each planning application (a Report of Handling) and identifies a range of information that must be included. This obligation is aimed at informing interested parties of factors that might have had a bearing on the processing of the application. Some of the required information relates to consultations and representations that have been received and is provided elsewhere in this Committee report. The remainder of the information, and a response to each of the points to be addressed, is detailed below. A. Summary of the main issues raised where the following were submitted or carried out i. an environmental statement

ii. an appropriate assessment under the Conservation (Natural Habitats etc.) Regulations 1994 iii. a design statement or a design and access statement iv. any report on the impact or potential impact of the proposed development (for example the retail impact, transport impact, noise impact or risk of flooding) B. Summary of the terms of any Section 75 planning agreement C. Details of directions by Scottish Ministers under Regulation 30, 31 or 32 These Regulations enable Scottish Ministers to give directions i. with regard to Environmental Impact Assessment Regulations (Regulation 30) ii. 1. requiring the Council to give information as to the manner in which an application has been dealt with (Regulation 31) 2. restricting the grant of planning permission iii. 1. requiring the Council to consider imposing a condition specified by Scottish Ministers 2. requiring the Council not to grant planning permission without satisfying Scottish Ministers that the Council has considered to the condition and that it will either imposed or need not be imposed. ASSESSMENT AND CONCLUSIONS Section 25 of the Town and Country Planning (Scotland) Act 1997 requires that where an application is made under the Planning Acts, it shall be determined in accordance with the Development Plan unless material considerations indicate otherwise. The two main issues to consider in the assessment of this application are:- (a) (b) whether the proposal accords with the Development Plan; and whether any other material considerations have been satisfactorily addressed. In respect of (a), the Development Plan comprises the Glasgow and Clyde Valley Strategic Development Plan and City Plan 2. There are no specific policies of relevance to the application proposal in the Strategic Development Plan.

The site falls within a Town Centre area as designated within City Plan 2. This Development Policy Principle (DEV 4) notes: Their designation is based on the size and range of their retail function, accessibility by public transport, importance as principal focal points and range of supporting community facilities. They, generally, also support residential populations living both within, and on the edge of, the Centres. Under the sequential approach to site selection, they are the preferred locations for retail and commercial leisure development. In considering proposed developments, the Council will give priority to improving the environmental quality, vitality and viability and residential amenity of these areas As the proposal is for a café use, it is considered that the change of use will not result in a development which appears incongruous or uncommon within a designated Town Centre area. In terms of the Development Policy Principle, the proposal is therefore considered to be commensurate with DEV 4 of Glasgow City Plan 2, and would therefore not be considered contrary to the Development Plan. The proposal also requires to be considered/assessed against the following policies: SC10 Non-retail uses in Tier 1, 2 and 3 Town Centres This policy seeks to support the maintenance and enhancement of the vitality and viability of all Town Centres through encouraging an appropriate balance and diversity of uses within each Centre. Therefore, the Council seeks to maintain the proportion of Class 1 shop units within town centres at 70% or more. In respect of the Partick / Byres Road Town Centre, which is a Group A, Tier 2 centre where the following applies: (a) (b) (c) If, in a Principal Retail Area, the proportion of ground floor units operating within a use class other than Class 1 Shops exceeds 20% of the total for a Group A (Tier 2) Centre, or 30% for a Group B (Tier 3) Centre, further changes of use from Class 1 will not be considered favourably. In the case of the combined Partick/Byres Road centre, two Principal Retail Areas are defined (see schedule SC (iv)), and criterion (a) will operate separately within each. Exceptions to criterion (a) may be considered in the following circumstances: 1. The extension of an existing bank or building society office (Class 2 uses) into adjacent shop premises, subject to a binding agreement that no other form of Class 2 use will be permitted; and 2. The occupation of Class 1 shop premises by a non-class 1 use relocating from other premises within that Principal Retail Area, subject to a binding agreement that the future use of the vacated premises will be restricted to Class 1. In respect of part (a) and (b), as per the Planning Authority s Town Centre Retail Assessment from May 2014 the proportion of ground floor units operating within a use class other than Class 1 Shops in Byres Road Principal Retail Area is 34.4%: 14.4% higher than policy allows. 311 Byres Road is included in this survey as operating under a Class 3 use which is commensurate with the retrospective nature of this application. According to retail surveys undertaken by Glasgow City Council, the unit has been in a Class 3 use since 2007 and was in a Class 1 use as a hairdressers in 2006.

This is based on the following: Use Class Class 1 Class 2 Class 3 Other Class Sui generis Vacant (Class 1) Vacant (Other) Number of Units Units as Percentage 40 7 12 0 2 1 2 62.5 10.9 18.8 0 3.1 1.6 3.1 Table 1. Use Class of units in Byres Road Principal Retail Area as surveyed in May 2014 Based on the above, this application should not be considered favourably. In respect of part (c), neither criteria 1 or 2 apply. It is recognised that the level of non-class 1 units in Byres Road Principal Retail Area is already in excess of the 20% threshold. Therefore the threshold is some way from the actual situation in the centre. However, this situation has been broadly consistent since 2002, as based on the retail surveys conducted by the Council (see table 2). Nevertheless, the threshold has remained in both City Plan and City Plan 2 and there are currently no plans to amend this level in the forthcoming Local Development Plan. Class 1 Class 2 Class 3 Use Class (% of Units) Year / Month 2002-01 69.49% 11.86% 11.86% 0.00% 6.78% 0.00% 0.00% 59 2003-01 65.57% 14.75% 13.11% 0.00% 6.56% 0.00% 0.00% 61 2004-01 66.10% 17.95% 17.95% 0.00% 6.56% 3.39% 0.00% 59 2005-01 68.33% 15.00% 8.33% 0.00% 5.00% 0.00% 3.33% 60 2006-08 67.21% 14.75% 11.48% 0.00% 4.92% 1.64% 0.00% 61 2007-04 63.93% 14.75% 13.11% 0.00% 4.92% 3.28% 0.00% 61 2008-02 65.57% 14.75% 13.11% 0.00% 4.92% 1.64% 0.00% 61 2009-02 57.38% 14.75% 14.75% 0.00% 3.28% 8.20% 0.00% 61 2010-06 67.21% 14.75% 19.67% 0.00% 3.28% 0.00% 0.00% 64 2011-06 59.38% 14.06% 17.19% 0.00% 3.13% 4.69% 1.56% 64 2012-09 59.38% 12.50% 18.75% 0.00% 3.13% 4.69% 1.56% 64 2013-10 60.94% 10.94% 18.75% 0.00% 3.13% 3.13% 3.13% 64 2014-05 62.50% 10.94% 18.75% 0.00% 3.13% 1.56% 3.13% 64 Other Class Sui Generis Vacant (Class 1) Table 2. Use classes of units in Byres Road Principal Retail Area as existing at survey date Whilst the consistent levels of Class 3 retail above the threshold could be argued to demonstrate a demand for Class 3, the policy sets the level of retail that the Council judges to be consistent with the role of Byres Road as an important retail destination in the city. The fact that there are significantly more non-class 1 units than the threshold allows underlines the need to resist further non-class 1 uses thereby moving the centre further from its intended role and function in the Network of Centres. Further, the surveys are reflective of existing uses rather that authorised uses and the distinction is important. The Council has consistently taken enforcement action against unauthorised uses on Byres Road and there are currently 2 enforcement cases pending consideration related to such uses; 311 Byres Road being one of these cases. If these 2 unauthorised uses were reverted to Class 1, the percentage of Class 1 units would rise to 66%. Vacant (other) TOTAL no. UNITS

The Council s decisions on applications, whether retrospective or not, for Class 3 uses have been consistent with policy. Since 1987, there have been a total of 10 applications (excluding this application) which have been determined for a change of use or partial change of use away from Class 1. Of these, only 3 have been granted and there were policy justifications in two of these cases: 1. 94/02085/DC 196 Byres Road Change of use from Class 1 (retail) to Class 2 (Financial) contrary to policy S2 in West End Local Plan. This application involved a bank moving from one premises to another on Byres Road and as such the consent was subject to a binding agreement that the vacated bank premises had to be reverted to a Class 1 use resulting in no loss of retail frontage, consistent with exception (C) part 2 of policy SC10. 2. 01/00308/DC 254 Byres Road (Starbucks) - Use of shop as shop and cafe (Class 3): Contrary to Policy S2 of the West End Local Plan. This application was granted subject to a Section 75 agreement which retained the ground floor as retail (Class 1) and allowed the upper floor to be Class 3. As such, the proposal complied with policy. The only case which has been approved contrary to policy was at an appeal for decision 13/02524/DC 291 Byres Road - Change of Use of Class 1 to Class 3. This application was initially refused under delegated powers. The decision was overturned at Local Review Committee contrary to officer recommendation. The Committee attached weight to material considerations including efforts made by the applicant to reduce the intensity of the Class 3 use, a reduction in seating, an increased display of goods for sale, a simplification of the menu to bring it more in line with a Class 1 use and a restriction to opening hours. However, in its assessment allowing this appeal, the Committee recognised that any further erosion of the number of units operating within a Class 1 use beyond [the allowed appeal] would be detrimental to the overall vitality and viability of the Principal Retail Area. SC11 Food, Drink and Entertainment Uses Policy SC11 seeks to guide the location of food and drink and entertainment uses, taking into account the local problems which can arise from a concentration of such uses. To this end, this proposal requires to be assessed against the technical policies contained within Policy SC11 which relate to hours of operation and the treatment and disposal of cooking fumes. The applicant has stated that due to the nature of the cooking equipment, no extraction is required. On this basis, the application is considered to generally accord with policy and could have been conditioned to this effect. Furthermore in relation hours of operation, Policy SC 11 states that normal closing time will be in the following range depending on local circumstances: Sunday to Thursday - between 20.00 hours and 24.00 hours Friday and Saturday - between 20.00 hours and 01.00 hours Permission will not normally be granted for opening hours beyond 01.00 hours The proposal seeks to operate from 0900 1800 (7 days per week) and therefore meets the requirement of policy in this respect. In terms of issue (a), the proposal is not considered to be in line with the Development Plan.

In respect of (b), with regard to the letters of representation, the grounds may be summarised, with appropriate comment, as follows: The business encourages footfall to Byres Road and is a key part of the community, contributing to its vibrancy. Given the high proportion of non-retail uses within the wider Town Centre, as well as the high proportion of hot-food and food based uses within the locale, it is not considered that the unit provides further diversity of uses within the area. There are other Class 3 and sui generis food outlets that existing customers could frequent. The vitality and viability of the Partick/Byres Road Town Centre relies on a mixture of uses which are controlled through the planning process. The use of this unit as a café reduces the retail offering further beyond the threshold as identified in policy, which is the principal function of this area, to the detriment of the town centre. The business is independent, not a generic chain and as such supplies original products and is innovative in its approach. Planning legislation makes it clear that the planning system does not exist to protect the private interests of one person against the activities of another. Therefore no preference can be given to independent traders and their stock over larger companies. If this unit were to obtain permission to operate under Class 3 (Food and Drink) any business operating under a Class 3 use or Class 1 (Shops), be it an independent or large company could operate from it. Consent is not restricted to the applicant but tied to the site. The unit would otherwise be vacant, a charity shop or a chain coffee shop. Only 3 out of 40 (4.7%) of units in the entire Byres Road Principal Retail Area are vacant, and no units are vacant in the street block of the application premises. This particular unit has not been vacant for a period of 12 months or more in at least the last 10 years, based on the Council s retail surveys. Therefore there is no evidence that this particular unit would suffer vacancy should this unit cease to trade. A charity shop is a Class 1 (Shops) use and the Council has no control over the number of charity shops; only the number of Class 1 uses. The unit, should Class 3 consent be granted, could thereafter operate as a chain coffee shop without the requirement for a further application concerning the unit s use, as explained in the previous response. The Council should support local businesses. Planning legislation makes it clear that the planning system does not exist to protect the private interests of one person against the activities of another. Therefore no preference can be given to independent traders and their stock over larger companies using the mechanism of the planning process. The business provides jobs, training, supports charities, and has a green agenda. The Council supports economic development, the planning process attempts to direct development to appropriate locations in order to maximise economic growth. In this case the appropriateness of the use against the location in which it is situated must be considered. There are many suitable sites within the Council area for Class 3 uses. The business could operate in a suitable location and continue to provide jobs and training. However, a Class 3 use at 311 Byres Road, with the current ratios of uses in the entire Byres Road Town Centre being taken into account, fails to support the maintenance and enhancement of the vitality and viability of the Partick/Byres Road Town Centre. The support of charities and a green agenda are not material planning considerations.

The business was previously used as a café and the Council has been negligent in its dealings with the previous occupiers; to this end the current occupiers should not be penalised. SUMMARY The Council opened an enforcement case when this matter was brought to its attention by members of the public and Councillor Wardrop in January 2013. The purpose of the enforcement action is to regularise the beach of planning control. As the unit continues to operate in an unauthorised manner, regardless of previous ownership, the current owner / occupier is responsible for the continued breach. This application arose from an enforcement case which the Council was obligated to investigate as a result of complaints. In the assessment of this application, the Council has taken into consideration both policy and the history of the Principal Retail Area and applications within it. This consideration has revealed that every application has been dealt with on its policy merits and only one decision has been made which has not been consistent with policy. This was at Local Review Committee subsequent to an initial refusal of consent (13/02524/DC 291 Byres Road). However, in its assessment allowing this appeal, the Committee recognised that any further erosion of the number of units operating within a Class 1 use beyond [the allowed appeal] would be detrimental to the overall vitality and viability of the Principal Retail Area. Committee are now asked to deliberate on this precise scenario, the result of which may have implications in terms of the continuing viability of the tenets of Policy SC10 in the Local Development Plan process. CONCLUSION Based on the foregoing assessment it is considered that the proposal fundamentally fails to meet the requirements of City Plan 2 specifically on the basis of the proportion of ground floor units operating within a use class other than Class 1 Shops exceeding the 20% threshold applicable in this case. On this basis, it is noted that the loss of a viable retail unit raises a fundamental tension with policy which would reduce the vitality and viability of retailing within this local town centre. In this instance, the content of the letters of support are not considered to outweigh the proposal s variance with the Development Plan and in the absence of any further material considerations which support the proposal it is noted that the proposal is unacceptable and it is recommended that planning permission be refused. REASONS FOR REFUSAL 01. The proposal was not considered to be in accordance with the Development Plan and there were no material considerations which outweighed the proposal's variance with the Development Plan. 02. The proposed use would contribute to the proportion of ground floor units operating within a use class other than Class 1 Shops in the Byres Road Principal Retail Area exceeding 20%. Consequently, the proposal fails to support the maintenance and enhancement of the vitality and viability of the Partick / Byres Road Town Centre and fails to comply with City Plan 2 policy SC 10 - Non-Retail Uses in Tier 1, 2 and 3 Town Centres

ADVISORY NOTES TO APPLICANT 01. The applicant is advised that one further application, by the same applicant, for a development of the same character or description, and for the same part of that site (as this refusal) within 12 months of the date of this notice is exempt from planning fee charges. 02. Should, for any reason, the applicant be unclear about the reasons for the refusal of permission in this case, or if further information is desired concerning the reason for refusal, the applicant is requested to contact the planning authority to seek clarification. for Executive Director of Development and Regeneration Services DC/ KPV/AMU(2) 08/10/2014 PLEASE NOTE THE FOLLOWING: Any Ordnance Survey mapping included within this report is provided by Glasgow City Council under licence from the Ordnance Survey in order to fulfil its public function to make available Council-held public domain information. Persons viewing this mapping should contact Ordnance Survey Copyright for advice where they wish to license Ordnance Survey mapping/map data for their own use. The OS website can be found at www.ordnancesurvey.co.uk If accessing this report via the Internet, please note that any mapping is for illustrative purposes only and is not true to any marked scale.