Planning Statement Stamford Trade Park Ryhall Road Stamfordplanning.southkesteven.gov.uk/SKDC/S16-0393/1282603.pdf · Planning Statement Change of use to B1/B8 with ancillary trade

Planning Statement

Change of use to B1/B8 with ancillary trade counters Stamford Trade Park

Ryhall Road Stamford

! Mike Sibthorp Planning

Logan House Lime Grove Grantham NG31 9JD

B1/B8 use with ancillary trade counters Design and Access Statement Stamford Trade park, Ryhall Road, Stamford 2 February 2016

Table of contents Change of use from D1(non-residential education) to B1/B8 with ancillary trade counters; Stamford Trade Park, Ryhall Road, Stamford

Table of Contents … … … … … … … … 2 1. Introduction … … … … … … … … … 3 2. The application site and the proposed development… … … … 4 3. Planning considerations … … … … … … … 8 4. Conclusions … … … … … … … … … 14


1.Introduction Change of use from D1(non-residential education) to B1/B8 with ancillary trade counters; Stamford Trade Park, Ryhall Road, Stamford

1. This application seeks full planning permission for the change of use three industrial units located on the south side of Ryhall Road, Stamford, from their existing D1 (non-residential education) use, to B1/B8 uses with ancillary trade counters.

2. The application site is located to the rear of a line of terraced properties set along the southern side of Ryhall Road, just to the east of the Stamford Hospital car park. The three industrial units and their associated car parking are located on the western side of the access road that serves the rear of the Morrisons store on Uffington Road, as well as providing service access to an adjacent retail unit on the Stamford Retail Park.

3. The application site was allocated for employment development on the South Kesteven

Local Plan. Pursuant to that allocation, planning permission was granted under application ref: S06/1672, for the erection of 3(no.) B1/B8 units on the site. These units are comprised with in a single building, aligned generally west-east, with its front elevation and access doors facing northwards.

4. Following construction of the units, planning permission was granted for the use of the

entire building for D1 purposes (planning permission ref: S08/0724), to be utilised as a Construction Skills Academy, as part of New College, Stamford. That use has now ceased.

5. This application seeks to change the use of the building back to its originally consented

B1/B8 usage, with ancillary trade counter usage. It is anticipated that each of the units would have an ancillary trade counter element associated with it. By its very definition, an ancillary trade counter will be ancillary to the primary use, and not a separate use. A number of similar uses have been permitted in other industrial estate locations across the district, and operationally the development will function in a similar manner to those other sites.

6. Given the nature and characteristics of the building, and the site location, it is considered

that there are no planning issues arising in this case that would preclude the building reverting to its original consented use, with confirmation that trade counter elements would be ancillary to the primary building uses


2.The application site and the proposed development Change of use from D1(non-residential education) to B1/B8 with ancillary trade counters; Stamford Trade Park, Ryhall Road, Stamford

Site Location

7. The application site in this case is located on the southern side of Ryhall Road, Stamford.

It is located to the rear of a line of terraced properties fronting the southern side of the street and is accessible via a service road that runs southwards from Ryhall Road, at the eastern end of the terrace. This service road provides access to the site, as well as to the rear of the Morrisons store (the customer entrance for which is on Uffington Road) and the service entrance to an adjoining store on the Stamford Retail par, which sites to the east of the service road. Customer access to the retail park is via a separate access further east on Ryhall Road.

9. The site , which has an area of approximately 0.26ha, has an irregular form, illustrated on

the aerial photograph below. To the east the site is defined by the service road leading southwards off Ryhall Road. There are three access points into the site from this service road, two towards the northern end of the site into a paved car parking area, and one at the southern end, off a turning and manoeuvring area. Beyond the services road to the east is the Stamford Retail Park, occupied by a number of non-food retail uses.

Application site


The application site and the surrounding area

10. To the south the site is bounded by the service yard to the Morrisons store. The short

western boundary abuts the main car park area to Stamford Hospital, whilst the north-western boundary is defined by the rear boundaries of terraced properties set along the southern side of Ryhall road.

11. Located within the site and running west-east , close to the southern site boundary, with

its front elevation facing northwards, are three industrial units, comprised within a single structure. The units, which have an overall floorspace of 669 sq.m, adopt a contemporary styling, with each of the three units having the same format; with a full height roller shutter door and a separated glazed entrance feature. The building is finished in a buff brick, with a grey brick banding and grey doors and window frames. The building has a shallow-pitched monopitch roof.

12. To the north of the property is a large paved car parking area providing approximately 30

spaces.

Service road

Stamford Retail Park

Hospital

Morrisons

Application site


The application property looking west from the service road turning area

The application property looking south across the parking area


13. The land comprising the application site was allocated in the South Kesteven Local Plan

as an employment site (allocation ref: E2.4). Pursuant to that allocation, planning permission was granted in January 2007 for the three industrial units and associated car parking now standing on the site (planning permission ref: S07/1672). The development was consented for B1/B8 purposes.

14. Following construction, planning permission was sought to utilise the buildings for D1 purposes. Under planning permission ref: S08/0724, planning permission was granted in August 2008, for the ‘change of use from B1, B2, B8 to D1 (non-residential education)’. The permission was specifically to enable New College Stamford to utilise the building as a Construction Skills Academy, as an annexe to their main campus on Drift Road. That use was implemented. The use has however now ceased.

15. Following the cessation of the D1 use, the applicants and site owners are looking to revert

the use of the building back to its consented original use. Enquiries have been received for the use of the building for B1/ B8 purposes with ancillary trade counters, by two separate companies. Trade counter uses are now an established feature of employment areas, and indeed there are examples in the town and district of free-standing trade counter developments (for example; Harlaxton Road, Grantham, Dysart Road, Grantham and Cherry Holt Square, Bourne).

16. This application seeks planning permission for the use of the existing building, and the

three separate units within it for B1/B8 purposes together with ancillary trade counter use providing for trade and retail sales.

17. Included within the application site is the car parking area to the north of the building. This

includes provision for 33 cars, and represents a level of car parking provision of approximately 1 space per 20 sq.m gross floorspace. As a level of parking provision, this exceeds the levels applied to similar trade counter developments elsewhere in the district.


3.Planning considerations Change of use from D1(non-residential education) to B1/B8 with ancillary trade counters; Stamford Trade Park, Ryhall Road, Stamford

18. The National Planning Policy Framework now outlines national planning policy. Fundamental to the guidance is a presumption in favour of sustainable development, and the promotion of the efficient and effective use of land, and the promotion, wherever practicable, of the development of previously developed land. Sustainable development lays at the heart of the planning system, and the guidance sets out a presumption in favour of sustainable development, and describes how that should be applied.

19. A strong competitive economy is seen as essential, and planning is seen as having a vital role in achieving this; paragraph 18 of the NPPF states that planning should do everything it can to support sustainable economic growth. “Planning” it states, “should operate to encourage and not act as an impediment to sustainable growth. Therefore significant weight should be placed on the need to support economic growth through the planning system.”

20. Paragraph 21 sets out the key requirements of Local Plans, drawn up by Planning

Authorities;

! set out a clear economic vision and strategy for their area which positively and proactively encourages sustainable economic growth;

! set criteria, or identify strategic sites, for local and inward investment to match the strategy and to meet anticipated needs over the plan period;

! support existing business sectors, taking account of whether they are expanding or contracting and, where possible, identify and plan for new or emerging sectors likely to locate in their area. Policies should be flexible enough to accommodate needs not anticipated in the plan and to allow a rapid response to changes in economic circumstances;

! plan positively for the location, promotion and expansion of clusters or networks of knowledge driven, creative or high technology industries;

! identify priority areas for economic regeneration, infrastructure provision and environmental enhancement; and

! facilitate flexible working practices such as the integration of residential and commercial uses within the same unit.

21. The guidance thus places a strong emphasis upon facilitating employment development wherever possible (Paragraph 28 also makes clear that this extends to rural as well as urban areas), and the guidance appears to place few if any restraints on how and where such employment generating development should take place. In this particular case the application site is located within an urban area, within an existing established employment area. The site is adjoined by commercial and employment development, and there would appear to no barrier in principle to the development of the land for employment purposes. Indeed, the site has previously been consented and allocated for employment development (S06/1672). The site comprises previously developed land and is in a sustainable accessible location. By its location within an established commercial area, development for employment purposes will not result in any adverse residential amenity impacts. These principles have been established by the allocation and earlier consent.


22. Policy E1 of the South Kesteven Core Strategy relates to employment development. It is a broad ranging policy covering all aspects of employment development and its location. The policy states that the Council’s objective is to broaden and diversify the employment bases of the District. This will principally be achieved through the identification and delivery of development opportunities and sites for specific employment sectors within the four towns in the district. Whilst the main emphasis of the policy is on the identification and allocation of sites, there is certainly nothing within the policy which excludes the consideration of windfall type developments, and changes of use in accordance with the Spatial Strategy. Policy SP1 of the Strategy, which sets out the Spatial Strategy, states that within Stamford, priority will be given to sustainable sites within the built up part of the town where development would not compromise the nature and character of the town. The proposed development in this case would satisfy these requirements. The site is considered appropriate for its use, is brownfield in nature, and is sustainably located. Fundamentally, it is a site and building that was originally consented for B1/ B8 purposes, the uses to which the building is now proposed to revert (with ancillary trade counter usage). No conflict thus arises to the principle of development of the site for employment purposes. Trade counter uses

23. This application proposes the erection of three separate buildings for B1/ B8 usage with ancillary trade counter uses.

24. It is recognised that trade counters presently enjoy no legal planning definition in legislation, or national policy guidance. The NPPF offers no guidance on the subject.

25. However, a recent appeal decision against the service of an enforcement notice relating to

an alleged trade counter use, in South Shields, offers some substantive guidance on the matter. Whilst the actual proposals in this case are very different to the activities in that instance, the Inspector’s considerations in the case offer some clear guidance about the distinctions between trade counter uses and retail uses. A copy of the appeal decision is appended at Enclosure 1.

26. The appeal decision related to a Floors to Go premises in South Shields. The premises

concerned were consented for B1/B2/B8 uses, and the enforcement notice alleged that there had been an unauthorised change of use from a B2 use to an A1 retail use. The appellant argued that the use was a trade counter use. The decision letter at paragraph 8 identifies that 75% of the floorspace of the unit was used as a sales and display area, with flooring displayed in a fashion typical of most DIY stores. There was no indication of any distinction between trade areas and retail areas. There was prominent advertising around and outside the building.

27. The Inspector concluded that the use taking place was actually an A1 retail use. At

Paragraph 9 of his report, the Inspector states (our underlining);

“ ...I concur with the Council’s view that that permission (ie the previous permission) was not for use as a trade counter. It was for B1,B2 and B8 uses with ancillary trade counters also being permitted, thus any such use must be a subsidiary element in the overall use that is taking place. That is not the situation at the appeal premises, where members of the public are free to walk around the majority of the premises and select purchases from the display units provided. Payment for such purchases is made at a small counter, in the same way as in most shops and retail


warehouses, but this does not equate to a trade counter. I am conscious of the fact that no definition of a “trade counter” is provided in either legislation, circulars or guidance notes, but I consider that the term general ly re lates to a discrete smal l area, separated from the remainder of the premises, where specia l ist purchases are made, usual ly by tradespersons, from either a smal l d isplay or from some form of catalogue including a computer. Purchased goods are then retr ieved from the remainder of the premises. , sometimes through a separate entrance in the case of bulky goods that cannot easi ly be passed over the counter. Examples of such trade counters were viewed at my site inspection in neighbouring units and those premises are materially different from the appeal unit, not least in the fact that goods are not kept within any display area, rather they are stocked in either a separate part of the building, or on shelves accessible only to members of staff.”

28. This decision and reasoning provides clear guidance in this case. The trade counter uses in the present case are clearly and explicitly proposed within the development description to be ancillary to the primary B1/B8 usage of each of the units. As an ancillary use, we would argue the trade counter element does not actually require planning permission, and this is affirmed in the decision above. Drawing upon the comments of the appeal inspector above, we can identify clear criteria that can be used to identify the nature of the proposed trade counter use in this instance that will ensure the use remains an ancillary activity to the B1/B8 use, and not an A1 use. ! The trade counter area will relate to a discrete, identified area of the building that will

not exceed a given percentage of the gross floor area of each building. ! Visiting members of the public and tradespeople will be restricted to this part of the

building. ! Within the trade counter area, there will be limited items on display, with purchases

being made at a trade counter, and goods for purchase predominantly stored in the main body of the building.

29. As to the extent of the gross floorspace that can be assigned to the trade counter element, there appears to be a divergent approach. As we have noted earlier, the Local Planning Authority have approved a B1/B8 with trade counter development at Cherry Holt Square, Bourne under application ref: S05/0998, which includes a condition restricting the trade counter element of the use to 35% of the total floorspace of individual units. By a separate application, the planning authority then granted planning permission for one of the units to increase the trade counter floorspace of one of the units (Unit 1) to 50%, specifically for the purposes of a user selling bathrooms and bathroom furniture / equipment (S07/1411). This clearly identifies what the LPA consider to be an acceptable floorspace ratio for trade counter units locally.

30. In an appeal decision in Southampton, which we attach at Enclosure 2, the Inspector treated the trade counter floorspace issue differently. The appeal concerned a condition imposed by the Planning Authority on a B1/B2/B8 permission, which stated that there shall be no trade counter or retail uses within the development, without the prior grant of planning permission from the LPA. In considering the merits of the condition as part of the appeal, the Inspector commented as follows;


9. What it appears that the condition would do is prevent ancillary trade counter or showroom/retail uses. However, paragraph 91 of Circular 11/95 on conditions advises that conditions of this kind can be burdensome. It says that they should not normally be imposed on permissions for manufacturing or service industry except where they are designed to preclude or regulate activities giving rise to hazard, noise or offensive omissions. No such considerations are said to apply in this case.

10. With regard to protecting the employment base the site would, even in the absence of the disputed condition, remain as a business site providing a potentially wide variety of employment uses. Any ancillary showroom/retail use or trade counter should not greatly impact on the employment potential of the sites. To the extent that removing the condition would provide further flexibility for those seeking to occupy the site there could even be some benefit in ensuring that the site is developed and put to its permitted use.

11. On ensuring the vitality and viability of the town and other centres there is no evidence that the flexible business accommodation provided should, even with ancillary trade counter or showroom/retail elements, be a town centre use. Indeed, in an enforcement appeal decision on a site nearby, the lead appeal being APP/W1715/C/06/2027362, it was held that even a mixed B1, B8 and A1 use was not a town centre use.

12. That being so I consider Local Plan Policy 134.TC, and its reference to need, sequential site searches and disaggregation, to be of limited relevance in this case. In this context I also note that in the appeal decision referred to above, the Inspector considered that even if disaggregation was to be taken into account, that is whether there are elements which could reasonably and successfully be located on a separate sequentially preferable site or sites, there was no realistic basis on which the retail element of the mixed use could be physically disaggregated as it was so interlinked with the B8 use. In my view that would apply with even greater force in the current case where, even with the removal of the disputed condition, the site would remain flexible business accommodation (B1/B2/B8) with any retail elements purely ancillary to that.

13. It is concluded that removing or varying the disputed condition would have no detrimental effect on: a) the Council’s policy objective of sustaining the vitality and viability of established retail centres; and b) the range and variety of premises available for employment use in the locality.

14. In arriving at this conclusion I have had regard to the fact that although it is sought to remove the restriction imposed by the disputed condition on the entire development the catalyst for seeking this appears to be the fact that Magnet wish to occupy one of the units to be built on the site. They wish to have what is described as an ancillary trade counter and showroom and have given details of the size of these areas relative to the unit as a whole. However, my conclusion is based on the broader merits of removing the disputed condition and it is not for me to determine the lawfulness of an occupation of a unit by a particular occupier in the absence of the disputed condition.


31. This application was largely concerned with the principle of imposing a trade counter restriction on a B1/B2/B8 building. The Inspector in this case took the view that insofar as the trade counter use was intended to be ancillary to the primary B1/B2/B8 use, it was not appropriate to control any ancillary activity. He refers to paragraph 91 of Circular 11/95 in support of that view. Although not especially germane to this case, it is also relevant to note that Inspector saw no harm arising to town centre viability / vitality by having ancillary retailing activity within business units. Indeed, the Inspector specifically references the benefits of providing flexible business accommodation for users, and the fact that a restrictive condition would run contrary to this objective. In the context of the NPPF and its sustainable economic growth objectives, a condition which precluded trade counter activity would in our view be undesirable and inappropriate.

32. One approach to a trade counter development would therefore be to approve a development without any reference to a specific floorspace maxima or ratio. The Council have clearly followed this approach in respect of two trade counter units to be located on the south side of Dysart road, Grantham, without any form of floorspace restriction (S08/0506 & S11/0130).A similar approach was also followed in respect of the trade counter development at Harlaxton Road, Grantham (S03/1696).

33. However, as we have noted above, the council has also adopted a different approach at

Cherry Holt Square, where a 35% floorspace maximum condition was imposed.

34. A third approach has been adopted in respect of three trade counter units approved at Autumn Park, Dysart Road, Grantham (S13/1671). Planning permission was granted in July 2013 for “outline planning permission for 3(no.) B1/B8 industrial / storage units , with trade counters.” A condition attached to the planning permission read as follows;

“8.Any trade counter use shall remain ancillary to the primary use (B1 and B8) approved hereby. Reason: The use of the premises for any other purpose would be contrary to the employment policies of the Core Strategy and the Grantham Area Action Plan.”

35. In reality the condition does little more than clarify what is in any event an accepted legal position. A use that was not ancillary to the primary use would represent a separate use in any event requiring planning permission. Whilst we would have no objections to the imposition of such a condition in this case we believe a more effective and explicit control / clarification can be achieved through the description of the development. In this case, the proposed description of development is as follows;

“Change of use from D1(non-residential education) to B1/B8 uses with ancillary trade counter use providing for trade and retail sales.

36. We consider that subject to these stipulations, the uses would fall squarely within the B1/B8 use class definitions, and that the trade counter element would be ancillary to that primary use. The uses proposed in such terms would demonstrably not comprise an A1 retail use, and should not therefore be the subject of retail planning considerations (although we would contend that given the location of the site and its proximity to other retailing, it would in any event rank as a sequentially suitable site).

37. The development in this case will be consistent with the NPPF. The development comprises a sustainable development in a sustainable location. The presumption in favour


of sustainable development embodied in the NPPF should reasonably apply in this case.

38. We can identify no other development plan conflicts. Given the application simply proposes the change of use of an existing building, we can identify no conflicts with Core Strategy Policy EN1 in this case.

General planning considerations

39. Aside from the policy issues outlined above, we can identify no significant issues arising from the proposed development. The application relates to an existing building, and the principle of using that building for B1 / B8 purposes is established by the original grant of planning permission (S06/1672). No new or different issues are raised by the reversion of the building to these uses. The trade counter element, as an ancillary component of the primary use similar raises no planning issues.

40. Parking matters were the subject of pre-application consultation with the local highway authority. The level of car parking provision exceeds the amount of parking typically required for this use (for example as approved at Autumn Park , Grantham).The access and servicing arrangements remain as per the original consent and are acceptable.


4.Conclusions Change of use from D1(non-residential education) to B1/B8 with ancillary trade counters; Stamford Trade Park, Ryhall Road, Stamford

41. The development will fully accord with relevant national and local planning polices. It represents an appropriate development, in a sustainable location. The presumption in favour of sustainable development should apply in this case.

42. The development plan for the area comprises the South Kesteven Core Strategy and the Site Allocations and Policies DPD; the relevant policies in the present context are SP1, E1 and EN1 of the Core Strategy. We have demonstrated that the development satisfies these policies.

43. The proposed development represents an appropriate employment development within

the built up area that will have no wider impacts upon the character and appearance of the locality.

44. The reversion of the building to B1/ B8 usage will give rise to no adverse or detrimental

impacts.

45. The trade counter element of the uses will remain ancillary to the primary use, and this is reflected in the development description.

Mike Sibthorp Mike Sibthorp Planning February 2016

!Mike Sibthorp Planning

Logan House, lime Grove, grantham, NG31 9jd

TEL: 01476 569065 MOB: 07983 470950

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Enclosure 1SOUTH SHIELDS APPEAL DECISION

Appeal Decision

Hearing held and site visit made on 8 January 2008

By Martin Joyce DipTP MRTPI

The Planning Inspectorate 4/11 Eagle Wing Temple Quay House 2 The Square Temple Quay Bristol BS1 6PN � 0117 372 6372 email:[email protected]

an Inspector appointed by the Secretary of State for Communities and Local Government

Decision date: 28th January 2008

Appeal Ref: APP/A4520/C/07/2046944 Unit 2G, Western Approach Industrial Estate, South Shields, Tyne and Wear NE33 5QU • The appeal is made under Section 174 of the Town and Country Planning Act 1990 as

amended by the Planning and Compensation Act 1991. • The appeal is made by Floors-2-Go plc against an enforcement notice issued by the

South Tyneside Council. • The Council's reference is DC/ENF/04/42. • The notice was issued on 9 May 2007. • The breach of planning control as alleged in the notice is, without planning permission,

the change of use from general industry (B2) to retail shop (A1). • The requirements of the notice are to cease the unauthorised use of the site. • The period for compliance with the requirements is 12 months. • The appeal is proceeding on the grounds set out in Section 174(2)(c) and (f) of the

Town and Country Planning Act 1990 as amended. As the prescribed fees have not been paid within the specified period, the application for planning permission deemed to have been made under Section 177(5) of the Act as amended does not fall to be considered.

Summary of Decision: The appeal is dismissed and the enforcement notice is upheld

Applications for Costs

1. At the Hearing applications for costs was made by the Council against the appellants, and by the appellants against the Council. These applications are the subject of a separate decision.

Matters Concerning the Notice

2. The appellants question whether the alleged breach of planning control is correctly framed, as the established planning permission for the appeal site is a mixed Class B1/B2/B8 use. The Council, however, submitted that this use was only permitted following an application approved in 2006, which allowed such a change of use from the original Class B2 use of the site. No such change of use took place in respect of the appeal premises, as the use preceding the alleged change of use to Class A1 was the original Class B2 use. I am satisfied, on the balance of probabilities, and subject to my deliberations below, that this is correct, thus I do not consider that any correction to the notice should be made.

Background

3. The appeal premises are a single unit within a block of ten known as the Western Approach Industrial Estate, or Western Approach Trade Centre

Appeal Decision APP/A4520/C/07/2046944

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(WATC), close to but outside the town centre of South Shields. The unit is rectangular in shape with a floorspace of 592m . The overall building was erected as an industrial building in the early 1980’s, but subsequently sub-divided into a number of individual units.

4. The appeal site was the subject of a planning application in February 2006 for a proposed mixed use for the trade and retail sale of flooring and flooring accessories. The Council did not validate that application as it considered that the described use did not accurately reflect the activity being carried out. A subsequent appeal against the Council’s non-determination of that application was dismissed in January 2007 (CLG Ref: APP/A4520/A/06/2016066).

5. Two further planning applications, relating to the whole building, have been submitted, and approved. In September 2006, permission was granted for the proposed refurbishment and external alterations to the building and its change of use from business and general industrial uses (Classes B1 and B2) to business, general industrial and storage and distribution use (classes B1, B2 and B8) with ancillary trade counters. An amended application (Council Ref: ST/3352/06/FUL) was approved in December 2006. The amendments principally concerned the external alterations to the building.

THE APPEAL ON GROUND (c)

6. The appellants contend, on this ground, that there has been no breach of planning control, as the premises are being operated within the terms of the permission granted for a trade counter use. In this respect, support is provided by an appeal decision concerning an identical use in Eastleigh (CLG Ref: APP/W1715/C/06/2027362 etc) where the Inspector found that a Class A1 retail use had elements which were inextricably linked to a Class B8 use. This shows that the present use of the appeal premises falls within the terms of the permission granted for the whole complex of units at the WATC. The Council, however, consider that the premises are being for a purpose which falls within Class A1 of the Town and Country Planning (Use Classes) (Amendment)(England) Order 2005 (UCO), and point out that that this was the conclusion reached by the Inspector in the previous appeal decision in January 2007. There has been no change in the situation at the appeal site since that date and, moreover, the appellants’ reliance on a “trade counter planning permission” is misplaced as such a use is permitted only as ancillary to the approved Class B1/B2/B8 uses.

7. In the 2007 appeal decision the Inspector examined the operations taking place within the premises. He noted that the majority of the floorspace is devoted to the storage and display of goods for sale, and he also commented on the fact that there was no available evidence to show the proportions of trade and retail sales. He found that the displays were aimed at informing and attracting retail customers, with prices displayed in retail form, inclusive of VAT, whilst purchases were usually supplied directly from the stocked material. Consequently he concluded that the appeal premises and the operation taking place fell within the definition given in Table 3 of Annex A to Planning Policy Statement 6 “Planning for Town Centres” of a retail warehouse, and hence a Class A1 use.


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8. From the discussion at the Hearing, and from my inspection of the appeal premises, I am satisfied that there has been no material change in the manner of operations being undertaken at the site since the date of the previous appeal decision. Approximately 75% of the unit is used as a display and sales area, with various types of flooring material prominently displayed in a fashion typical of most DIY stores. Smaller display units are provided for accessory items. Indeed the only change that seems to have been made is that prices on bulky items of flooring are now displayed exclusive of VAT. However, no other change is apparent, and the appellants are still unable to provide any evidence showing the relevant proportions of retail and trade sales. Advertisements are prominent on the outside of the building and are, in my view, aimed principally at the retail customer. In all these circumstances, I see no reason to disagree with the opinion of the previous Inspector and I too conclude that the premises are being used primarily for a use that falls within Class A1 of the UCO.

9. As for the question of whether this use falls within the terms of the planning permission granted in December 2006, I concur with the Council’s view that that permission was not for use as a trade counter. It was for Class B1, B2 and B8 uses, with ancillary trade counters also being permitted, thus any such use must be a subsidiary element in the overall use that is taking. That is not the situation at the appeal premises, where members of the public are free to walk around the majority of the premises and select purchases from the display units provided. Payment for such purchases is made at a small counter, in the same way as in most shops and retail warehouses, but this does not equate to a trade counter. I am conscious of the fact that no definition of a “trade counter” is provided in either legislation, circulars or guidance notes, but I consider that the term generally relates to a discrete small area, separated from the remainder of the premises, where specialist purchases are made, usually by tradespersons, from either a small display or from some form of catalogue, including a computer. Purchased goods are then retrieved from the remainder of the premises, sometimes through a separate entrance in the case of bulky goods that cannot easily be passed over the counter. Examples of such trade counters were viewed at my inspection in neighbouring units and those premises are materially different from the appeal unit, not least in the fact that goods are not kept within any display area, rather they are stocked in either a separate part of the building, or on shelves accessible only to members of staff.

10. Finally, I turn to the question of the Eastleigh appeal decision, albeit that I have no evidence to confirm that the Floors-2-Go premises in that case are, as a matter of fact, identical to those in the appeal before me. Indeed there do appear to be material differences such as that the location of the Hedge End site is within a more mixed trade park, and that the floorspace figures given in paragraph 24 of that decision seem to indicate a smaller unit of only 232m . Additionally, information was provided in that case to show the split between retail and trade sales. I note also that no reference is made in the context of that appeal to any “trade counter” permission, rather the alleged breach of planning control relates to a planning permission for a change of use from a mixed use of Class B1 and B8 to a mixed use of Class B1, B8 and A1 retail use to the general public. The inspector found, under ground (b) that such a change of use had, as a matter of fact taken place, albeit that, under ground (a) he found that the retail and storage elements of the use were so interlinked


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that they could not be disaggregated. I take this to mean that no definitive split between Class A1 retail and Class B8 storage could be deduced in the Hedge End premises, whereas in the South Shields premises there is a defined storage area at the rear of the unit. Nevertheless the primary use is that of retail and I do not consider that a mixed Class A1/B8 use is taking place. In any event, the planning permission for the appeal site does not permit any element of Class A1 use, only an ancillary trade counter use. The nature of the use that I have seen at the site is clearly not ancillary to any other use.

11. In all of these circumstances I conclude that the use which is taking place in the appeal premises is a Class A1 retail use. Planning permission is required for a change of use to Class A1 from the previous use of Class B2, and no such permission has been granted. Moreover, the use carried out does not fall within the realms of the 2006 planning permission. The appeal on ground (c) therefore fails.

THE APPEAL ON GROUND (f)

12. On ground (f) the appellants claim that the Council have accepted that alternative physical and operational measures would enable them to comply with the established planning permission for this site thus other requirements should be specified such as the provision of a separate showroom including a trade counter of no more than 20% of total floorspace. The provision of a detailed requirement such as this would also be helpful to them in the pursuit of their business operation at the premises. The Council, however, whilst accepting that there are measures which could betaken to comply with the relevant planning permission, consider that this is too simplistic an approach, and that a number of other factors need to be taken into account before the appellants could be said to be complying with the 2006 permission.

13. In considering these matters it is a fundamental principle of enforcement, and of the framing of enforcement notices, that the requirements of a notice must relate to the alleged breach of planning control. In this case the alleged breach is a material change of use to a Class A1 retail use, rather than a breach of a planning permission. The requirements are straightforward in obliging that use to cease and I cannot see how any lesser steps could be imposed which were as clear and succinct as that. To substitute other requirements relating to compliance or otherwise with an extant planning permission would endanger the clarity of the notice and I therefore conclude that the present requirements are entirely appropriate. The question of the measures necessary to ensure compliance with the terms of the 2006 planning permission are a matter for the appellants to agree with the Council outside the boundaries of this appeal. The appeal on ground (f) fails.

Other Matters

14. All other matters discussed at the Hearing and raised in the written representations have been taken into account, but they do not outweigh the conclusions reached on the main grounds and issues of this appeal.

Conclusions

15. For the reasons given above I consider that the appeal should not succeed.


5

FORMAL DECISION

16. I dismiss the appeal and uphold the enforcement notice.

Martin Joyce

INSPECTOR

APPEARANCES Mr C Robinson BTech(Hons) MPhil MRTPI, Director of CDS Development Services Ltd, represented the appellants. Mr S Lejeune BA(Hons) DipTP MRTPI, Deputy Team Leader, represented the Council.

ADDITIONAL DOCUMENTS PRODUCED AT THE HEARING

1 Letter of notification of the Hearing, and list of those so notified. 2 Copy of planning application (Ref: ST0487/06/FUL), dated 2 February 2006. 3 Copy of planning application (Ref: ST3352/06/FUL), dated 18 October 2006,

and associated Committee Report and decision notice. 4 Bundle of correspondence between the Council and the appellants covering

the period 10 April 2007 to 19 October 2007.

ADDITIONAL PLANS PRODUCED AT THE HEARING

A Drawing No 0505:1 showing the layout of a Floors-2-Go unit at Barnstable.

!Mike Sibthorp Planning

Logan House, lime Grove, grantham, NG31 9jd

TEL: 01476 569065 MOB: 07983 470950

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Enclosure 2SOUTHAMPTON APPEAL DECISION

http://www.planning-inspectorate.gov.uk

Appeal Decision Site visit made on 25 October 2011

by R J Marshall LLB Dip TP MRTPI

an Inspector appointed by the Secretary of State for Communities and Local Government

Decision date: 1 December 2011

Appeal Ref: APP/W1715/A/11/2157400 Site F, Hamilton Business Park, Botley Road, Hedge End, Southampton SO30 2JR • The appeal is made under section 78 of the Town and Country Planning Act 1990

against a refusal to grant planning permission under section 73 of the Town and Country Planning Act 1990 for the development of land without complying with conditions subject to which a previous planning permission was granted.

• The appeal is made by Hargreaves Properties Ltd and Locksley Securities Ltd. against the decision of Eastleigh Borough Council.

• The application Ref X/11/68593, dated 1 February 2011, was refused by notice dated 7 July 2011. The application sought outline planning permission for Extension of time period for the implementation of an extant permission (0/07/60590) for demolition of existing buildings and redevelopment of the site to provide flexible business accommodation (B1/B2/B8) not exceeding 3732 sqm of accommodation together with a new access to Manaton Way and relocated access to Botley Road without complying with a condition attached to planning permission Ref 0/10/68088, dated 17 January 2011.

• The condition in dispute is No. 6 which states that: There shall be no trade counter or retail uses within the development hereby permitted without the prior grant of planning permission from the Local Planning Authority.

• The reason given for the condition is: To control the impact of the development.

Decision

1. The appeal is allowed and planning permission is granted for outline planning permission for Extension of time period for the implementation of an extant permission (0/07/60950) for demolition of existing buildings and redevelopment of the site to provide flexible business accommodation (B1/B2/B8) not exceeding 3732 sqm of accommodation together with a new access to Manaton Way and relocated access to Botley Road at Site F, Hamilton Business Park, Botley Road, Hedge End, Southampton SO30 2JR in accordance with the application Ref X/11/68593 dated 1 February 2011, without compliance with condition number 6 previously imposed on planning permission Ref 0/10/68088 dated 17 January 2011 but subject to the other conditions imposed therein, so far as the same are still subsisting and capable of taking effect.

Main Issue

2. The main issue in this appeal is the effect that removing or varying the disputed condition would have on: a) the Council’s policy objective of sustaining the vitality and viability of established retail centres; and b) the range and variety of premises available for employment use in the locality.

Appeal Decision APP/W1715/A/11/2157400

http://www.planning-inspectorate.gov.uk 2

Reasons

Procedural matters

3. The planning permission on which the disputed planning condition is attached was to extend the time period for the implementation of an earlier, 2007, extant permission. That earlier application had also been subject to the disputed condition. In 2011 a reserved matters application, pursuant to the 2007 permission, was permitted for the layout, scale, appearance and landscaping of Units B and C.

4. Condition No. 6 applies to the full amount of floorspace that has been permitted. It is clear from the application description quoted in the bullet points above and taken from the application forms, that, contrary to the Council’s decision notice and its appeal statement, it is sought to free the entire development from this restriction. It is on this basis that the appeal has been determined.

Background and Reasoning

5. The appeal site comprises a substantial parcel of cleared land within a predominantly commercial and industrial area. A large out of town retail/warehouse area occupies much of the wider locality.

6. The Eastleigh Borough Local Plan Review (2001-2011) supports the development of employment land for employment purposes. Policy 118.E of the Plan indicates that a change of use to use other than B1, B2 or B8 will only be permitted if it does not, either by itself or cumulatively with other changes on the same development site, adversely affect the employment base either by markedly reducing the potential choice of employment in the local area or by significantly reducing the range and variety of premises or sites available locally for employment purposes.

7. Policy 134.TC of the Local Plan says, amongst other things, that out-of-centre development for town centre uses, which includes retail, will only be permitted provided: there is a demonstrable need for the development; there are no suitable viable and available sites for the proposed use in a centre or edge of centre location having demonstrated realistic flexibility on the scope for disaggregation; it will not undermine the vitality and viability of existing town and other centres; and will not increase reliance on the car.

8. The Council seeks through these Policies to: protect the employment base in the District; ensure the vitality and viability of the town and other centres; and prevent an unsustainable pattern of retail development. A change of use of B1, B2 or B8 uses to retail in this out-of-centre location could potentially have a harmful effect on all these counts. However, removal of the disputed condition would not lead to such a change of use. The development on the appeal site would remain flexible business accommodation within classes B1, B2 or B8. A retail use of these premises would require planning permission even in the absence of the disputed condition.

9. What it appears that the condition would do is prevent ancillary trade counter or showroom/retail uses. However, paragraph 91 of Circular 11/95 on conditions advises that conditions of this kind can be burdensome. It says that they should not normally be imposed on permissions for manufacturing or service industry except where they are designed to preclude or regulate



activities giving rise to hazard, noise or offensive omissions. No such considerations are said to apply in this case.

10. With regard to protecting the employment base the site would, even in the absence of the disputed condition, remain as a business site providing a potentially wide variety of employment uses. Any ancillary showroom/retail use or trade counter should not greatly impact on the employment potential of the sites. To the extent that removing the condition would provide further flexibility for those seeking to occupy the site there could even be some benefit in ensuring that the site is developed and put to its permitted use.

11. On ensuring the vitality and viability of the town and other centres there is no evidence that the flexible business accommodation provided should, even with ancillary trade counter or showroom/retail elements, be a town centre use. Indeed, in an enforcement appeal decision on a site nearby, the lead appeal being APP/W1715/C/06/2027362, it was held that even a mixed B1, B8 and A1 use was not a town centre use.

12. That being so I consider Local Plan Policy 134.TC, and its reference to need, sequential site searches and disaggregation, to be of limited relevance in this case. In this context I also note that in the appeal decision referred to above, the Inspector considered that even if disaggregation was to be taken into account, that is whether there are elements which could reasonably and successfully be located on a separate sequentially preferable site or sites, there was no realistic basis on which the retail element of the mixed use could be physically disaggregated as it was so interlinked with the B8 use. In my view that would apply with even greater force in the current case where, even with the removal of the disputed condition, the site would remain flexible business accommodation (B1/B2/B8) with any retail elements purely ancillary to that.

13. It is concluded that removing or varying the disputed condition would have no detrimental effect on: a) the Council’s policy objective of sustaining the vitality and viability of established retail centres; and b) the range and variety of premises available for employment use in the locality.

14. In arriving at this conclusion I have had regard to the fact that although it is sought to remove the restriction impose by the disputed condition on the entire development the catalyst for seeking this appears to be the fact that Magnet wish to occupy one of the units to be built on the site. They wish to have what is described as an ancillary trade counter and showroom and have given details of the size of these areas relative to the unit as a whole. However, my conclusion is based on the broader merits of removing the disputed condition and it is not for me to determine the lawfulness of an occupation of a unit by a particular occupier in the absence of the disputed condition.

15. I have had regard to the draft Proposed National Planning Policy Framework (NPPF) and the observations of both parties on it. However, the weight to be attached to that document is limited by its consultation draft status and the fact that current Government Guidance remains in place. The observations made do not alter my conclusions above on the main issue.

Conditions

16. As I am minded to allow the appeal I have considered whether the condition suggested by the appellant should be imposed. This was that “Any ancillary showroom shall not exceed 25% of the floorspace of any unit”. However, I



consider that determining whether or not a use is ancillary may depend on more than just floorspace and that such matters are best left for consideration on a case by case basis. No other conditions have been suggested. However, it is necessary to ensure that this new permission is subject to the conditions previously imposed in so far that they are still subsisting and capable of taking effect.

Conclusion

17. It is for the reasons given above that the appeal is allowed.

R J Marshall INSPECTOR

Documents

Planning Statement Stamford Trade Park Ryhall Road Stamfordplanning.southkesteven.gov.uk/SKDC/S16-0393/1282603.pdf · Planning Statement Change of use to B1/B8 with ancillary trade