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Planners and Development Economists Part of Peter Brett Associates LLP Roger Tym & Partners C/O Peter Brett Associates 10 Queen Square
Bristol
BS1 4NT
1101594
Our reference: CP/M9475/217 t: 0117 9295 262 e: [email protected] w: www.tymconsult.com Department of Infrastructure, Planning & Building Control Division, Murray House, Mount Havelock, Douglas, Isle of Man
IM1 2SF
Dear Sir/Madam,
RE: LAWFUL DEVELOPMENT CERTIFICATE APPLICATION, UNIT 1, SPRING VALLEY INDUSTRIAL ESTATE, BRADDAN, ISLE OF MAN.
Roger Tym & Partners act on behalf of Next Plc. We are applying for Lawful Development Certificate (LDC) on their behalf to confirm the lawfulness of the proposed range of goods to be sold by Next from Unit 1 at the Spring Valley Industrial Estate, Braddan on the Isle of Man.
Please find enclosed:
Extant Permission
Planning permission was granted on appeal (ref: PA08/2135) to demolish the existing unit 6 at Spring Valley Industrial Estate, Braddan and replace with the erection of two retail units, dated 23rd February 2010 (appeal decision attached). This LDC application refers only to Unit 1.
A number of conditions were attached to the planning permission. Condition 09 is relevant to this application, and states:
"Notwithstanding the provisions of article 4 of the Town and Country Planning (Permitted Development) Order 2005, or any revoking and re-enacting that order with or without modifications, the goods to be sold within the units hereby approved shall not include food and shall consist primarily (our emphasis) of building, decorating and home-improvement materials and equipment, furniture and floor coverings, garden goods and equipment, camping equipment, boats, quad bikes, bicycles, electrical goods and equipment, light fittings, pet food, pet supplies and pets."
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Peter Brett Associates LLP is a limited liability partnership and is registered in England and Wales with registered number OC334398. A list of members names is open to inspection at our registered office. Roger Tym & Partners and Baker Associates are part of Peter Brett Associates LLP.
It is proposed that Unit 1 will be operated by Next Home with $16.4 \%$ of the gross floor area ( $25 \%$ net) to be attributed for the sales of childrenswear. The remainder of goods to be sold will be primarily bulky in nature. The attached schedule includes the list of goods included within Next's Home range. These goods will comprise $75 \%$ of the net sales area.
The schedule shows that the majority of goods are in accordance with the categories set out in condition 9 and this has been confirmed in an informal exchange of correspondence between ourselves and the Planning Officer lan Brooks on 4 August 2011 (appended to this letter).
The LDC therefore seeks to clarify the position for Next in terms of those goods which do not necessarily fall within the categories set out in condition 9 but which, nevertheless would accord with the requirement that the store is used primarily for the purposes specified.
Next operate similar format stores at out of centre locations across the UK. A number of these stores also stock the full range of women's and men's clothing. Stores located outside of town centres are often subject to planning conditions which restrict the sale of specific goods to some extent.
The Next store at Victoria Retail Park in Nottingham has $49 \%$ of the net floor area dedicated to the sale of non-bulky goods. Condition 15 of the original consent for the retail park in 1989 (ref: 7/25/89/2155) states that the goods to be sold from the park should be bulky goods. In 2002 planning permission was granted for the 'part demolition/redevelopment, and part refurbishment for retail purposes including garden centre, builders yard, with associated access, car parking and servicing' (ref: 2002/0995). Condition 13 of the permission states that 'the goods to be sold from the non-food retail units hereby permitted shall unless otherwise specifically agreed in writing with the Borough Council not include food and shall consist primarily (our emphasis) of building, decorating and home improvement materials and equipments, caravans, camping equipment and oats, cycles, carpets, electrical goods and equipment, bedding and light fittings and pet food and pet supplies...'
An LDC was issued in 2005, for the use for the sale of non-food goods (as listed in Condition 13 of Planning Permission 2002/0995) for more than $50 \%$ of the sales floor area within the unit. A copy of both the 2002 and 2005 decision notices are attached to this letter.
As you will note, the Local Planning Authority have in this case defined 'primarily' as more than $50 \%$ of the sales floor area.
It is useful to understand the purpose of Condition 09, and the way that the Inspector intended that 'primarily' should be interpreted and applied in the future.
Within the appeal decision, the Inspector considers Strategic Plan Business Policy 5(a) as the most relevant policy to the determination of the appeal. He identifies that the 1991 policy is largely out of date, being based upon out of date information and assessments that now have limited validity. In paragraph 48, the Inspector states that Policy 5(a) is difficult to interpret as it states that 'retailing will not be permitted except where...the items to be sold could not reasonably be sold from a town centre location because of their size or nature'.
During the appeal, arguments were put forward on both sides on the definition of bulky goods, and those that could not be reasonably sold from a town centre location. The Inspector resolved that the best approach was to consider the purpose of the policy, which is to resist proposals in industrial areas which could reasonably be accommodated within the town centre. Thus, it should be determined whether a particular form of retail development should be permitted on industrial land, rather than to try to decide whether a particular shopping item could reasonably be sold within a town centre.
3 November 2011
Page 3
The Inspector's conclusion is reflected in Condition 09 by allowing for some flexibility in the goods to be sold, to enable particular forms of retail development to operate from the site. It enables retailers to sell goods which could be considered as non-bulky, provided that the majority of goods sold are bulky in nature. Interestingly, paragraph 26 of the appeal statement suggests the appellants recommended a suitable planning condition be imposed so that the permission only relates to the requested retail uses, therefore, the Inspector could have imposed a far more restrictive condition here without opposition from the appellant.
The form of retail development proposed by Next will not cease to be primarily the goods specified in Condition 09 just because it happens to trade a proportion (25%) of floorspace for children's goods, or ancillary items such as pushchairs. The proposal is therefore in accordance with Condition 09.
Other
Whilst not relevant to the determination of the LDC, which concerns the legal interpretation of the planning condition only, we highlight the following in terms of the intentions of Next.
Next do not intend to relocate, or cease to trade from their existing town centre store in Douglas. The provision of the store in this location simply offers an additional facility for Isle of Man residents, that are typical of most towns. Paragraph 9 of the appeal statement notes, in the case for the appellants, that there are qualitative deficiencies in the retail offer on the island.
Given Next's experience of operating in this format elsewhere, it is anticipated that the two stores will both operate successfully in parallel and the proposed element of children's goods would have no material impact upon the vitality and viability of the town centre.
Conclusions
The proposed range of goods to be sold by Next from Unit 1 (75% to be 'primarily' as per the list Condition 09) are in compliance with the existing consent. It would be unreasonable to suggest that 75% does not equate to the primary use of the total net floor area.
If it had been intended that no other goods could be sold from the site, the condition would have been written as such. The Inspector acknowledged the need for some flexibility to be afforded to the sale of goods. The example of the Nottingham store demonstrates how the condition should be interpreted.
Although not relevant to the consideration of the LDC, Next intend that the store will operate in parallel with the existing store in Douglas town centre with no adverse effect upon the vitality and viability of that centre.
We conclude that the operation of the store by Next is lawful, and the LDC should be issued.
I trust that you have all the information required to issue the LDC, however if you do require any further information, please do not hesitate to contact me.
Yours sincerely, Catherine Phillips BSc MSc MRTPI Senior Consultant Planner Roger Tym & Partners For and on behalf of Peter Brett Associates LLP
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