Officer Planning Report Recommendation

Planning Report And Recommendations {{table:54223}} {{table:54222}}

Officer's Report

Site

1. The application site is Unit 1 of the Spring Valley Industrial Estate, which is a newly built retail unit.

Proposed Development

1. The application is for a Certificate of Lawful Use; being the retail sale by Next Plc for the sale of furniture, household goods and decorating items plus childrenswear.

1. The applicant’s agent has stated that “It is proposed that Unit 1 will be operated by Next Home with 16% of the gross floor area (25% net) to be attributed for the sales of Childrenswear. The remainder of the goods to be sold will be primarily bulky in nature. The attached schedule includes the list of good included within Next Home Range [see below]. These goods will comprise 75% of the net sales area.”

1. The agents then go onto the say that “The schedule shows that the majority of goods are in accordance with the categories set out in condition 9 [of 08/02135/A] and this has been confirmed in an informal exchange of correspondence between ourselves and the Planning Officer Ian Brooks on 4th August 2011. 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 [of 08/02135/A] but which, nevertheless would accord with the requirement that the store is used primarily for the purposes specified.”

1. The range of goods are, as follows:

• Bedrooms:
• Beds
• Bed linen sets
• Bedside furniture

• Living/dining rooms:
• Sofas
• Armchairs
• Tables
• Dining chairs

Shelving Units, Sideboards etc Home storage solutions

Bathrooms:

• Bathroom fittings – mirrors, shelves, soap dispensers etc
• Towels and Bath mats
• Bathroom Furniture – Cabinets, towel standards etc
• Toilet Seats
• Shower units
• Lighting

Electricals:

• Televisions
• Portable entertainment systems
• Iron and Vacuum cleaners

Kitchenware:

• Crockery
• Cutlery
• Tableware and glassware
• Kitchen electricals – kettles, toasters etc
• Kitchen accessories – cookware, bins chopping boards, knife blocks etc

Other home furnishing/decorating items:

• Lighting
• Picture frames
• Cushions
• Vases and ornaments
• Plants
• Paints
• Wallpaper
• Curtains

Mother & Baby Cots Children’s bedding Pushchairs

Planning History

1. There has been a number of applications on the site; however two applications are considered relevant in the determination of the application.

08/02135/A – Approval in principle to demolish existing unit and erection of retail units with ancillary car parking and servicing – granted at appeal

Condition 9 states that “Notwithstanding the provisions of article 4 of the Town and Country Planning (Permitted Development) Order 2005, or any order 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 of building, decorating and home- improvement materials and equipment, furniture and floor coverings, garden goods and equipment, car parts, spares, maintenance goods and equipment, camping equipment, boats, quad bikes, bicycles, electrical goods and equipment, light fittings, pet food, pet supplies and pets.”

10/01384/REM - Demolition of existing unit and erection of two retail units with ancillary car parking and servicing (reserved matters pursuant to PA 08/02135/A – granted

Condition 7 states that "Notwithstanding the provisions of article 4 of the Town and Country Planning (Permitted Development) Order 2005, or any order 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 of building, decorating and home-improvement materials and equipment, furniture and floor coverings, garden goods and equipment, car parts, spares, maintenance goods and equipment, camping equipment, boats, quad bikes, bicycles, electrical goods and equipment, light fittings, pet food, pet supplies and pets."

Representations

1. Braddan Parish Commissioners have commented that approval should only be given if the applicant is restricted to selling large bulky items such as furniture and not items of clothing.

1. Ramsey Town Commissioners have objected to the application on the following grounds that the application is contrary to Tynwald Policy and to the provisions of the IOM Strategic 2007 Business Policies 5 and 10.

1. Ramsey Chamber of Commerce has objected to application on the ground that the proposal contravenes Isle of Man Planning Policy.

1. Isle of Man Chamber of Commerce have commented that this application highlights the need for clarification of Business Policy 5

1. Douglas Borough Council have objected to the application on the grounds that it contravenes Business Policy 5 of the Strategic Plan.

1. Douglas Development Partnership objection relates to the sale of childrenswear from an out of town location. They believe this clearly contravenes Business Policy 5 of the Isle of Man Strategic Plan, as these items can very reasonably be sold from a town centre location. Furthermore, the Partnership believes that the applicant's reliance upon the wording of condition 9 of planning consent PA08/2135 is inappropriate because the retail operation proposed at the time of the appeal hearing for that application differ materially from the operation proposed by Next.

They have further stated that "Next's application focuses on the word "primarily in this condition. They claim that the sale of childrenswear as a minority use of the building complies with the condition because the goods to be sold from the unit will be primarily home and decorating items. However, it is important to consider the wording of the condition in relation to the inspector's conclusions and the context within which the appeal was heard. At the time of the appeal, the retailers expected to occupy the retail units were Pets at Home and Halfords. Much of the argument at the appeal related to the operations of these specific retailers and the definition of bulky goods retailing. Both of these retailers sell large and small items as part of the same retail operation. The inspector considered that retailers selling predominantly bulky good in out of town locations should also be allowed to sell smaller items from the same premises as it would be unreasonable to split the retail operation into two premises with their bulky goods on sale at Spring Valley and smaller items sold in a separate new store in Douglas town centre.

However, this current case is not one of a retailer proposing to open a single outlet in the Isle of Man from which they sell primarily bulky goods alongside related smaller items. Next already sell clothing from their Strand Street store, demonstrating clearly that clothing can be sold from the town centre. Furthermore, as the retailer already occupies suitable town centre premises from which they sell clothing it is not reasonable for them to be expected to limit the sale of childrenswear to that store. The sale of childrenswear is not related to the sale of home furnishings and it is not therefore valid to rely upon the wording in Condition 9 as when taken in context with the inspector's other conclusions, this condition clearly refers to smaller items that are part of a bulky retail operation.

The Partnership considers that should this application be successful, it would set a precedent for clothes retailing on out of town sites and that this would seriously detrimental to the vitality and

viability of the Island's existing centres. Consequently, this application is of national significance and we request that it be referred to the Council of Ministers for decision.

1. The Retail Committee of the Isle of Man Chamber of Commerce believe the application should be refused. They have made the following comments:

"The application focuses solely on one possible interpretation in relation to retail uses on industrial land and on one work "primarily" as contained in the appeal judgment PA08/2135.

In interpreting the word primarily this committee believes that the applicant relies too heavily on the validity and precedent of one Isle of Man planning judgement backed further back by only UK precedent as to what this word means in planning terms on the Isle of Man. This committee believes that it is important and safer that we should consider all of the guidance given on the issue of retail uses on the industrial land particularly those in the 2007 Isle of Man Strategic Plan and not just the retail study definitions by the applicant's agent Roger Tym and Partners and highlighted by the inspector at appeal"

The objectors have commented about whether policies are out of date or not, and the interpretation of policy is difficult. They have also suggested a replacement policy to Business Policy 5.

They have suggested the application should be refused or held back until clarification on planning policy has been brought forward and ratified by Tynwald.

They have also say that they see "confusion and ambiguity in the detail of this application for a Lawful Development Certificate in that the applicant in the first instance suggests that 25% of the net area would be attributed to non-bulky goods so meeting any test of "primarily bulky" around in the UK, in this instance specifically bringing forward children's wear. The applicant goes on to say that the rest of the sales area will be given over to Next Home with 75% of the net area, the applicant describes this category of goods as also primarily bulky, we would understand this therefore to be a further mixture of bulky and non-bulky goods, so the application is incorrect in stating that only 25% of goods in store would be non-bulky"

The objector has commented that home furnishings and clothing are both successfully sold from existing town centres and falls short of being an exception under Business Policy 5 of the Isle of Man Strategic Plan.

Assessment

Preliminary Matters

1. A number of the objections relate to planning policy matters; however, this is an application for a certificate of lawful use. The planning merits of the proposal are not able to be considered. The Planning Authority is restricted to looking at the legality of the proposal, i.e. Does the proposed use for the site complies with the Planning Conditions attached to the building.

1. The Planning Authority therefore does not attach any weight to any of the comments relating to the proposal being contrary to Tynwald resolutions or planning policies of the Isle of Man Strategic Plan 2011.

1. Douglas Development Partnership has stated this application "is of national significance and we request that it be referred to the Council of Ministers for decision." It should be noted there is no provision in The Town and Country Planning (Certificates of Lawful Use or Development) Regulations 2005 to refer the application to the Council of Ministers for a decision. Furthermore, there is also no provision within the Town and Country Planning Act 1999 to 'call in' the application.

Main Assessment

1. The application is seeking a Certificate of Lawful Use; being the retail sale by Next Plc for the sale of furniture, household goods and decorating items plus children's wear.

1. The approach from the applicant is that only children's wear falls outside of the categories listed in the planning conditions; whereas many of the other goods listed also do not sit directly within those categories, for example the mother and baby goods, children's bedding, linen and so on. Consequently these ought to also fit within the calculation, if that is the appropriate test.

1. This leads to question about the how much of the net sales area will be attributed to non-defined goods. The Retail Committee of the Isle of Man Chamber of Commerce has picked up on this particular point. They have stated that they see "confusion and ambiguity in the detail of this application for a Lawful Development Certificate in that the applicant in the first instance suggests that 25% of the net area would be attributed to non-bulky goods so meeting any test of "primarily bulky" around in the UK, in this instance specifically bringing forward children's wear. The applicant goes on to say that the rest of the sales area will be given over to Next Home with 75% of the net area, the applicant describes this category of goods as also primarily bulky, we would understand this therefore to be a further mixture of bulky and non-bulky goods, so the application is incorrect in stating that only 25% of goods in store would be non-bulky"

1. This statement is very interesting in that it is very true. The applicants have not calculated the true percentage of non-defined goods within the Next Home Range. The true percentage of non-defined goods will be much higher than the 25% of the net sales area to be attributed to the sales of children's wear and ancillary items. The applicant's agent has been very misleading by focusing on just the 25% of the net floorspace for children's goods or ancillary items such as pushchairs.

1. Now turning to the wording and the purpose of the condition, in particular, the word 'primarily', it is considered the word 'primarily' was intended to allow for those miscellaneous ancillary items that are complementary to the bulky goods store, and those which could not reasonably be separated as these fall within the same goods type, i.e. it would be reasonable to sell nails in a shop that sells planks of wood or bicycle pumps and cycle helmets in a shop that sells bicycles.

1. 'Primarily' could not possibly have been intended to mean simply the majority of floor area. To do so would allow the space dedicated for the retailing of non-bulking goods with a floor area far greater than that in a standard town centre shopping area. Furthermore, officers would disagree that the area of floorspace dedicated to various types of good is the correct test. This takes no account of the percentage of goods sold or the percentage of turnover that relates to each type of good.

1. In summary, it is considered that some of the goods listed, notably kitchenware (excluding electrical goods), children's wear and mother and baby goods do not fall within the defined goods specified in condition 9 or that these are allowed by the use of the term 'primarily' within the condition. Consequently the sale of such goods would be considered to be unlawful.

RECOMMENDATION

1. It is recommended that the application be refused for the above reasons.

PARTY STATUS

1. There are no provisions within The Town and Country Planning (Certificates of Lawful Use or Development) Regulations 2005 to determine party status, as there are no provisions to appeal the decision of the Planning Authority.

Recommendation

Recommended Decision: Certificate of Lawful Use Declined

Date of Recommendation: 10.01.2012

Conditions and Notes for Approval / Reasons and Notes for Refusal

C : Conditions for approval N : Notes attached to conditions R : Reasons for refusal

• : Notes attached to refusals

R 1.

The proposed use is not lawful and a Certificate of lawful use is declined as; The sale of goods from the site, as itemised in the application, would not be compliant with condition 9 of Planning Permission 08/ 02135/A or condition 7 of 10/01384/REM and would amount to the building not being used primarily for the sale of building, decorating and home-improvement materials and equipment, furniture and floor coverings, garden goods and equipment, car parts, spares, maintenance goods and equipment, camping equipment, boats, quad bikes, bicycles, electrical goods and equipment, light fittings, pet food, pet supplies and pets. Therefore Planning Permission would be required.

I confirm that this decision accords with the appropriate Government Circular delegating functions to Director of Planning and Building Control / Development Control Manager/ Senior Planning Officer.

Decision Made : Certificate of Lawful Use Declined Date : 10 February 2012

Determining officer (delete as appropriate)

Signed : ... Anthony Holmes Senior Planning Officer

Signed : ... Michael Gallagher Director of Planning and Building Control

Signed : ... Sarah Corlett Senior Planning Officer

Signed : ... Jennifer Chance Development Control Manager