Isle Of Man Development Company Ltd & Dixons Retail Plc
Proposal:
Construction of internal mezzanine floor to increase retail floor space
Site Address:
Unit 1 Spring Valley Industrial Estate Douglas Isle Of Man
Case Officer:
Mr A Holmes
Photo Taken:
Site Visit:
Expected Decision Level:
Planning Committee
THIS APPLICATION IS REFERRED TO THE PLANNING COMMITTEE DUE TO THE RECOMMENDATION BEING CONTRARY TO THE PROVISIONS OF THE DEVELOPMENT PLAN.
The Application Site
The application site comprises a parcel of land located adjacent to Cooil Road within Spring Valley Industrial Estate in Braddan. The site contains two separate retail units with associated car parking (76 spaces inc. 4 disabled) and service areas. One of those retail units (Unit 2) is currently occupied by Pets at Home whilst the other (Unit 1) is constructed but currently vacant. The development proposed by this planning application relates to Unit 1.
The Proposal
The proposal comprises the construction of an internal mezzanine floor to increase retail floor space within Unit 1. No external alterations to the building are proposed.
After clarification during the planning application process the key floorspace figures to take into account are: existing retail floorspace within Unit 2 (635 square metres) + proposed retail floorspace within Unit 1 (1074 square metres) = existing and proposed retail floorspace within Unit 1 & Unit 2 (1709 square metres).
Planning History
The application site has been the subject of a number of previous planning applications, three of which are considered specifically material to the assessment of this current planning application:
Planning application 08/02135/A sought planning approval in principle to demolish existing unit and erection of retail units with ancillary car-parking and servicing. Unit 6, Spring Valley Industrial Estate, Braddan. This previous planning application was refused on the 12th October 2009. A subsequent appeal against the refusal was upheld by the Minister, in accordance with the recommendation of the appointed Planning Inspector, with the appeal approval decision issued on the 23rd February 2010. Nine conditions were imposed on this planning approval, of these the following three conditions are considered specifically material to the assessment of the current planning application:
Condition no. 6 states: "This permission shall provide for a maximum retail floorspace of 1672m2."
Condition no. 7 states: "The permission shall provide for a maximum of 2 units and there shall be no further subdivision."
Condition no. 9 states:
"Notwithstanding the provisions of article 4 of the Town and Country Planning (Permitted Development) Order 2005, or any other 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."
Planning application 10/01384/B sought planning approval for the demolition of existing unit and erection of two retail units with ancillary car parking and servicing (reserved matters pursuant to PA 08/02135/A). Unit 6 and land at Spring Valley Industrial Estate, Braddan. This previous planning application was approved on the 14th January 2011. Seven conditions were imposed on this planning approval, of these the following two conditions are considered specifically material to the assessment of the current planning application:
Condition no. 6 states: "The permission shall provide for a maximum of 2 units and there shall be no further subdivision."
Condition no. 7 states: "Notwithstanding the provisions of article 4 of the Town and Country Planning (Permitted Development) Order 2005, or any other 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."
Planning application 11/01594/LAW sought a Certificate of Lawful Use for the use of the building for retail sale by Next Plc for the sale of furniture, household goods and decorating items plus childrenswear. This previous application was refused on the 1st December 2012 for the following reason:
"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."
Planning Policy
In terms of local plan policy, the application site is located within a wider area of land that is designated as predominantly industrial under the Isle of Man Planning Scheme (Braddan Parish District Local Plan) Order 1991. Planning Circular 6/91, the written statement that accompanies the local plan, contains two policies that are considered specifically material to the assessment of this current planning application:
Policy 2.4 states:
"In accordance with the adopted policy of Tynwald no retail developments will be permitted in the Parish District of Braddan with the exception of retail provision designed to serve the local neighbourhood requirements of existing and future communities."
Policy 2.5 states:
"No development of retail use, nor conversion of existing buildings to retail use, will be permitted in existing or future industrial areas."
In terms of strategic plan policy, the Isle of Man Strategic Plan 2007 contains six policies that are considered specifically material to the assessment of this current planning application.
General Policy 1 states:
"The determination of matters under Part 2 (Development Control) and Part 3 (Special Controls) of the 1999 Town and Country Planning Act shall have regard to the provisions of the Development Plan and all other material considerations."
General Policy 2 states:
"Development which is in accordance with the land-use zoning and proposals in the appropriate Area Plan and with other policies of this Strategic Plan will normally be permitted, provided that the development:
(a) is in accordance with the design brief in the Area Plan where there is such a brief;
(b) respects the site and surroundings in terms of the siting, layout, scale, form, design and landscaping of buildings and the spaces around them;
(c) does not affect adversely the character of the surrounding landscape or townscape;
(d) does not adversely affect the protected wildlife or locally important habitats on the site or adjacent land, including water courses;
(e) does not affect adversely public views of the sea;
(f) incorporates where possible existing topography and landscape features, particularly trees and sod banks;
(g) does not affect adversely the amenity of local residents or the character of the locality;
(h) provides satisfactory amenity standards in itself, including where appropriate safe and convenient access for all highway users, together with adequate parking, servicing and manoeuvring space;
(i) does not have an unacceptable effect on road safety or traffic flows on the local highways;
(j) can be provided with all necessary services;
(k) does not prejudice the use or development of adjoining land in accordance with the appropriate Area Plan;
(l) is not on contaminated land or subject to unreasonable risk of erosion or flooding;
(m) takes account of community and personal safety and security in the design of buildings and the spaces around them; and
(n) is designed having due regard to best practice in reducing energy consumption."
Strategic Policy 9 states:
"All new retail development (excepting neighbourhood shops and those instances identified in Business Policy 5) and all new office development (excepting corporate headquarters suitable for a business park location) must be sited within the town and village centres on land zoned for these purposes in Area Plans, whilst taking into consideration Business Policies 7 and 8."
Business Policy 1 states:
"The growth of employment opportunities throughout the Island will be encouraged provided that development proposals accord with the policies of this Plan."
Business Policy 5 states:
"On land zoned for industrial use, permission will be given only for industrial development or for storage and distribution; retailing will not be permitted except where either:
(a) the items to be sold could not reasonably be sold from a town centre location because of their size or nature; or
(b) the items to be sold are produced on the site and their sale could not reasonably be severed from the overall business;
and, in respect of (a) or (b), where it can be demonstrated that the sales would not detract from the vitality and viability of the appropriate town centre shopping area."
Business Policy 9 states:
"The Department will support new retail provision in existing retail areas at a scale appropriate to the existing area and which will not have an adverse effect on adjacent retail areas. Major retail development proposals will require to be supported by a Retail Impact Assessment."
Business Policy 10 states:
"Retail development will be permitted only in established town and village centres, with the exceptions of neighbourhood shops in large residential areas and those instances identified in Business Policy 5."
REPRESENTATIONS
Braddan Parish Commissioners state that they have no objection to the planning application subject to it complying with Business Policy 5 of the Isle of Man Strategic Plan 2007.
The Department of Infrastructure Highways Division do not oppose the planning application on the basis that an increase of 37 square metres of retail floorspace above that which previously approved would be unlikely to materially increase the trip generation and parking requirement.
Douglas Borough Council object to the planning application, questioning the extent of proposed floorspace and highlighting the need for a retail impact assessment. They state that they wished to reserve the right to submit further comments once a retail impact assessment had been submitted. To date no further submission has been received in response to the amended and additional information, which included a retail impact assessment, submitted by the applicant.
Douglas Development Partnership object to the planning application, questioning the extent of proposed floorspace and highlighting the need for a retail impact assessment in accordance with planning policy. They suggest that the applicant has incorrectly assumed that the 1672 square metres referred to at condition no. 6 of previous planning application 08/02135/A is net floorspace. To date no further submission has been received in response to the amended and additional information, which included a retail impact assessment, submitted by the applicant.
The Isle of Man Chamber of Commerce object to the planning application questioning the impact of the proposal on the vitality and viability of existing retailing. They consider the proposal to be contrary to planning policy, believe the application shows a need for clarification of retail planning policy, and specifically highlight their belief that the proposal actually equates to an increase in 634 square metres of floorspace. They submitted a further response to the amended and additional information, re-emphasising their concerns over the impact of the proposal on the vitality and viability of existing retailing, and the need for clarity within retail planning policy.
T H Colebourn Limited object to the planning application. Their objection is quite extensive, the full detail of which can be found on file, and can be summarised as concern in respect of the impact of additional retailing on the vitality and viability of existing shopping centres. They refer to the original planning approval granted under previous planning application 08/02135/A and question floorspace levels, the implications of planning policy and car parking requirements. They submitted a further response to the amended and additional information, re-emphasising their concerns over the impact of the proposal on the vitality and viability of existing retailing. They question the consequential impact of approval on existing retailers and associated services as well as highlighting a lack of control over the term "electrical goods" within the previous planning application 08/02135/A.
Waltons Television (Manx) Ltd object to the planning application. Their objection is quite extensive, the full detail of which can be found on file, and can be summarised as concern in respect of the impact of additional retailing on the vitality and viability of existing shopping centres. They refer the proposed floorspace exceeding that originally permitted under previous planning application 08/02135/A, the applicant's misinterpreting the Minister's approval of that previous planning application, there being inadequate car parking for the proposal, and the application lacking a necessary retail impact assessment. They submitted a further detailed response to the amended and additional information, re-emphasising their concerns over the impact of the proposal on the vitality and viability of existing retailing. This further submission is accompanied by a comparison retail statement for a mezzanine floor within an existing retail store in Rugby, England.
Marown TV Ltd object to the planning application, questioning the impact of the proposal on the vitality and viability of existing retailing.
Pascoes Ltd object to the planning application, questioning the impact of the proposal on the vitality and viability of existing retailing.
John Shimmin MHK, the Minister for Economic Development, objects to the planning application. As the Minister who upheld the appeal against the refusal, and thereby granted approval, of previous planning application 08/02135/A he believes the current application pushes the boundaries of what was at the time a very delicately balanced decision.
As per their entitlement the applicant has reviewed various representations and subsequently submitted a detailed response to the various issues raised.
Assessment
Before any assessment of the planning application is made it is relevant to understand that under the provisions of the Town and Country Planning Act 1999 the creation of a mezzanine floor within an existing building that is entirely internal to that building and that does not involve any external alterations does not constitute development, and therefore in itself does not require the submission of a planning application. However, in this instance the planning application is required due to the mezzanine floor resulting a greater level of retail floorspace than was approved under condition no. 6 of the previous planning application 08/02135/A, which granted the planning approval in principle for an overall retail floorspace of 1672 square metres on the application site.
It is also relevant to note that both Unit 1 and Unit 2 could be legitimately occupied and used by any retailer without any further planning approval provided they accord with the provisions of condition no. 9 of previous planning application 08/02135/A and condition no. 7 of previous planning application 10/01384/B accordingly. Both of these conditions, which are identical, set out the range of goods that can be legitimately sold from the application site. This condition was originally imposed by the then Minister when he accepted the recommendation to allow the appeal against the refusal of previous planning application 08/02135/A. Whilst planning conditions can control what is sold from a site the planning system cannot control who sells those items. It should also be noted that should they decide to go ahead without the mezzanine floor the current applicant (Dixons Retail Plc) could legitimately occupy and trade from Unit 1 without needing any further planning approval.
As stated earlier, previous planning application 08/02135/A was approved subject to a condition stating that the permission shall provide for a maximum retail floorspace of 1672 square metres. Based on the existing retail floorspace within Unit 2 (Pets at Home) and the proposed retail floorspace within Unit 1 with the mezzanine floor the overall retail floorspace within the application site would be 1709 square metres. This equates to an additional 37 square metres of, or a 2.2% increase in, retail floorspace above the previously approved 1672 square metres of retail floorspace.
Taking account of the planning application submissions and the representations it is considered that whilst the various concerns expressed are readily understood the principle of retailing from the application site has been established by the approval of previous planning application 08/02135/A. Whilst it is accepted that overall retailing from the application site will have an effect on existing retailers elsewhere it would be difficult, if not impossible, to reasonably refuse the current planning application on the basis of an additional 37 square metres of retail floorspace above the already established 1672 square metres of retail floorspace. The impact of the 37 square metres of retail floorspace is negligible in comparison to the already approved 1672 square metres of retail floorspace. It is also considered that the increased level of retail floorspace would be unlikely to materially increase the trip generation and parking requirement to any noticeable extent.
Recommendation
Effectively, the impact of the retail use was established by the then Minister's approval, and conditioning, of previous planning application 08/02135/A. The Case Officer's and Planning Committee's resistance to retailing from the application site was defeated by the subsequent approval of that earlier planning application.
It is concluded that the impact of the proposed retail floor space proposed does not have a significantly harmful enough impact above what has been previously approved to justify a sustainable reason for refusal of the planning application. It is therefore recommended that the planning application be approved.
Party Status
It is considered that the following parties that made representations to the planning application should be afforded interested party status:
Braddan Parish Commissioners.
It is considered that the following parties that made representations to the planning application should not be afforded interested party status:
The Department of Infrastructure Highways Division;
Douglas Borough Council;
Douglas Development Partnership;
The Isle of Man Chamber of Commerce;
T H Colebourn Limited;
Waltons Television (Manx) Ltd;
Marown TV Ltd;
Pascoes Ltd; and
John Shimmin MHK.
Recommendation
Recommended Decision: Permitted
Date of Recommendation: 23.03.2012
Conditions and Notes for Approval / Reasons and Notes for Refusal
C: Conditions for approval N: Notes attached to conditions R: Reasons for refusal O: Notes attached to refusals
C 1. The development hereby permitted shall commence before the expiration of four years from the date of this notice.
C 2. This approval relates to the construction of an internal mezzanine floor to increase retail floorspace within Unit 1 in accordance with drawing no.s 9882-121 rev. B, 9882-125 rev. C, 9882-126 rev. B, 9882-127 rev. C, 9882-200 rev. E and DOUG0000RF12C02 rev. 02 date stamped the 15th February 2012.
C 3. Notwithstanding the provisions of article 4 of the Town and Country Planning (Permitted Development) Order 2005, or any other order revoking and re-enacting that Order with or without modifications, the goods to be sold within the Unit 1 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.
C 4. Unless permitted by a subsequent planning approval the maximum level of retail floorspace within Unit 1 shall not exceed 1710 square metres.
I confirm that this decision has been made by the Planning Committee in accordance with the authority afforded to it under the Town and Country (Development Procedure) 2005
