Report of the Interim Chief Planning Officer and Development Director.
The Committee considered a report of the Interim Chief Planning Officer and Development Director regarding 186 – 190 Bishopsgate, London, EC2M 4NR, specifically, change of use of basement, ground and first floor levels to a Class A3 restaurant plus external alterations comprising the installation of louvres and a full height external extract duct to the roof on the south elevation.
The Town Clerk introduced the item and also drew Members’ attention to the fact that they had also been sent to virtual site tour clips as well as an addendum that contained an additional proposed condition as well as a late representation.
The Interim Chief Planning Officer and Development Director presented the application and began by stating that the City Corporation had no interests in this property. He explained that the application was for a change of use to the basement, ground and first floor levels to a restaurant use by ‘Five Guys’ and associated external plans. Members were informed that the site in question was 186-190 Bishopsgate, on the east side of Bishopsgate with Victoria Avenue (a privately owned, narrow cul-de-sac which accessed onto commercial properties) running along its southern side. Members’ were shown a site location plan to provide them with an overview of the context of the site and which depicted that it sat within the Bishopsgate Conservation Area as well as within a principle shopping centre which was protected by policy.
The Committee were shown an image of the existing building which the Interim Chief Planning Officer and Development Director explained was a rather unexceptional, 1960’s clad building. He went on to explain that there was a very long and convoluted planning history on this site, which was tied to the previous occupier – ‘Wasabi’ - as detailed within the report. He summarised by stating that the previous occupier had begun operating as a cold, fast food takeaway before expanding into a hot food takeaway and then offering eat-in facilities on the premises which took it out of A1 use which was not authorised. There had also been unauthorised works involving the provision of duct which had led to noise nuisance and issue with cooking smells for the residents above the premises. It was reported that, above the second floor of the building, there were 19 residential units.
The Interim Chief Planning Officer and Development Director reported that it was important to underline that this applicant was from a new applicant for the site who had worked constructively with Officers to regularise the use issues and had worked with Environmental Health to find a solution to the duct work in a way that did not harm residential amenity which was a key part of this proposal. Members were shown various images if where it was proposed that the duct be located.
Members were told that one of the key issues before them today was the change of use from A1 to A3. The Interim Chief Planning Officer and Development Director also took the opportunity to clarify a point that one Member had contacted the relevant case Officer on prior to this meeting. He stated that, as the Committee had previously been informed, recent changes had been introduced in September 2020 to the use classes order and that a new Class E use had been introduced which was a single use class which included retail, restaurant, financial and professional services as well as other uses with occupiers now able to move from one of these uses to another without the need for planning permission. As changes were not development, there was no option for the planning authority (in this cases the City Corporation) to restrict changes within this use class by article 4 directions. However, as the planning application before the Committee had been submitted prior to 1 September 2020, the transitional arrangements under the Town and Country Planning Regulations allow for it to be considered under the previous ‘A’ use classes. Determining this change of use application today would therefore allow the City to add conditions on matters such as hours of opening, servicing and waste to protect residential amenity with such proposed conditions set out within the draft decision notice. If however, the application were to be refused today, the change of use to a restaurant could still proceed without the need for planning permission as it did not constitute development under the new class ‘E’. In this scenario, any opportunity for the City Corporation to add conditions to protect residential amenity would fall away and the organisation would have no such controls over the operation of the premises.
Members were then shown a proposed ground floor plan which would be of A3 use and comprise of an open kitchen with seating for 25 covers. At first floor level there would be 104 covers as well as customer WCs. At basement level would be an ancillary space which would include storage and staff facilities.
The Interim Chief Planning Officer and Development Director key to the change of use was the policy within the City’s Local Plan to protect principal shopping centre, which this building was located within. Whilst the existing percentage of class A1 units in the principal shopping centre was below the Local Plan aim of 70%, this was partly as a result of a number of vacant and underconstructed sites as set out within paragraph 47 of the report. However, the mix of retail units in the immediate frontage accorded with the Local Plan and the proposed use was considered to be appropriate to the principal shopping centre and that it would contribute positively to facilities in the area and add to its vibrancy. The proposed change of use was therefore considered to be acceptable.
Members were informed that there were associated external alterations as part of the A3 use. The Committee were shown a drawing of the south elevation of the building onto Victoria Avenue which there would be oblique views of from Bishopsgate and shown where the duct would sit and how it would rise the full height of the building from first floor level. Other minor, associated elevational alterations such as louvres would also be required. There was also a requirement for a high-level extract to discharge the kitchen ventilation at basement level to comply with environmental health requirements and to protect residential amenity. The Interim Chief Planning Officer and Development Director explained that extensive work had been undertaken by the applicant to explore internal routes for the duct but this was not thought to be feasible. The applicant’s original application which was consulted upon was to provide a first-floor level extract on to Victoria Avenue but this was subsequently amended because of concerns around noise and odours from residents. The current proposals would involve painting the duct in the same colour as the external wall/concrete cladding. There was a second proposal to overclad the duct but this raised structural issues as well as increasing the scale of the duct itself.
Members were shown a visualisation of both the proposed and existing elevation view looking westwards from within Victoria Avenue depicting where the duct would be placed. The Interim Chief Planning Officer and Development Director conceded that it was accepted that the addition of the duct was not a particularly welcoming visual addition to this view. The duct would be 80x35cm and would project beyond the wall above first floor level by 43cm creating a degree of harm to the Conservation Area. However, this degree of harm was considered to be very limited and on the lower end of the spectrum of less that substantial harm and would not be located in a prominent location in the Conservation Area but in a fairly utilitarian elevation of the building itself which was of limited architectural value. The duct would also be fronting on a private cul-de-sac and not public highway. It would not be readily visible from any of the key views on Bishopsgate.
Members were informed that the other outstanding issues in the application were amenity issues where objections had been received – primarily from residents – regarding noise disturbance during building works and from the operation of the restaurant, nuisance from food odours, the hot air extract from Victoria Avenue and the visual appearance of the duct – concerns that were also shared by the Conservation Area Advisory Committee. The Committee were assured that the Committee had looked very carefully at these concerns and were very firmly of the view that the introduction of robust and effective control through conditions would address them. Over ten environmental health related conditions were proposed which would control the environmental effect of the duct and any associated noise and odours as well as the noise during the demolition and construction of the site, the acoustic treatment and control of noise and odour from the mechanical plant. Disturbance from music resulting from the A3 use, the hours of servicing and also opening hours (10:00-23:00) would equally be conditioned. Members were informed that the applicant had also submitted a Custom and Servicing Management Plan which would be subject to continual review. In conclusion, the Interim Chief Planning Officer and Development Director reported that Officers believed that there would be robust and effective control which would adequately address the concerns raised by the objectors. He added that the proposals had been substantially amended by the applicant in a very constructive and collaborative manner during the course of the application and it was therefore felt that the proposal as a whole struck an appropriate balance between protecting residential amenity whilst putting the retail unit to appropriate use which would contribute positively to the vibrancy and activity of not only the Bishopsgate Conservation Area but also the primary shopping centre. The application was therefore recommended favourably to the Committee.
The immediate past Chairman (in the Chair) thanked the Interim Chief Planning Officer and Development Director for his presentation and invited any questions that Members might have of Officers.
A Member referred to the change of use classes that had come into effect as of September 2020 and stated that he would have thought that the addition of a rather large duct on the outside of the building would qualify as development and mean that this application would still require planning permission even if considered under the new regulations. He sought clarification as to whether this were the case. The Interim Chief Planning Officer and Development Director confirmed that this would be the case and clarified that his earlier remarks had referred only to the proposed change of use.
Another Member questioned enforcement given reference to the breeches that had occurred under the previous occupier. She questioned whether there were adequate resources to ensure that any conditions were complied with should similar issues arise once more. The Interim Chief Planning Officer and Development Director confirmed that he was confident that there were sufficient resources in place for this purpose.
Another Member questioned what powers the City Corporation actually had in terms of any breaches that might occur. The Interim Chief Planning Officer and Development Director reported that, in terms of any disturbance due to noise or odours, the Environmental Health Team had powers. The Deputy Pollution Manager contributed to state that the amenity test often provided a better result than the nuisance test, hence his enthusiasm to try and secure these conditions at the planning stage as these matters could be dealt with more efficiently during a buildout. He too confirmed that resources were sufficient but highlighted that there were often difficulties around the actual judgement of nuisance which required investigation and, often, inconvenience to residents and neighbours.
The Town Clerk introduced Lauren Martins, a resident of 186-190 Bishopsgate, speaking in objection to the application.
Ms Martins reported that she had been resident in the building for 12 years and lived on the third floor which was the first level of residential dwellings. She commented that she did not feel that the building was well suited to play host to what was effectively a large food factory downstairs. She reported that the commercial facility and the rest of the apartments above face Bishopsgate and Victoria Avenue (a small cul-de-sac, surrounded by high rise buildings which created a pocket of still air that could not escape). Ms Martins stated that the prevalent wind direction in the UK was from the south-west which, on most days, directed air from Bishopsgate into Victoria Avenue bringing with it carbon monoxide and hydrogen oxides from petrol and diesel vehicles. Levels of CO2 and nitrogen oxides had been measured in this location last year and these were found to be 3.2 times higher than the acceptable limit. It was reported that residents also experienced a black layer of smoke that formed daily on their windows. That being said, Ms Martins reported that residents still loved their building and were optimistic that with improvements including things such as the introduction of electric vehicles, their respiratory problems would come to an end. Ms Martins recognised that all of these problems had existed before the previous occupier – ‘Wasabi’ – had moved into the building and added to the problem via the restaurant louvres. Members were informed that the Wasabi operation in Bishopsgate quickly grew to one of the largest in London with all food for nearby Wasabi premises produced in this kitchen which soon tripled in size. This resulted in the odours and noise emitted from the premises becoming unbearable for residents who were forced to keep their windows closed. Heat emitted from the louvres also rendered the conditions in the apartments above unliveable. One measurement had shown that, whilst the temperature on Bishopsgate had been 24 degrees Celsius, in Victoria Avenue, the measurement had been 36 degrees Celsius, and inside apartments, this had been almost 40 degrees Celsius. On the hottest days, Ms martins reported that she had felt unwell as a result of the excessive heat and had huge concerns for her elderly neighbours who were forced to leave their homes for long walks when the heat became so intense.
Ms Martins commented that conversations that she had had with Wasabi employees had indicated that the heat within the basement kitchen was also excessive to the extent that it had even caused some workers to pass out and that this had not been adequately addressed despite the installation of a huge air conditioning unit. She had therefore been informed that it was their intention to build additional louvres to pump yet more hot air out into Victoria Avenue. Ms Martins expressed her grave concerns that, with Climate Change and increasingly hot summers, this heat would only intensify in future putting elderly residents in the building at high risk of stroke and also posing a fire hazard. She reported that, on a particularly hot day six months ago when temperatures inside had reached 40 degrees Celsius, a fire had already broken out at a flat within the building.
Ms Martins concluded by stating that she was of the view that the proposed Five Guys operation would only exasperate all of the issues that she had outlined given that proposals involved making the kitchen even larger. She urged the Committee, on behalf of all 19 families residing in the building, to refuse the application.
The immediate past Chairman thanked Ms Martins for her contributions and invited any questions that Members might have of her.
A Member asked Ms Martins whether she felt reassured on hearing the proposed conditions that would be applied to the application and by the City Corporation’s ability to enforce these. Ms Martins reiterated that the main problem was the heat emitted from the premises which was exasperated by the hot air being dumped into Victoria Avenue which was a cul-de-sac surrounded by tall buildings meaning that this hot air had no obvious escape route. She added that the plans within this application to increase the size of the louvres would only add to this issue and render the apartments above unliveable and that she did not see the proposed conditions as an effective means of preventing this.
Another Member stated that he had believed that this application was for a restaurant but stated that it appeared to be for much more than this and would also involve a manufacturing operation supplying a whole chain of premises across London based on what Ms Martins had reported. He questioned whether this was the case. Ms Martins confirmed that when the previous occupant had been at the premises their operation was initially very small and provided takeaway food only. However, they soon became so successful that they became the main kitchen supplying produce for other Wasabi’s across London – something that she did not feel that the premises was suited for. Ms Martins added that residents had also had access to their rubbish store blocked by the previous occupants.
A Member asked Ms Martin what her experience had been to date in terms of enforcement – raising issues about the previous occupiers with the City Corporation and their response to them. Ms Martins confirmed that residents had only recently rallied together in an attempt to voice their concerns over the common issues experienced by all and had not yet therefore officially complained to the City Corporation. Ms Martins added that the bedroom walls of the apartments faced Victoria Avenue and reported that trucks were often visiting the premises at 2-3am in an attempt to avoid parking fees when residents had requested that this happen between 7:30-23:00 only. This had caused regular disturbance to residents, some of whom had young children. Since the previous occupier had left the premises, the residents had been able to experience uninterrupted sleep for the first time in many years. These proposals for a new restaurant that would be increased in size was therefore a huge concern.
Another Member spoke to state that many of the issues raised by Ms Martins would be of concern to Members. He stressed that it was, however, important to separate out the relevant planning considerations here. He went on to question what conversations Ms Martins had had with the new applicants and whether or not they had provided any assurances to residents as to how they would address their concerns and protect their interests. Ms Martins reported that she had messaged the applicants regarding concerns around heat in particular but was yet to receive a response. Ms Martins suggested that a better approach for the new applicant to take would be to pump any hot air from the premises through to the top of the building where it could rise and escape more easily. Even so, she reiterated the point that she did not believe that this building was fit for the proposed use which she felt would pose a serious fire risk.
The Town Clerk introduced Sam Harper, a Director of First Plan Planning Consultants speaking on behalf of the applicant ‘Five Guys’ and in support of the application.
Mr Harper underlined that ‘Five Guys’ was a well know restaurant chain founded in America and had a good record of operating successful, popular restaurants through the UK and across the world. There were currently in excess of 100 Five Guys restaurants in the UK alone. He reported that ‘Five Guys’ were well known for their use of fresh ingredients in all cooking and the provision of customised, made-to-order burgers with no microwaves or freezers on site.
Mr Harper reported that the premises which was the subject of this application had been in use, as already reported, as a ‘Wasabi’ restaurant and takeaway facility for many years as evidenced within the record of planning history and enforcement. The Committee were informed that Wasabi had now vacated the premises as a result of the pandemic but had, nevertheless, planned to vacate at some stage regardless – hence this application which was originally submitted in late 2019. This was in order to regularise use of the unit as a restaurant and allow ‘Five Guys’ occupation. Mr Harper reported that, prior to the submission of this application, significant work had already been undertaken by ‘Five Guys’ to ensure that the unit could work realistically for them and without detriment to the upper floor apartments. It was therefore considered that the submitted application proposals included significant revisions made during the course of the application which now achieved this. Mr Harper stated that, in planning terms, there was no reason why the proposed change of use should not be considered acceptable. As Officers had already highlighted, the application proposed a commercial use within the Liverpool Street principal shopping centre which would not detrimentally impact upon adjoining premises or residents in the applicant’s view. It was felt that the opening hours proposed were suitable for the location, ending at 23:00 and aligning with other premises in the surrounding area. Members were informed that the measures indicated within the submitted Management Plans would also be conditioned to ensure compliance.
Mr Harper added that, as detailed within the Committee report, various options were explored with the City Corporation in relation to the proposed kitchen extract which would serve to remove odour and heat from the proposed cooking area. The final solution arrived at was a kitchen extract duct which would terminate at roof level with significant odour filtration and attenuation proposed inside the unit. This complied with environmental health guidance and relevant local policies and ensured no adverse impact on existing amenities or the Conservation Area in the opinion of the applicant, due to the discreet, set-back location of the premises and the profile and treatment of the proposed duct. Mr Harper stated that the proposals offered a great improvement to the existing situation which had not benefitted from planning permission, was sub-standard in terms of ducting, filtration and attenuation and which had also been the subject of complaints and concerns from residents and Environmental Health.
Mr Harper noted that Wasabi had operated a very large-scale, commercial kitchen from the premises, supplying other restaurants across London which was not the case with this application which would feature a smaller kitchen to service this restaurant alone with a lot of space at basement level being fallowed or used for the installation of plant which would help to overcome the concerns raised. Mr Harper added that it was noteworthy that any restaurant occupier could occupy this premises and operate without the need for planning permission under the new use classes order although they would, admittedly, require an extract solution – however, there were systems available that involved the recirculation of air and would not therefore require any external works.
The Committee were informed that the applicant had reviewed the proposed planning conditions and gave assurances that they were content with these and would abide by them should this application be granted. Mr Harper reported that of all of the restaurants that Five Guys operate across the UK, they had never had a series of prolonged complaints or issues regard extraction, odours or noise disturbance from residents.
Mr Harper stated that an unfortunate impact of the ongoing pandemic was the closure of many commercial units including restaurants and retail units. This included the former tenants – Wasabi – and it was therefore considered a positive thing that Five Guys were now looking to invest in what was a significant site. Mr Harper stated that Five Guys were one of few restaurant chains who were currently seeking to expand and invest in various locations across the country. Mr Harper added that he was therefore confident that this premises would be brought back into good economic use that was consistent with its setting and would also lead to job creation.
Mr Harper concluded by reporting that the applicant had worked hard throughout the application process to resolve the queries raised and to achieve what they hoped all parties would now agree was a good end result. He therefore commended the application to the Committee.
The immediate past Chairman thanked Mr Harper for his contribution and invited any questions that Members might now have of him.
A Member questioned what consultation had been undertaken with residents in the building and asked whether Mr Harper was able to provide any initial response to the concerns raised by residents today, particularly regarding heat. Mr Harper reported that he was not aware of any direct engagement with residents but reported that the applicant had engaged with the freeholder of the building. Members were informed that the initial interaction had been between Wasabi as former tenant and Five Guys. Mr Harper underlined that the key factor here was that this was a new tenant. Mr Harper stated that he fully understood the concerns raised regarding heat having stood in Victoria Avenue and experienced this for himself. He highlighted that the applicant had initially proposed a low-level extract duct at the front of the building however, discussions with Officers over the past 12 months (particularly Environmental Health Officers), had led to the revision of plans and proposals around a full height extract from the kitchen – something which Ms Martins had already stated would be preferable. With regard to louvres at the side of the building, Mr Harper highlighted that a number of these were already in existence and that that addition of a louvres at the front of the building was to draw clean, filtered air into the building and not to extract air. Additional minor louvres to the rear of the building would be for the extraction of staff room areas which were not heat generating. An existing louvre at the rear of the building was related to the air conditioning unit. Mr Harper concluded by stating that the new premises would feature an open-plan kitchen at ground floor level and a smaller prep kitchen at basement level – not the factory-like operation that had been operating from here previously.
Another Member commented to state that he felt it was extraordinary that the applicant had chosen not to consult with residents given the circumstances of the application. He also questioned how many applications for restaurants Mr Harper had handled previously that involved residential units directly above the premises. Mr Harper reported that he had dealt with applications on behalf of many operators and that many of these were in central City locations with residents directly above the premises. In terms of engagement, Mr Harper reiterated that the application had first been submitted over 12 months ago, with just three comments received during the first round of public consultation – one regarding construction noise and the other two regarding Wasabi’s operation. Mr Harper went on to accept that more efforts around resident consultation could have been made but stressed that concerns around heat had only recently been flagged to the applicant over the past few months. It was hoped that the revised proposals around the extraction of air from the kitchen would go some way to overcoming these concerns. Mr Harper added that there were no concerns from the HVAC engineers that heat generation was a valid concern under these proposals which would not satisfy environmental health legislation, health and safety legislation or fire legislation if this were the case.
Another Member spoke to question waste and deliveries, noting from the plans that there were quite a number of bins for waste purposes. She asked the applicant from where and how deliveries would enter the building and also sought information around the timing of these. In terms of waste management, Mr Harper reported that there was an access door toward the rear of the side elevation of the building which would provide access to the internal bin store. Mr Harper added that the applicant was very aware of the issue raised by Ms Martins and the fact that residents had been unable to access their own bin store – he reported that this issue had arisen from the landlord who had wanted to provide an additional residential unit over the former staircase and not, as he understood it, from the previous tenant. In terms of deliveries, Mr Harper recognised that this was a red route and stated that Five Guys would be using new arrangements with the expectation being that relatively speedy, palette deliveries would take place utilising the side access at Victoria Avenue and a nearby loading bay. Mr Harper assured the Committee that deliveries would not take place outside of the agreed, daytime hours.
A Member stated that the proposals around extraction at roof level were reassuring to him but asked Mr Harper to confirm that there were no existing or newly proposed air conditioning units that would be discharging into Victoria Avenue as these could clearly be a source of significant heat. Mr Harper reported that there was a louvre at the rear of the building which extracted air from the existing condensers. However, as was often the case with new operators, it was reported that Five Guys would be keen to fit new condensers in this location that were suited to their requirements and not, therefore, need to supply a commercial kitchen taking up the entire level with cold air. It was reported that these would utilise the existing louvre on the rear of the building at first floor level.
Another Member questioned how much air would be extracted from the premises as a whole via the newly proposed rooftop extraction as opposed to being discharged into Victoria Avenue. He added that whilst he recognised that planning permission here was not being sought by Wasabi, any permission granted would extend beyond the proposed new occupier and it was therefore important that the Committee get this right in terms of any conditions applied. Mr Harper reported that the purpose of the kitchen extract duct would be to remove warm air generated from cooking and that this would be a significantly larger duct (800x350ml) than the existing version (300ml) which had not benefitted from planning permission. Mr Harper confirmed that, after inspection, it was recognised that the route of the existing duct was very convoluted and sub-standard given the scale of the previous occupant’s operation. The newly proposed duct was based on a very high specification of filtration and management of both odour and heat.
A Member questioned the proposed maintenance of the extraction duct and how easily this could be accessed stating that she was well aware that these were often the main cause of fire within restaurants when not properly maintained. She added that, from her own experience, extractor emitting at roof top level could still let off odours within a building if cleaning and maintenance was not carried out regularly. She noted that this was likely to be a very busy, popular restaurant within excess of 120 covers proposed and that cooking was therefore likely to happen all day. Mr Harper stated that Five Guys were well aware of potential issues around odours and that they would be installing various pieces of equipment to help filter these including carbon filters, bag filters, electrostatic units and ultraviolet units - a combination of more filters than they had ever used on any other restaurant. In terms of cleaning, a cleaning schedule utilised by another restaurant operated by Five Guys in Manchester which also had residents living above the premises had been submitted by the applicant alongside before and after pictures of the extract duct pre and post clean. Mr Harper stated that he believed that there was an undertaken to clean the duct at least every three months but that the applicant was happy to be as flexible as required on this matter so as not to adversely affect residential amenity.
A Member questioned whether the Committee could be provided with an estimate on expected, post-COVID footfall, particularly in the evening in terms of covers. Mr Harper highlighted that there were 129 covers proposed and that there was typically a 20-minute dwell time for those that chose to order and dine in which tended to be the predominant use of the restaurant.
The immediate past Chairman invited any outstanding questions that Members might have of Officers ahead of the debate. A Member questioned what the scheme of operations was from Five Guys that might address some of the concerns raised and differentiate it from that of Wasabi. The Interim Chief Planning Officer and Development Director reported that he felt that the thoroughness and rigour of the proposed conditions worked up in consultation with the applicant, the requirement for a Customer Management Plan and a Servicing Management Plan (both of which would be periodically reviewed to ensure their effectiveness) was sufficient enough to address the concerns raised by both the objectors and Members. The Member went on to ask whether Officers would characterise the applicant as being cooperative and responsive to the concerns raised around the previous management of the building. The Interim Chief Planning Officer and Development Director stated that the applicant had been somewhat tarnished by the poor management of the previous occupant of the site but that they had been very cooperative and constructive in working with both Planning Officers and Environmental Health to find solutions to address the concerns raised.
The immediate past Chairman asked that Members now move to the substantive debate.
A Member stated that, as a representative of the Ward in which this application was proposed, he had seen the original plans for the site in October 2020 which had featured extraction at first floor level on the Bishopsgate frontage of the premises. He was pleased to see that this had now been amended. He added that he was sympathetic to the issues encountered by Ms Martins and other residents in the building in recent years with the previous tenant. However, he underlined that it was important to note that this was not the same tenant, that an entirely different type of operation was proposed and that, to his mind, the proposed conditions worked up by both Planning and Environmental Health covered all of the concerns raised by residents. He concluded by stating that he was therefore supportive of this application on these grounds.
Another Member spoke to state that he was very grateful to Officers for their introduction to the application which had included reference to changes in use classes. He added that the Committee now seemed to be presented with a situation whereby if they were to refuse this application, the proposed change of use would still be possible under new regulations and, although external ducting would be required, the opportunity to impose conditions would be reduced leaving the City Corporation in a worse position than if Members were minded to approve this. He went on to state that he was of the view that the newly proposed ducting would overcome many of the issues flagged by residents living above the premises. The Member concluded his speech by stating that the use classes order issue had persuaded him to reluctantly support the application today.
A Member stated that he felt that the objector who had addressed the Committee this morning had put forward the case against the application very eloquently. In terms of planning considerations, the Member stated that the key issue here was the location of the kitchen extract duct with the report acknowledging that it was not feasible for the duct to be located internally. If the duct were to be located externally, at first floor level, this would be unacceptable from an environmental health perspective and, if the duct were to be located externally and run the full length of the building, this would be unacceptable from a conservation perspective as expressed by the Conservation Area Management Committee. The logical conclusion ought to therefore be that this property was not suitable for use by a restaurant serving hot food. However, this was not the conclusion reached within the report, which recommended the approval of the application by treating a building located within a Conservation Area as if it was not by stating that the building itself lacked architectural merit. The Member suggested that this approach undermined the whole policy of Conservation Area protection and would further damage the City’s heritage. In short, the Member stated that he was of the view that this application should be refused – primarily for failing to comply with the City Corporation’s policy on Conservation Areas.
Another Member also spoke on the use classes point and sought absolute clarity from Officers as to whether or not refusal of this application could potentially have a further adverse impact on residential amenity in the future by enabling the change of use and extraction to happen anyway in such a way that would preclude the Committee from applying any conditions. The Member went on to state that the report did not suggest that this application would not undermine residential amenity, only that when weighed against the public amenity, it was recommended for approval. She added that she struggled to see sufficient public amenity by way of this particular application, especially when bearing in mind that it fell below the threshold in relation to retail and the Conservation Area points already made by a previous speaker. The Interim Chief Planning Officer and Development Director reported that, under the new Class E regulations a new restaurant occupier could move into this unit with immediate effect and utilise the existing louvres to extract without requiring planning permission. This would mean that, as a planning authority, the City Corporation would also have no grounds on which to impose conditions around servicing or the operation of the premises. In terms of the wider public benefits to outweigh any harm, Officers had been very clear that there would be a limited degree of harm associated with this application in terms of the Conservation Area. It was also felt that the Conservation Area was characterised by a vibrancy of uses and that this proposed new use was compatible with this. Finally, Members were informed that it was felt that the potential for nuisance from the ductwork was adequately and robustly addressed by the very thorough conditions that were intended to be attached to any permission granted which would also prevent any repetition of the historical problems encountered by residents.
In response to a further question regarding any evidence the City Corporation might have around excessive heat at this site, the Interim Chief Planning Officer and Development Director reported that they did not have objective evidence of this but did not dismiss the points raised by the objector highlighting that the heat extracted into Victoria Avenue may well cause heat issues. However, it was felt that the scheme put to the Committee and the proposal to take the duct to roof level - allowing any hot air to rise and be dispersed by the wind - alongside the fact that the major louvres on the property would be intake and not outtake would address this issue.
At this point, the Chairman sought approval from the Committee to continue the meeting
beyond two hours from the appointed time for the start of the meeting, in accordance with Standing Order 40, and this was agreed.
Another Member spoke to state that she also found the issue around change of use classes difficult and stated that it seemed that the Committee seemed to be being asked to effectively approve the addition of a very large duct which would protrude by almost half a metre and therefore be very visible despite it being located at the side of the building. She added that the report also seemed to suggest that the duct would not have to be as robust as it might have been if it were to be located on public highway and that this suggested that there was also the potential for it to be damaged at low level. Finally, the Member underlined that the site was located within a Conservation Area and that installing a factory style chimney duct into this space was, in her opinion, an error. The Member noted that whilst, under new regulations, the premises could open and function as a restaurant with immediate effect, it was unlikely to be able to operate effectively as things currently stood and was likely, therefore, to be dealt with by environmental health. She also noted that a restaurant operated very differently to a retail unit in terms of waste and deliveries. She stated that she was of the view that this premises was not adequately designed to be a restaurant and did not have the internal ducting necessary to facilitate this. With this in mind, the application should therefore be refused.
A Member spoke to state that he was very disappointed to learn that neither the applicant nor Officers had consulted directly with residents of this building on these plans. Officers had advised the Committee that the concerns raised by residents were merited and would be adequately covered by proposed conditions. However, given the concerns raised primarily around heat, he felt that, should the application be approved, Environmental Health should be asked to inspect the site after a period of operation in order to determine if this issue persists. If this were found to be the case, enforcement action should be taken to remedy it.
Another Member spoke to ask Environmental Health Officers whether, if a future occupier were to change the use of the building to a restaurant, this Committee might still have an opportunity to condition the application given that it would still require a duct to operate in this way and whether if they were to try and operate without the correct cooking flues in place, they had the power to tackle this. The Member went on to state that she was shocked to hear Officers suggest that they had all of the necessary resources in place to tackle any issues that might arise in the future when the report itself suggests that from 2012 Wasabi had been illegally using the unit for purposes other than those which they had been granted consent for with no active measures taken by Officers to deal with this. She questioned why this matter had not been brought back to this Committee over the course of the past 9 years. The Members added that she had concerns around applications such as these being granted and conditioned with the expectation that other Departments would deal with and act upon these. She underlined that the City Corporation had just one Planning Enforcement Officer at present and a limited number of Environmental Health Officers and that they were reliant on evidence (that often had to be gathered by residents over a long period of time) in order to be able to enforce any action. The Member also noted that the Conservation Area Advisory Committee objected to the installation of an external duct which would impact upon the Conservation Area setting of the building as well as on residential amenity.
Environmental Health Officers reported that any enforcement action required investigation and proof of a nuisance. This therefore constituted retrospective action in that a nuisance would have had to be reported. If a nuisance was evidenced, Officers then had powers under the Environmental Protection Act which listed statutory nuisances including things such as noise and odours. Officers went on to explain that the reason that conditions were also attached to applications as there were elements incorporated in amenity that were much more difficult to deal with in terms of nuisance. Members were also informed that operators had a best practical means defence which meant that they were able to state that they had done all that is reasonably possible to abate a nuisance.
Officers went on to state that, with regard to new build premises or new applications, ducts which incorporated technology such as carbon filters and ultraviolet lights tended to be very large units and were therefore better planned into units prior to operation as opposed to being fitted retrospectively or being forced upon an existing premises under local authority nuisance powers. Members were informed that heat issues were more complex in that Officers were not certain as to whether this could be considered to be a statutory nuisance.
The Interim Chief Planning Officer and Development Director highlighted that, should the application be approved, under condition 14, Officers were minded to add the requirement to submit a Servicing Management Plan and to agree the wording around this with the Chair and Deputy Chairman in due course. Members were supportive of this proposal.
A Member noted that the report summary stated that “the proposed external duct would detract from the appearance of the building and the character and appearance of the Conservation Area” and questioned why Officers therefore went on to suggest, later in the report, that there was no objection to the impact that this would have. The Interim Chief Planning Officer and Development Director sought to briefly clarify this point stating that the Conservation Area Advisory Committee hadn’t objected to the application on the basis of the first round of consultation which had not included the addition of an external duct. They did, however, object to the duct as clearly set out within the report.
The Committee then proceeded to vote on the recommendations before them within the report. The vote was conducted by rollcall led by the Town Clerk with those Members present and eligible to vote asked to also confirm that they had been present for and able to hear the entirety of this item.
Votes were cast as follows: IN FAVOUR – 18 Votes
OPPOSED – 2 Votes
There were 5 abstentions.
One Member present was unable to vote due to technical issues which had led to her missing part of the debate.
The application was therefore approved.
RESOLVED – That planning permission be granted for the above proposal in accordance with the details set out in the attached schedule.