Agenda item

Report of the Planning & Development Director.

The Sub-Committee considered a report of the Planning and Development Director concerning the change of use of Arches 9A and 9B to Class E (Commercial, Business and Services), and Sui Generis drinking establishment, drinking establishments with expanded food provision, along with external alterations, front and rear facade treatments and associated works.

 

Officers presented the application, highlighting that the original submitted proposal was for a change of use to include a nightclub and a music venue use with opening proposed until 2.00am for six nights a week. Members were informed that the application had been significantly amended in response to objections received from residents.

 

The Officer stated that the applicant was advised to amend the proposal to remove the nightclub and music venue uses as these would not be supported by Officers. Furthermore, the applicant had agreed to a restriction on hours of operation to no later than 11pm and this would be a condition of development.

 

The Officer stated that the application site was located within the railway arches beneath Fenchurch Street station, within the Fenchurch Street Conservation Area.

Residential properties that joined the site were 1 Pepys Street and 25 and 26 Savage Gardens. The site’s demise included part of the ground floor and the entire first floor, and there was a service yard to the rear. Previously, the ground floor was used as a betting office accessed from Crutched Friars and the first floor was previously used as a licenced restaurant, accessed from Savage Gardens. This ceased trading in 2016.

 

The adjacent property located within these arches was operated by Munich Cricket Club, which was a drinking establishment with expanded food provision.

Members were reminded the committee granted permission for a drinking establishment at the current application site in October 2019. Although this permission was not implemented, it did however remain a material consideration in determination of this planning application.

 

Members were informed that a large majority of the objections received related to the original proposal for nightclub and music venue uses as well as the late-night opening beyond 11pm.

 

The view of Officers was that, the recommended conditions and the amendments described, would ensure there would be no harmful impact to the amenity of neighbouring residents from a drinking establishment use.

 

Members were shown images of the site and were informed that the proposed external alterations included the installation of a new main entrance from Crutched Friars and new glazing within the arches at first floor level on Crutched Friars and Cooper’s Row. The new glazing was to be similar in appearance to that of the existing Cheshire Cheese Pub opposite the site.

 

The Savage Gardens side entrance was proposed to be retained and would provide a level accessible entrance as well as an emergency exit only. It would not form a main customer entrance or exit, and no deliveries were proposed to be taken from this entrance in the outline servicing management plan. This was to protect the amenity of neighbours and conditions were recommended to this effect. No customer access was proposed to the rear of the site and this was also recommended as a condition. Conditions were also recommended to prohibit the use of the rear doors except in an emergency and to require self-closing mechanisms to be applied to these doors.

 

The Sub-Committee was shown the existing ground and first floor plans. Members were also shown the proposed floor plans. The internal fit out was proposed as a shell only for the unspecified end user. A set of stairs would be provided internally to connect the ground and first floor. As an end user had not been identified, in order to retain flexibility, the location for a future lift and accessible toilets was not specified at this time. A condition requiring submission of an accessibility management plan detailing how the end user would ensure the premises was suitably accessible for disabled people or others with specific access requirements was recommended. This would need to be approved in consultation with the City’s Access Officer prior to first occupation.

 

Members were shown the existing and proposed elevations. They were informed that there was a new entrance proposed to Crutched Friars and new windows within the arches at first floor level were proposed. These were consistent with the character of the site and would improve the appearance of the arches and the surrounding area.

 

To the rear, the arches would be infilled, with block and render with an emergency escape door and a small amount of obscure frosted glazing proposed. The first floor walkway would also be removed and a new fire escape staircase added. The proposed rear arch infill was of a simple design and had been amended during the assessment of the application in response to objections, in order to minimise the impact to amenity. It was originally proposed as fully glazed but would now be mostly solid with just a small amount of frosted glazing to ensure no overlooking issues. Full details of materials would be submitted as part of Condition 2, including details of the obscure glazing. The Officer stated that the proposals were considered to have a positive impact on the appearance of the building and wider surrounding area in general.

 

In summary, the Officer stated that the proposed use had been amended significantly during the assessment period to protect the amenity of surrounding residents. This was in response to objections that were received. The original proposed nightclub and music venue uses had been removed from the proposal. Furthermore, several conditions were recommended to ensure the proposed drinking establishment use did not result in harm to residential amenity. These included:- 1) a closing time of 11pm; 2) details of an operational management strategy to be submitted and approved; 3) no use of the rear yard, nor spill out onto surrounding streets by customers; 4) no promoted events; 5) no music that could be heard outside the premises; and 6) restricted hours on servicing. Therefore subject to the recommended conditions, Officers considered the proposal to be in line with the aims of the development plan. The proposed uses were considered acceptable and, if approved, would bring a derelict and underused building back into commercial use, providing facilities for the city's workforce, enhancing vibrancy and improving active frontages. Officers recommended granting planning permission subject to the conditions in the Officer’s report.

 

The Town Clerk explained that there were two registered objectors to address the meeting and she invited the objectors to speak.

 

Ms Carol Hall stated that she was speaking as one of the original objectors to the planning application. She and Mr Adrian Taylor owned Flat A, Savage Gardens which adjoined the site. Ms Hall stated that whilst the removal of the nightclub use, music venue use and the restriction of the hours of operation no later than 11pm were appreciated, there were still a number of concerns which had not been addressed by this application. Ms Hall stated that she, Mr Taylor and the other 37 objectors would have appreciated it if the applicant had consulted residents in the area. She added that if they had carried out this consultation, the whole process would have been quicker, more cooperative, more constructive, and less adversarial.

 

Ms Hall stated that the applicant had the opportunity to propose a use which would have contributed positively to the amenity of the area, such as a shop or restaurant, rather than simply adding another drinking establishment and she raised concern about possible law enforcement issues.

 

Ms Hall informed Members of the recent intrusion of two revellers into 1 Pepys Street shocking residents with their attendance and causing disruption.

 

Ms Hall also stated the objectors were not looking to hold back the tides of change and with Officers recommending the application for approval, she asked that the following issues, to be outlined by Mr Adrian Taylor, be addressed by conditions.

 

Mr Taylor outlined his request for additional conditions. The first condition related to the large arched window and the door at the rear of the building. Mr Taylor asked that the window be bricked up because it looked directly into the bathroom of a neighbouring resident, could emit smells and noise. Mr Taylor stated that with the door there, if patrons entered onto his flat roof, they could fall into his bedroom as there was a glass roof there and this was right next to the side of the building. He asked that the door therefore be removed. Mr Taylor stated that these measures would go some way to restoring the privacy previously enjoyed by the residents.

 

The second requested condition related to the restriction in the operation hours. Mr Taylor asked that this be strictly enforced, so that no delivery was permitted in the early hours of the morning or late at night, as this would create noise and impact the quality of life of the residents.

 

The third requested condition related to the applicant being required to maintain the property. Mr Taylor stated there had been a long-standing issue whereby the applicant had refused to remove refuse that had built up behind a parapet. This had prevented water from draining way and had caused water ingress in his flat and damage which Mr Taylor had to pay for. He stated on that occasion he had removed the rubbish but the problem was now occurring again. He also requested that the rear of the property was not used by the applicant as a dumping area as it was currently.

 

The fourth requested condition related to the rear of the property. Mr Taylor stated that access was required to carry out repairs and maintain the air conditioning condensers as required by Network Rail who owned the freehold. Without access the legal obligation could not be met. He stated Network Rail were now involved but the applicant had requested money be paid to gain access. In addition, the applicant had refused access to undertake emergency repairs. Mr Taylor asked that there be a key safe outside the entrance from Savage Gardens into the building with waste collection services and other suppliers and the management companies given the code to access the site through the passage.

 

Mr Taylor concluded by asking that any conditions attached to the planning permission be rigorously enforced.

 

The Chairman asked if Members of the Sub-Committee had any questions of the objectors. As there were no questions, the Chairman invited the applicant to speak.

 

Mr Abraham Laker, Rapleys LLP stated he was speaking on behalf of the applicant, Arch Company. He stated that the applicant purchased approximately 5,200 arch spaces from Network Rail in 2019 as part of Project 1,000 whereby the applicant planned to invest £200 million to bring 1,000 empty and derelict spaces into use by 2030. Project 1,000 would create space for 1,000 businesses, support approximately 5,000 jobs and adding to the 25,000 people already employed in Arch businesses. The proposal would form part of this plan.

 

Mr Laker stated the applicant had worked collaboratively with Officers and considered that measures incorporated within the scheme would mitigate any material impact on neighbouring residential amenity, and this was reflected in the recommendation to grant planning permission.

 

Mr Laker outlined the overall benefits of the proposal. He stated that the proposal would seek to bring back into use vacant arches, making effective use of existing brownfield land, as supported by Section 11 of the NPPF. He also stated that the principle development had been established through the previously granted permission. Whilst this application was never fully implemented, the principles of the permission were reflected in this proposal. Mr Laker explained that this application had a different applicant. The current applicant sought to improve on the previous planning permission by mitigating any overlooking to adjoining properties using frosted glass, restricting the use of the external rear yard area for bin storage and servicing only and not for outdoor seating, smoking or for the parking of long stay bicycles. He informed Members that the applicant had also accepted noise and customer management conditions to further mitigate any impact on residential amenity.

 

Mr Laker stated that the comments received on the application mainly related to night club and music venue uses and as these had been removed, these comments were no longer relevant. He stated that the comments also requested a more positive contribution to the community for uses such as a restaurant, cafe or convenience shop. He commented that the proposed open Class E use and drinking establishment with expanded food provision encompassed the uses requested by local residents. Mr Laker stated that such proposed uses within arches were very common across the City of London, with many examples of the reuse of arches with flexible E Class uses and drinking establishments allowing smaller businesses to thrive in sustainable locations with minimal impact on the surrounding area, which was evident within the immediate surrounding area of the site.

 

The Sub-Committee was informed that existing internal layouts which remained from the partially implemented previous permission would be completely gutted to allow for a more effective and modern layout to attract a wide range of end users who would have the opportunity to provide their own bespoke fit out. He stated that the front elevations would maximise the amount of natural light to ensure efficiency with lighting the space.

 

Mr Laker stated the double glazing would meet the thermal standards required on the building regulations. He added the rear facing elevations were currently timber framed, glazed windows, boarded up with timber whilst the site was not being used. It was proposed to replace the timber frames with aluminium frames and reglaze the windows to improve the thermal and sound performance. The style would match the existing frame arrangement and the glazing would be frosted to ensure privacy to residents who overlooked the rear yard.

 

Mr Laker stated the overall shop front and elevation treatment would be in keeping with the surrounding arches and sought to improve the street scene and enhance the character and appearance of the Fenchurch Street Conservation Area. He added that there were no objections from the conservation area officer and that the proposed alterations to the rear elevation, with frosted glazing, would protect the amenity of the surrounding residential properties.

 

Members were informed that an air quality assessment had been prepared by acoustic consultants. The assessment indicated that the impacts associated with the proposed development would be insignificant. In line with the EP UK and IAQM 2017 guidance, a noise assessment was undertaken and potential construction impacts had been considered based upon the nature and scale of the proposed development. Appropriate mitigation measures had been given in relation to noise which could be controlled by appropriately worded planning conditions. Furthermore, adequately worded noise conditions had been agreed in relation to end users.

 

Mr Laker stated the site fell entirely within Flood Zone One which translated to a low probability of flooding. He stated the proposal for a change of use, with minimal external alterations to the arches should not impact the flood risk area. He also stated that the site had a PTAL score of 6b and the development would be car free apart from six long stay cycle parking spaces provided internally.

 

Mr Laker informed Members that the applicant had provided the necessary technical reports, i.e. noise impact assessments, design access statements, transport statements and air quality assessments, which had all been produced to prove a robust justification that the proposed development would not have a material impact on amenity, noise, highways and design. Where necessary, adequately worded  planning conditions had been proposed, which had been agreed in advance with the applicant. Mr Laker stated that considering this, it should be agreed that the application would revitalise the area and contribute to flexible employment floor space for a mixed end user.

 

The Chairman asked Members if they had any questions of the applicants. He stated he had a question. He commented that residents considered that there was an adversarial relationship with the applicant and asked for an explanation of the consultation and engagement that had taken place. Mr Laker stated that after the application was submitted, Officers consulted local residents, their objections were considered and a response to these objections was provided to residents. The scheme was amended to remove the nightclub and music venue uses, the plans were updated and then there was a reconsultation. He added that given the scale of the development and the fact that the proposal put in was amended to address the majority of the issues that were raised with the previous application, the applicant’s view was that this was sufficient to go through the actual planning process. The applicant considered that any additional consultation could be undertaken after that and that it was not necessary to undertake a consultation beforehand in this case.

 

A Member asked if the Sub-Committee could be assured that the applicant would be a responsible steward and ensure that a future operator showed due consideration to neighbours. Mr Laker stated the applicant had a rigorous letting process in terms of vetting their end users, end users would be made aware of the planning conditions that must be adhered to and enforcement could take place if there was a breach. The applicant ensured end users were compatible with the units and would not have a significant impact on the residential community.

 

A Member raised concern about the lack of consultation from the applicant and she suggested that the rear elevation should be boarded up and sound insulation provided to ensure there was no sound leakage from the premises. She added that prior to the applicant buying the premises, the then occupier refurbished the premises without building control and replaced the rear wall with glazing. She asked if the applicant would consider the boarding up of the rear elevation and sound insulation being conditioned. Mr Laker stated that the fit out would be for the end user to undertake. It was considered that the frosted glazing would be sufficient.  The wording of any condition on noise insulation would need to be agreed with the applicant but they would be willing to review wording and acceptability.

The Member stated that residents should be provided with the required access to the rear yard to maintain their air conditioning units and their properties going forward. The Member stated the previous use was a fish restaurant, which was a lunchtime restaurant and it usually closed by 7pm. She added the kitchen was between the restaurant and bar area and the courtyard so this acted as a noise buffer and the rear of the building was boarded up apart from the fire exit which was solid. She stated there was less than 2m between a bedroom window and the premises and asked what insulation would be provided. She raised concern that without boarding up the rear elevation and providing sound insulation, it could not be guaranteed there would be no leakage of sound. Mr Laker stated that much of the glazing had been performance assessed in terms of sound.

In response to a Member’s question about plant, Mr Laker stated there was no plant proposed as there was currently no end user. There were however conditions to mitigate noise transfer from plant installed by an end user.

 

The Chairman suggested that the Sub-Committee now move to any questions that they might have of Officers at this stage.

 

In relation to points made by the objectors, a Member asked if Officers were confident that the conditions would protect the residents or if they considered more should be added. An Officer stated that there were an extensive number of  conditions for a modest application in relation to the level of control and restrictions on the application, Many of the conditions required details of further submissions e.g.  refuse storage and collection, sound attenuation and mitigation, details on servicing times and deliveries. Members were informed that these were robust conditions and there was also a further condition in terms of an operational management plan. This would provide another opportunity for the applicant to submit detailed plans in terms of how the operator would occupy the premises and ensure there were no adverse impacts on surrounding residents. These conditions were agreed by environmental health officers who would be tasked with enforcement if necessary.

 

In response to the Chairman’s question as to whether the operational management plan was similar to that of the previous 2019 application, an Officer stated it had not yet been received as an end user had not yet been identified. However, the condition related to this was similarly robust or possibly a little more robust than the one used in 2019.

 

A Member commented that unlike with noise, which could be calculated scientifically, there was no such measurement for frosting. He asked if there was a way to ensure the level of frosting was appropriate to maintain the privacy of residents. An Officer stated that an example of the proposed frosted glazing would be submitted for Officers to examine. In response to concern about how the appropriate level would be judged, the Officer stated that there was a condition that Officers discharge details of the frosted glass but this was mainly in terms of appearance and to avoid overlooking. He suggested adding a reason to suggest that this was also to mitigate noise to ensure the frosted glass had acoustic properties.

 

In response to a Member’s concern that there was not sufficient detail in the application e.g. in relation to toilets, kitchens and air conditioning, and her suggestion that the fit out should come back to the Sub-Committee, an Officer stated that a condition could be added in relation to the submission and approval of the details of the layout and arrangement although this would largely be covered in the operational management plan. Members were informed that all discharges of conditions were generally dealt with under delegated authority by Officers. The Member raised concern about this being conditioned and not brought back to the Sub-Committee. An Officer stated that the conditions were thorough enough to be able to control the issues raised. Also, if works were required e.g. in relation to ventilation, they were likely to require planning permission so would be assessed as part of a separate planning application. The Officer added that the view of Officers was that the conditions were robust enough and they were standard conditions on a change of use application to ensure the design, appearance and the acoustic nature could be controlled. He added that the application was a detailed planning application and the number of conditions was not untypical and Members were entitled to make a decision on the application on this basis.

 

In response to a Member’s query as to whether further detail of the application would come back to the sub-committee, an Officer stated that if the applicant or end user needed to introduce plant or ductwork etc, that would require a fresh planning application. It would be consulted on in the same manner and could potentially require consideration by the sub-committee.

 

A Member raised concerns about impact on flats at 25 and 26 Savage Gardens as well as 100 flats surrounding and looking down at the courtyard. She stated there had been no noise or light issues when the premises was previously a restaurant and had the rear elevation boarded up. She raised concern that the previous owners put in windows before applying for retrospective planning consent. She asked if a condition could be added to require these windows to be boarded up to prevent leakage of noise and light and the privacy loss of residents. She also queried if the doorway would be accessible and stated that, if not, needed to be addressed before the fit out. An Officer stated that the frosted glass was to prevent overlooking. In relation to light spillage and the disturbance to amenity, he stated that the condition was sufficiently worded to enable Officers to ensure that there was not light spillage which would cause amenity issues. The acoustic glazing would be sufficient to avoid noise percolating outwards. Also, there was the condition on attenuation within the building. Officers were satisfied that these conditions would address amenity concerns.

 

The Chairman drew Members’ attention to Condition 78 which stated that audible noise was not permitted outside of the property. He asked if that gave Officers sufficient protection to determine the technical solution without Members needing to suggest technical solutions at the meeting. An Officer confirmed that it would and this was a condition that was routinely applied and enforced. There was also a plant noise condition. An Officer confirmed that Officers were satisfied the conditions in place would be sufficient to ensure there would not be noise and light leakage from the premises. There were fixed levels which would have to be met.

 

A Member stated there were alternatives to frosted glazing e.g. by having material between double glazed or triple glazed glass which would let natural light in without impacting on privacy. An Officer stated that the reason for Condition 2 could be amended to include light spillage.

 

A Member asked about the status of the rear elevation infills and asked if enforcement action could be taken to require them be returned to their original condition as this could address concerns about noise and light spillage. An Officer stated he was not aware of any subsequent planning application to approve those works, and Officers could look into the circumstances around any works that were undertaken without planning permission. An Officer also reminded Members that a scheme was granted permission in 2019 for more glazing on that elevation. He added that the current proposal was an improvement on the scheme that was previously granted by committee as the glazing had been reduced to a minimum to address issues which Members had raised. Although the 2019 consent had lapsed,

it was considered on the same planning merit and planning policy framework as the application currently being considered.

 

A Member commented that when the planning consent was granted for Savage Gardens next door, it was granted with air conditioning units and at this time, the rear elevation of the arches was completely boarded off.

 

The Member outlined the level of lighting in other premises in the arches where the rear elevations were boarded up. She raised concern that without a condition requiring the boarding up of the rear elevation, there was a risk of having to deal with problems once they had occurred and residents being impacted. The Member asked if this condition could be added. An Officer stated that this could be added if agreed by the Sub-Committee however Officers were satisfied that the conditions in place, which had been agreed by Environmental Health, would address the issue of light spillage. The Officer also did not consider that a condition was necessary in terms of a satisfactory appearance.

 

A Member asked Officers to advise on the extent to which Members were bound or should give regard to the 2019 decision. The Legal Officer stated that it was a material consideration, but the 2019 permission had not been implemented. Members could have regard to it but were not bound to it. The Member also asked if this applied to the glazing as well. The Officer stated that this was approved in 2019 and could be taken into regard as a material consideration.

 

The Legal Officer stated that the suggested condition on boarding up the rear elevation would be a lawful condition, but Members had to be satisfied that this was necessary to make the application acceptable. In planning terms, the advice that Officers had given was that in their view, they had attached conditions that should address the concerns. She added that Members could come to their own judgement on whether such a condition would be necessary.

 

A Member stated that a condition that the rear elevation be boarded back up would be necessary and relevant to protecting residential amenities with 100 flats around the courtyard. She added that the previous application was never implemented and the only prior use to that was a restaurant which had the rear elevation boarded up and a kitchen between the rear elevation and the customers area, and there were no noise issues then. Adding the condition would put the boarding back to ensure that the residential amenity was not impacted by this application.

 

An Officer suggested that Members add a condition that the glazed elements at the rear be solid rather than boarded up because there was a fire escape which had to be open. The glazing could be replaced with solid elements to address those concerns. The Officer confirmed that the drawings in the application showed obscure glazing.

 

Seeing no further questions, the Chairman asked that Members now move to debate the application.

 

The Chairman stated that whilst the application lacked some detail, he considered there were broad enough conditions in place to give both the planning and the environmental health team enough powers to make an agreement with the applicant that would satisfy concerns raised.

 

A Member stated she considered the application to be an outline application and that she considered that the detail should come back to the Sub-Committee. She stated that if the number of objections to a further planning application was high enough, this would be brought back to the sub-Committee.

 

The Member stated she welcomed the arches being used and was happy with the front elevation. She was, however, concerned about the lack of detail on servicing and layout but considered that there were strong conditions in place.

 

A Member welcomed the amalgamation of the two units as this allowed the main activity to take place on Crutched Friars and not through the door directly next to residents. The 11pm cut off time and the removal of nightclub and music venue were also welcomed. She stated that the upper floor was large and would be able to hold a substantial number of people and if it was a bar, there would be music played even if just background music or recorded music. It was therefore important to ensure that there was no sound leakage. She suggested adding a condition that the rear elevation be solid would simplify the conditions, allowing the removal of triple glazing and frosted glass conditions and would prevent issues from occurring. It would also apply to the fire exit. She added that this condition would provide assurances to residents.

 

MOTION: - A motion was put and seconded that notwithstanding the plans referred to in Condition X which was the list of plans that are submitted with the planning application, the window or opening elevations and fire exit should be wholly solid, with plans to be submitted for approval by the local Planning authority prior to commencement.

 

Officers confirmed that this would take place under delegated authority.

 

A Member stated there were technical solutions to the noise and light issue including ones which allowed natural light through without visibility. He stated that Members should specify what was required but not the solution. He stated he therefore did not support the motion.

 

A Member stated that privacy and noise concerns were both dealt with by conditions. He stated that replacing the frosted glazing with a solid wall would detract from the design quality of this scheme and that natural daylight was a valuable commodity in the city. He therefore did not support the removal of these windows.

 

A Member spoke in support of the motion. He stated that previously this elevation was bricked up and the business operated without any problems. The hardcore was removed illegally. He added that by requiring the arches to be put back as they were before, Members could be confident that the premises could operate without disturbing the residents. He stated that the arches were atmospheric, that premises in arches did not rely on natural lighting and modern lighting could be atmospheric, required little energy and was therefore more carbon friendly and he considered that the embedded carbon of reinstating the arches to what they were, would be less than other solutions such as obscure glazing.

 

A Member stated she would support the motion based on light spillage, with it being a simple solution to make a solid panel and fit out being easier without the windows.

 

The Chairman referred to a point about overengineering and stated that he considered rather than overengineering, the motion would simplify the conditions.

 

A Member stated she would not support the motion as she considered the Planning Department was responsible for the technical details.

 

Having debated the motion, the Sub-Committee proceeded to vote on the motion

that notwithstanding the plans referred to in Condition X which was the list of plans that are submitted with the planning application, the window or opening elevations and fire exit should be wholly solid, with plans to be submitted for approval by the local Planning authority prior to commencement.

 

Votes were cast as follows: IN FAVOUR – 8 votes

                                            OPPOSED – 3 votes

                                            There were no abstentions.

 

The motion was therefore carried.

 

Having debated the application, the Sub-Committee proceeded to vote on the recommendations before them.

 

           Votes were cast as follows: IN FAVOUR – 11 votes

                                                       OPPOSED – 0 votes

                                                       There were no abstentions.

 

The recommendations were therefore carried unanimously.

 

[Deborah Oliver and Deputy Henry Pollard were not present for the whole item and did not vote.]

 

RESOLVED: - That subject to the recommended conditions as set out in respect of the matters set out under the heading ‘Schedule 1’ the Planning and Development Director be authorised to issue a decision notice granting planning permission for the above proposal in accordance with the details set out in the attached schedule as amended by the addendum and motion outlined above.