c/o agent Gurmukhi Building Design Ltd The Old School House, School Road, Moseley, Birmingham, B13 9SW

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1 Committee Date: 11/06/2015 Application Number: 2015/02039/PA Accepted: 20/03/2015 Application Type: Variation of Condition Target Date: 15/05/2015 Ward: Moseley and Kings Heath 124 Billesley Lane, Moseley, Birmingham, B13 9RD Variation of Condition 5 to extend opening hours from Mondays to Saturdays and Sundays and Bank Holidays to Monday to Saturday and on Sundays and Bank Holidays and the removal of Condition 12 attached to Planning Permission 2014/07717/PA Applicant: Agent: Recommendation Refuse Mrs K Kaur c/o agent Gurmukhi Building Design Ltd The Old School House, School Road, Moseley, Birmingham, B13 9SW 1. Proposal 1.1. Planning permission was granted by your Committee in 2014 under 2014/03677/PA for the demolition of an existing single storey flat roofed outbuilding and the erection of a replacement two storey extension to the side and rear of No. 124 Billesley Lane to create a new retail unit (Retail Unit 2) at ground floor level (Use Class A1) and a one-bed flat at first floor level. The ground floor of the existing retail unit at No. 124 Billesley Lane was approved to be extended to the rear, and a new two-bed flat created above at first floor level A minor material amendment application was subsequently approved under 2014/07717/PA in February 2015 for: a) enlargement of the approved basement serving Retail Unit 2 and b) a loft conversion (including four new rooflights) at No. 124, and above Retail Unit 2, to provide a double bedroom for each of the two approved flats respectively Fourteen conditions were attached to this subsequent minor material amendment permission: the twelve attached to 2014/03677/PA, and two more to address issues arising from the amended application. The Applicant is applying under this current application to vary the following condition: Condition 5 (hours of use) The new retail unit (Retail Unit 2) shall only be open for customers between the hours of Mondays to Saturdays, and Sundays and Bank Holidays. Page 1 of 9

2 Reason: In order to define the permission and safeguard the amenities of occupiers of premises/dwellings in the vicinity in accordance with Paragraphs 3.8 and 3.10 of the Birmingham UDP 2005 and the National Planning Policy Framework. The Applicant is seeking to vary this condition to allow for Retail Unit 2 to be open to customers between the hours of Mondays to Saturdays, and Sundays and Bank Holidays i.e. three and a half hours longer in the evenings on all days of the week The Applicant also seeks removal of the following condition under this application: Condition 12 (Restricts use of basement to storage in connection with shop) Notwithstanding the provisions of the Town and Country Planning (General Permitted Development) Order 1995 (or any Order revoking or re-enacting that Order with or without modification), the basement shall only be used for storage of goods in conjunction with the approved ground floor retail use (Use Class A1) and shall be used for no other purpose. Reason: In order to prevent the use of the basement for other purposes which may be harmful to residential amenity, in accordance with Paragraphs 3.8 and 3.10 of the Birmingham UDP 2005 and the National Planning Policy Framework The Applicant recently applied to remove Conditions 6 (delivery hours), 7 (cycle storage), 8 (drainage), 9 (plant and machinery), 10 (refuse), 11 (pavement boundary) and 13 (deliveries to front of premises) attached to Planning Permission 2014/07717/PA. This application was refused on 15 th May 2015 under Planning Application 2015/02040/PA. Link to Documents 2. Site & Surroundings 2.1. The application site comprises of No. 124 and its curtilage. No. 124 is located on a corner site fronting Billesley Lane and with a single storey flat roofed outbuilding located to the side, adjacent to Southlands Road. There is a single storey garage serving No. 122 immediately adjoining the site to the rear, beyond which is the single storey flat roofed garage of No. 6 Southlands Road. No. 124 is the only commercial premises in this terraced row, all other properties in this row are residential terraced houses, including the immediately adjoining property No Southlands Road comprises entirely of residential dwellings. The surrounding area is residential in character The frontage to No. 124 is tarmaced for car parking, and a timber close boarded fence is located at back of pavement defining the site boundary to Southlands Road. There is an existing A1 convenience store located approximately 90m from the site on the corner of Billesley Lane and Blenheim Road. On the opposite corner of Billesley Lane and Southlands Road is the entrance to allotments which are adjacent to Moseley Golf Course. 3. Planning History /05871/PA - Erection of two storey and single storey side and rear extension to create extended ground floor shop and two first floor flats Withdrawn Page 2 of 9

3 /05026/PA - Extension of A1 unit, creation of A5 unit and two flats Withdrawn /03563/PA - Extension of A1 unit, creation of A5 unit and two flats Withdrawn /03514/PA - Demolition of existing stores, erection of single and two storey extensions to provide a rear enlargement to the existing Class A1 retail unit, a new Class A5 hot food takeaway unit (with roller shutters), and two self-contained flats at first floor Withdrawn August /03677/PA - Demolition of existing single storey outbuilding, erection of single and two-storey extensions to side and rear, to extend the existing retail unit and provide a new shop front, provide a new retail unit, provide security shutters to both retail units and provide two first-floor flats Approved-conditions February /07717/PA - Minor material amendment to Planning Permission 2014/03677/PA to enlarge basement of Retail Unit 2 in front of and to the rear of the building, add a loft bedroom to each flat, and install four rooflights Approved-conditions th May /02040/PA - Removal of Conditions 6 (delivery hours), 7 (cycle storage), 8 (drainage), 9 (plant and machinery), 10 (refuse), 11 (pavement boundary) and 13 (deliveries to front of premises) attached to Planning Permission 2014/07717/PA Refused (on grounds that all conditions were considered to pass the six condition tests of the NPPF) Site Location Map Street View 4. Consultation/PP Responses 4.1. Transportation Development No objection - It is not anticipated a retail use operating within these later hours would generate levels of traffic and parking demand any greater than that within approved hours Regulatory Services Understand that as a result of permitted rights the application site could become an A3 use. If the Applicant plans to change the site to become an A3 use then any Environmental Health conditions should stay attached. If the Applicant intends to keep the A1 use and not convert to A3 use the conditions may be removed Severn Trent Water No objection - Drainage condition should remain 4.4. West Midlands Fire Service No objection 4.5. West Midlands Police No response received 4.6. Local residents, Ward Councillors, M.P. and Residents Associations notified. 19 letters of objection received from local residents raising the following relevant concerns as summarised: Evening opening hours would result in undue noise and disturbance to adjoining residential occupiers Page 3 of 9

4 Extension of opening hours would increase potential of crime in area, particularly as off licence next door was frequently burgled/armed robbery Applicant clearly wants to extend business into the basement e.g. kitchen, and Condition 12 is reasonable to protect over-intensification of use A1 use does not necessitate late night opening. Clearly the Applicant seeks a change of use, perhaps to that of a fast food outlet which they have been attempting to do for many years Query use of basement if not storage for the permitted A1 business Would generate increase in traffic and be difficult for residents to park Threshers off licence closed at 10pm and the current One Stop shop closes at 10pm Would attract loitering and anti-social behaviour Increased chance of attracting vermin Litter problems Councillor Spencer Objects - The extended opening hours proposed are not justified in the largely residential context. Matching the opening hours of the One Stop opposite would be an appropriate compromise in this case (closing at 10pm most days), but the hours proposed are in excess of this. Moseley Society Object The reason for the hours of use condition was to safeguard the amenities of residents. There is nothing in the present application that provides for the safeguarding of the amenities of residents if the condition were to be varied to allow for extended opening hours. As this is an overwhelmingly residential area, we believe the rights of the residents must be respected. There is no indication in the plans as to the anticipated new use of the basement if not for storage, and we therefore can only assume that the use runs the risk of compromising the amenities of residents. 5. Policy Context 5.1. The following local policies are applicable: Birmingham UDP Draft Birmingham Development Plan Places for All SPG Shopping and Local Centres SPD Car Parking Guidelines SPD Moseley SPD 5.2. The following national policies are applicable: National Planning Policy Framework (NPPF) 6. Planning Considerations Background 6.1. Paragraph 206 of the National Planning Policy Framework states that Planning conditions should only be imposed where they are necessary, relevant to planning and to the development to be permitted, enforceable, precise, and reasonable in all other respects. I shall discuss the two conditions sought for variation and removal, within the context of the above six tests for conditions. Page 4 of 9

5 Condition 5 (opening hours) 6.2. An opening hours condition was originally attached to Planning Permission 2014/03677/PA (Condition 4) which restricted opening hours to between 8am-8pm Mondays to Saturdays and 8am-7pm Sundays/Bank Holidays. At the time this condition was not queried, or challenged by, the Applicant and it was re-applied to the subsequent Planning Permission 2014/07717/PA. The reason the condition was attached to both consents was in order to protect the amenity of adjoining residential occupiers, and future occupiers of the first floor flats, during early mornings and particularly during late evenings from undue noise and disturbance that would likely occur as a result of customers coming and going to/from the premises against background noise levels which would generally be lower at these times in this otherwise quiet residential neighbourhood. A great deal of consideration was given to opening hours when dealing with this previous application. It was considered that allowing opening until 8pm six days of the week would strike a balance between what might be the reasonable and likely business needs of an A1 retail operator and the amenities of local residents. I note the Applicant has put forward no specific business case as to why an A1 retail operator would require opening hours until 11.30pm on weekdays and 10.30pm on Sundays/Bank Holidays The Applicant has stated that applying such an hours restriction is neither necessary or reasonable in respect of the six condition tests set out in the NPPF because they state that among other things the existing retail unit, which has no opening hours restrictions, is located much closer to the nearest dwelling (No. 122 Billesley Lane). Whilst I concur that No. 122 is the nearest house to the application premises, Retail Unit 2 would nonetheless be located closer to other residential properties along Southlands Road than is currently the situation, and equally close to any first floor residential occupiers of the approved flats above the two retail units. The potential cumulative impact, in terms of noise and disturbance to residents, of both retail units being able to open until late at night must also be taken into account The Applicant states that there have been no complaints of noise or anti-social behaviour relating to the existing retail unit premises at No However, this is explained by the fact that the premises have been vacant for at least four years according to local residents The Applicant states that the One Stop retail shop located on the corner of Billesley Lane and Blenheim Road has opening hours of 6am-11pm Monday to Saturday and 7am-10.30pm on Sundays. However, this is incorrect. The premises are only open until 10pm daily as noted by local residents and confirmed by way of a site visit. Therefore One Stop closes an hour and half earlier six days a week than what is being proposed at the application premises and so clearly opening hours at the two premises are not comparable. Also noted by way of site visit the other nearest shop Greenhill Art (on the corner of Greenhill Road) is open until 6pm/7pm three days a week so again is not relevant to the Applicant s case for extended evening opening hours. The nearby petrol station on Billesley Lane (which also has a small retail kiosk) is also only open until 6pm on weekdays. Local residents have noted, despite the Applicant s claims, that the existing retail unit at No. 124 when in use as an off licence did not stay open after 10pm. Therefore I am satisfied that there are no precedents set by late evening opening hours in the vicinity of the site The Applicant already has an A1 retail unit at No. 124 with no opening hours restrictions, but they state they have been unable to lease this to any interested party. It is not clear, therefore, why late hours are sought at the extra retail unit Page 5 of 9

6 consented for construction. I note the history of applications for takeaway use at the site. In the absence of any more illuminating information from the Applicant, I question whether there really exists a market for such late night opening of a retail unit in this location, given One Stop is located so close by and shuts at 10pm. In any event, though, I will judge the application on its own merits concerning hours and amenity I consider that late evening opening would unduly adversely affect the amenity of nearby residential occupiers through noise and disturbance in an otherwise quiet residential area. A site visit made to One-Stop one mid-week evening at 8pm revealed that there were cars passing up and down Billesley Lane intermittently. Of these, a number visited the shop and there was a reasonably steady turnover of customers, mostly arriving by car. These caused noise above and beyond the passing cars by parking on the road or large forecourt, doors slamming, talking into mobile, etc. This situation would also likely occur at the application premises if Condition 5 were varied to allow extended evening opening hours Under Class C of the GPDO 2015, permitted development rights allow for the change of use of a building from a retail shop (Use Class A1) to a café/restaurant (Use Class A3) unless the cumulative floorspace of the building exceeds 150sqm or the development would result in more than 150sqm of floorspace in the building having changed use under the provision. The retail area and basement area when taken together would result in approximately 190sqm of floorspace, and so would not benefit from permitted development rights. The Applicant could decide not to implement the basement and would therefore benefit from permitted development rights, subject to having to submit a prior approval application whereby such factors as (a) noise impacts of the development, (b) odour impacts of the development, (c) impacts of storage and handling of waste in relation to the development, (d) impacts of the hours of opening of the development, (e) transport and highways impacts of the development, (f) impact on the vitality and viability of local shopping functions and g) the siting, design or external appearance of the facilities to be provided, would be assessed by the Council. Therefore, were the Applicant to implement the consent and open a shop, I am satisfied that she could not then go on to convert the premises to A3 use under permitted development rights without an assessment as set out above of its impacts on residential amenity being considered I note the concerns of local residents in respect of extended opening hours resulting in increased traffic and parking congestion at the site. However, Transportation Development have raised no objection to the proposal and I concur that it is not anticipated a retail use operating within these later hours would generate levels of traffic and parking demand any greater than that within approved hours I note the concerns of local residents in respect of increased anti-social behaviour, crime and litter occurring as a result of the proposed extended opening hours. However, despite no comments being received from West Midlands Police, I consider extended opening hours to an A1 retail use would be unlikely to result in a material increase in crime or anti-social behaviour in this locality. Similarly I do not consider a material increase in litter would likely result from proposed extended opening hours. Condition 12 (basement restricted to storage) A condition restricting the use of the basement of Retail Unit 2 to storage in connection with the ground floor retail use was attached to Planning Permission 2014/07717/PA in order to prevent the use of the basement for other purposes Page 6 of 9

7 which may harm residential amenity. Despite repeatedly querying the cost and purpose of erecting such a large basement (which extends not just underneath the building footprint of Retail Unit 2 but in front of the forecourt and underneath the whole of the rear garden) when dealing with Planning Application 2014/07717/PA the Applicant has not provided a clear reason why such a large amount of storage space would be required in order to serve a retail unit. Hence I consider the condition was applied reasonably to deal with any future eventualities or changes to permitted development rights whereby the building or basement could change to a use (or separate planning unit) which may harm the amenity of local residents e.g. if the basement became a kitchen for a café/restaurant, was leased separately for storage purposes, or was converted to living accommodation Furthermore the Applicant considers that this condition would fail the test of necessity because it was not originally applied to Planning Permission 2014/03677/PA which also proposed a basement underneath Retail Unit 2. However, the basement approved under 2014/07717/PA was somewhat larger than that approved under the original application, and it was considered a threshold size had been crossed whereby the basement was unusually and exceptionally large for such a small retail shop, and hence why the condition was considered necessary to prevent it being used for other purposes. I remain perplexed that the Applicant applied for basement storage space for the retail unit, but then objects to a condition which simply confirms that retail storage use. 7. Conclusion 7.1. The Applicant has not provided any specific justification as to why Condition 5 and Condition 12 attached to Planning Permission 2014/07717/PA are sought for variation and removal respectively (i.e. because of specific operator needs), other than references to these adding additional costs and burden to the Applicant. I consider these conditions pass the relevant six tests of the National Planning Policy Framework. I consider the variation of Condition 5 (opening hours) and removal of Condition 12 (storage for basement only) would harm the amenity of adjoining residential occupiers and future occupiers of the approved flats through noise and disturbance. Therefore I consider that the proposal would not constitute sustainable development and I recommend that this application be refused. 8. Recommendation 8.1. Refuse Reason for Refusal 1 The variation of Condition 5 and removal of Condition 12 would adversely affect the amenities of occupiers of dwellings/premises in the vicinity, and future occupiers of the approved first floor flats at the application premises, by reason of late evening noise and general disturbance. As such the proposal would be contrary to Paragraphs 3.8 and 3.10 of the Birmingham UDP 2005 and the National Planning Policy Framework. Case Officer: Andrew Conroy Page 7 of 9

8 Photo(s) Figure 1 Front elevation of No. 124 Billesley Lane, taken from corner of Billesley Lane and Southlands Road Page 8 of 9

9 15 11 Location Plan a WESTLANDS ROA m TCB m 3 SOUTHLANDS ROAD 27 This map is reproduced from the Ordnance Survey Material with the permission of Ordnance Survey on behalf of the Controller of Her Majesty's Stationery Office Crown Copyright. Unauthorised reproduction infringes Crown Copyright and may lead to prosecution or civil proceedings. Birmingham City Council. Licence No , 2010 Page 9 of 9