Committee Date: 31/10/2013 Application Number: 2013/06893/PA Accepted: 11/09/2013 Application Type: Proposed Lawful Target Date: 06/11/2013

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1 Committee Date: 31/10/2013 Application Number: 2013/06893/PA Accepted: 11/09/2013 Application Type: Proposed Lawful Target Date: 06/11/2013 Development Ward: Ladywood John Bright Street, Birmingham, B1 1BL Application for Certificate of Lawfulness for a proposed use comprising a public house (Use Class A4) on the lower two floors and a nightclub (Sui Generis) on the upper two floors and shared basement cellar Applicant: Agent: Birmingham Properties Group c/o Agent PJ Planning 5 St Paul's Terrace, 82 Northwood Street, Birmingham, B3 1TH Recommendation Section 191 / 192 Permission Not Required 1. Proposal 1.1. This application is for a Certificate of Lawfulness for a Proposed Use comprising a public house (Use Class A4) on the lower two floors, a nightclub (Sui Generis) on the upper two floors and a shared basement cellar. An application for a Certificate of Lawfulness differs from an application for planning permission in that what is being sought from the City Council is a certificate to confirm that use of the premises as described is a lawful planning use. In support the applicant has set out the planning history and provided anecdotal evidence from community online resources such as the Birmingham Roundabout a website focussing on the history, culture and development of Birmingham the from the Victorian era to the present-day. Below is a summary of the evidence provided In 1971 planning consent was granted for change of use to a restaurant and licensed club. Upon implementing this consent the night club became known as Rebecca s. The nightclub comprised the first to third floors and was accessed off Lower Severn Street, whilst the restaurant was accessed off John Bright Street. Also in 1971 two planning consents were granted for use of the second floor as offices leaving the first and third floors as the nightclub. The applicant has no evidence whether these two applications were implemented but considers that subsequent applications suggest they were and show that the change of use to a restaurant and licensed club was implemented In 1982 planning permission was granted for the change of use to a public house. Based upon applications submitted subsequent to this and the fact that no distinction of floor was made, the applicant believes this application related to all floors of the building. The applicant considers that this application was implemented based upon the submission of subsequent applications 7929/010 and 7929/011. Page 1 of 10

2 1.4. In 1984 planning and listed building consents were granted to extend and alter the second and third floors to create a nightclub. This returned the nightclub use to the two top floors that were lost with the implementation of the 1982 application. According to the applicant the use of the lower two floors remained as a public house. This generally corresponds to the anecdotal evidence in the Birmingham Roundabout which states that:- The bar element comprising Number 7 s occupied the bottom two floors of the building and was located at the frontage to John Bright Street with the entrance on the corner of that and Lower Severn Street..The Number 8 s nightclub - also occupying two floors was accessed via an entrance on Lower Severn Street at its corner with Beak Street In 1990 planning and listed building consents were granted to alter the interior layout of the building to create a void to front area. Also in 1990 listed building and advertisement consents were granted to facilitate the change of name of the premises from Edwards Bar to Bizzy Lizzies. Anecdotal evidence suggests that this was implemented, with the Birmingham Roundabout noting that:..ansell s Leisure bought the premises from Mr Fewtrell in 1989 and rather ruined what had been a successful club (Edwards No8). They also changed No 7 s from two floors to one and renamed it Bizzy Lizzies 1.6. In 1993 listed building consent was granted for decoration of the nightclub and external signage. Although the applicant has not been able to confirm whether or not this application was implemented, they believe that this application together with the 1990 applications, make a clear distinction between the public house and the nightclub In 2006, the building was badly damaged by fire. Following this planning and listed building consents were granted in 2007 to rebuild the premises. This consent has been implemented and the shell of the building has been reconstructed In 2011 planning consent was granted for change of use to offices (Use Class B1(a)) or non-residential institution, not including places of worship (Use Class D1). However, the applicant has confirmed that this consent has not been implemented and the premises have not been occupied since they were reconstructed following the 2006 fire. 2. Site & Surroundings 2.1. The application site is situated within Birmingham City Centre, on the corner of John Bright Street and Lower Severn Street. It lies between New Street Station to the east and the Mailbox to the west In the 1970s through to the early 1990s John Bright Street was one of the main social areas of Birmingham, with a variety of bars and clubs. In the late 80s and early 90s, the street s status as a social hub fell into decline, with venues opening along Broad Street. Over the last decade the area has been transformed with several residential schemes including the Orion, Westside and Sirius developments The building itself was grade II listed in 1981 (amended in 1982) for its architectural quality. Designed by Marcus O Type and built circa 1900, the building is three storeys plus an attic and is built in brick with yellow terracotta. It is noted as the Page 2 of 10

3 earliest surviving motor showroom in Birmingham. In the 1970s the premises changed use to a restaurant and licensed club The building was badly damaged by fire in November 2006 and was subsequently restored. It has been vacant ever since. Location Plan Street View 3. Planning History (post 1971) February 1971 Application 7929/003. Planning permission granted for change of use to a restaurant and licensed club December 1971 Application 7929/004. Planning permission granted for use of the second floor as offices June 1972 Application 7929/005. Planning permission granted for office accommodation on part of the second floor December 1981 Applications 7929/007, 7929/008 and A Planning, listed building and advertisement consents granted for erection of a canopy and 8 flag poles November 1982 Application 7929/009. Planning permission granted for change of use to a public house July 1984 Application 07292/010. Listed building consent granted for alterations to the second the third floors including demolition of part of the building July 1984 Application 07929/011. Planning Permission granted for extensions and alteration to second and third floors to form a nightclub September 1985 Applications 7929/012 and 7929/013. Planning and listed building consent granted for alterations to form extensions to existing licensed premises known as Edwards No7 at 75 John Bright Street June 1990 Application 1990/00965/PA. Planning consent granted for alteration to elevations at Edwards Bar John Bright Street June Listed Building Application 1990/02039/PA. Listed building consent granted for alteration to elevations, internal alterations including creation of void to front area at Edwards Bar John Bright Street November 1990 Applications 1990/04297/PA and 1990/04302/PA. Advertisement and listed building consents granted for repainting panels between first and ground floor and repainting existing hanging sign at Bizzy Lizzy s (formerly Edwards Bar) at John Bright Street / Lower Severn Street September Applications 1993/00547/PA and 1993/00820/PA. Advertisement and listed building consent granted for display of signboard at fascia level over entrance doors at Edwards No8 Nightclub. Page 3 of 10

4 June Applications 2007/01239/PA and 2007/01240/PA Listed building and planning consents granted for reinstatement of upper floors and roof following major fire June Application 2011/01971/PA. Planning consent granted for change of use to offices (Use Class B1(a)) or non-residential institution, not including places of worship (Use Class D1) April Application 2012/01034/PA. Planning consent granted for installation of 11 roof lights to existing flat roof April Application 2012/01252/PA. Listed building consent granted for installation of 11 roof lights to existing flat roof. 4. Consultation/PP Responses 4.1. Adjoining residents, residents associations and local ward councillors notified Site and press notices displayed A letter has been received from the Sirius Management Company Ltd commenting that The potential implications of approving a nightclub in this area are serious for the residents. Edwards Number 8 nightclub was indeed a Birmingham legend in its heyday. This was established in the era when the area bounded by Lower Severn Street, John Bright Street, Beak Street, Suffolk Street Queensway, served as the premier entertainment area of Birmingham city centre in the 1990s.This status declined as the entertainment hub of the city transferred to Broad Street and Southside. Despite this, Edwards Number 8 continued to thrive in the area then devoid of any residential buildings. The watershed moment for the area came in 2001, when the office block formerly known as Elizabeth House was transformed into Westside One. At that time the noise level from the nightclub was unbearable. Through the Westside Residents Association much was achieved through the intervention of the Council - the outdoor speakers at the nightclub entrance were taken down, the entrance doors had to stay shut to keep music in and the side and back doors were relocated from Beak Street to John Bright Street. Nevertheless, the nightclub crowd would linger on Beak Street and Lower Severn Street through the night. Residents had to endure sleepless nights as a result of this. On November 12th 2006, the nightclub was destroyed in a fire. The Westside Residents Association worked with the City Council to ensure that the rebuilt venue could not function as a nightclub due to the close proximity to the residential block and should be designated for office or retail use. The rebuilt structure reflects this purpose with massive windows all around the building. The area took on major transformational projects from that point onwards. West 2 apartment complex was completed in The Orion Building was completed in 4 phases from 2004 through Together the 4 developments total in excess of 700 residential apartments. The surrounding area was also transformed into beautiful tree-lined streets with joint efforts by the developers. The residential area is now hugely popular and is set to thrive even more from the adjacent New Street Station and John Lewis Partnership development. Page 4 of 10

5 If granted, there will be much noise generated as a result of music and individuals or groups of individuals lingering in the area before, during and after closing hours and queuing. The narrow alley of Beak Street would be perfect spot to hang about long after closing times as evidenced by the Edwards Number 8 days and the Club management will have no control over the crowd on the street In addition 98 letters from local residents / owners of nearby apartments have been received objecting to the proposal on the following grounds:- Planning History whilst the building was used for a public house and a nightclub in the past, prior to them being rendered unusable by fire, there is nothing to suggest that consent for these uses was ever granted; the premises have been vacant for a considerable period of time and the public house and night club uses have been abandoned. Location since this property was fire damaged there has been significant residential development in the local area. In particular, there are residential premises very close by with windows overlooking the proposed nightclub; the proposal would have an adverse impact on the local community and would force residents out of the area; there are better places for a nightclub away from residential properties, such as Broad Street; there has been a lot of investment in the area which is up and coming for people to live in and the proposed nightclub would not help the further regeneration of the area; there are fabulous and inviting places such as Bar Brew Dog, Cherry Reds and The Victoria nearby and a nightclub does not fit in with the style of the area. Cumulative Impact there are already several pubs nearby and no need for a nightclub; with the opening of the Bar Brew Dog and Cherry Reds, there is already considerably more noise in the street until late hours and another pub / nightclub would attract more people and make the situation worse. Noise and Disturbance Nuisance the noise generated outside the building would have a severe impact on residents sleep and quality of life. Compared to the surrounding establishments, this night club would have longer opening hours and therefore extend the noise through the night. The noise would not even be limited to the hours the club is open, with people staying around the area and the comings and goings of taxis' before and after closing. The management of the club would have no control over this noise; In addition there would be noise from music inside the building which is not a purpose built night club. After being fire damaged the building was rebuilt for office use with large glass windows that are unlikely to insulate against music noise from the proposed nightclub. Noise from extractor fans would also be a nuisance. Crime and Anti Social Behaviour Page 5 of 10

6 the area is already monitored for crime and anti-social behaviour and another pub/nightclub would make the situation worse; the proposal would lead to more people in the area with increased alcohol related crime and anti social behaviour; the proposal would lead to increased litter and rubbish in the area Parking and Highway Issues since Bar Brew Dog and Cherry Reds opened, access to the Orion Building car park has been restricted, with numerous cars parked along John Bright Street and in the turning area by the entrance to the Orion Car Park. If a nightclub were to open here, there would be a significant increase in traffic from taxi's dropping people off, further hindering access to the Orion building; roads in the area are very dangerous as revellers stagger in front of passing cars, this is only with 2 bars currently open and a nightclub would make the situation worse. Property Values the proposal would reduce the capital value and rental income of nearby properties making them more difficult to rent and sell properties 5. Policy Context 5.1. Not applicable. 6. Planning Considerations 6.1 There is clearly a vast amount of opposition from local residents to a pub/nightclub use. However, paragraph 8.15 of Circular 10/97 states that "neither the identity of the applicant nor the planning merits of the operation, use or activity, are relevant to the consideration of the purely legal issues which are involved in determining an application". As such, the fact that local residents do not want a pub/nightclub to operate from the premises is not something which the Council can take into account in determining the current application. Rather the basis for determination of any application for a Certificate of Lawfulness is purely evidential and the three key considerations are set out in Circular 10/97 at Annex 8:- The onus is on the applicant to show that the use is lawful (paragraph 8.12); The test is balance of probability, not the more onerous criminal burden beyond reasonable doubt (paragraph 8.15); If the local planning authority does not have evidence to make what the applicant claims less than probable, then the applicant is entitled to the Certificate. 6.2 BCC Legal Services have reviewed the application, which consists of the application form, location plan, supporting statement and supplementary anecdotal evidence. They have also carried out the necessary legal research. The application form states that the premises were badly damaged by fire in November 2006 and were subsequently restored. It goes on to state that the premises have since remained vacant and although planning consent was granted pursuant to 2011/01971/PA for an office / non residential institutional use, this consent was not implemented. 6.3 The relevant test in considering an application for a lawful development certificate is "on the balance of probability". Having reviewed the application, BCC Legal Services Page 6 of 10

7 agree with the agent that, on the balance of probability, the planning applications which form the basis for the alleged uses are: ground floors: planning application 7929/009 granted in 1982 for change of use to a public house; and upper floors: planning application 7929/011 granted in 1984 for extensions and alterations to second and third floors to form a nightclub 6.4 BCC Legal Services add that they have seen nothing to show that the premises were used for any purpose other than the lawful uses until the fire in Following the fire, the application form states that the building was subsequently reconstructed pursuant to application numbers 2007/01240/PA and 2007/01239/PA and no change of use was sought at this point in time. In particular, the Design and Access Statement submitted in support of the planning application states that the use of the building is as a "public house & nightclub (as existing) and that the layout is "as existing". The Council never challenged this assertion. The accompanying delegated reports state that parts of the premises were badly damaged by the fire which required exterior and interior works as well as works to ensure the structural stability of the building. There is nothing on the planning file regarding the use of the premises; the focus was entirely on the physical re-building of the premises. 6.5 Although in 2011, planning consent was granted for change of use of the premises to an office or a non-residential institution (not including a place of worship), there is no evidence to suggest that this consent has been implemented. 6.6 I note comments from local residents; in particular that the rebuilt structure reflects an office use with large windows all around the building and when the current building was rebuilt in 2011 it was designated for retail or office use. It is also alleged that the Westside Residents Association worked with the Council to ensure that the rebuilt venue could not function as a nightclub due to the close proximity to a residential block. However, the information supplied does not entirely support this comment. Instead, some of the evidence actually seems to support the applicant's stance. Some of the evidence relates to the residents' involvement with the relocation of one of the entrances to the refurbished premises to minimise the impact on residents. Of particular note are the following: the from Westside One Residents Association to Stuart Clark dated 20 June 2007 specifically states that "no recent planning permission application has been submitted to Birmingham City Council Planning Control for change of use, the building will remain as some form of nightclub, hostelry or entertain premises" the letter from former Director of Planning, Clive Dutton to Councillor Kath Hartley dated 2 October 2007 states that "City Centre Management has been in discussion with David Payne Development Manager at the Birmingham Property Group (BPG), owners of the premises in question BPG advise that they have an existing [lease] for the premises with twenty years left on the lease and they are in the process of returning the premises to a pub/club The company state that they have met with Westside One residents' representatives who appeared to be satisfied with their plans for the building. BPG acknowledged the residents had stated in the meeting that they would prefer to see the site developed for residential purposes but they had made it clear that this was not possible at this time. Page 7 of 10

8 7. Conclusion Jim Kelly from City Centre Management has communicated in the strongest terms possible the concerns of local residents and the importance of maintaining the Upper Severn Street doors as a fire escape only, so as to minimise the noise and anti-social behaviour. BPG appeared to be sympathetic to the concerns of residents " 7.1 Having reviewed all of the evidence submitted BCC Legal Services are of the view that there is nothing to show that the lawful use of the premises has changed from that permitted by the planning consents. Indeed, the City Council has accepted that the use rights remained after the fire as no change of use application was sought. Additionally, the objectors have not provided any information to show that the lawful use of the premises has changed and some of their evidence seems to actually support the current application. 7.2 Bearing in mind that the legal test for whether to grant a Lawful Development Certificate is "on the balance of probabilities" BCC Legal Services conclude from the evidence available that the Council should grant a certificate for the proposed uses, namely a public house (Use Class A4) on the lower two ground floors, a nightclub (sui generis) on the upper two floors and a shared basement cellar, as these uses are lawful by virtue of them having planning permission. 7.3 Issues that residents have raised n relation to amenity problems that may arise from the night club are outside the scope of this application. Any nightclub or pub operator would still require a license and residents would have an opportunity to raise their concerns through that process. 8. Recommendation 8.1. That a Certificate of Lawful Development for the proposed use be issued. Case Officer: David Wells Page 8 of 10

9 Photo(s) Figure 1 View from corner of John Bright Street and Lower Severn Street Figure 2 Second Floor Page 9 of 10

10 Location Plan 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 10 of 10