Appeal 3268541

The appeal is allowed and planning permission is granted for a change of use of ground floor from bank (Class A2) to amusement arcade (adult gaming centre) ([name]) at [site address] , Middleton [postcode] in accordance with the terms of the application, Ref 20/00786/FUL, dated 6 July 2020, subject to the following conditions:

The development hereby permitted shall begin not later than 3 years from the date of this decision.

The development hereby permitted shall be carried out in accordance with the following approved plans: • Location Plan (received by the Local Planning Authority on 07/07/2020); • RE/MID/20/01 – [name] – Proposed Plan, [name] 2020; and, • RE/MID/20/02 – [name] – Existing Plan, [name] 2020.

The use hereby permitted shall not be carried out outside the following times: 0900 to 2100 hours Mondays to Sundays, Bank and Public Holidays.

No amplified sound or other music (including from gaming machines, public address systems, loudspeakers etc) which is audible at the site boundary shall be played in the premises at any time.

The premises shall be used for the playing of amusement with prize machines, ancillary retail sales and ancillary food and drink sales only. No games of a sessional nature shall be played nor shall shooting galleries be installed on the premises.

The Town and Country Planning ([name]) (Amendment) (England) Regulations 2020 (“the UCO Amendment Regulations”), amending the Town and Country Planning ([name]) Order 1987 (“the UCO”), came into force on 1 September 2020. This introduced a new Commercial, Business and Service Use Class E which, as the [name] to the UCO Amendment Regulations notes, is intended to better reflect the diversity of uses found on high streets and in town centres, to provide flexibility for businesses to adapt and diversify to meet changing demands, and to support the viability of these areas now and in the future.

Paragraph 4 of the UCO Amendment Regulations requires that applications submitted before 1 September 2020 must be determined with reference to the UCO as it stood on 31 August 2020. The planning application was submitted in July 2020 and, while I have therefore taken the UCO Amendment Regulations into account, the appeal still falls to be considered as a change from Use Class A2 as originally applied for. Both parties’ appeal submissions addressed the UCO Amendment Regulations, and I have considered the implications in my reasoning below.

A signed and dated [name] (“UU”), dated 17 March 2021, was submitted by the appellant during the course of the appeal. Again, the implications of this are addressed in my reasoning.

The main issue is the effect of the proposed change of use on the vitality and viability of Middleton Town Centre.

The appeal site is the ground floor unit of a three-storey building within Middleton Town Centre. The unit is currently vacant, but it was most recently used as a bank within Use Class A2 and occupied by [name] until the branch was closed during 2019. The appellant is seeking permission for a change of use, to use the appeal site as an adult gaming centre.

The Primary Shopping Area within Middleton is the [name], a multi-level covered centre including a variety of national retail chains and local independent shops a short way west of the appeal site. [address] is an attractive landscaped pedestrianised area forming a substantial part of the Town Centre’s Secondary Shopping Area (“SSA”), which also includes premises on [address] and [address] to the north east. There is a large [name] store, with extensive areas of surface car parking, to the east of [address]. At the time of my site some Covid-19 lockdown restrictions were still in place and, perhaps as a result, the Town Centre appeared quiet, although [address] was set out with a small number of market and food stalls and was a little busier than other areas. I also saw a considerable number of vacant commercial units in all parts of the Town Centre.

Policy E1 of the 2016 [name] (“the RCS”) is essentially strategic in nature, and seeks to focus retail, leisure, cultural, office, residential and other development to promote the viability and vitality of all the borough's town centres to maintain them as thriving and sustainable centres and the preferred shopping and leisure destinations for people living, working and visiting the borough. It addresses some matters of detail, seeking to ensure the retention of a “high proportion of A1 retail uses” in SSAs while accommodating (“where appropriate”) a wider range of other retail and town centre uses, and requiring vacant retail units to be marketed for at least 6 months before a change to another use will be supported.

Saved Policy S/4 of the 2006 Rochdale Unitary Development Plan (“the UDP”) seeks to protect the retail role of SSAs by only allowing the development of, or change of use to, shops, food and drink outlets and financial and professional services in ground floor, street-facing units in such areas.

The Council is of the view that some non-retail uses would complement the shopping role of the Town Centre, but does not consider an adult gaming centre to be among them. In this regard it has referred to the list of “main town centre uses” set out in Annex 2 of the National Planning Policy Framework (“the Framework”). However, I am not aware that the list in the Framework is intended to be exhaustive, and if it were either “leisure” or “entertainment” could arguably include adult gaming centres anyway. The Council also considers that the proposal would result in the net loss of a main town centre use, and that the proposed change of use would not lead to a direct benefit to the Town Centre in regard to its vitality or viability.

The effect of the UCO Amendment Regulations is that a unit formerly within an A2 use class now falls within Class E, and a change to another Class E use would not be an act of development requiring planning permission. While the amendments to the UCO would not permit the change of use sought by the appellant – amusement arcades remain sui generis – they would allow the appeal site to be used for a variety of other uses such as offices, health or medical services, or a nursery.

It seems to me that an adult gaming centre would be likely to create more footfall, through more of a typical day, than many Class E uses to which the premises could be put. I also consider that there would be no less potential for linked trips to Town Centre shops, pubs and other businesses arising from the proposed use than would be the case for some other possible Class E uses. The development would therefore be likely to make a modest contribution to the functioning of the Town Centre as a whole. It would also lead to a unit which has been vacant for around two years being brought back into productive use.

The appellant currently operates an adult gaming centre at [address], a short way south of the appeal site, and states that if permission to operate from the appeal site were to be granted they would relocate operations from, and cease trading at, their existing site. They have referred to having recently submitted a planning application for the change of use of [address] to Class E, and although it is not necessary for me to consider the merits or likely outcome of that application, if another use (and user) can be found for their existing site then there would be a reduction in the number of vacant units in the Town Centre. If not, and the existing unit remains vacant, then the net position would remain (to all practical purposes, if not strictly in planning terms) unchanged.

Taking these points together, I consider that the proposal would form part of a suitable mix of uses which would be complementary to the Town Centre’s retail role, and the vitality and viability of the centre would not be undermined.

I have no substantive evidence of the duration or form of the marketing of the appeal site carried out after [name] established that it was surplus to their needs. Clearly the appellant has not carried out marketing themselves, as they wish to occupy and operate from the premises. While there is therefore no evidence before me that this requirement of Policy E1 has been complied with, it has been somewhat overtaken by the UCO Amendment Regulations. Again, while the establishment of an adult amusement centre would not be a change of use permitted by the UCO, there is now the potential for a former A2 or A1 unit to be put to a whole range of other uses without requiring planning permission, many of which might make a very limited contribution to the vitality or viability of the Town Centre. The marketing requirement in this regard is therefore, at least as currently set out in the development plan, somewhat redundant in my view.

The UU which the appellant has submitted must meet the tests in Regulation 122 of the CIL Regulations1 in order for it to be taken into account in my determination of this appeal. These tests are that the obligation is necessary to make the development acceptable in planning terms; directly related to the development; and, fairly and reasonably related in scale and kind to the development. These tests are also identical to those set out in paragraph 204 of the Framework.

The submitted UU is intended to formalise the appellant’s commitment in respect of [address], and commits the appellant to ceasing the use of those premises at as an adult gaming centre, subject to the grant of planning permission for the appeal site, from such time as the use of [site address] for that purpose begins. The lawful use of the existing premises would remain an adult gaming centre in the absence of any other permitted change of use, but the UU also commits the appellant to not using the two premises for that purpose simultaneously.

The Council has raised several concerns with the detail of the submitted UU, in respect of whether it is properly drafted and enforceable, and whether or not it would do what it is intended to do. However, I consider there is a more fundamental issue to be addressed, and that is whether the UU is necessary to make the development acceptable in planning terms. Although the Council’s officer report indicates that it objects to the proposed development “in principle”, this is because of the harm which it considers would arise from the introduction of additional non-retail premises into the Town Centre. For the reasons set out in paragraphs 11 to 14 above, I do not consider that the establishment of another non-retail unit would in itself be materially harmful to the vitality and viability of the Town Centre.

As well as the appellant’s existing premises, there is at present one other adult gaming centre within Middleton Town Centre. The proposal would therefore lead to there being three premises within the Town Centre where such a use would, at least in planning terms, be permitted. I acknowledge that concerns often arise about the impacts of an over-concentration, or perceived over-concentration, of gambling premises. However, while one interested party objected that the proposal would lead to Middleton becoming “the [name] of Rochdale Borough” no substantive evidence was provided to support this assertion. The Council did not suggest that further specific harm would arise 1 The Community Infrastructure Levy Regulations 2010 (as amended) from the use of the appeal site as an adult gaming centre, beyond its non-retail use. Were the situation to arise where, for whatever reason, the appellant or another party sought to use a third premises as an adult gaming centre, this would also be subject to the licencing requirements of the Gambling Act 2007. None of the evidence before me suggests that the proposal would result in harm in this respect which would justify refusing planning permission, or which makes the submitted UU necessary.

I therefore consider on the basis of the evidence before me that the UU is not necessary to make the development acceptable in planning terms. Having regard to Regulation 122, I am therefore unable to take it into account in reaching my decision.

The proposal would lead to conflict with Saved Policy S/4 of the UDP, which seeks to limit the development of non-retail uses within SSAs. There would also be a limited conflict with the requirements of Policy E1 of the RCS, insomuch as it requires the provision of substantive marketing evidence. However, the UCO Amendment Regulations mean that a wide range of non-retail uses could be introduced to the appeal site without planning permission. In this light, their restrictive provisions relating to changes of use mean that these policies are out-of-date for the purposes of determining this appeal, and as a consequence conflict with them carries limited weight.

While the specific proposal would not be permitted by the UCO Amendment Regulations, it would provide some benefits in respect of footfall, diversity of uses, and bringing vacant premises back into use. I consider that these benefits outweigh the conflict with the development plan, and on balance the proposal would not be harmful to the vitality and viability of Middleton Town Centre. I also find that there would be no conflict with national planning policy as set out in paragraphs 85 to 90 of the Framework, which among other things indicate that decisions should take a positive approach to the growth, management and adaptation of town centres, in a way which can respond to rapid changes in the retail and leisure industries, and which allows a suitable mix of uses.

The appeal site lies within Middleton Town Centre Conservation Area (“the Conservation Area”). I therefore have a statutory duty to pay special attention to the desirability of preserving or enhancing the character or appearance of the Conservation Area. As heritage assets are irreplaceable, the National Planning Policy Framework (the Framework) states that they should be conserved in a manner appropriate to their significance (paragraph 184). It goes on to advise that any harm or loss requires clear and convincing justification (paragraph 194) and that any harm that is less than substantial must be weighed against the public benefit of the proposal (paragraph 196).

One interested party commented on long-term changes in [address] and the wider Conservation Area, but no substantive evidence of specific harm arising from this proposal was submitted. No alterations are proposed to the frontage or the exterior of the premises as part of the current scheme, and the Council therefore raised no concern about its impact on the character or appearance of the Conservation Area. None of the evidence before me or what I saw at the time of my site visit leads me to a different conclusion in this respect.

I have considered the conditions suggested by the Council having regard to the tests in the National Planning Policy Framework and the advice in the Planning Practice Guidance. I note that the appellant elected not to comment on the suggested conditions.

In addition to the standard time limit condition (1), in the interests of certainty it is appropriate that there is a condition requiring that the development is carried out in accordance with the approved plans (2). I have imposed the Council’s suggested conditions in respect of operating hours (3), amplified sound (4), and the use of the premises (5) as in the absence of any contrary arguments I consider that they are necessary and reasonable to control the use of the premises and its impact on the amenity of other users of the Town Centre.

The development would result in some conflict with the development plan read as a whole. However, the benefits of the development and the other material considerations set out above outweigh the limited conflict with the development plan. Therefore, for the reasons given, the appeal is allowed and planning permission is granted.