Appeal 6000654

The appeal is dismissed.

The application form and the appellant refer to the existing use of the site as being within class B1. The Council have confirmed, following legal advice, that the last legal use of the property was a B2 use class. It is not within my remit in an appeal under section 78 of the Act1, to determine the lawful use of the site. This would more appropriately be established through an application for a certificate of lawfulness of existing use or development. I have therefore, determined the appeal on the basis of it being a change from a class B2 use to a class E retail use.

I have used the description of development from the Council’s decision notice in the header above as it more accurately describes the extent of the proposal.

The address of the property has been amended by the Council to refer to the unit number on the industrial estate on [address], as [address], as noted on the application form, would relate to a nearby residential property. For the purposes of the header, I have used the Council’s address description.

The application form refers to the floor area as being [address] metres (sqm), and to a dog grooming element of 144sqm in a portacabin, though no such facility is identified on the submitted drawings. The floor area has subsequently been described by the Council as being around 120sqm, which would equate to around 1,[address] feet. I have therefore determined the appeal on the area of the proposal being around 120sqm, which would generally accord with the size of the unit I observed at my visit. The dog grooming element of the proposal has been confirmed as having been withdrawn from the proposal. I have therefore determined the appeal on this basis. 1 The Town and Country Planning Act 1990 (as amended)

The main issues are, i) whether the appeal proposal represents an appropriate form of land use, having regard to local and national policy; and ii) the effect of the proposal on the character and appearance of the surrounding area.

The appeal site is an industrial unit located to the east side of [site address] and is part of a small industrial estate. It sits outside the Emsworth District Centre as defined on the Map within Policy CS4 of the Havant Borough Local Plan ([name]) 2011 (the [name]). It also lies around 230 metres north of the Primary Shopping Area defined by Policy AL3 of the Havant Borough Local Plan (Allocations) 2014 (the Allocations Plan). As noted above, for the purposes of the appeal, its lawful use is class B2, having operated as a motorcycle repair centre for several years.

The proposed use would be as a class E retail unit. The National Planning Policy Framework (the Framework) defines several Main Town Centre uses, retail being one such use, that should be located first in town centres, then in edge of town centres, and only if suitable sites are not available should out of town centre uses be considered. This is known as the sequential approach, requiring a sequential assessment test. National Planning Practice Guidance (the PPG) indicates that it is for the applicant to demonstrate compliance with the sequential test, and failure to undertake a sequential assessment could, in itself, constitute a reason for refusing permission.

The Framework defines ‘edge of town centre’ sites, for retail purposes, as being those within 300 metres of the primary shopping area. As the appeal site is within this distance from the primary shopping frontage of Emsworth defined by policy AL3, it would therefore represent an edge of town centre location.

However, there is no detailed evidence before me to indicate that a formal sequential assessment has been carried out, which demonstrates that there are no preferable town centre sites available. Whilst there is reference to the appellant having considered other potential sites, this is not formally documented and submitted with the application or appeal.

The appeal site is an edge of town centre site which is accessible to the Emsworth District Centre. However, the lack of demonstration that there are no preferable town centre sites available, or that a sequential assessment test has been carried out to provide support for the appeal proposal, leads me to conclude that such an edge of town location should not be considered in the absence of such evidence. Accordingly, the proposal would conflict with Policy CS4 of the [name], Policy AL3 of the Allocations Plan and paragraph 91 of the Framework.

Further, Policy DM3 of the [name] relates to the protection of existing employment and tourism sites. As the appeal site is a B2 use class, it is categorised as employment land, and its retention is therefore subject to the restrictions of Policy DM3. These include, among other requirements, that the change of use of employment land will only be permitted where it has been demonstrated that the land or premises are not fit for purpose and are financially unviable for B class use. The policy requires a minimum of 12 months marketing for smaller sites, like the appeal site, with five criteria which require evidential proof.

The appeal proposal has provided no evidential proof that the site is no longer suitable for B class employment use. No evidence of the required 12-month minimum marketing period has been submitted, indeed it is acknowledged that the site was only marketed from mid-September 2024 until early March 2025 when the appellant signed the lease, a period of less than six months. In addition, whilst the appeal identifies the potential for up to 5 full-time equivalent employees, which may be of a similar number to the previous use, the retail employment skill level is unlikely to match the skilled employment opportunities of the previous or other such B class employment uses, a further evidential proof requirement of Policy DM3 to justify any change of use.

The requirements of Policy DM3 are also reflected in those of Policy W3 of the Emsworth Neighbourhood Plan 2021 (the ENP), which requires industrial land uses to be retained, except in exceptional circumstances. No such exceptional circumstances have been put forward in evidence in this case. These policies have been reinforced by the findings of the [name] 2024, which has noted the market strength and low levels of availability for employment use land and property, concluding that Council’s should protect the existing estates from encroachment of alternative uses so that opportunities are provided for future re-development.

The appellant has not demonstrated that the appeal site is no longer fit for purpose for B class employment use, or that the required minimum period of marketing has taken place to support the change of use from B2 industrial land use to retail class E use. I therefore find that the proposal would conflict with policies DM3 of the [name] and Policy W3 of the ENP.

For the above reasons, I conclude the proposal conflicts with policies DM3 and CS4 of the [name], with Policy AL3 of the Allocations Plan, with Policy W3 of the ENP and with paragraph 91 of the Framework. These require, among other things, development to provide main town centre uses in the town or district centres, for employment land uses to be protected, and for a sequential test to be applied to applications for main town centre uses which are not in town centre locations or in accordance with the development plan.

The appeal site is located to the east side of [site address] and is a small industrial unit which is part of an estate of similar small industrial units. The three units to the south of the appeal site are all in use for vehicle repair uses. The unit to the north, is in use as an indoor swim centre. Visually the industrial units are characterised by profiled metal cladding to the upper portion of their walls and roofs, with brickwork or rendered masonry to the lower portions of their walls. Large industrial roller shutter doors are present to the principal elevation of all of the units.

Opposite the appeal site is a terrace of residential properties, these being two-storey in height and dating from the late Victorian/ early Edwardian era. They are constructed of red brick under pitched slated roofs, sitting in an elevated position relative to the road and with small forecourt gardens separating them from the public footpath. On-street parking spaces are situated to the residential dwelling side of the road, and double yellow lines are present outside the industrial units. The character and appearance of the area, therefore, is that of a mixed industrial and residential area co-existing in close proximity to one another.

The proposal would make few changes to the visual appearance of the unit, other than the introduction of glazed doors and screens which would be located behind the line of the existing steel roller shutter door, which would be retained. During opening hours, the screen and doors would be visible and would be the principal entrance to the proposed pet food store. However, when the store is closed, the roller shutter would be closed, and the visual appearance of the unit would be unchanged from that of the existing condition.

The previous use of the site for motorcycle repairs broadly accorded with the uses of the adjacent units to the south, which are all associated with auto repairs, auto servicing and tyre fitting. These all primarily operate on an appointment basis and so the timing and flow of customers would generally be controlled, though the potential for speculative customers visiting the units to arrange future appointments would still be a potential occurrence.

However, the appeal proposal would be a general retail use, with customers coming and going regularly, without any kind of control. There would be a natural ebb and flow, but the potential for significant peaks of customers would exist, introducing potentially significant levels of pedestrian traffic into the mixed residential and industrial street, at odds with its current situation. The number of expressions of support from loyal customers submitted for the application, provides evidence that the proposal would attract significant numbers of visitors, which by the nature of the business, as a pet food supplier, will be on a regular and recurring basis.

For the above reasons, I find that whilst the proposal would result in little change to the visual appearance of the surrounding area, the change of use to retail would change the mixed residential and industrial character of the area, introducing significantly increased pedestrian footfall more readily associated with main town centre use areas. I therefore conclude that it would cause harm to the character of the area and would conflict with Policy SC16 of the [name], which requires development to respect its local context.

The appellant has suggested that the endless swim pool studio located in the adjacent building, represents a similar pattern of client use to the proposal. However, no evidence was put before me which defined the opening hours, method of operation, parking provision or other pattern of use of this facility, which would have allowed me to consider whether this gave support to the proposal.

There are significant amounts of evidence submitted in support of the proposal, mostly from existing clients of the business. They express the valuable service the business provides to the local community, not just in terms of providing supplies, but also as a social hub and dispensary of advice. These expressions of support come from people in the town, but also from surrounding districts and towns.

However, there are also several objections to the proposal, notably from residents of the adjacent residential properties on [address], who would be most likely to be affected by any potential issues resulting from the change of use of the appeal building, whose concerns need to be taken into consideration.

For the reasons set out above, I conclude that the appeal proposal would conflict with the development plan, read as a whole, and that there are no material considerations, including policies in the Framework, that would justify determining other than in accordance with it. Therefore, the appeal is dismissed.