Appeal 6001880

The appeal is dismissed.

The main issue in this appeal is whether the proposed development would result in an overconcentration of hot food takeaways within the designated commercial centre of Eston having regard to the provisions of the development plan.

The appeal relates to [site address] , part of the ground floor of a two storey building. The ground floor of the building has been subdivided into two units and the other unit, referred to as [address], has planning permission to operate as a hot food takeaway. It is common ground that the building is within the identified commercial centre of Eston as set out by Policy ED1 of the Redcar and Cleveland Local Plan 2018 (hereinafter the Local Plan). Policy ED1 seeks to maintain the vitality and viability of town and district centres by, among other matters, safeguarding the retail character and function of these areas.

The supporting text to Local Plan Policy ED3 sets out that in order to maintain an appropriate balance of uses in town, district, and local centres, and to maintain their vitality and viability particularly during the daytime, the number and concentration of hot food takeaways will be restricted in these areas. Although not part of the Policy, the supporting text sets out the purpose of the policy. Policy ED3 sets out, inter alia, that proposals for hot food takeaways in town, district, and local centres will only be permitted where the proposal would not result in the proportion of commercial units in hot food takeaway use in the centre exceeding 5% (part a.), or result in more than two adjacent hot food takeaway uses (part b.).

The Council’s evidence sets out that 18.2% of the commercial units in the district centre are in hot food takeaway use. Whilst the appellant does not expressly dispute this figure, they contend that if this was updated with more recent data the proportion of takeaway units within the defined centre would remain within the policy threshold if the appeal were to be allowed.

However, this assertion is not supported by any survey data, or any other substantive evidence, to demonstrate that if this unit was changed to a hot food takeaway the proportion of units in takeaway use within the district centre would be below the 5% threshold set out in Policy ED3.

The Local Plan is now some years old, but it is not suggested that Policy ED3 is in any way out of date. I saw when I visited the site that there are currently at least 8 units1 in the commercial area that appear to be either in hot food takeaway use, or which were last used as hot food takeaways. Policy ED3 does not differentiate between active and dormant uses. It was difficult to ascertain which of these units are currently actively trading because all but one had closed security shutters and neither party has submitted any evidence in this regard. The one unit that was not fully shuttered did not appear to be trading at the time of my site visit2. This is a relatively high observed proportion of takeaway uses within what is a quite compact district centre and does indicate that the Council’s figure of 18.2% is credible.

I have noted that there is an ongoing redevelopment of a commercial precinct in Eston, which post-dates the Council’s survey of commercial units and that this may alter the overall number of units in the district centre and the resulting proportion of existing hot food takeaways. The evidence indicates that this would result in the provision of 14 retail units. Neither party has provided any evidence in respect of the net change in unit numbers that would result from this redevelopment. This notwithstanding, from my observations, I am not persuaded that the appeal proposal would result in the proportion of the overall units in hot food takeaway use being less than 5% following this redevelopment.

Based on the evidence before me at this time, and from what I saw on my site visit, the proposal would not comply with part a. of Policy ED3

The second reason for refusal set out on the decision notice issued by the Council is on the grounds that the appeal proposal would result in two hot food takeaways being adjacent and is, therefore, contrary to Local Plan Policy ED3. The proposal would indeed result in two adjacent hot food takeaways. Nonetheless, the wording of part b. of Policy ED3 is that development will only be permitted where it would not result in more than two adjacent hot food takeaway units (my emphasis). In other words, development would not be permitted where it would result in three (or more) adjacent hot food takeaways. Neither of the units to either side of 176 and [address] are in hot food takeaway use. Consequently, the appeal proposal would not offend this aspect of Policy ED3. However, this does not overcome the conflict with part a. of the policy.

I therefore find that the proposed development would result in an overconcentration of hot food takeaways within the designated commercial centre of Eston. It would not comply with the relevant requirements of Local Plan Policy ED3 which seeks to limit the number and concentration of hot food takeaway uses in the borough’s commercial centres in order to maintain their vitality. 1 Including the appellants business in the adjoining [address]. [address] in the early afternoon on a weekday during the time period where lunchtime trading might be expected (between 12:00 and 14:00).

I have noted that the Council have not raised any objection in respect of the effect on the living conditions of nearby residents, subject to appropriate conditions being imposed to control noise and odour. Nor have any concerns been raised in respect of highway safety. From what I have read and from what I saw when I visited the site, I have no reason to find otherwise. I have also noted that there have not been any representations from interested parties. However, this does not alter my overall conclusion in respect of policy compliance.

Section 38(6) of the Planning and Compulsory Purchase Act 2004 requires that if regard is to be had to the development plan for the purpose of any determination to be made under the planning Acts, the determination must be made in accordance with the plan unless material considerations indicate otherwise.

I have found that the appeal proposal would not comply with Policy ED3 of the Local Plan. Where a proposal conflicts with an up-to-date development plan permission should not usually be granted. Although the Local Plan is some years old, it is not argued that this Policy, or Policy ED1 which is the other most relevant policy for determining the appeal, are out of date. Significant weight has to be given to this conflict with the development plan.

The appellant suggests that the proposal would bring an empty unit into use and avoid deterioration of the streetscape. The proposal was not supported by any marketing information in respect of what steps have been taken to let the unit or how long it has been marketed for. Nor is there any comparative information in respect of the unit sizes or rental costs within the commercial precinct currently under construction that would indicate that these would be directly competing with the unit which is the subject of this appeal. I can, therefore, give little weight to this point.

It is also suggested that there would be an enhancement to the night time economy. Although Local Plan Policy ED1 encourages a diversity of uses within town and district centres, it also seeks to safeguard the retail character and function of these areas. The supporting text to Policy ED3 makes it clear that the implementation of the policy is to maintain a balance of uses and, in particular, maintain their viability and vitality during the day. Whilst the proposal may add to choice in the evenings, there is no indication that the proposed takeaway would open during the day. That other takeaway premises in the area were not trading during the day, especially during the lunchtime period when I visited, is indicative that there is insufficient daytime trade to make it viable to do so. I saw that these shuttered units created dead spots in the commercial frontages and did not make a positive contribution to the retail character of the area, or to the vitality and vibrancy of the area. Nor did they contribute positively to the overall street scene. Adding a further unit with these characteristics would not improve this situation. This does not weigh in favour of the proposal.

Whilst there would be some economic benefits from the proposal, these are unquantified in the evidence in terms of benefits to the local supply chain. The application form states that 3 full time equivalent jobs would be created, which is a modest, yet positive, factor. Nevertheless, many of these benefits, including investment in the property would also apply to other commercial uses of it. Consequently, whilst this weighs moderately in favour of the development it does not provide an overriding reason to grant permission.

It is not in dispute that subject to appropriate planning conditions, the proposal would not adversely affect the living conditions of the occupiers of nearby residential properties. Whilst this does weigh in favour of the proposal, it has to be taken in the context of other policies relating to town centre uses and does not, of itself, overcome the policy conflict in this particular case.

Whilst the appellant does not give any examples of comparable planning permissions within the borough, or elsewhere, which illustrate that takeaway uses can coexist with retail and residential units, this is not especially contentious as a general assertion. Planning conditions relating to opening hours and the installation and operation of extraction equipment can mitigate adverse effects. Nevertheless, it is necessary to consider cumulative effects on daytime viability, vibrancy, and diversification of offer as expected by Policy ED3. Nor does the visual effect of shuttered units until late afternoon or evening opening time assist in safeguarding the retail character and function of an area as expected by Policy ED1. Each planning application and appeal must be determined on its own merits having regard to its specific context.

Overall, whilst some of the points raised by the appellant may be material considerations, they do not, either individually or collectively, indicate that permission should be granted for a development that does not comply with the

Although the proposal may comply with other policies, or aspects of other policies, in the Local Plan, the conflict with the most relevant policies is, in this case, sufficient to conclude that the proposal does not comply with the development plan as a whole.

For the above reasons, I therefore conclude that the appeal should be dismissed.