Appeal 6002155

The appeal is allowed and planning permission is granted for the change of use of ground floor to bingo hall at [site address] North, Dunstable [postcode] in accordance with the terms of the application, [name]/25/02715/FULL, subject to the following conditions:

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

The development hereby permitted shall be carried out in accordance with drawing nos 23HstN/BH/FUL/25/01, 23HstN/BH/FUL/25/02 and 23HstN/BH/FUL/25/03.

The decision removes reference to the existing use of [site address] North (No 23) since this it is not necessary to describe the act of development.

The main issue is the effect of the proposed development on the vitality and viability of Dunstable Town Centre.

The appeal site comprises a vacant three-storey building located within the Primary Shopping Area of Dunstable Town Centre, which is also defined as a Principle Town Centre providing a range of shops, services, facilities and leisure uses. [address] North is fronted on both sides by retail uses, restaurants, banks and other commercial premises. The proposal seeks planning permission for the change of use of the ground floor of [site address] (No 23) to a bingo hall, which is a sui generis use.

There is disagreement between the main parties as to whether the existing lawful use of the ground floor of No 23 falls within Class E1 or constitutes a sui generis use. The lawful use of the building is not for me to determine under this section 78 appeal. If a person wished to ascertain the existing lawful use of a building, the correct approach would be for them to make an application for a certificate of lawful use2.

The planning history indicates that the most recent planning permission relating to the use of the building was granted in 19993 for the change of use of the ground floor from Class A1 (retail) to Class A3 (restaurant and bar) 4. The Council confirms that No 23 was subsequently used as a restaurant and bar. The approved use pre-dates the amendments to the Use Classes Order in 20205, and a restaurant and bar use would now fall under Use Class E6. The evidence also suggests more recent use as a pool hall. Whether operating as a restaurant and bar or as a pool hall, the use of the ground floor has not been used for retail for a considerable period of time.

Policy R1 of the Central Bedfordshire Local Plan 2015-2035 (2021) (LP) states that the Council will support and encourage main town centre uses within its town centres. Within the [name], the Council will seek to focus on retail uses. The Council will seek to use conditions where necessary and justified to limit uses within Class E in order to maintain the predominant retail function of the [name] and ensure an appropriate mix of ground floor uses. Proposals for changes of use away from retail will not be supported within the Primary Shopping Area, unless it can be satisfactorily demonstrated that the units have been marketed for a period of six months or more, with no success and where they would support positively the overall viability and vitality of the centre.

The glossary of the Framework defines town centres, including primary shopping areas, as areas predominantly occupied by main town centre uses. Bingo halls fall within this definition7, and the Framework supports such uses in town centre locations, as well as stating that town centres should be allowed to grow and diversify in a way that can respond to changes in the retail and leisure industries. Policy R1 of the LP is broadly consistent with paragraph 90 of the National Planning Policy Framework (the Framework) insofar as it requires planning policies to define town centres and primary shopping areas, make clear the range of uses permitted in such locations and support the role that town centres play at the heart of local communities by taking a positive approach to their growth, management and adaptation. As such, I attach full weight to this policy.

I have not been made aware of any conditions which limit the uses for the ground floor of No 23. Moreover, given its most recent uses, the proposal would not result in a change away from retail. On this basis, the proposal is not captured by the requirement to market the unit for a period of six months. It is acknowledged that the proposal may result in a move away from Class E use, if this is its most recent 1 Class E(a) for indoor sport, recreation or fitness of the Town and Country Planning ([name]) Order 1987 (as amended). 2 under section 191 or 192 of the Town and County Planning Act 1990 (as amended). 3 Council ref: SB/98/00921. 4 Town and Country Planning ([name]) Order 1987. 5 Town and Country Planning ([name]) (Amendment) (England) Regulations 2020. 6 Class E(b) for the sale of food and drink of the Town and Country Planning ([name]) Order 1987 (as amended). 7 Bingo halls were also defined at a main town centre use in previous versions of the Framework Including National Planning Policy Framework (February 2019) and (July 2021). lawful use. However, the policy does not explicitly restrict such a change and supports and encourages main town centre uses.

Bringing a vacant building into an active town centre use would likely support the vitality and viability of the centre. The challenges posed by increased competition from online retail and services are recognised. The proposed bingo hall would comprise a leisure use which would generate footfall and activity at times when the centre might otherwise be quieter. Moreover, users of the proposed bingo hall would be likely to generate linked trips and contribute to spin-off trade, supporting other shops and commercial premises within the vicinity. It would therefore represent a beneficial re-use of a currently under-utilised town centre unit. Retail provision along and near [address] North would remain extensive, and the proposed use would not undermine the existing mix of uses or the retail function or character of the primary shopping area.

I conclude the proposed development would not result in harm to the vitality and viability of Dunstable Town Centre. In this regard, it would comply with Policy R1 of the LP for the aforementioned reasons.

The appeal site is located within the Dunstable Conservation Area (CA). In considering whether to grant planning permission, I have been mindful of my statutory duties under Section 72(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 (the Act) to have special regard to the desirability of preserving or enhancing the character or appearance of a conservation area. The CA designation encompasses Dunstable town centre including the landmark [name] of [name], as well as the roads that radiate out from it. Its special interest is derived from the archaeological and architectural heritage and the historic layout of the town. Collectively, these elements reveal the built evolution of Dunstable over many centuries. Given that the proposal does not include any external alterations, I am satisfied that the proposal would not result in harm to the significance of the character and appearance of the CA.

The Council has found the proposal to be acceptable in all other respects, including in relation to the living conditions of nearby residential occupiers, archaeology, parking and access. Having considered the proposal and visited the site, I have no reason to find otherwise. While no noise survey has been submitted with the application and it could open 24 hours a day, noise from patrons entering or leaving the premises would be unlikely to materially alter the acoustic character or noise levels in the area. Moreover, the Council’s Public Protection Officer has raised no objection in this regard.

No external alterations are proposed, and any future signage or shopfront alterations would need to be subject to a separate application for advertisement consent and/or planning permission.

The appeal site lies within the zone of influence for the Chiltern Beechwoods Special Area of Conservation. It is protected under the Conservation of Habitats and Species Regulations 2017 (as amended). Development, in combination with other plans and projects, has the potential to give rise to adverse effects through deterioration of habitat quality, including by reason of increased recreational disturbance. However, based on the evidence before me, there is no indication that the proposed change of use would result in any additional recreational pressure or other impact pathway capable of giving rise to a likely significant effect on the integrity of this designated site.

Various conditions have been suggested by the Council in the event the appeal is allowed. I have considered these against the tests set out in the Framework and Planning Practice Guidance. In addition to the standard time condition (1), I have imposed a condition requiring the development to be carried out in accordance with the approved plans (2) in the interests of certainty.

The gambling industry is strictly regulated outside of the planning regime8 to ensure that operators meet certain standards to regulate such concerns, and a gaming licence would be required by the operator. On this basis, a condition requiring a management plan to include times of use and prevention of adverse noise and anti-social behaviour by patrons within and in the vicinity of the premises is not necessary.

Planning law requires that applications for planning permission be determined in accordance with the development plan, unless material considerations indicate otherwise. In this case, the proposed development would accord with the development plan when considered as a whole and the policies of the Framework and would not be outweighed by other considerations. For the reasons given above. the appeal should be allowed.