Appeal 6004148

The appeal is allowed and planning permission is granted for the change of use from offices (Class E(g)) to beautician services (Class E(c)) and training facility (Class F1) at [site address] in accordance with the terms of the application, Ref 25/0740, and the plans submitted with it, subject to the following conditions:-

Within 3 months of the date of this decision, details on cycle storage and cycle parking facilities to serve the development shall be submitted in writing to the local planning authority for approval. Unless approved cycle storage/parking details are implemented within 12 months of the date of this decision, the use of the site as hereby permitted shall cease until such time as approved cycle storage/parking facilities have been implemented. Upon implementation of the approved cycle storage/parking details specified in this condition, the cycle storage/parking facilities shall thereafter be retained and remain in use for cycle parking purposes. In the event of a legal challenge to this decision, or to a decision made pursuant to the procedure set out in this condition, the operation of the time limits specified in this condition will be suspended until that legal challenge has been finally determined.

The car parking spaces to the front of the appeal site and as shown on the submitted and approved drawing numbered 2023-17-02G shall be retained and shall only be used for the purpose of parking vehicles associated with the beautician services and training facility use hereby permitted.

Waste associated with the development hereby permitted shall be stored until collection in general waste and recycling bins kept in the location as shown on the submitted and approved drawing numbered 2023-17-02G.

The address for the appeal site in the header and my decision is taken from the information provided with the appeal. I have used this rather than the address on the planning application form that refers to the name of a business that previously occupied the building.

The description of the appeal development in the header above is taken from the planning application form. However, correspondence submitted with the appeal indicates that the appellant agreed with the Council to a revised description of:- “retrospective planning application for the change of use from office (Class E(g)) to beautician services (Class E(c)) and training facility (Class F1).

It is clear from the decision notice that the Council considered the planning application on this basis. I have taken the same approach in my assessment of the appeal, although in my decision I have omitted reference to the planning application being retrospective as this does not describe an act of development. From the observations on my visit, it is clear the change of use has commenced.

As well as this appeal, I am referred to another outstanding appeal relating to the same property. I understand this relates to the Council’s refusal to issue a lawful development certificate on the appeal site’s use as beautician services. The submissions indicate the Council’s refusal is based on the view the site is currently in mixed use (as per the description of development for this appeal) rather than a use that falls entirely within Use Class E.

It is important to point out that this decision relates solely to the appeal made under section 78 of the Act and against the Council’s decision to refuse planning permission. The appellant’s submissions in respect of the lawful use of the site and the Council’s reasons for refusing the lawful development certificate are noted. However, it is not within my remit in determining this appeal to arrive at a firm conclusion on the lawfulness of the existing use of the building.

The main issues are (i) whether the appeal development has resulted in an unacceptable loss of safeguarded industrial and employment land, and (ii) the effect on highway safety.

The appeal site forms part of an area allocated and safeguarded as Local Quality Retained Industry under policy IND3 of the Walsall Site Allocation Document 2019 (WSAD). This policy explains the intention to retain sufficient land to meet targets set out in policy EMP3 of the Black Country Core Strategy 2011 (BCCS). It also states that proposals for non-industrial uses will not be permitted except where allowed by BCCS policy EMP3.

A submitted extract from the BCCS explains the importance of providing for types of industrial, logistics and commercial activity that do not require high quality employment areas and that are not appropriate for town centres or residential locations. BCCS policy EMP3 states that Local Quality Employment Areas (LQEAs) will be safeguarded for identified uses. These include industrial and similar uses such as construction premises and yards. However, it is noteworthy that offices, beautician services and training facilities are not included as acceptable uses on LQEAs under BCCS policy EMP3.

The front of the building subject of this appeal faces the road with a gated entrance to the side leading to a yard area. The appeal building and adjoining buildings outside the defined appeal site are positioned around the sides of the yard. It would seem from the submitted asbestos survey report that in January 2009 all of the buildings and yard area were occupied by [name]. However, a plan within the report indicates the building subject of this appeal was largely used as offices with toilets, plant and store rooms. There is no indication as to the use of the rear part of the appeal building at that time.

Irrespective of the history of the site, it is clear that the appeal development has introduced a use into the subject building that is not listed under BCCS policy EMP3. As such, the development is contrary to this policy and WSAD policy IND3.

The Council’s officer’s report on the planning application leading to this appeal suggests the former and authorised use of the site is as part of a builder’s yard. However, I am charged with assessing a development scheme where the description is clear in stating the change is from the use of the building as an office. On the basis that offices is the correct authorised use, the building prior to the commencement of the development would not have been utilised for any of the purposes listed as being acceptable on LQEAs under BCCS policy EMP3. In the event of this appeal being dismissed, it is more likely the building would return to offices as its contended authorised use rather than an industrial or similar purpose.

Moreover, under the terms of the Town and Country Planning ([name]) Order 1987 (as amended) the change in use of a building between any uses falling within the defined Class E does not constitute development. Therefore, if its authorised use is accepted as being an office, the appeal property could also be used for health or medical services to visiting members of the public without the need for planning permission. As such, it seems the use of the building solely for beautician purposes, rather the mixed use subject of this appeal, is a realistic fallback position in the event this appeal is dismissed. This is particularly the case as the building as it stands is largely used to provide beautician services to the public rather than for training purposes. This possibility reinforces my view that there is little prospect of the appeal building being used for industrial or similar purposes in the future, even if the appeal is dismissed.

For the above reasons, I conclude the development does not accord with WSAD policy IND3 and BCCS policy EMP3 as it introduces a use onto a LQEA that is not specified as being acceptable in such locations. However, the evidence strongly indicates that, in the event of the appeal being dismissed, the building could and would be utilised for the broader range of uses set out under Use Class E rather than the safeguarded uses listed under BCCS policy EMP3. As such, the fallback position is of sufficient strength to outweigh non-compliance with the cited development plan policies. Therefore, I also conclude the development does not lead to the unacceptable loss of industrial or employment land. Highway safety.

The Council’s refusal reason on this matter is critical of the appellant’s failure to provide information on the operating hours of the appeal development, trip generation, car parking and waste management. However, the planning application form indicates the hours of opening for the development and outlines how waste will be stored and located for collection. Moreover, the submitted floor plan shows the provision of 4 car parking spaces to the front of the building and within the defined appeal site.

Also, through their appeal submissions, the appellant has sought to describe the likely traffic and parking effects associated with the appeal development when compared against the building being used solely for beautician services. In summary, it is suggested the current limited training element of the existing operation results in only a modest increase in the number of people being within the building. The Council has not sought to dispute the appellant’s contentions in these regards.

The application form and appeal submissions indicate the current use of the property employs up to 15 members of staff with plans to recruit additional employees. The beautician and training services also attract customers and students to the building. As such, there is scope for the development to result in a significant number of people being at the property at the same time. It is fair to expect the 4 private spaces to the front of the building are unable to accommodate all the parking associated with the development and so it leads to parking on the public highway. However, I would also envisage the suggested fallback positions of the building being used as offices or solely to provide health or medical services to visiting members of the public would also lead to road parking.

I saw no parking restrictions on the road outside the appeal site. However, at the time of my visit significant numbers of vehicles were parked fully on the pavements on either side of the road rather than on the carriageway. From my observations, this footway parking is associated with several businesses near to the appeal property rather than solely to the beautician services. Even so, it seems likely some parking associated with the appeal development is on the pavements.

Vehicles parked on roadside pavements are generally to be avoided as they increase the risk of pedestrian and vehicular conflict and could cause obstruction. However, in this case, the pavements on both sides of the road are fairly wide and the parking I saw did not unduly obstruct pedestrians or require walkers to step out onto the carriageway. The Council’s officer’s report on the planning application leading to this appeal highlights pavement parking as being a characteristic of the area but there is no contention made that this is unsafe. Also, there is no evidence of parking in the area prejudicing highway or pedestrian safety for any other

An interested party raises concern that parking in the locality encroaches onto private land or obstructs entrances. However, the appellant’s evidence suggests the appeal development does not lead to significant additional parking or vehicular trips compared to the claimed fallback position of the building being utilised for purposes that fall under Class E. The Council has not sought to dispute this claim. As such, I am unconvinced the appeal development would increase the risk of illegal parking.

Therefore, I conclude the development would avoid an unacceptable effect on highway safety. In these regards, it would accord with policy GP2 of the Walsall Unitary Development Plan 2005 (WUDP). Amongst other things, this policy requires consideration of the traffic impact of development.

The Council’s refusal reason on this matter also refer to WUDP policies T7 and T13 on parking and parking standards. The development would not be served by adequate private facilities to fully accommodate parking demand and so I conclude it would not accord with these policies. However, the development would not result in a significant increase in parking on the highway compared to the claimed fallback positions and so there is adequate justification to allow the appeal contrary to these policies.

Mention is made in the submissions to a café operating from the site as well as the beautician and training services. However, the appeal development for consideration makes no reference to a café use. As such, concerns raised in these regards do not affect my overall assessment.

I have considered the conditions suggested by the Council in light of advice on conditions in the National Planning Policy Framework. Where necessary I have amended the wording to account for the fact the development has already been carried out.

Condition 1 is imposed to promote travel to and from the site by sustainable modes of travel and to help minimise the effects of vehicular parking associated with the development on the public highway. Condition 2 is also imposed to reduce the need for parking on the pavements and in the interests of highway safety. There is no need for this condition to require details of parking spaces to be submitted and approved as sufficient information is included on the appeal drawings. I also saw the parking spaces have been provided and laid out and so the condition simply requires their retention. Condition 3 is imposed to ensure the appropriate storage of waste. Again, there is no need to submit details of waste storage facilities as the submitted plans are sufficient.

The Council has suggested a condition that would limit the opening hours of the development. However, the site is not near to any dwellings and the use is unlikely to cause significant noise and disturbance to any residents. As such, the condition is not needed and so it has not been imposed.

As identified above, the development would conflict with local planning policies. However, material considerations indicate that a decision should be made other than in accordance with the development plan and so I conclude the appeal should be allowed.