Appeal 6005485

The appeal is dismissed.

An application for costs was made by [name] of UK Business Investment Ltd against the Development Corporation. This application is the subject of a separate decision.

The appeal site has a complex planning history. Planning permission was granted on 11 March 2025 under reference 185478OPDFUL for: redevelopment of the existing single-storey commercial premises operating as a dry-cleaning business (Class B2), to provide a three-storey building comprising industrial space (Class B2) at ground-floor and first-floor levels, office accommodation (Class B1a) at second-floor level, with associated car parking, refuse storage and cycle storage.

A further application, under reference 233024OPDVAR, was submitted under s73 of The Town and Country Planning Act 1990 (the Act), which was granted on the 7 September 2023 for: minor material amendment (S.73) to vary condition no.2 seeking to remove windows at the side in relation to planning permission reference 185478OPDFUL dated 11/03/2019 for; redevelopment of the existing single-storey commercial premises operating as a dry-cleaning business (Class B2), to provide a three-storey building comprising industrial space (Class B2) at ground-floor and first floor levels, office accommodation (Class B1a) at second-floor level, with associated car parking, refuse storage and cycle storage (cross-referenced with approved planning refs. 221351OPDCND and 220358OPDCND) (Alterations to second floor internal layout incorporating upper level terraces and alteration from two units to one (second floor), alterations to siting of lift and stairwells and provision of associated facilities (lift bulkhead) and amended roof profile and design incorporating partially pitched and flat roof with roof terraces. From the evidence provided, the works proposed under this application have been implemented.

The application does not identify the specific condition to be amended. However, the submission of amended plans suggests that the appellant seeks to vary Condition 2 of the permission1, which sets out the approved plans for the development and which the Council of the London Borough of Ealing considered necessary. The appellant seeks to substitute the approved plans with amended drawings that reflect changes to the approved scheme, seeking: change of use of a three-storey building comprising industrial space (Class B2) at ground and first floor levels to provide a three storey office accommodation (Class B1a) at second-floor level accordance to planning application 233024OPDVAR to ground floor to continue use as (Class B2), first floor to be used as industrial catering business with ancillary storage and distribution (Class B8) and second floor Class B1a to E (b) Sale of food and drink for consumption (mostly) on the premises) (development right) Material amendment (S73) for relocation of toilets for shared use at the first floor, converting unused exterior terrace to internal space on the second floor and installation of rear windows on the second floor accordance to planning application 233024OPDVAR.

Although submitted on a planning application form, the content suggests an application under s73 of the Act. However, the parties agreed during the course of the application that this should be a full planning application given the scope of the works proposed. Whilst an amended description of development has not been provided, I have dealt with the appeal on the basis of a full planning application, using the description of development from the application form.

At the time of my site visit, works had commenced on site with the completion of external alterations to the property and internal changes to the layout of the building. However, the proposed use of the building had not commenced, and the ground floor of the property was being used for storage. As such, for the avoidance of doubt, I have determined this appeal based on the submitted, proposed plans.

Within the context of an appeal under section 78 of the Act, it is not within my remit to formally determine whether the proposed development requires planning 1 The Council of the London Borough of Ealing determined 233024OPDVAR under delegated powers following the establishment of the Development Corporation of [name] and [site address] in April 2015. permission as raised by the appellant with regard to the use of the second floor of the building. However, I shall consider the evidence as to whether permission is required so far as it is material to this appeal. If the appellant wishes to ascertain whether the development would be lawful, they may make an application under section 192 of the Act.

The external alterations to the building have previously been agreed through approved minor material amendment s73 application 233024OPDVAR. The Development Corporation has raised no concern with these changes, and I have no reason to disagree. Therefore, the main issues are: • the effect of the proposal on the provision of industrial floorspace; and • whether the proposed alterations to the external site layout are acceptable with regard to car parking and the removal of the servicing bay.

The appeal property relates to a 3-storey building located within the [site address] [name] (SIL) and the Old [site address] , defined in Policy 5 of the [name] and [site address] Development Corporation Local Plan 2018 to 2038 (2022) (OPDCLP). The policy sets out that Old [site address] ’s established industrial land use and historic character will be protected. It additionally sets out that opportunities to intensify industrial use will support the continued growth of start-up businesses and innovative activities across a range of employment sectors.

The second floor of the building is proposed as Use Class E(b) floorspace (restaurant/ café use). As this falls within the same Use Class as the existing E(g)(i) use (offices), the change does not constitute development under the Town and Country Planning ([name]) Order 1987 (as amended) and does not require planning permission. From the evidence provided, there are no restrictive planning conditions or Article 4 direction which would restrict the proposed use. This conclusion is based on the current appeal only, and do not prejudice any future application for a lawful development certificate and/or, where relevant, any enforcement proceedings.

The proposal seeks to retain B2 industrial floorspace on the ground and first floors of the building. Internal changes include the provision of a substantial kitchen area and toilet facilities, on the first floor of the premises. The second floor shown as Class E (b) use has no toilet facilities and only a small kitchen area is shown on the proposed plans. From the proposed floor plans provided and observations at my site visit, where internal changes had been carried out, the quantum of floorspace used for the kitchen and toilet facilities is significant. The combined floorspace substantially reduces the area of industrial floorspace provision at the property, constituting around half of the available B2 floorspace on the first floor of the building which is shown as accommodating an industrial unit on the current, approved plans for the property2. 2 233024OPDVAR.

Whilst the appellant claims that the kitchen would be within B2 use class, the installation of a dumbwaiter between the two upper floors3 clearly shows a functional link with the proposed Class E (b) use. I also find that the substantial toilet provision area would be used by patrons of the Class E (b) use on the second floor, thereby encroaching into the protected industrial floorspace provision of the building and substantially reducing B2 floorspace through the loss of a valuable unit. The modest kitchen and bathroom facilities shown on the current, approved consent at the site would constitute appropriate provision for the proposed number of employees at the site, as referenced on the application form.

I have further been provided substantive evidence of a premises licence application4 which was made to the London Borough of Ealing dated 9 June 2025. The licensing application was lodged by the appellant with the address cited as, ‘[name], First and [name] [site address] ’. The plan attached to this licensing application shows the licensable area over the first and second floor, with the proposed kitchen and toilet areas in the same location as the proposed plans. The first-floor unit is annotated as a private function room, with no reference to B2 floorspace, and the second-floor plan does not show a kitchen or toilet provision. [name] acknowledge that the proposed plans, subject to this appeal, indicate B2 floorspace on the first-floor unit, from the evidence provided it appears that there are future intentions to use this space for other purposes. Moreover, it is apparent from this information that both the kitchen and toilet areas are intended for shared use between the floors. Alongside the reduction in B2 provision at the site, I also find that the shared use of these facilities on the same floor operating within use Class E (b) and a B2 use could prove problematic and potentially lead to operational and viability concerns for the industrial use at the site. This is an important material consideration, which I attach significant weight.

I have not been provided with robust marketing evidence for the property or substantive evidence to indicate that there have been difficulties with attracting interest in potential industrial occupiers at the property over a reasonable period of time. Moreover, the loss of valuable B2 industrial commercial floorspace is contrary to the policy objectives of the OPDCLP which seek to protect industrial commercial floorspace.

I therefore conclude that the internal alterations to the building, through the provision of an extensive kitchen and toilet area on the first floor to serve both the first and second floor uses, and overall reduction in B2 floorspace on the first floor of the building, would have a harmful effect on the provision of industrial floorspace at the property which would be detrimental to the SIL. I find conflict with Policy P5 of the OPDCLP which seeks to protect small business units and deliver additional industrial floorspace and new jobs by taking opportunities to intensify the use of all sites. The proposal is also contrary to Policy SP5 of the OPDCLP which requires proposals to protect, strengthen and intensify the SIL in [site address] , in addition to support for the provision of small workspaces across [site address] .

Further, I find conflict with Policy E1 of the OPDCLP which seeks to protect, strengthen and intensify land within the designated SIL boundary by ensuring proposals are comprised of uses suitable for broad industrial type activities and achieve no net loss of industrial floorspace capacity and where feasible, intensify 3 Drawing no SK-020. 4 [name]: 25LIC08311PREM under The Licensing Act 2003. the use of sites, in particular in OPDC’s [site address] ; alongside providing a mix of unit sizes including small business units. I additionally find conflict with Policy TCC1 of the OPDCLP which seeks to support proposals for town centre uses in OPDC’s designated town centres.

I further find conflict with Policy E5 of The London Plan (2021) (LP) which sets out that development proposals within or adjacent to SILs should not compromise the integrity or effectiveness of these locations in accommodating industrial type activities and their ability to operate on a 24-hour basis. I additionally find that the proposal is contrary to Policy E7 of the LP which requires development proposals to be proactive and encourage the intensification of business uses in [name] B1c, B2 and B8 occupying all categories of industrial land.

The proposed changes also include alterations to the external site layout. A servicing area shown on the current approved plans5, located to the front of the building, would be removed, alongside the addition of two car parking spaces and the reconfiguration of the disabled car parking bay and bicycle storage.

The removal of a dedicated servicing bay for loading/ unloading associated with the B2 industrial units could result in problematic vehicle movements and parking at the site, leading to potential conflict with pedestrians and other users of the premises. Whilst it is acknowledged that a plan submitted as part of a previous allowed appeal6 showed a broadly similar arrangement, that proposal related to the formation of a vehicular crossover to front, boundary fencing and electric gates to the front/side. By contrast, the current proposal subject to this appeal, seeks to amend the use and function of the building, where operational requirements such as servicing and car parking warrant detailed assessment.

The appellant has commented that servicing could be managed through on-site loading, a delivery and servicing plan and controlled delivery hours. However, the proposed layout indicates that parked vehicles would prevent larger delivery vehicles from entering the site when spaces are occupied, thereby restricting on-site servicing. Furthermore, it is reasonable to expect a clearly defined servicing area to be provided for an industrial use of this nature, which could then be secured and managed by condition. In the absence of such provision, the proposal conflicts with Policy T7 of the OPDCLP which amongst other matters requires, where possible, off-street servicing facilities to be provided within all existing and new developments.

The additional parking bays would further limit the space available for servicing and are also shown in close proximity to a fire exit door, potentially creating an unsafe obstruction and raising highway safety concerns. This would conflict with Policy T6 of the LP which seeks to ensure adequate provision for efficient deliveries and servicing and emergency access.

Whilst the appellant contends that operational parking is typical within a commercial industrial area and that only limited short stay capacity is available on surrounding streets, I note that Policy T4 of the OPDCLP specifically requires car-free development for non-residential developments, unless in certain cases limited car 5 233024OPDVAR. 6 APP/A5270/W/24/3338554. parking can be justified when operational or business needs and access to public transport are taken into account.

I have not been provided with substantive evidence to justify the increase in parking provision from the previous approved scheme7. I also note that the site is located in close proximity to [name] underground station and therefore benefits from good public transport accessibility. I therefore find that the proposed level of parking provision is excessive and unjustified. Whilst the appellant suggests that matters could be addressed through a parking management plan or by retaining the existing car parking arrangement, such measures would not overcome the concerns identified, nor would they address the loss of servicing provision at the site.

I therefore conclude that the proposed alterations to the external site layout, including car parking and removal of the servicing bay would be unacceptable. This would cause harm to the effective operation of industrial uses at the site and create an unsafe arrangement with regard to highways safety considerations. As set out in my reasoning above, this is contrary to Policy T4 and T7 of the OPDCLP, in addition to Policy T6 of the LP.

[name] acknowledge that the Council of the London Borough of Ealing has not objected to the proposal, the relevant planning authority for this application is the OPDC.

[name] have had regard to the appellant’s reference to communication with the Council, this has not led me to an alternative conclusion on the main issues of this appeal.

The appellant has commented that the development enhances business viability and would improve economic productivity of the building. However, these factors do not outweigh or justify the harm that I have found and do not lead me to a different finding overall.

The proposed development conflicts with the development plan as a whole and material considerations do not indicate that the appeal should be decided other than in accordance with it. Therefore, for the reasons given, I conclude that the appeal should be dismissed.