Appeal 6007548

The appeal is dismissed.

There is uncertainty between the parties over the nature of the development proposed. The appellant contends that the proposal is the change of use to a café with small-scale takeaway use within Use Class E of the Town and Country Planning ([name]) Order 1987 (as amended) (the UCO). It is clear from the council’s submissions that it considers the proposal to constitute the change of use of the ground floor of the property to a [name] use comprising a hot food takeaway or a mixed use of café and hot food takeaway. The appellant suggests that the council has misinterpreted the proposal and the council considers the appellant is seeking to materially change the proposal through the appeal process.

The starting point is the description of development on the application form. This is lengthy but importantly states that the proposal is the change of use to a cafe with hot food drink and takeaway within Class E (my emphasis). It clarifies that the intended use will “operate primarily as a café ... alongside a small takeaway service”. In the “Hours of Opening” section of the form, the appellant identifies the use of the premises as falling within Use Class E(b) – Sale of food and drink for consumption mostly on the premises.

It is evident from the council’s delegated report that assumptions regarding the proposed use were made based on the limited space for customer seating shown on the submitted plans. I have seen no evidence that the council sought to clarify the scope of the development with the applicant or sought agreement to a change in the description of development to something other than that on the application form. The council’s contention that the appellant has only now clarified that the proposal is for a Use Class E café use is not borne out by the evidence.

The description on the application form includes matters that are not an act of development. In the banner header above I have accordingly amended the description to remove reference to works consisting of internal alterations and refurbishments, the type of cooking and other equipment intended to be used, the appellant’s intention to comply with all relevant regulatory requirements, and wish to enhance the local community including through education in healthy food and drink options.

In evidence, the appellant indicates agreement to amend the description of development from that stated on the application form to “change of use of ground floor from dog grooming parlour to café for the sale of drinks, desserts and light bites”. The appeal process cannot, however, be used to evolve a proposal and I am required to consider the appeal as that which formed the basis of the council’s

The original description of development makes reference to the provision of new external shop signage. Such works may require the express consent of the council under the Advertisement Regulations and do not fall to be considered through this appeal. For this reason, the reference to signage has accordingly also been removed from the description of development above.

The main issues in this appeal are: • Whether the proposal would adversely affect the living conditions of occupiers of nearby residential properties; and, • The effect of the proposal on the vitality and viability of the Stirchley District Centre and shopping frontage of which it forms part.

In common with several neighbouring properties, the appeal property includes residential accommodation at first floor. New housing has also been constructed to the rear of the appeal site.

The supporting information provided with the application advises that the proposal would offer hot and cold drinks, and light hot food items. Cooking activities would include the use of waffle machines, a small commercial griddle, blenders and microwaves. The “Ventilation and [name]” suggests a mechanical extraction and ventilation system would be installed to remove cooking fumes. This, it is stated, would include anti-vibration measures, grease and carbon filters, low-noise fan units and would allow external discharge to meet Environmental Health guidance. All equipment would, it is advised, be regularly maintained.

The council’s Environmental Pollution Control Officer (EPCO) has assessed the proposal as a hot food takeaway. Notwithstanding this, a café use involving the cooking and preparation of food using the type of equipment identified would require adequate mechanical ventilation and extraction to protect nearby residents from odours and other pollutants. The EPCO confirms that food prepared on commercial griddles can be high odour and require an effective form of odour control including smoke and particle filtration which is not specified in the proposal. The EPCO also confirms that the proposal to discharge emissions horizontally through a wall vent would not be effective in protecting living conditions, and a vertical flue would be required.

Very limited details of proposed measures to control odour and smells are provided. The proposed rear elevation plan indicates a single fan at ground floor level and the proposed floor plan indicates an internal extractor fan, but full details of the equipment is not provided. The submitted [name] similarly contains little detail, and omits essential information including likely sensitive receptors, noise generation and proposed mitigation. The appellant advances that approval of detailed extraction equipment could be addressed through a planning condition. As the equipment required is likely to constitute substantial external plant and machinery which does not currently form part of the development proposed, I am unconvinced this could be achieved without prejudice to interested parties and occupiers of nearby residential properties and I have little evidence that such a condition would pass the tests as outlined within the National Planning Policy Framework (the Framework).

As a consequence, I have insufficient information to determine that the proposal would not cause significant harm to the living conditions of the occupiers of nearby residential properties by reason of odours, noise and other pollutants. The proposals accordingly conflict with Policies PG3 and TP37 of the Birmingham Development Plan (2017) (BDP) which seek to promote quality place making, improve air quality and reduce noise, and Policies DM2 and DM6 of the Development Management in Brimingham Development Plan Document which, amongst other things, seek to protect the amenity of residents from noise and odour.

The appeal premises are a two-storey terraced property within a lively shopping and commercial street defined as a Primary Shopping Area (PSA) within Stirchley District Centre. The premises are currently vacant at ground floor having last been occupied by a dog grooming parlour.

Policy TP21 of the BDP establishes a hierarchy of retail centres within the city and aims to maintain and enhance the vitality and viability of the centres identified. Policy TP24 of the BDP identifies a mix of appropriate uses for District Centres and confirms that within defined PSAs, 55% of all ground floor units should be retained in retail use (now within Use Class E). In addition, the council’s Shopping and Local Centres Supplementary Planning Document (SPD) (2012) contains guidance in Policies 4 and 5 which seek to avoid an over-concentration or clustering of hot food takeaways within District Centres to protect their vitality and viability, setting a maximum limit of 10% of units within centres or frontages within such use.

Whilst currently vacant, the authorised use of the ground floor of the appeal property is not a retail use. As such, the proposal would not affect the number or proportion of retail uses in the PSA.

For the reasons discussed above, the proposal would not result in an increase in hot food takeaway uses ([name]) within the District Centre or the relevant frontage, being a café use falling within Use Class E.

Accordingly, the proposal would not conflict with Policies TP21 or TP24 of the BDP or the guidance of the SPD and the vitality and viability of the District Centre would not be detrimentally harmed.

The appellant suggests that a planning condition to restrict the use of the premises to a “café/coffee shop with ancillary sale of drink, desserts and light bites only” would alleviate the council’s concerns. Given my conclusions on the description of development above, should the appeal have been allowed and the property then operated other than in accordance with the approved scheme, the council would have had opportunity to address this breach without the need for the suggested condition. For this reason, the condition would not be necessary and would not therefore meet the tests of the Framework. Given my findings in respect of the first main issue, the suggested condition would not address my concerns regarding the likely impact on residents’ living conditions.

The appellant advises that the premises have been vacant for approximately five years and that bringing the property back into active use would contribute to the local economy and deliver local benefits to the vitality and activity of the frontage. I accept that these are beneficial matters which weigh in favour of the development. However, they do not overcome my concerns regarding the likely harm to the living conditions of local residents.

Given my findings above, the proposal conflicts with the development plan as a whole and there are no material considerations which indicate that a decision should be made other than in accordance with it. Accordingly, the appeal is dismissed.