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20/00415/C Page 1 of 6
PLANNING OFFICER REPORT AND RECOMMENDATIONS
Application No. : 20/00415/C Applicant : Mr Alexandra Ross Proposal : Extension of opening hours Sunday to Thursday from 4pm to 12.30am to 4pm to 01.30am and Friday to Saturday from 4pm to 3am to 4pm to 4am Site Address : 2 Marina Road Douglas Isle Of Man IM1 2HE
Principal Planner: Miss S E Corlett Photo Taken :
Site Visit :
Expected Decision Level : Officer Delegation
Recommendation
Recommended Decision:
Permitted Date of Recommendation: 24.06.2020 __
Conditions and Notes for Approval
C : Conditions for approval N : Notes attached to conditions
C 1. The development hereby approved shall be begun before the expiration of four years from the date of this decision notice.
Reason: To comply with Article 26 of the Town and Country Planning (Development Procedure) Order 2019 and to avoid the accumulation of unimplemented planning approvals.
C 2. The hot food "take-away" business may operate only between the hours of 1600 to 0130hrs the following morning on Sundays to Thursdays inclusive and between 1600hrs and 0400hrs the following morning on Fridays and Saturdays.
Reason: to accord with the proposed hours of operation as stated in the application.
This application has been recommended for approval for the following reason. The proposed change of operating hours is considered acceptable given the land use designation and the representation from the Police and thus in compliance with General Policy 2, Environment Policy 22 and Community Policy 7 of the Strategic Plan and Town Centre Mixed Use Proposals 1 and 3 of the draft Area Plan for the East.
Plans/Drawings/Information; This approval relates to the plans and information received on 16th April, 2020.
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Interested Person Status - Additional Persons
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It is recommended that the following Government Departments should be given Interested Person Status on the basis that they have made written submissions relating to planning considerations:
Architectural Liaison Officer, Department of Home Affairs __
Officer’s Report
THE SITE 1.1 The application site lies on the western side of Marina Road, to the north of Castle Street and currently accommodates a hot food takeaway at ground floor level with a pavement cafe in front extending between 3.4m and 3.7m from the frontage of the building.
1.2 Through planning conditions, the take away is available within the periods 1600hrs - 0030 Sunday to Thursday and 1600hrs - 0300hrs on Fridays and Saturdays/Sunday mornings.
THE PROPOSED DEVELOPMENT 2.1 Proposed is the extension to the opening hours to 0130hrs on Monday to Friday mornings and until 0400hrs on Saturday and Sunday mornings, stating that they are currently operating from 1600hrs each day. They clarify that they are not intending to open for business at 0700hrs. The business will be open from 1600hrs as it has been for last few years and we hope to extend our opening hours to 0130hrs weekdays and 0400hrs on Friday and Saturdays. There might be the odd times like TT fortnight when we open as early as 1300hrs.
2.2 The applicant explains that over the last year there have been significant expenses and the additional time of being open would enable some of that expense to be recouped and the opportunity to provide additional income for those working at the premises. They consider the site to be surrounded by many clubs and bars and point out that 1886 closes its doors at 0300hrs similar to The Outback and The Courthouse which are "in close proximity" to the application site. They have found that having to close at 0300hrs has sometimes led to aggressive behaviour by customers who could not be served.
2.3 They refer to a taxi base immediately behind the site and comment that they have good relations with Telecabs and advertise their numbers on the premises with their aim to offer a taxi service to all the customers after they have eaten so as to refrain from any noise or wandering the streets once they leave the shop. They state that they have never had any complaints regarding noise or rubbish since opening in 2016. There is CCTV inside and outside of the premises and note that the nearest residential properties are the Falcon Apartments opposite and the applicant and his partner live directly above the shop and do not want noise or disturbance. the two properties either side have no-one living there.
2.4 They believe that their operation can help reduce criminal activity as they organise a meal and safe transport from the area for their customers, sobering them up. They refer to Faming great, Marmaris and Mama's Kitchen which are in a much more built up area than the application site and may open until 0400hrs. They have, and will continue to contact the emergency services if necessary due to behaviour of customers and people in the area.
2.5 They refer to the benefit of being able to open later during TT and would enable them to serve more customers. As they have recently had to adapt their operations due to CV19 but have tried to keep the business open using precautionary measures for staff and customers and leaving the food at the door to be collected by customers and they now have a process of cleaning the surfaces after each customer has left although they are very quiet at the present time.
PLANNING POLICIES
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3.1 The site is within an area designated on the Douglas Local Plan of 1998 as Predominantly Shopping. On the draft Area Plan for the East the site lies within an area designated as Mixed Use within the Villa Marina Gateway and where the Written Statement includes the following:
9.8.1 Mixed Use Area 1 This area is characterised by entertainment and visitor attractions notably the Villa Marina, the Manx Museum and the Villa Gaiety.
Town Centre - Mixed Use Proposal 1 In order to maintain and enhance the vitality and attractiveness of the area, there will be a presumption in favour of (i) the retention of entertainment venues and the Museum, (ii) the establishment of new entertainment and leisure venues, plus supporting food and drink uses. Development which conflicts with these uses will generally not be supported.
Town Centre - Mixed Use Proposal 3 There will be a presumption in favour of retail, and ancillary town centre uses such as food and drink and health and beauty uses along the primary shopping frontage. Outside of the primary shopping frontage a wider variety of town centre uses including financial and professional services open to visiting members of the public will also be acceptable. Entertainment venues, Offices and residential use will be acceptable at first floor level and above, but not at ground floor level where an active frontage should be maintained and enhanced. These active frontages are essential to sustain an attractive town centre.
3.2 Within the adopted Isle of Man Strategic Plan 2007, the following policies are considered to be relevant in the determination of this application:
General Policy 2 states that "Development which is in accordance with the land-use zoning and proposals in the appropriate Area Plan and with other policies of this Strategic Plan will normally be permitted, provided that the development: (g) does not affect adversely the amenity of local residents or the character of the locality; (m) takes account of community and personal safety and security in the design of buildings and the spaces around them"; and
3.3 Community Policy 7 states "The design of new development and the extension and refurbishment of existing buildings and development must, as far as is reasonably practical, pay due regard to existing best practice so as to help prevent criminal and anti-social behaviour."
3.4 Environment Policy 22 presumes against the approval of development which would "unacceptably harm the environment and/or the amenity of nearby properties in terms of:
ii) emissions of airborne pollutants and iii) vibration, odour, noise or light pollution."
PLANNING HISTORY 4.1 The following previous applications are considered relevant in the consideration of this application:
99/01898/C - Change of use of retail unit to fast food take away - granted at appeal on 31st August 2000.
Condition 4 states that "The hot food "take-away" business may not operate between 0030 hours and 0700 hours on Mondays to Fridays, and between 0300 hours and 0700 hours on Saturdays and Sundays.
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09/00907/R - Variation of condition 4 of PA 99/01898/C regarding opening hours - granted at appeal on 10th February 2010. The planning permission was granted on a temporary basis for one year.
11/00264/C sought to vary condition 4 of 99/01898/C so as to allow the takeaway to operate for a further hour on each day. The existing condition stated that "The hot food "take-away" business may not operate between 0030 hours and 0700 hours on Mondays to Fridays, and between 0300 hours and 0700 hours on Saturdays and Sundays." This application was refused initially and at appeal for the reason that "The proposed extension to the opening hours would result in increased levels of noise, disturbance and criminal activity to the detriment of the amenity of the area."
4.2 The premises referred to by the applicant were approved as catering establishments under 97/01396/C (Flaming Great on Buck's Road), 04/01446/A ( Mama's Kitchen, 2, South View, Queen's Promenade) and 05/00433/C (Mamaris - previously a pizza restaurant).
REPRESENTATIONS 5.1 No comments have been received from Highway Services. Douglas Borough Council confirm by e-mail that they have no objection to the application and are liaising with the applicant regarding bin provision and storage (24.06.20).
5.2 The Architectural Liaison Officer (ALO) of the Isle of Man Constabulary submitted the following comments on 19.06.20:
"This application does not present any real concern to the Constabulary as it is recognised that there are other premises of a similar nature working to comparable hours. If they are successful in their application, it is only asked that they ensure the CCTV system is in working order and someone is able to operate it. The Constabulary do not oppose this application."
ASSESSMENT 6.1 The main issue in respect of this application is whether the proposed permanent extension to the opening hours would result in harm to the surrounding environment as indeed it was in the case of 11/00264/C. The area is zoned as area of predominantly shopping use where one would expect a higher degree of noise and disturbance through greater activity; however, there are residential apartments located directly opposite the application site. The draft Area Plan for the East designates the area as Mixed Use and the accompanying proposal places emphasis on the use of premises in the area for entertainment and catering and what is proposed is in accordance with that. Indeed, the Proposal appears to presume against uses which would conflict with these uses rather than the presumption against such uses where there would be a conflict with existing non entertainment or catering uses. However, it must be borne in mind that there are, on the upper floors of many premises, living and tourist accommodation which are permitted under Mixed Use Proposal 3 of the draft Area Plan for the East and the amenities of these occupants deserve protection in accordance with EP22.
6.2 There must be a balance between promoting services for customers, the profitability and viability of the business and also whether the proposed opening hours would impact on the residential environment of those apartments and the provision of facilities. As noted in the earlier applications, generally, occupiers of apartments within a town centre location would expect a different standard of living compared to a residential cul-de-sac due to the general activity of a town centre, particularly during the evenings. The existing planning conditions states that "The hot food "take-away" business may not operate between 0030 hours and 0700 hours on Mondays to Fridays, and between 0300 hours and 0700 hours on Saturdays and Sundays". This proposal would mean that the condition would be permanently revised to the following "The hot food "take-away" business may not operate after 0130 hours or before 1600hrs on Mondays to Fridays, or after 0400 hours or before 1600 hours on Saturdays and
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Sundays." There have been no objections from local residents nor, importantly from the Police.
6.3 The officer reprting on the previous application noted that there is another takeaway that is located at No.6 Marina Road, which currently has the same hours of opening as the application site. The opening hours are also controlled through a planning condition, which states that "The hot food "take-away" business may not operate between 00.30 and 07.00 a.m. on Mondays to Fridays, and 03.00 and 07.00 a.m. on Saturdays and Sundays." He also noted that there is a Chinese Takeaway at 35 Castle Street, which appears to have unrestricted opening times; however, its time of operation does not exceed beyond 12am on Fridays and Saturdays, and 11.30pm any other time during the week. This is currently closed.
6.4 The independent Inspector made the following comments when considering 09/00907/R:
"There is no direct evidence that the appeal premises operated by the appellant have actually caused or encouraged any criminal activity or disturbance or police incidents. The monitor table presented in the inquiry is for a year period prior to the occupation of the appeal premises by the appellant. There is no accurate statistics for the time when the appellant began operating the Istanbul Take Away. It is therefore unreasonable to assert that the appellant has any connection with previous "incident" statistics. No evidence was submitted on this point."
"From the evidence it is impossible to predict from statistics if the level of disturbance might increase in Marina Road if the opening hours of the Istanbul under its current owner were extended."
"In these uncertain circumstances it is appropriate to test the impact of changing the opening hours by imposing a temporary condition for 1 year. This would enable the Planning Authority to properly assess the precise impact of the extended opening hours. The testing of the impact should use up to date records of disturbances recorded by the police over the 1 year period and should also try to assess accurately how the appellant's premises and operation was involved in any Marina Road incidents."
CONCLUSION 6.5 The proposed change of operating hours is considered acceptable given the land use designation and the representation from the Police and thus in compliance with General Policy 2, Environment Policy 22 and Community Policy 7 of the Strategic Plan and Town Centre Mixed Use Proposals 1 and 3 of the draft Area Plan for the East.
INTERESTED PERSON STATUS 8.1 By virtue of the Town and Country Planning (Development Procedure) Order 2019, the following persons are automatically interested persons: (a) the applicant (including an agent acting on their behalf); (b) any Government Department that has made written representations that the Department considers material; (c) the Highways Division of the Department of Infrastructure; (d) Manx National Heritage where it has made written representations that the Department considers material; (e) Manx Utilities where it has made written representations that the Department considers material; (f) the local authority in whose district the land the subject of the application is situated; and (g) a local authority adjoining the authority referred to in paragraph (f) where that adjoining authority has made written representations that the Department considers material.
8.2 The decision maker must determine:
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o whether any other comments from Government Departments (other than the Department of Infrastructure Highway Services Division) are material; and o whether there are other persons to those listed in Article 6(4) who should be given Interested Person Status.
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I can confirm that this decision has been made by the Head of Development Management in accordance with the authority afforded to that Officer by the appropriate DEFA Delegation.
Decision Made : Permitted Date : 26.06.2020
Determining officer
Signed : S BUTLER
Stephen Butler
Head of Development Management
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