Officer Planning Report

Planning Report And Recommendations {{table:21388}}

Officer's Report

THE APPLICATION IS BEFORE THE PLANNING COMMITTEE AT THE REQUEST OF THE DEVELOPMENT CONTROL MANAGER.

The Application Site

1. The application forms the curtilage of 1 Station Road, Port Erin which is a single storey property, which forms part of a row of terraced properties (end terrace) located on the northern side of Station Road and northeast of the Falcons Nest Hotel.

1. It is also important to note approximately 5.5 metres to the west of the site is the rear of Milner Towers which is a five storey apartment block (ground floor car park) which accommodates 12 apartments (i.e. three on each floor).

Proposal

1. The application seeks approval for conversion of existing retail shop to a hot food takeaway and installation of extraction unit to rear elevation.

1. The applicants have indicated they would relocate the existing section of the hot food away service from their restaurant premises located on Lower Promenade (Bohemian Cafe Style Restaurant) to the application site.

1. The proposed takeaway shop would produce and sell pizzas, fajitas, kebabs and burgers with side dishes and soft drinks.

1. It is proposed that the opening hours would be similar to other takeaway businesses within the area being flexible between the hours of 12 noon to 12 midnight Sunday to Thursday and 12 midday to 1.30am Friday and Saturday.

1. The applicants indicate that their current takeaway service employs two full time staff servicing the existing takeaway and it is envisage a further two full time staff will be created and potential additional part time staff if they relocate to 1 Station Road.

1. The applicants have indicated they would be willing to provide additional bins in the area and staff would undertake litter picks. They would also be happy to install CCTV within the premises and externally covering the shop frontage.

1. The submission includes the installation of an extractor system which includes an external flue projecting out of the rear elevation, just below the eaves level of the roof and

projecting 1 metre in heat above the eaves. The applicants indicate that the extractor system and ventilation system would be the "state of the art" that controls noise and odour nuisance by employing the following elements:

1. Primary grease filters;
2. Secondary grease filers;
3. Final bay filter;
4. Odour control unit incorporating active carbon filters;
5. Internally located fan on anti-vibration mounts;
6. Acoustic silencer/noise attenuator;
7. Discharge cone on anti-vibration mounts; and
8. Dedicated ventilation to maintain a negative pressure within the kitchen.

1. They also indicate that they note the requirement for a suitable maintenance schedule for the noise and odour control system which shall be adhered to as per the manufacturer's recommendations.

1. The applicant indicated that they do not anticipate any further increase in noise levels then what currently exists through passing traffic or persons passing through the area. They highlight that the site is situated on the main thoroughfare through the village and is near to a convenience supermarket, bank with cash points, two Chinese takeaway's, two pubs and a hotel.

Department Policies

1. The application site is within an area recognised as being an area of "mixed use", under the Port Erin Local Plan Order 1990 and the Modified Draft Area Plan for the South. The site is not within a Conservation Area, but is proposed to be within a Conservation Area under the Modified Draft Area Plan.

1. Due to the site being within a mixed use area and due to the proposed usage the following policies are relevant in the determination of the application:-

"General Policy 2: 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:

• (a) is in accordance with the design brief in the Area Plan where there is such a brief;
• (b) respects the site and surroundings in terms of the siting, layout, scale, form, design and landscaping of buildings and the spaces around them;
• (c) does not affect adversely the character of the surrounding landscape or townscape;
• (d) does not adversely affect the protected wildlife or locally important habitats on the site or adjacent land, including water courses;
• (e) does not affect adversely public views of the sea;
• (f) incorporates where possible existing topography and landscape features, particularly trees and sod banks;
• (g) does not affect adversely the amenity of local residents or the character of the locality;
• (h) provides satisfactory amenity standards in itself, including where appropriate safe and convenient access for all highway users, together with adequate parking, servicing and manoeuvring space;
• (i) does not have an unacceptable effect on road safety or traffic flows on the local highways;
• (j) can be provided with all necessary services;
• (k) does not prejudice the use or development of adjoining land in accordance with the appropriate Area Plan;
• (l) is not on contaminated land or subject to unreasonable risk of erosion or flooding;
• (m) takes account of community and personal safety and security in the design of buildings and the spaces around them; and
• (n) is designed having due regard to best practice in reducing energy consumption."

"Strategic Policy 2: New development will be located primarily within our existing towns and villages, or, where appropriate, in sustainable urban extensions(2) of these towns and villages. Development will be permitted in the countryside only in the exceptional circumstances identified in paragraph 6.3."

"Spatial Policy 2: Outside Douglas development will be concentrated on the following Service Centres to provide regeneration and choice of location for housing, employment and services

• Ramsey
• Peel
• Port Erin
• Castletown
• Onchan

Area Plans will define the development boundaries of such centres so as to provide a range of housing and employment opportunities at a scale appropriate to the settlement."

"Environment Policy 22: Development will not be permitted where it would unacceptably harm the environment and/or the amenity of nearby properties in terms of:

i) pollution of sea, surface water or groundwater; ii) emissions of airborne pollutants; and iii) vibration, odour, noise or light pollution."

Planning History

1. There are no previous planning applications which are considered relevant in the assessment and determination of this application.

Representations

1. Port Erin Commissioners have recommended the application be approved subject to the provision of CCTV, additional litter bins and litter picking in vicinity of premises.

1. Highways Division have no objection to the proposal.

1. The Police Architectural Liaison Officer has made reference to the proposed hours of operation of the takeaway and has indicate that historically the trading of takeaway premises have not been controlled and as a result they can (and in many cases do) remain open well into the early hours of the morning. He indicates that research shows that late-night takeaway type premises act as 'honey pots' in that they can cause persons to remain in an area for an inordinate period of time, and ergo the likelihood of, criminal or anti-social behaviour occurring. The Officer recommends the trading hours are controlled so the takeaway so not operate between 0000hrs and 1200hrs Monday to Friday and between 0130hrs and 1200hrs on Saturday and Sunday.

1. The Milner Towers Management Company and the owners/occupants of Flat 2A, Flat 1C, Flat 1B, Flat 2C Flat 3A, Flat 4c & Flat 1 have all objected to the proposal which can be summarised as; proximity of site to 32 windows which overlook the site (flue/vent) and less than 25 feet away will result in cooking smells entering the apartments (cooking smells from a takeaway 200+ metres away can already be smelt due to the wind direction); concerns relating to hygiene due to litter and therefore concerns of vermin attracting to the area; concerns of noise through visitors to the site during early mornings; security concerns; the need of a further catering establishment in the village; concerns of noise created by the of the extractor fan during night time which is close to bedroom windows; concerns that the extractor system will be maintained; and number of bedrooms are within close proximity to the flue and therefore smell and noise pollution would impact upon their residential amenities.

1. The owner of the Falcon's Nest Hotel Ltd, Station Road, Port Erin, has objected to the proposal which can be summarised as; possible disruption to their guests form the noisy extraction system and people gathering on the pavement opposite the hotel and at the seating area next to the railway station before and after purchasing food from the site; concerns of litter in the area; and the need of a further catering establishment in the village.

1. Erinville Management Ltd (management company of 1-6 Erinville Apartments) has objected to the application which can be summarised as; use is not a suitable location; concerns of smell, noise and hygiene concerns conflicting with adjoining uses; the proposal is in close proximity to residential properties; area is a particularly windy location and this will exasperate problems with litter; and noise concerns created by customers of the takeaway during late night periods impacting upon residential amenities.

1. The owners of Pisces (Port Erin) Ltd, 3 Station Road; Port Erin have objected to the proposal which can be summarised as; concerns of commercial competition of a further takeaway in Port Erin.

1. The owner/occupants of 20 Church Road, Port Erin have objected to the application which can be summarised as; concern of late night noise through customers to the site; they cannot sleep to the front of their property as they are already affect by visitors to the existing takeaway along Church Road (current sleep in back bedroom which would face towards the rear of application site); close to a number of residential properties; and such premises do not attract customers to the retain area during the day.

Assessment

1. Considering the submitted information, the written representations and visiting the area, it would seem there are two main issues. The first is whether the principle of such use is acceptable in an area designated as mixed use. Second, are the potential impacts upon nearby residential amenities potential cause by the proposed usage of the property as a hot food takeaway.

1. The site is designated as being with an area of "mixed use", under the Port Erin Local Plan Order 1990 and the Modified Draft Area Plan for the South. Further to this the Isle of Man Strategic Plan supports such development being located within existing settlements an especially within Service Centres, which Port Erin is identified as being within (Spatial Policy 2).

1. Overall, given the designation of the site and the variety of uses in the area, the site is, in many ways, an appropriate location for such a use and in principle would be acceptable.

1. The next issue relates to the potential impacts upon the residential amenities of the neighbouring and nearby properties. Within this issue there are perhaps two separate issues. The first is the impact of the extraction/ventilation system and the second the general disturbances of residents by customers of the takeaway, especially during anti-social hours (i.e.2300hrs – 0700hrs).

1. With these potential concerns in mind the Planning Department has sought advice from the Environmental Protection Unit (EPU) who have submitted a detail response which in summary is:

1. "This application is likely to change the character of the area introducing increased noise and odour which is characteristic of takeaways.

1. The fact that the exhaust is well within 20m and significantly below the height of residential apartments approximately 5m away, means odour is likely to be symptomatic of any takeaway even with odour control. Continued operation and maintenance of odour control systems is difficult to enforce.

1. Potential noise nuisance is not only likely to be from the kitchen extract but potentially also from rowdy behaviour of customers and their vehicles, particularly if the takeaway is open at night (2300 - 0700 hrs).

1. Given the exhaust is only approximately 5m away from residential flats it is unlikely to meet criteria recommended to prevent sleep disturbance at night and is likely to require acoustic design to meet a recommended daytime noise levels to prevent annoyance."

1. The advisor states if permission is granted then conditions should be attached which prohibiting operation at night (2300 - 0700 hrs) and conditions relating to noise levels not exceeding the relevant levels during daytimes and night should be attached.

1. It is clear from the representation from EPU that there are concerns of such an extraction/ventilation system within very close proximity of the residential properties, especially given a number of the windows of Milner Towers which face the application site are bedrooms. A total of 24 windows (32 including windows in stairwell) within the rear elevation of the apartment block of Milner Towers, serving a total of 8 individual apartments (each has a window to a bedroom, bathroom and hallway) would be approximately between 8 metres to 17 metres from the proposed flue of the extraction/ventilation system. It is also worth noting that all these windows would be set above the level of the flue and therefore any emissions have the potential to enter the properties, as the flue is not set above the windows levels. There are also a further 12 windows within the southern gable end wall of the apartment block which serve four apartments (kitchen/living room windows). These windows face directly towards Station Road and the Falcons Nest.

1. Whilst the applicant has submitted that the extraction/ventilation system is "state of the art" and that they intended to maintained the system to the manufactures recommendations, as indicated by the EPU "continued operation and maintenance of odour control systems is difficult to enforce". Also the EPU also indicate that given the close proximity to these properties; "means odour is likely to be symptomatic of any takeaway even with odour control".

1. In relation to customers visiting the takeaway, especially after the hours of 2300hrs, again the EPU has raised concerns. Regarding this point an argument for the scheme could be made that as the site is designated as mixed use (which also includes Milner Towers, Falcon's Nest and Erinville Apartments) and one would expect a higher degree of noise and disturbance through greater activity. Furthermore, generally occupiers of apartments within a town centre location would expect a different standard of living compared to a residential cul-de-sac/countryside due to the general activity of a town centre, particularly during the evenings. It is also noted that a public house directly opposite the site (Falcon's Nest) also appears to be open till at least 0000hrs on Fridays and Saturdays and therefore there will be a level of existing noise and disturbances by music and customers coming and going from these premises. It is also perhaps arguable that it is not the take always that cause rowdy behaviour of customers, but rather from establishments serving alcohol. However, as identified by the Police Architectural Liaison Officer, research shows that late-night takeaway type premises act as 'honey pots' as person will leave public houses/clubs etc and will remain or walk to the takeaway business where the likelihood of, criminal or anti-social behaviour occurring. The behaviour of people at night is unpredictable in that some people go to a take-away to get their food and then quickly disperse but there are others who hang around to eat food and chat with their friends before dispersing from an area.

1. It is reasonable view that if the takeaway was to operate from 1 Station Road, more people after 2300hrs would be present in the area for a prolonged period of time then they currently are. If this was not the case then the applicants would not be seeking for the takeaway opening hours till midnight during the week and 1.30am during Friday and Saturday.

In certain towns/cities centres such activity in terms of impacting upon residential amenities does not occur, as there are no residential properties in proximity. However, in this case there are a number of residential properties, namely Milner Towers which are within very close vicinity of the site.

1. Overall, whilst there are perhaps existing levels of noise and disturbances through existing facilities in the area during anti-social hours, to allow the proposed takeaway within very close proximity to residential properties and for that takeaway to operate up to midnight during the week and 1.30am on Friday and Saturdays, will significant increase the level of noise and disturbances to the detriment of nearby residents amenities.

1. In terms of planning policies which relate to this type of development, as indicated within the planning policy section of this report Environment Policy 22 require consideration. This policy is clear that development will not be permitted if it would harm the environment and/or the amenity of nearby properties. In this case it is considered the proposal could give rise to odour and noise pollution for the reasons given.

1. With regard to references of commercial competition, this is not a valid reason for refusal. There is no planning policy which restricts the amount of a particular type of retail outlet in Port Erin.

Recommendation

1. In conclusion, whilst the principle of using the site for a hot food takeaway is in line with the land use designation. Given the concerns relating to the odour emissions from the proposed extraction/ventilation system which is within very close proximity of a number of neighbouring presidential properties and as the proposed opening hours would result in increased levels of noise, disturbance and criminal activity to the detriment of the amenity of the area; it is considered the proposal would be contrary to the Isle Of Man Strategic Plan. Therefore it is recommended that the application be refused.

Party Status

1. It is considered that the following meet the criteria of Town and Country Planning (Development Procedure) Order 2005, paragraph 6 (5) (d) and should be afforded interested party status:

Port Erin Commissioners The Police Architectural Liaison Officer The Milner Towers Management Company and the owners/occupants of Flat 2A, Flat 1C, Flat 1B, Flat 2C Flat 3A, Flat 4c & Flat 1 Milner Towers, Port Erin The owner of the Falcon's Nest Hotel Ltd, Station Road, Port Erin Erinville Management Ltd (management company of 1-6 Erinville Apartments The owners of Pisces(port Erin) Ltd, 3 Station Road; Port Erin The owner/occupants of 20 Church Road, Port Erin

1. The Department of Transport Highways and Traffic Division is now part of the Department of Infrastructure of which the planning authority is part. As such, the Highways and Traffic Division cannot be afforded party status in this instance.

Recommendation

Recommended Decision: Refused

Date of Recommendation: 13.09.2012

Conditions and Notes for Approval / Reasons and Notes for Refusal

C : Conditions for approval N : Notes attached to conditions R : Reasons for refusal

• : Notes attached to refusals

R 1.

The use of the premises as a hot food takeaway within close proximity to the residential properties (Milner Towers) would result in a detrimental impact upon residential amenities due to an increase in the amount of people using the facility and by-passing residential properties in the area, thus increasing the disturbance, noise and nuisance caused to local residents during anti-social hours. Furthermore, the proposed use would also likely result in smells emanating from the premises, again to the detriment of nearby residential amenities, particularly within the apartment block Milner Tower. The proposal is therefore contrary to General Policy 2 and Environment Policy 22 of the Isle of Man Strategic Plan.

I confirm that this decision has been made by the Planning Committee in accordance with the authority afforded to it under the Town and Country (Development Procedure) 2005

Decision Made : Refs/ssg Committee Meeting Date : 01/10/12

Signed : Presenting Officer

Further to the decision of the Committee an additional report/condition reason is required. Signing Officer to delete as appropriate

YES/NO