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PLANNING OFFICER REPORT AND RECOMMENDATION

Application No. : 24/00615/B Applicant : Pets At Home Limited C/o Savills (UK) Limited Proposal : Application for the removal of condition 4 of planning permission 23/01021/B Site Address : Unit 2 Spring Valley Industrial Estate Douglas Isle Of Man IM2 2QR

Planning Officer: Hamish Laird Photo Taken : 27.09.2023 Site Visit : 27.09.2023 Expected Decision Level : Officer Delegation

Recommendation

Recommended Decision:

Permitted Date of Recommendation: 27.06.2024 __

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 pet care / veterinary surgery / treatment and grooming facilities hereby approved shall only be used and operated in connection with the main retail use of the unit and shall not at any time be operated as an independent business.

Reason: The uses hereby approved relate to the main and existing use, and have been found acceptable because they are ancillary to that use. Any sub-division of the unit would be contrary to adopted planning policies and also to previously determined planning applications of this site, and any changes to this would need to be assessed through the submission of a fresh planning application.

C 3. Any retailing undertaken from the mezzanine floor space hereby approved shall be ancillary to that of the main unit.

Reason: The uses hereby approved relate to the main and existing use, and have been found acceptable because they are ancillary to that use. Any sub-division of the unit would be contrary to adopted planning policies and also to previously determined planning applications of this site, and any changes to this would need to be assessed through the submission of a fresh planning application.

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C 4. The mezzanine floor hereby approved shall be laid out in full accordance with the drawing no. 6834/14, date-stamped as having been received 6th September 2023, as part of the previously approved PA23/01021/B planning permission.

Reason: In the interest of placing appropriate controls with respect to the use of the site.

This application has been recommended for approval for the following reason. The PA23/01021/B application has been previously considered to be acceptable and was approved on appeal. From the evidence provided by the applicant, it is clear that condition 4 of the appeal approval as recommended by the Planning Inspector was erroneously attached to the Decision Notice. Its wording clearly countermands the wording of condition 9 of the original ref: 08/02135/A permission affecting the site, and as that has not been previously challenged; and, the site has previously operated lawfully with that condition in place, it is clear that condition 4 serves no purpose and should be removed.

There are no other material considerations to take into account in considering this proposal to remove the condition. All other matters were previously considered by the Planning Committee in its decision to refuse the application. Subsequently, the Planning Inspector recommended that the appeal against refusal should be overturned; and, The Minister did so in granting planning permission in her letter dated on 13th May, 2024.

Plans/Drawings/Information;

The development hereby approved relates to the following plan, date-stamped as having been received 23rd May, 2024:

Drawing No. 6834/16 Rev. A - Site Location Plan. __

Interested Person Status - Additional Persons

None. __

Officer’s Report

1.0 THE SITE 1.1 The application site is the curtilage of Unit 2, Spring Valley Trading Estate, Cooil Road, Braddan, which is a retail unit currently operated by Pets at Home. Planning permission was granted on appeal PA23/01021/B on 29/11/23 for the 'Installation of a mezzanine floor to be used as a veterinary practice, pet care, treatment, and grooming facility; installation of nine external air-conditioning units, a gas bottle storage unit, fire exit door with external staircase, and amendments to existing roller shutter door'.

2.0 THE PROPOSAL 2.1 Full planning approval is sought for a change to a condition added to the 23/01021/B appeal approval where the Inspector added the following condition No. 4 to the planning permission. This reads: "Notwithstanding the provisions of Article 6 of the Town and Country Planning (Permitted Development) Order 2012, or any other order revoking and re-enacting that Order with or without modifications, the goods to be sold within the unit hereby approved shall not include food, pet food, pet supplies and pets. Reason: In the interest of placing appropriate controls with respect to the use of the site."

2.2 In a letter accompanying the application, the applicant advises that:

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"Condition 4 restricts the sale of pets, pet food and per supplies. The wording of the condition is such that the restriction now prevents pets at Home from operating form the unit, given their operation is focussed on the sale of these products.

It has been confirmed by the Case Officer that the condition was imposed in error on the draft list of conditions at planning application stage, and simply copied by the Inspector onto the Appeal Decision.

It is clear that the imposition of the condition was not intentional. The erroneous imposition of the condition was confirmed by the Case officer on 15th May, 2024, and the approach in removing the condition has been agreed. A copy of email correspondence is included as part of the submission.

It is worth noting that Condition 9 of the original permission for the site (Ref: 08/02135/A) states as follows: "Notwithstanding the provisions of Article 4 of the Town and Country Planning (Permitted Development) Order 2005, or any other order revoking and re-enacting that Order with or without modifications, the goods to be sold within the units hereby approved shall not include food and shall consist primarily of building, decorating and home-improvement materials and equipment, furniture and floor coverings, garden goods and equipment, car parts, spares, maintenance goods and equipment, camping equipment, boats, quad bikes, bicycles, electrical goods and equipment, light fittings, pet food, pet supplies and pets."

(Reason: In the interest of placing appropriate controls with respect to the use of the site.)

The condition would remain extant and therefore would continue to control what is permitted to be sold from the unit."

3.0 PLANNING HISTORY 3.1 The site and wider environment has and have been the subject of a number of previous applications, five of which in this case are considered to be relevant to the current proposal.

3.2 Planning application 08/02135/A sought Approval in Principle to demolish the existing unit and erect retail units with ancillary car parking and servicing. The planning application was refused though a subsequent appeal against that refusal was upheld by the Minister, in accordance with the recommendation of the appointed Planning Inspector, with the result that the application was approved on 23rd February 2010. Nine conditions were attached to this planning approval, of which the following three are worth noting:

Condition 6 stated: "This permission shall provide for a maximum retail floorspace of 1672m2."

Condition 7 stated: "The permission shall provide for a maximum of 2 units and there shall be no further sub-division."

Condition 9 stated: "Notwithstanding the provisions of article 4 of the Town and Country Planning (Permitted Development) Order 2005, or any other order revoking and re-enacting that Order with or without modifications, the goods to be sold within the units hereby approved shall not include food and shall consist primarily of building, decorating and home-improvement materials and equipment, furniture and floor coverings, garden goods and equipment, car parts, spares, maintenance goods and equipment, camping equipment, boats, quad bikes, bicycles, electrical goods and equipment, light fittings, pet food, pet supplies and pets." There was no condition specifying opening hours for the approved units.

It is worth noting that the application was originally refused by the Planning Committee for the following reason:

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"The proposed development is contrary to the aims of the Isle of Man Strategic Plan 2007 to direct all new retail development to existing shopping centres. It has not been adequately demonstrated that the proposed development would not detract from the vitality and viability of existing centres, nor has it been adequately demonstrated that the proposed goods could not reasonably be sold from an existing centre because of their size or nature. For these reasons the proposal is contrary to Business Policy 5 and Business Policy 10."

3.3 Following this, PA 10/01384/REM sought and gained Reserved Matters planning approval for the demolition of existing unit and erection of two retail units with ancillary car parking and servicing. Seven conditions were imposed on this planning approval, but the only two of which are relevant to the assessment of the current application were copies of conditions 7 and 9 as outlined above. Again, there was no condition specifying opening hours for the approved units.

3.4 Subsequently, PA 11/01726/B was submitted seeking approval for the installation of a mezzanine floor for retail purposes within Unit 1, which was and is operated by Dixons Retail plc and is the sister Unit to that which is the subject of the current proposal. The case officer's assessment ran in part as follows:

"It is also relevant to note that both Unit 1 and Unit 2 could be legitimately occupied and used by any retailer without any further planning approval provided they accord with the provisions of condition no. 9 of previous planning application 08/02135/A and condition no. 7 of previous planning application 10/01384/B accordingly. Both of these conditions, which are identical, set out the range of goods that can be legitimately sold from the application site. This condition was originally imposed by the then Minister when he accepted the recommendation to allow the appeal against the refusal of previous planning application 08/02135/A. Whilst planning conditions can control what is sold from a site the planning system cannot control who sells those items. It should also be noted that should they decide to go ahead without the mezzanine floor the current applicant (Dixons Retail Plc) could legitimately occupy and trade from Unit 1 without needing any further planning approval.

"As stated earlier, previous planning application 08/02135/A was approved subject to a condition stating that the permission shall provide for a maximum retail floorspace of 1672 square metres. Based on the existing retail floorspace within Unit 2 (Pets at Home) and the proposed retail floorspace within Unit 1 with the mezzanine floor the overall retail floorspace within the application site would be 1709 square metres. This equates to an additional 37 square metres of, or a 2.2% increase in, retail floorspace above the previously approved 1672 square metres of retail floorspace.

"Taking account of the planning application submissions and the representations it is considered that whilst the various concerns expressed are readily understood the principle of retailing from the application site has been established by the approval of previous planning application 08/02135/A. Whilst it is accepted that overall retailing from the application site will have an effect on existing retailers elsewhere it would be difficult, if not impossible, to reasonably refuse the current planning application on the basis of an additional 37 square metres of retail floorspace above the already established 1672 square metres of retail floorspace. The impact of the 37 square metres of retail floorspace is negligible in comparison to the already approved 1672 square metres of retail floorspace. It is also considered that the increased level of retail floorspace would be unlikely to materially increase the trip generation and parking requirement to any noticeable extent." There were a number of objections received to the proposal, including one from the Minister who had accepted the Inspector's recommendation to uphold the appeal in respect of the original AiP on this site, who was concerned that the additional floorspace pushed the boundaries of what was an already finely balanced situation.

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The Planning Committee refused the application for the following two reasons:

"The increase in floorspace greater than that conditioned in application 08/02135/A, would further undermine the aims of Strategic Policy 9 and Business Policy 5 of the Isle of Man Strategic Plan 2007 which seeks to direct all new retail to town and village centres in order to protect the vitality and viability of those centres."

"The proposal would result in an increased demand for parking on a site where the existing levels of parking provision are demonstrably inadequate, and which would therefore result in overspill to surrounding roads causing inconvenience to users of the highway."

No appeal was lodged.

3.5 Of less immediate relevance, but nevertheless worth noting, is the application (PA 11/01594/LAW) submitted seeking a Certificate of Lawful Use for the use of Unit 1 (which it is to be remembered is not the unit the subject of the current application) for retail sale by Next Plc for the sale of furniture, household goods and decorating items plus children’s wear. The application was seeking to establish whether the sale of those goods would comply with Condition 7 attached to 10/01384/REM and Condition 9 attached to 08/02135/A (both of which were the same and the wording of which has been outlined in this report at paragraph 3.2, above).

3.6 The application was refused on the 1st December 2012 for the following reason:

"The proposed use is not lawful and a Certificate of lawful use is declined as; The sale of goods from the site, as itemised in the application, would not be compliant with condition 9 of Planning Permission 08/ 02135/A or condition 7 of 10/01384/REM and would amount to the building not being used primarily for the sale of building, decorating and home-improvement materials and equipment, furniture and floor coverings, garden goods and equipment, car parts, spares, maintenance goods and equipment, camping equipment, boats, quad bikes, bicycles, electrical goods and equipment, light fittings, pet food, pet supplies and pets. Therefore Planning Permission would be required."

Again, no appeal was lodged.

3.7 From the applicants current submission, they advise: "On 17th February 2016, an application was refused for 'Alterations, creation of a mezzanine floor to provide a veterinary surgery, pet grooming and related facilities, installation of eight air conditioning units, gas bottle storage unit, fire door, external staircase and amendments to existing roller shutter door' at Pets At Home Unit 2 Spring Valley Industrial Estate Douglas Isle Of Man IM2 2QR (App Ref: 15/01063/B) (the '2016 Application').

The Decision Notice for the 2016 Application detailed two reasons for refusal. These reasons are set out below:

1. The application has failed to demonstrate that the proposal would not result in demonstrable harm in respect of the local highway network in respect of displaced parking and also the amount of parking that is available on the site at present. The proposal is therefore contrary to Transport Policy 7 of the Isle of Man Strategic Plan 2007.

2. The application has failed to demonstrate that there would be no harm arising from the proposed use and floorspace relative to existing retail / community centres. The site is zoned for industrial use, and the application has failed to demonstrate why the proposed use and floorspace could not be located in a town centre location. As such, the proposal is contrary to General Policy 2 and Business Policies 5, 9 and 10 of the Isle of Man Strategic Plan 2007.

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The Applicant has provided additional evidence as part of the 23/01021/B resubmission to address the previous reasons for refusal. This application was refused contrary to the Case Officers recommendation to approve for the following reasons; "1. The proposed development involving the addition of a mezzanine floor as a veterinary practice, pet care, treatment, and grooming facility, covering approx. 306m2 in floor area, is unacceptable, because if granted it could not be conditioned how it would be operated. As such, the proposal would fail to maintain and enhance the viability and vitality of town centres by controlling the location and nature of new retail and commercial development as outlined at page 11) para 3.4 (d) of the Isle of Man Strategic Plan 2016; and, is therefore, contrary to the provisions of General Policy 2k) and Business Policies 5, 9 and 10 of the Strategic Plan. 2. The application proposes the addition of a mezzanine floor covering approx. 306m2 in floor area to the existing Pets at Home building. The site is zoned for industrial use, and the application has failed to demonstrate why the proposed use and floorspace could not be located in a town centre location. As such, the proposal would fail to maintain and enhance the viability and vitality of town centres by controlling the location and nature of new retail and commercial development as outlined at page 11) para 3.4 (d) of the Isle of Man Strategic Plan 2016; and, is therefore, contrary to the provisions of General Policy 2k) and Business Policies 5, 9 and 10 of the Strategic Plan."

3.8 An appeal was lodged and subsequently the application as recommended for approval by the Planning Inspector, with planning permission being granted by the Minister on 13th May, 2024. Permission was granted subject to the following conditions:

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.

2. The pet care / veterinary surgery / treatment and grooming facilities hereby approved shall only be used and operated in connection with the main retail use of the unit and shall not at any time be operated as an independent business. Reason: The uses hereby approved relate to the main and existing use, and have been found acceptable because they are ancillary to that use. Any sub-division of the unit would be contrary to adopted planning policies and also to previously determined planning applications of this site, and any changes to this would need to be assessed through the submission of a fresh planning application.

3. Any retailing undertaken from the mezzanine floor space hereby approved shall be ancillary to that of the main unit.

Reason: The uses hereby approved relate to the main and existing use, and have been found acceptable because they are ancillary to that use. Any sub-division of the unit would be contrary to adopted planning policies and also to previously determined planning applications of this site, and any changes to this would need to be assessed through the submission of a fresh planning application.

4. Notwithstanding the provisions of Article 6 of the Town and Country Planning (Permitted Development) Order 2012, or any other order revoking and re-enacting that Order with or without modifications, the goods to be sold within the unit hereby approved shall not include food, pet food, pet supplies and pets.

Reason: In the interest of placing appropriate controls with respect to the use of the site.

5. The mezzanine floor hereby approved shall be laid out in full accordance with the drawing no. 6834/14, date-stamped as having been received 6th September 2023.

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Reason: In the interest of placing appropriate controls with respect to the use of the site.

NOTE: The development hereby approved relates to the following plans, date-stamped as having been received 6th September 2023:

Drawing No. 6834/13 Rev. A - Proposed Elevations; Drawing No. 6834/14 - Proposed Ground & Mezzanine Floor Plan and Areas - Planning Layout; Drawing No. 6834/15 - Proposed Site Layout Plan; Drawing No. 6834/16 Rev. A - Site Location Plan; Parking Capacity Review: Pets at Home, Douglas, IOM - Dated 27th July, 2023;"

4.0 DEVELOPMENT PLAN POLICIES AND OTHER MATERIAL CONSIDERATIONS 4.1 In terms of local plan policy, the application site is located within a wider area of land that is designated as predominantly industrial under the Isle of Man Planning Scheme (Braddan Parish District Local Plan) Order 1991. Planning Circular 6/91, the written statement that accompanies the local plan, contains two policies that are considered specifically material to the assessment of this current planning application.

4.2 Policy 2.4 states: "In accordance with the adopted policy of Tynwald no retail developments will be permitted in the Parish District of Braddan with the exception of retail provision designed to serve the local neighbourhood requirements of existing and future communities."

4.3 Policy 2.5 states: "No development of retail use, nor conversion of existing buildings to retail use, will be permitted in existing or future industrial areas."

4.4 In terms of strategic plan policy, the Isle of Man Strategic Plan contains six policies that are considered specifically material to the assessment of this application.

4.5 General Policy 2 states, in part: "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:

(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; (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."

4.6 Strategic Policy 9 states: "All new retail development (excepting neighbourhood shops and those instances identified in Business Policy 5) and all new office development (excepting corporate headquarters suitable for a business park location) must be sited within the town and village centres on land zoned for these purposes in Area Plans, whilst taking into consideration Business Policies 7 and 8."

4.7 Business Policy 1 states: "The growth of employment opportunities throughout the Island will be encouraged provided that development proposals accord with the policies of this Plan."

4.8 Business Policy 5 states: "On land zoned for industrial use, permission will be given only for industrial development or for storage and distribution; retailing will not be permitted except where either:

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(a) the items to be sold could not reasonably be sold from a town centre location because of their size or nature; or (b) the items to be sold are produced on the site and their sale could not reasonably be severed from the overall business;

and, in respect of (a) or (b), where it can be demonstrated that the sales would not detract from the vitality and viability of the appropriate town centre shopping area."

4.9 Business Policy 9 states: "The Department will support new retail provision in existing retail areas at a scale appropriate to the existing area and which will not have an adverse effect on adjacent retail areas. Major retail development proposals will require to be supported by a Retail Impact Assessment."

4.10 Business Policy 10 states: "Retail development will be permitted only in established town and village centres, with the exceptions of neighbourhood shops in large residential areas and those instances identified in Business Policy 5."

5.0 REPRESENTATIONS 5.1 Highway Services of the Department of Infrastructure (31/5/24) comments: "24/00615/B - After reviewing this Application, Highway Services HDC finds it to have no significant negative impact upon highway safety, network functionality and/or parking, as the site is already used for pet type services and the car park can accommodate the existing and new mezzanine use through observed regular turnover of car parking spaces."

5.2 Braddan Parish Commissioners (18/6/24) offered no objection to the proposal.

5.3 No third party or other representations had been received by the Report drafting stage on 27/6/24.

6.0 ASSESSMENT 6.1 This planning application relates to a request to remove condition 4 of the previously approved PA23/01021/B permission relating to the "Installation of a mezzanine floor to be used as a veterinary practice, pet care, treatment, and grooming facility; installation of nine external air-conditioning units, a gas bottle storage unit, fire exit door with external staircase, and amendments to existing roller shutter door".

6.2 The condition proposed to be removed reads: "4. "Notwithstanding the provisions of Article 6 of the Town and Country Planning (Permitted Development) Order 2012, or any other order revoking and re-enacting that Order with or without modifications, the goods to be sold within the unit hereby approved shall not include food, pet food, pet supplies and pets. Reason: In the interest of placing appropriate controls with respect to the use of the site."

6.3 Condition 9 attached to the original (Ref: 08/02135/A) permission relating to the site advises as follows:

"9. Notwithstanding the provisions of Article 4 of the Town and Country Planning (Permitted Development) Order 2005, or any other order revoking and re-enacting that Order with or without modifications, the goods to be sold within the units hereby approved shall not include food and shall consist primarily of building, decorating and home-improvement materials and equipment, furniture and floor coverings, garden goods and equipment, car parts, spares, maintenance goods and equipment, camping equipment, boats, quad bikes, bicycles, electrical goods and equipment, light fittings, pet food, pet supplies and pets."

((Reason: In the interest of placing appropriate controls with respect to the use of the site.)

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6.4 It is clear from Condition 9 that the sale of 'pet food, pet supplies and pets', is acceptable from this unit and no other conditions were attached to the original permission that countered this.

6.5 The PA23/01021/B application has been previously considered to be acceptable and was approved on appeal. From the evidence provided by the applicant, it is clear that condition 4 of the appeal approval as recommended by the Planning Inspector was erroneously attached to the Decision Notice. Its wording clearly countermands the wording of condition 9 of the original ref: 08/02135/A permission affecting the site, and as that has not been previously challenged; and, the site has previously operated lawfully with that condition in place, it is clear that condition 4 serves no purpose and should be removed.

6.6 There are no other material considerations to take into account in considering this proposal to remove the condition. All other matters were previously considered by the Planning Committee in its decision to refuse the application. Subsequently, the Planning Inspector recommended that the appeal against refusal should be overturned; and, The Minister did so in granting planning permission in her letter dated on 13th May, 2024.

6.7 In conclusion, it should be confirmed that condition 4 of the appeal permission has been applied erroneously to thePA23/01021/B planning permission, and that this application to remove condition 4 should be permitted. In doing so, it should be noted that all other conditions remain applicable and should be adhered to by the applicant. These will be attached to any Decision Notice for thisPA24/00615/B application for the avoidance of doubt.

7.0 RECOMMENDATION 7.1 Grant - with condition 4 removed, and all other previous conditions attached the PA23/01021/B appeal approval retained.

8.0 INTERESTED PERSON STATUS 8.1 By virtue of the Town and Country Planning (Development Procedure) (No 2) Order 2013, the following persons are automatically interested persons:

o The applicant, or if there is one, the applicant's agent; o The owner and the occupier of any land that is the subject of the application or any other person in whose interest the land becomes vested; o Any Government Department that has made written submissions relating to planning considerations with respect to the application that the Department considers material, which in this case includes the Highways Division of the Department of Infrastructure, and o The local authority in whose district the land the subject of the application is situated.

8.2 In addition to those above, article 6(3) of the Order requires the Department to decide which persons (if any) who have made representations with respect to the application, should be treated as having sufficient interest in the subject matter of the application to take part in any subsequent proceedings relating to the application. __

I can confirm that this decision has been made by a Principal Planner in accordance with the authority afforded to that Officer by the appropriate DEFA Delegation and that in making this decision the Officer has agreed the recommendation in relation to who should be afforded Interested Person Status.

Decision Made : Permitted

Date: 27.06.2024

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Determining officer

Signed : J SINGLETON

Jason Singleton

Principal Planner

Customer note

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