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Application No.: 10/00405/R Applicant: Murrays Ltd Trading As Chrystals Auctions Proposal: Change of condition one of PA 97/00041/B (retrospective) Site Address: - 8 - 10 Allan Street - Douglas - Isle Of Man - IM1 3DH ### Considerations Case Officer: Mr Ian Brooks Photo Taken: - Site Visit: - Expected Decision Level: Planning Committee ### Written Representations ### Consultations Consultee: Highways Division Notes: Defer. 29.04.10 - defer - Consultee: Douglas Corporation Notes: Consultee: Planning Enforcement Officer Notes:**
This application is recommended for consideration by the Planning Committee rather than under delegated powers as the previous application was determined by the Committee.
The application site comprises of a warehouse building at No 8-10 Allan Street, located on the north western side of Allan Street. To the north east of the application site is a car park and to the south west is the residential property of No.12 Allan Street. The application site is zoned as predominantly residential in the Douglas Local Plan 1998.
The application is seeking to vary condition 1 of 97/0041/B to allow Chrystals Auctions to operate from the buildings.
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
22 November 2010 10/00405/R Page 1 of 5
The following previous applications are considered relevant in the consideration of this application: 97/0041. Conversion of workshop to warehouse/sales. Granted in June 1997. The permission was subject to a number of conditions of which, condition 1 stated 'This approval may be taken up and operated only by Share The Care Ltd' and condition 3 stated that 'Sales from the site may take place only on Saturdays.
In 2008 permission was granted for an extension to the opening hours under permission 08/00528/B that allowed for sales to take place between 1300 and 1600 on Thursday and at anytime on Saturdays. The permission was limited to one year from the date of the approval in November 2008.
The Highways Division of the Department of Transport have requested the application be deferred. The reason is "No details of the use of property. If used for auctions then change of traffic pattern may lead to parking problem on highway.
Douglas Corporation does not object to the application.
This application resulted from an enforcement enquiry regarding the use of the building as an auction house. The main consideration in assessing this application is whether the change of operator would cause significant harm to residential amenity or road safety by reason of congestion from vehicles and persons visiting the premises.
However, before considering these matters, planning officers queried whether the use of the premises for auctions would be materially different from that of a 'warehouse/sales' use as defined by the previous approval. The agent for the applicant has argued that Chrystals Auctions are using the premises in an identical manner to that previously operated by Hospice Properties Limited, namely warehouse/sales. In practical terms, there client stores goods on the premises and holds an auction of those goods every other Saturday.
The question is whether sales by auction fall within the description of "the retail sale of goods" within Class 1(a) of the Town and Country Planning (Permitted Development) Order 2005. It could be argued that the sales by auction are not retail sales within the normally understood definition of that term, and that auction salerooms are sui generis. Certainly the pattern of use of premises where auctions are carried on is markedly different from that of a normal shop, in that large numbers of people attend and disperse at one particular time with the potential of creating harm to amenity and highways users.
However, the agent considers that sales by auction falls within Class 1(f) that being "the display of goods for sale... where the sale, display or service is to visiting members of the public", as it seem that the client's use falls squarely within that use class as the auction involves the display of goods for sale and the sale of those goods to the public.
However, following legal advice, it has been advised that the retail sale of goods is separate and distinct from sales by auction. In doing so, regard has been taken to the definition of "retail" in Stroud's judicial dictionary. Whilst there is no definition specifically in relation to the use of term in planning legislation, in considering the meaning of the term "retail trade or business" for the purposes of English Shops legislation, it was held in the case of Lucas v Reubens, reported in 1921, that an auctioneer who in the ordinary course of business sells jewellery by auction does not carry on the retail business of a jeweller.
However, it is uncertain that the existing planning permission restricts the activities to retail sales. Given that the use is warehouse/sales, it is suggested that wholesale sales, which one might expect from warehouse premises, would be permitted. In which case, as an auction is indisputably a sale, it has been advised that the Department would be in difficulties were it to try to argue that such a use would be contrary to the existing permission merely because it could not be considered to be a retail sale. It has therefore been advised that "sales" must encompass more than just retail sales.
Accordingly, it has been advised that, provided condition 1 is varied to enable Chrystals to operate from the premises, the holding of viewings and auctions would fall within the existing permission.
In terms of residential and highway safety, the site has no parking provision. The previous occupiers of the premises indicated that visitors to the site were able to park in the adjacent car park on Saturdays. However, it should be noted that this car park is not in control of the owners of the site or the tenants (Chrystals Auctions). It has been highlighted above that the pattern of use of premises where auctions are carried on is markedly different from that of a normal shop, in that large numbers of people attend and disperse at one particular time and given that the site is without on-site parking and in a residential street, the potential loss of amenity and increase in highway or parking problems is likely.
The previous occupier of the building indicated in their application (08/00528) to extend their opening times to Thursdays that they opened on Saturday afternoons between the hours 1-4pm. The applicant had carried out a survey on Saturday 7th June 2008 to demonstrate the amount of people who visit the site. In the first hour of trading over 125 people visited the site, then 50 plus people in the second hour of trading and then in the third hour 25 people visited. It should be noted that the planning permission was appealed against by a third party. The material points of the appellants case were:
"Fully support the work of the Hospice Charity, but the extension of opening hours to include Thursdays would have a serious impact upon the safety of pedestrian and vehicle users of Allan Street. During the present opening hours on a Saturday, car parking is available to visitors to the premises on the adjacent car park because most persons are not at work locally. But to allow sales on Thursday would be when the car park is used for parking by local office workers and that would create a very negative and potentially dangerous impact on parking locally. The new opening hours would also conflict with parents, children and workers returning home at lunchtime and collecting children from school. It is questioned whether an independent traffic survey has been commissioned based on the restricted parking, width of road and proximity to a school and major road."
The Independent Inspector conclusions were "Given that planning permission already exists for retail sales from the premises. I can see little wrong with the principle of allowing that to take place on another day. However, I do acknowledge that in this part of Douglas, there can be problems of parking and traffic congestion. At the time of my visit, I did not find the road congested and there were some parking spaces available on the road. As such circumstances can vary from day to day, it seems to me that the suggestion by the Planning Committee to allow a one year permission in order to test the situation would be sensible and reasonable solution to the appellant's concerns."
The use of the building by Chrystal Auctions will be evidently different to the previous occupiers. Instead of visitors being spread out over a 3 hour period they would visit at one specific time for the auction, i.e. sale starting from 11am. However, it should be noted that viewing normally starts from 9am. The highest concentration of people on the site will be from 11am.
A resident of Allen Street complained to the Planning Enforcement Officer about the use, and commented on the parking as result of the use. They stated that it is impossible to park on the road from when the viewings start (9am) to after the auction has finished (4-5pm), and there are cars/vans parking dangerously as goods are being picked up. They also indicated that it was tolerable when the Hospice Warehouse was there as they only opened from 1-4 on Saturdays, but now the auctions are taking full days and it is becoming a real nuisance.
22 November 2010
It would be useful to have a clear record of why the original planning approval was limited to Share the Care, and the hours restricted. If it was clear that the intention was to limit the impact on residents, because they thought that activity would be low; to prevent excessive highway problems; or to overcome concerns about a sales use outwith existing centres, then those issues could be reanalysed. The report does state 'proposed is the use as a warehouse with occasional sales on ground floor. I understand that the intended user is a subsidiary of the Hospice, and that sales might take place on a Saturday when it might be possible to use the adjoining car park.... Elimination of the workshop activity would be a gain.... The additional traffic...would not be an improvement.... Since the building operations are minimal we could consider restricting the user to this applicant.'
This is an unusual application. The use differs from that of a normal retail shop and that of the previous operator and seems, to a certain extent, to be giving rise to an increased level of disturbance. However, officers are advised that the use of the site as an auction falls within the description of 'warehouse/sales'. There does not appear to be a clear reason why the proposal was restricted to Share the Care Ltd and consequently it would be difficult to defend a refusal to remove this restriction.
RECOMMENDATION It is recommended that the condition be varied to allow Chrystals Auctions to operate from the site. PARTY STATUS
The local authority is, by virtue of the Town and Country Planning (Development Procedure) Order 2005, paragraph 6 (5) (c) and (d), considered an "interested person" and as such should be afforded party status.
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: Permitted Date of Recommendation: 02.11.2010 Conditions and Notes for Approval / Reasons and Notes for Refusal
This permission relates to the variation of condition one of PA 97/0041/B as shown in Loc 1 date stamped 22 March 2010.
Sales from the site may take place only on Saturdays between the hours of 9am and 6pm.
22 November 2010
I confirm that this decision has been made by the Planning Authority in accordance with the authority afforded to it under the Town and Country (Development Procedure) 2005
Decision Made : 201000405/100000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000
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