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Appeal No. AP14/0006 Application No. 13/91316/B REPORT ON APPEAL BY THE RETAIL COMMITTEE OF THE ISLE OF MAN CHAMBER OF COMMERCE AND BY DOUGLAS DEVELOPMENT PARTNERSHIP AGAINST THE PLANNING APPROVAL GRANTED FOR THE ERECTION OF AN EXTENSION AND VEHICLE LOADING CANOPY, ENLARGEMENT OF EXISTING YARD AND ALTERATIONS TO EXISTING CAR PARK LAYOUT AT TESCO STORE, LAKE ROAD, DOUGLAS, ISLE OF MAN
THE APPEAL SITE AND THE PROPOSED DEVELOPMENT 2. The appeal site is the full curtilage of the Tesco store and its associated parking and servicing areas. The proposed development would take place at the eastern end of the building. It involves land which is partly used as a yard for loading delivery vans and partly occupied by car parking spaces. 3. It is proposed to erect an extension of 49.75 \mathrm{~m}^{2}\left(535 \mathrm{ft}^{2}\right) to the storage area used for the "dotcom" part of the applicant's business, which involves on-line ordering and home delivery. The proposal includes a replacement loading canopy some 9.1 m wide by 6.5 m deep in front of the former canopy, and an eastward extension of the yard used by the delivery vans. This would be extended to the east by about 12.5 m . The extended area would be enclosed by 2.4 m high close-boarded timber fencing to match the existing fencing, and the yard gates would be relocated within the fence at the eastern end of the enlarged yard. The position at which vans stand to be loaded would be moved eastwards. There would be a minor change to the layout of the internal access road, and some 10 parking spaces would be lost.
A statement has been submitted by Douglas Development Partnership ("DDP"), which is a partnership of Douglas Borough Council and the Isle of Man Chamber of Commerce. The Retail Committee of the Chamber of Commerce has stated that it agrees with the points made by DPP and wishes DPP's statement to also stand as its own statement. The main points in the statement are: 4. The appeal does not seek a refusal of the scheme, but it is requested that a condition be added to prohibit any further increase in retail floor area without the cumulative impact of past and proposed increases being considered with the benefit of a retail impact assessment ("RIA"). 5. Despite not being mentioned in the application, there is evidence to suggest that the applicant is likely to use the approval of additional gross floor area to continue to increase the retail floor area of the store. That has the potential to have an adverse impact on the vitality and viability of the retail area of Douglas town centre. Evidence based on drawings from previous planning applications is submitted in support of the appellants' case. The measurements taken from those drawings are approximate, but should have only a small margin of error. 6. The approval in principle for the erection of a food supermarket granted in 1996 related to a drawing showing a retail floor area of 30,000 \mathrm{ft}^{2}, 7,000 \mathrm{ft}^{2} of storage and 5,000 \mathrm{ft}^{2} of administration space. Measurements from drawings submitted for construction of a home shopping area (PA04/00937/B) indicate that the net retail floorspace in May 2004 was 2551.52 \mathrm{~m}^{2}\left(27,465 \mathrm{ft}^{2}\right). Internal alterations have been undertaken to the store since then, and these are believed to have resulted in an increase in the net retail floor area which is estimated to now be about 2,782 \mathrm{~m}^{2}\left(29,946 \mathrm{ft}^{2}\right). Having regard to perceived inaccuracies on both the existing and proposed site plans submitted with the current application, it is calculated that the actual net retail floor area that could be used by Tesco if the
appealed application is approved without the condition sought would be 2,929 \mathrm{~m}^{2}\left(31,528 \mathrm{ft}^{2}\right). That includes the likelihood that Tesco would convert the existing bakery into retail floorspace, having regard to the fact that the bakery is shown as part of the retail floor area on the proposed site plan for the current application. That figure represents an increase of 462 \mathrm{~m}^{2} over the net retail floor area that was in operation in 2009, and is in excess of the floor area originally approved in principle in 1996. 7. It is clear that Tesco wish to increase the retail floorspace, as is shown by the internal alterations that have been made to increase retail floorspace and by the submission of 2 previous applications which were refused - PA09/00301/B to add a 1^{\text {st }} floor and increase the retail floorspace; PA13/00687/B for a seasonal extension in a temporary structure. It is likely that Tesco will convert the bakery area into shop floor if they are allowed to extend the dotcom area without any restriction on net retail floorspace. 8. Business Policy 9 of the Isle of Man Strategic Plan ("the Strategic Plan") aims to ensure that new retail provision in existing retail areas is at a scale which will not affect adjacent retail areas adversely. Any retail development with a gross external floorspace greater than 500 \mathrm{~m}^{2} has to be accompanied by a RIA. The floorspace of the Tesco store has increased by 462 \mathrm{~m}^{2} net since 2009 , which equates to 650 \mathrm{~m}^{2} gross at the 71 % net to gross ratio used in the original application for the store. A new development of that size would have required a RIA. It is also relevant that when approved the store was described as a food supermarket, but now sells products such as electrical goods and stationery. As PA09/00301/B proposed an increase in non-food comparison goods, it is reasonable to assume that any further increase in net retail floor area would be likely to add to the store's non-food range. A decision to approve the application subject of the appeal without any control over the ability of Tesco to further increase the amount of retail floorspace has the potential to have an adverse impact on Douglas town centre. 9. It is requested that the additional condition referred to in paragraph 4 above should be attached.
The main points are: 10. The site is in an area designated on the Douglas Local Plan 1998 as retail warehousing. General Policy 2 and Business Policies 9 and 10 of the Strategic Plan are relevant. The site has been subject to many previous applications, but none of these are directly comparable to the current application in terms of being comparable in scale and purpose. 11. The proposal would result in a visual change to the store as seen when approaching along the highway. The part of the store involved is obscured by signage and any parked vehicles within the car park. As the visual change would be relatively slight, it would not be negative or sufficient to warrant refusal. 12. Ten customer parking spaces would be lost, but the Highways Division considers the scheme to be acceptable and the remaining parking would be sufficient to accommodate the vehicles generated by the use of the site. The applicant indicated that most of the spaces to be lost are used by the company's vans, which would in future be parked more securely in the enlarged yard. It is also likely that fewer vehicles would visit the site if more sales are undertaken on-line. That could be regarded as more sustainable than customers visiting the store. The proposal is to be encouraged as it would provide a better arrangement for the dotcom operation, which is a sustainable method of shopping. 13. The proposal would not have a material effect on the residents of 1 Lake Road opposite. The noise concerns of those residents relate to articulated vehicles with refrigeration units rather than the dotcom vans. The applicant has advised that no complaints have ever been received about noise nuisance.
Dotcom deliveries are undertaken between 10.00 hours and 23.00 hours, and so there is unlikely to be early morning or late evening loading/unloading associated with this activity. 14. The proposal would not increase the amount of retail floorspace where goods would be on display for sale. It is unlikely that it would have a knock-on effect such that there would be an indirect increase in retail floor area. Whilst the use of internet shopping is unlikely to add to the vitality and interest of the town centre, and it could be argued that this operation need not be in a town location, the dotcom operation is inextricably linked to the main use for the sale of groceries and other goods. The scale of internet shopping relative to direct shopping would not be such as to justify refusal on the basis that the character and nature of the use would change significantly. 15. The Planning Committee gave consideration to the potential impact on the town centre and its vitality and viability, and determined that such impact would not justify refusal. The effect on the town centre of reduced numbers of people coming to shop at the store must be considered in the light of the fact that this site is not within the town centre, as was concluded in the appeal relating to PA09/00301/B, and that there is therefore a weaker existing connection between the store and the town centre streets where most shops are located. A balance needs to be struck between potentially affecting the centre adversely and promoting this more environmentally friendly form of shopping. On balance, the Committee found that the scale of the extension and alterations proposed were not sufficient to justify refusal. 16. It is noted that the appellants do not seek refusal of the proposal. The planning approval given by the Planning Authority only permits the works shown in the application. It would not enable use for retail purposes of any existing floor areas which are not currently used for those purposes. The proposal does not in itself include the provision of any more floor areas which could be used as retail floorspace, and it could not lead to a further conversion of floorspace elsewhere on the site without further physical changes being made to the building. Such changes would require planning approval. The Authority would not object to the attachment of additional wording to condition 2 to clarify that no approval is granted to any increase in retail floor area either directly or indirectly.
The main points are: 17. The applicant provides an internet based home shopping operation. The popularity of this has been increasing and it is an important growth area. The proposal is required to improve the operating facilities for staff to enable them to provide the service demanded and to maintain the quality of service. 18. The extension would enlarge the existing marshalling area, where shopping is sorted following picking of the pre-ordered goods from the sales floor of the store and then stored until the pre-agreed delivery time. The shopping is then loaded into the delivery van under the canopy. Each van can hold shopping for a maximum of 14 customers and normally carries out 3 delivery routes per day. The routes are planned for time efficiency, and the dotcom service can reduce car use by customers and travel times. 19. The extension would be located under the existing loading canopy roof. It would have flat metal cladding panels. The new van loading canopy would be adjacent to the extension, and would be similar to the canopy it would replace. The extension would improve the environment for storage of products and enable the existing cold-room space to be expanded. The new canopy would retain the ability to load vans under cover. The extension and canopy would not be readily visible from outside the site. The yard extension would improve Health and Safety. It would allow all the delivery vans to be parked securely overnight, whereas 7 vans currently park in the spaces outside the yard. The car parking area affected is staff parking. Customer parking would be unaffected. Only 2 parking spaces would be lost.
The extended enclosure would be in keeping with the existing store buildings on this rear part of the site. Landscaping on the site would be unaffected. 20. The sales floor of the store would not be affected, and the retail floor area would not be increased. The appellants are incorrect to state that Tesco are likely to use the approval of this scheme to increase the retail floor area of the store. The intention is to provide a small extension to the dotcom storage area which is remote from the sales floor. 21. The fact that the appellants have confirmed that they do not seek refusal of the application confirms that there is no valid reason for the appeal. The proposal should be considered on its own merits and it cannot be used "as a vehicle for other 'commercial' interests and concerns of third parties". The appellants' suggestion that the submitted plans indicate that the store bakery is likely to be changed to part of the retail floorspace has nothing to do with this application. The appeal should be dismissed.
The appellants have stated that they are not seeking refusal but only the attachment of an additional condition. This would seek to prohibit "any increase in retail floorspace without such being specifically consented to as part of a separate application that would be obliged to take into account the cumulative increase since 2009". It is my assessment that such a condition would be wholly untenable. It would fail the tests which must be satisfied in order for a planning condition to be imposed. One of these is that a condition should be relevant to the development being permitted. The condition suggested is not relevant to the modest extensions and alterations being proposed to the storage and loading areas used for the dotcom element of the business. Instead, the condition seeks to control increases in retail floorspace generally on the overall supermarket site. In effect the condition would be attempting to impose additional controls retrospectively on other parts of the building which have the benefit of previous planning approvals. With the context that the applicant's operation is governed by those approvals previously granted, and that there is no power available under planning legislation to impose conditions after the event of the grant of approval, such a condition would also fail the tests that a condition must be necessary and reasonable in all respects.
I am aware that the appellants have firmly held concerns about the potential for this store to impact on the vitality and viability of Douglas town centre, and that they believe that internal alterations and changes have led over time to increases in its net retail floorspace. However, whether or not such increases have occurred, and whether or not the applicants may make further changes in the future - for example by making the in-store bakery space into sales area as the appellants fear - these are not matters which can legitimately be controlled by attaching conditions to an approval for a minor addition elsewhere on the site of floorspace to be used for a purpose other than retail sales floor. Whether planning approval was needed for any internal alterations/changes already undertaken, and whether planning approval would be needed for any future alterations/changes, are matters to be considered against the terms of the planning approvals previously granted. It is not appropriate to seek to control such matters by way of a condition on an unrelated application such as the one subject of this appeal. Such a condition would be most unlikely to be enforceable, and so would fail yet another of the tests of a planning condition. In the light of the conflicts with the tests for a planning condition, it is my view that the condition sought would also be unlikely to be robust to any legal challenge that might be made.
Turning to other matters, the appearance and design of the extension and the replacement canopy would be similar to the appearance and design of the part of the building to be extended and of the existing canopy. These elements would be well set back from the highway leading to the site and would be within a yard enclosed by high fences. In views from the highway there would be an intervening area usually occupied by parked vehicles. Consequently, there would be no material harm with respect to visual impact. There would be a small reduction in parking provision, but this would in reality be less than the 10 spaces which the plans indicate would be displaced, bearing in mind that some of those spaces are presently used for parking of the delivery vans which would be parked within the enlarged yard. Taking into account that the Highway Authority did not object to the proposal, there is no basis to conclude that the proposal is unacceptable on grounds relating to parking or other highway matters.
With respect to the objections from the residents of 1 Lake Road, bearing in mind the hours during which the dotcom vans undertake deliveries I find no basis to conclude that noise nuisance to local residents would be increased by the proposal. The concerns of these residents appear to relate to the existing situation, and most specifically to the articulated delivery vehicles and their refrigeration units. Those elements of the store's operation would not be directly affected by this proposal.
I have taken account of all other matters raised, but I have found nothing of overriding significance. Amongst those other matters is the suggestion by the Planning Authority that extra wording could be added to condition 2 as referred to in paragraph 16 above. However, that wording would also fail the tests requiring that conditions should be necessary and relevant to the development being permitted. I have concluded that the appeal should be dismissed, and that there is no justification to attach the additional condition sought by the appellants.
Stephen Amos MA(Cantab) MCD MRTPI Independent Inspector
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