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21/00999/B Page 1 of 8
PLANNING OFFICER REPORT AND RECOMMENDATIONS
Application No. : 21/00999/B Applicant : Mr Alan Capon Proposal : Variation of condition 2 to PA 19/01284/C to extend opening hours of restaurant for non resident customers Site Address : Athol Park Guest House Athol Park Port Erin Isle Of Man IM9 6EX
Planning Officer: Miss Lucy Kinrade Photo Taken :
Site Visit :
Expected Decision Level : Planning Committee
Recommendation
Recommended Decision:
Permitted Date of Recommendation: 05.11.2021 __
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. No non-resident customer of the restaurant shall be permitted to remain within the building after 22:15 hours on any day; and, for the avoidance of doubt, the premises shall not trade as a takeaway facility.
Reason: For the avoidance of doubt and in the interest of neighbouring and highway amenity.
C 3. No meals shall be served or consumed in the front garden of the premises.
Reason: In the interest of residential amenity.
This application has been recommended for approval for the following reason. The application is acceptable in accordance with Environment Policies 22 and 23 and General Policy 2 of the Isle of Man Strategic Plan 2016.
Plans/Drawings/Information; This approval relates to Site Location Plan, Floor Plans and Planning Statement all date received 23/08/2021. __
Interested Person Status - Additional Persons
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It is recommended that the owners/occupiers of the following properties should be given Interested Person Status as they are considered to have sufficient interest in the subject matter of the application to take part in any subsequent proceedings and are not mentioned in Article 4(2): o Norwood, Athol Park (27/09/2021) o Flat 2, Fairfield (17/09/2021) as they satisfy all of the requirements of paragraph 2 of the Department's Operational Policy on Interested Person Status (July 2020).
It is recommended that the owners/occupiers of the following properties should not be given Interested Person Status as they are not considered to have sufficient interest in the subject matter of the application to take part in any subsequent proceedings and are not mentioned in Article 4(2): o Creg Ny Shee (20/09/2021) o Cronk Lea, Athol Park (20/09/2021) o Thie Aaish (20/09/2021) as they are not within 20m of the application site and the development is not automatically required to be the subject of an EIA by Appendix 5 of the Strategic Plan, in accordance with paragraph 2B of the Policy.
o Apartment 1, Park Court, Athol Park (16/09/2021) o Cwmbrae, Athol Park (08/10/2021) o Fairholme, Athol Park (20/09/2021 and 21/09/2021) o Wensleydale, Athol Avenue (28/09/2021) o Flat 1, Fairfield, Athol Park (23/09/2021) as they do not refer to the relevant issues in accordance with paragraph 2C of the Policy and have not explained how the development would impact the lawful use of land owned or occupied by them and in relation to the relevant issues identified in paragraph 2C of the Policy, as is required by paragraph 2D of the Policy. __
Officer’s Report
THE APPLICATION IS BEFORE PLANNING COMMITTEE DUE TO THE NUMBER OF OBJECTIONS RECEIVED AND IT BEING RECOMMENDED FOR APPROVAL.
1.0 SITE 1.1 The application site is a three-storey building, dating from about 1900, on the south side of Athol Park, a mainly residential street in the built-up area of Port Erin. This property is currently used as a guest house; the submitted drawings show a dining area with eleven tables, sitting room, kitchen and toilet facilities on the ground-floor with ten bedrooms for guests on the upper floors. The building is within a mainly residential terrace. It has a small front garden, and there is a flight of steps leading from the street to its front door.
1.2 The property was approved under PA 19/01284/C for the additional use as a restaurant. This application was approved at appeal subject to the standard 4 year condition and two other conditions one relating to the operating hours and stating no customers to remain in the building after 2100hours and no operation as a takeaway (C2), and another stating no consumption of food in the front garden (C3).
"C2. No non-resident customer of the restaurant shall be permitted to remain within the building after 2100 hours on any day; and, for the avoidance of doubt, the premises may not trade as a takeaway facility. Reason: For the avoidance of doubt.
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C3. No meals shall be served or consumed in the front garden of the premises. Reason: In the interest of residential amenity."
2.0 PROPOSAL 2.1 The current application now seeks to vary C2 to seek that all non-resident customers leave the premises by 2215hours.
2.2 Information provided by the applicant for the application indicates the reason for the change stating that "The Planning Appeal into application 19/01284/C changed Condition 2; with non-resident Customers having to leave the premises by 21:00, instead of stopping serving Customers at 22:00. This revised time ends up with all cooking having to be completed by 20:30 (or earlier)"..." having all customers leaving by 21:00 is difficult to achieve & severely restricts our business, due to the time we have to stop serving. This application proposes that all non-resident customers leave the premises by 22:15. We believe that this would be in line with other Restaurants / Public Houses in Port Erin, who stop taking orders for food at 21:00. After being open for three months, we believe this is workable without causing a nuisance to either our neighbours or staying guests." The application seeks to alter this change introduced by the appeals inspector.".
3.0 PLANNING HISTORY 3.1 Aforementioned in 1.2 the property was approved at appeal for an additional use as a takeaway under 19/01284/C. This application originally sought permission for meals to be served up until 2200hours and with no restriction on guests leaving the property. The applicant's reasons for stopping meals at 2200hours was not only to reduce impact on neighbours but that they also did not want to upset their own paying and staying guests. The application was approved at Planning Committee with a condition to this affect stating no meals to be served to the public after 2200hours, but this decision was appeal. The subsequent appeal was later considered and determined by the Minister and the application approved with the standard 4 year condition and two further conditions relating to food service:
"C2. No non-resident customer of the restaurant shall be permitted to remain within the building after 2100 hours on any day; and, for the avoidance of doubt, the premises may not trade as a takeaway facility. Reason: For the avoidance of doubt.
C3. No meals shall be served or consumed in the front garden of the premises. Reason: In the interest of residential amenity."
3.2 The Inspectors report for the appeal states the reasons for the conditions:
"Residential Amenity 23 I do not accept that there would be an increase in the number of days on which the kitchen could be in operation. Nor do I see any reason to expect an unacceptable increase in the potential for cooking odours to be experienced outside the appeal premises, as a result of the present proposal.
24 Nevertheless, there might well be an increase in the number of people leaving the appeal premises late in the evening, as diners who are not staying in the guest house return home. The planning condition precluding meals from being served to the public after 10pm would not prevent diners leaving the premises until much later, after they had finished eating. I note that the Town and Country Planning (Change of Use) (Development) (No 2) Order would authorise the use of a guest house in the commercial centre of Port Erin as a restaurant, subject to a condition which would preclude the customers of such a restaurant from remaining in the relevant building after 9pm. That seems to me to be a legitimate requirement, which would help protect neighbouring residents from disturbance, at a time when they may reasonably expect peace and quiet. I can see no good reason why a less stringent restriction
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should apply to a proposed restaurant in a predominantly residential area. Plainly the restriction should apply only to non-resident customers. The difficulties in enforcing such a condition would appear to be no different to those that might arise if the proprietor of a guest house in the designated centre of Port Erin were to take advantage of the approved development allowance, by opening a public restaurant within his or her premises.
25 I also consider that it would be prudent to impose a condition preventing meals from being served in the front garden of the appeal premises, in order to protect the amenity of neighbouring residents. Although the applicants do not intend to provide such a service, their successors in title could have different ideas."
A similar application for a variation to C2 was submitted under PA 21/00056/B but later withdrawn, the reasons for this withdrawal are understood from the applicants submissions to be because they wanted to trial the restaurant and the appeal conditions prior to making any changes so that they could show their neighbours that they could operate without causing issue to their amenity.
4.0 PLANNING POLICY 4.1 The site is within a wider area of residential use on the Area Plan for the South 2013 and within the proposed Conservation Area. Given the established principle and operation of the current restaurant facility, it is perhaps most relevant in the assessment of the application to have regard to Environment Policies 22 and 23 in respect of the potential adverse impacts of the proposed changes to existing neighbouring amenity, along with those general standards towards acceptable development set out in General Policy 2.
5.0 REPRESENTATIONS Copies of representations received can be viewed on the Government's website. This report contains summaries only.
5.1 Port Erin Commissioners - in support (15/09/2021).
5.2 Department of Infrastructure Highway Services - Do not oppose (03/09/2021).
5.3 A number of comments have been received from neighbouring properties, these have been summarised as follows and categorised in to those in 'support', those in 'objection' and general 'comments':
5.4 IN SUPPORT: o Apartment 1, Park Court, Athol Park (16/09/2021) o Cwmbrae, Athol Park (08/10/2021) o Fairholme, Athol Park (20/09/2021 and 21/09/2021) o Wensleydale, Athol Avenue (28/09/2021)
a) No issues in respect of noise from current operation b) Proposed increase in opening time is not expected to have any new noise impacts nor cause any disruption. c) Increased hours would be of benefit to local community d) No new impacts in terms of additional traffic since the opening of restaurant e) Majority of existing parking is taken by residents more so than anyone using guest house or restaurant. f) The extension of hours will make no difference to the already established number of people already coming to and from the guest house or surrounding area as a whole and no new impacts as such. g) The smell from the operating business is no more than what you would get from a bbq and is not considered unpleasant. h) There is more noise from The Haven public house across the park.
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5.5 IN OBJECTION: o Cronk Lea, Athol Park (20/09/2021) o Creg ny Shee (22/09/2021) o Thie Aaish (20/09/2021) o Norwood, Athol Park (27/09/2021) o Flat 2, Fairfield (17/09/2021 and 23/09/2021)
a) Applicants failed to display the yellow notice correctly b) See no reason for variation of Inspectors condition to protect the neighbourhood from nuisance, noise and general lack of parking. c) The parking situation is made worse by residents of the terrace now parking large vans and motor caravans on the road. d) The smells are intense and strong. e) The extractor system is noisy and the recently approved extractor will be noisier f) Operation of premises is now all year round whereas it used to be seasonal g) The Falcons Nest ceases serving at 8:30pm h) The proposal to extend opening hours is against the 9pm permitted development hours for a property in a commercial zone. i) The commissioners are supporting a commercial use away from the main centre. j) Condition two was specifically imposed to preserve peace and quiet for residents and minimise disruption. k) The parking is now worse with residents competing with guests. l) Proposal is contrary to land use designation m) Proposal would result in nuisance, loss of privacy, noise and increase in smells from property.
5.6 COMMENTS o Flat 1, Fairfield, Athol Park (24/09/2021) Have not clarified within their submitted comments as part of this application any issues in respect of the current application proposal and how it will affect their property.
o Flat 2, Fairfield, Athol Park (23/09/2021) This comment responds to comments written in support of the proposal although does not specifically raise any objections to the proposal. Their comments clarify that they were not in breach of planning for the installation of a front door, that the area is being considered for Conservation Area status, that there are no restrictions to vehicles being parked on the road nor limitations on how many vehicles can be owned per household, that established restaurants in the area cease taking orders at 8:15pm and 8:30pm to avoid being associated with a late night takeaway, Port Erin Commissioners are supporting an application contrary to the Independent Inspectors recommendation, and Fairholme is not next to the restaurant nor is it single glazed, nor will it have 30+ people leaving late at night past their sitting room.
5.7 APPLICANTS RESPONSE TO COMMENTS 5.7.1 The applicants sought to provide a response to comments on the application dated 25/09/2021 and 01/10/2021, these can be viewed online in full and cover matters such as the previous withdrawal to allow time for the approved use to operate before apply for any subsequent changes so as to demonstrate no issues on neighbours, that the application of the Permitted Development timescale by the Inspector was unfair, the extended times will merely allow guests longer to finish their food and drinks, the owners tend to cook their own meals after service, there are a number of objections that again appear to be carbon copies although noted the additional written comments on some. The yellow notice was removed by a member of the public and a new one erected the very next day, this was reported to the police and CCTV provided. The guest house is fully operations and since owning the property have been open all year round, although than closure for approx. 1 month each year. Naturally the recent months have been quiet since Covid-19 and reduced traveller numbers. There are other commercial and tourist premises in the area.
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6.0 ASSESSMENT 6.1 The current application seeks an increase to the time that customers are allowed to remain within the building from 2100hours to 2215hours. Minded that the approval of 19/01284/C has already established an acceptable principle in having a restaurant here for non-resident customers, the key considerations in the assessment of the variation of condition would be whether or not the 1hour 15minute increase to the time non-resident customers can remain within the building would have an acceptable impact on the amenity of the neighbours and whether or not it would have an acceptable highway safety impact.
6.2 The Inspector for the previous application referred to the changes of use allowed under the Permitted Development (Change of Use) Order 2019. This order was introduced to help facilitate an increased flexibility in the change of use of premises within designated town centres without the need to submit a planning application and in supporting the Island's economic growth. The order stipulates a time limitation to changes of use undertaken in line with the order stating that no customers shall remain in the building after 9pm. The introduction of time limitations to the PDO sought to offer some degree of control in the change of use developments, and of course should any want to operate outside of these limitations they would need to submit an application and have the differences assessed as part of a planning application, just as the case here.
6.3 The Inspector of 19/01284/C felt that the 2100hours curfew seemed to be a "legitimate requirement, which would help protect neighbouring residents from disturbance, at a time when they may reasonably expect peace and quiet" and saw "no good reason why a less stringent restriction should apply to a proposed restaurant in a predominantly residential area" but that such a restriction "should apply only to non-resident customers".
6.4 It is clear from comments received on the application from those living in nearby properties that there is a difference in opinion in the operation of the restaurant by non- resident customers. At present non-resident customers must leave by 2100hours which the applicant has indicated can mean that some customers have to rush to finish their meal to make sure they're out by 2100hours even though guest house residents can still be sat on neighbouring tables enjoying their evening meals to an unrestricted time which In reality might feel a little unfair on all parties.
6.5 Some objectors indicate that other long established restaurant facilities in the nearby area cease cooking meals between 2000hours and 2030hours but with no time limitation on when these customers need to be left the premises which allows for a more relaxed eating experience. On the contrary nearby public houses are serving customers long into the evening hours. Most reasonable restaurant operations have a closing time to the public which subsequently allows for staff to clean up and prepare for the next day's operation. A guest house may operate slightly differently with potential for room service dining offered at anytime throughout the night. Of course being a staying guest would naturally reduce the coming and goings to the building, but odours and smells from cooking could still be expected and without restriction any time after 2100hours. Given this situation, it is perhaps not the smell and odours of cooking that is the key issue here on the amenity of the neighbours but rather the potential coming and going of non-resident customers to the site between 2100hours and up until 2215hours.
6.6 The restaurant seats approx. 30 covers, in considering a scenario here the current restaurant could allow for two dinner sittings, one at 1700hours and departing at 1845hours and another at 1900hours and departing at 2100hours, with potential for up to 60people coming and going from the site. It may be that an extension of time could allow a third sitting between 2100 hours and 2215hours with the potential of a further 30 people coming to and from the site. In reality however, and as outlined in the applicants' statement, what is perhaps most likely is not so much an increase in people visiting the site but rather an elongation of the time customers spend at the site with a more a more relaxed and unrushed dining experience
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on offer. While the time increase to 2215 could have a worst case scenario of up to 90 people visiting the site, the reality is likely to be less than this. The restaurant is not a fast hot food take away operating at unsociable late night hours or early hours of the morning, those visiting the site are doing so for a specific restaurant dining experience.
6.7 On the above basis and in taking into consideration the existing and established coming and goings by non-residents up to 2100hours, the unrestricted coming and goings of guesthouse residents until anytime including meals at any time, and on the reasonable basis that the increase of 1 hour and 15 minutes would more probably facilitate an increase in time existing customers spend within the restaurant rather than encouraging more customers to the site. It may also allow for a more filtered departure of customers over a longer period of time rather than an intensive departure at 2100hours. It is not therefore considered in this instance that the proposed increase in time for non-residents to leave the site by 2215hours would present such an unacceptable amenity impact on the neighbours beyond that already experienced up to 2100hours or by unrestricted guesthouse residents so as to significantly adversely harm their general living conditions as to warrant a refusal to the application.
6.8 In a similar manner for the parking and highway situation at the site, the proposed time increase is not expected to result in such a significant adverse change to the existing approved arrangements so as to create any new or adverse highway safety or amenity impacts beyond that already approved as to cause harm or to warrant a refusal in this case.
7.0 CONCLUSION 7.1 The application has been carefully considered, taking into account the assessment and conclusions of the previous Inspector and the site specific context of this application premises and the proposed time increase to the condition of the original approval. On the basis that the 1 hours and 15minute increase to the time non-resident customers can leave the building is not expected to result in any significant adverse harm to the amenity of the neighbours beyond what is already permitted that the proposed variation of condition in this case is considered to be acceptable in line with Environment Policies 22 and 23 and General Policy 2 of the Isle of Man Strategic Plan 2016.
7.2 As such it is recommended that the condition be reworded to:
C2: No non-resident customer of the restaurant shall be permitted to remain within the building after 2215 hours on any day; and, for the avoidance of doubt, the premises may not trade as a takeaway facility. Reason: For the avoidance of doubt and in the interest of neighbouring and highway amenity.
8.0 INTERESTED PERSON STATUS 8.1 By virtue of the Town and Country Planning (Development Procedure) Order 2019, the following persons are automatically interested persons: o the applicant (including an agent acting on their behalf); o any Government Department that has made written representations that the Department considers material; o the Highways Division of the Department of Infrastructure; o Manx National Heritage where it has made written representations that the Department considers material; o Manx Utilities where it has made written representations that the Department considers material; o the local authority in whose district the land the subject of the application is situated; and o 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 above who should be given Interested Person Status __
I confirm that this decision has been made by the Planning Committee in accordance with the authority afforded to that body by the appropriate DEFA Delegation and that in making this decision the Committee has agreed the recommendation in relation to who should be afforded Interested Person Status.
Decision Made : Permitted
Committee Meeting Date: 15.11.2021
Signed : L KINRADE Presenting Officer
Further to the decision of the Committee an additional report/condition reason was required (included as supplemental paragraph to the officer report).
Signatory to delete as appropriate YES/NO See below
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