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Allowed on appeal with costs | PA14/00699 | Variation of condition 30 decision PA12/10064 allow up to 40% foodstore's net retail

Variation of condition 30 attached to decision notice PA12/10064 to allow up to 40% of the foodstore's net retail sales area to be used for comparison goods - Land At South Quay Hayle Cornwall

Ref. No: PA14/00699 | Status: Refusal - One reason for refusal | Case Type: Planning Application

 

www.planningportal.gov.uk/planninginspectorate

Appeal Decision
Site visit made on 7 July 2015
by Michael J Hetherington BSc(Hons) MA MRTPI MCIEEM
an Inspector appointed by the Secretary of State for Communities and Local Government
Decision date: 13 July 2015

Appeal Ref: APP/D0840/W/15/3006222
Land at South Quay, Carnsew Road, Hayle, Cornwall, TR27 4HU
The appeal is made under section 78 of the Town and Country Planning Act 1990
against a refusal to grant planning permission under section 73 of the Town and
Country Planning Act 1990 for the development of land without complying with
conditions subject to which a previous planning permission was granted.
The appeal is made by Asda Stores Ltd against the decision of Cornwall Council.
The application ref. PA14/00699, dated 24 January 2014, was refused by notice dated
22 December 2014.
The application sought full planning permission for the erection of a foodstore (A1) with
an A2 unit, 3 non-food units (A1), 2 small retail units for shop/restaurant purposes (A1
or A3); the creation of a new public realm including quayside promenade and public
open space, associated infrastructure including the construction of a raised development
platform and related flood prevention measures, new highway junction on Carnsew
Road and improvements to the existing highway, car parking and servicing
arrangements, and access to the residential development to the north of the quay and
outline planning permission for the erection of 30 residential units, the construction of a
new restaurant (A3), associated infrastructure including estate roads, car parking and
amenity spaces, the erection of a new pedestrian footbridge over Penpol Creek, and the
creation of improved pedestrian access and landscaping proposals to enhance Isis
Garden without complying with a condition attached to planning permission ref.
PA12/10064, dated 3 January 2013.
The condition in dispute is no.30 which states that: The net retail sales area of the
permitted supermarket shall not exceed 2550 (two thousand five hundred and fifty)
square metres, with no more than 30% (765 square metres) of the net sales area to be
used for the sale of comparison goods. For avoidance of doubt net retail sales area
means all areas of the store to which the public has access but excludes the lobby area,
tills, areas behind counters, restaurant and toilets
.
The reason given for the condition is: In order to protect the vitality and viability of
Hayle town centres in accordance with saved policy 14 of the Cornwall Structure Plan
2004
.

 

Decision

1. The appeal is allowed and planning permission is granted in full for the erection
of a foodstore (A1) with an A2 unit, 3 non-food units (A1), 2 small retail units
for shop/restaurant purposes (A1 or A3); the creation of a new public realm
including quayside promenade and public open space, associated infrastructure
including the construction of a raised development platform and related flood
prevention measures, new highway junction on Carnsew Road and
improvements to the existing highway, car parking and servicing
arrangements, and access to the residential development to the north of the
quay and in outline for the erection of 30 residential units, the construction of a

Appeal Decision APP/D0840/W/15/3006222
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new restaurant (A3), associated infrastructure including estate roads, car
parking and amenity spaces, the erection of a new pedestrian footbridge over
Penpol Creek, and the creation of improved pedestrian access and landscaping
proposals to enhance Isis Garden at South Quay, Carnsew Road, Hayle,
Cornwall in accordance with the application ref. PA14/00699, dated 24 January
2014, without compliance with Condition nos. 3, 4 and 30 previously imposed
on planning permission PA12/10064, dated 3 January 2013 but subject to the
other conditions imposed therein, so far as the same are still subsisting and
capable of taking effect, and subject to the following new conditions:

3) Application for approval of all the Reserved Matters shall be made to
the local planning authority before 7 May 2017.

4) The outline elements of the development hereby permitted shall be
begun either before 7 May 2017, or before the expiration of two
years from the date of approval of the last of the reserved matters
to be approved, whichever is the later.
30) The net retail sales area of the permitted supermarket shall not
exceed 2550 (two thousand five hundred and fifty) square metres,
with no more than 40% (1020 square metres) of the net sales area
to be used for the sale of comparison goods. For avoidance of doubt
net retail sales area means all areas of the store to which the public
has access but excludes the lobby area, tills, areas behind counters,
restaurant and toilets.

Application for costs

2. An application for costs was made by Asda Stores Ltd against Cornwall Council.
This application is the subject of a separate decision.

Preliminary Matter

3. The description of development on the grant of planning permission that is the
subject of this appeal (ref. PA12/10064) refers to the variation of Condition no.
30 on a previous grant of planning permission (ref. PA10/08142). However, it
is clear that planning permission PA12/10064 relates to a development with the
same description as that permitted by PA10/08142 and I have determined the
present appeal on that basis.

Main Issue

4. The main issue in this appeal is whether Condition No. 30 as presently worded
is reasonable and necessary to safeguard the vitality and viability of the
Copperhouse and Foundry town centres in Hayle.

Reasons

5. The disputed condition requires that no more than 30% (765 square metres) of
the net sales area should be used for the sale of comparison goods. This
represents a variation from the condition imposed on the original grant of
planning permission (PA10/08142) which imposed a 20% limit. The
amendment that the appellant is now seeking would increase this figure to
40% (1020 square metres) of the net sales area. It is stated that this would
provide greater flexibility for seasonal variations when the range of non-food
goods usually increases – such as at Christmas and Halloween. No change is
proposed to the store’s overall net sales area. The store is currently trading.

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6. While the supermarket does not lie within either of Hayle’s town centres, the
original decision to grant planning permission was based on the site being
sequentially preferable to other alternatives. The Council raises no concerns in
terms of the sequential test’s application in respect of the present appeal and
I have no reason to take a different view.

7. The appellant’s planning statement quantifies the impact of the proposed
variation as being minimal. As part of its consideration of the application, the
Council sought the views of its own consultants (GVA). GVA undertook an
impact analysis that took into account a range of updated information. In
summary, its study concluded that the impact of the proposal on the turnover
of the comparison goods sector of Hayle’s town centres would be some 15%,
as compared to a 13% impact arising from the 70%/30% split as presently
approved. It stated that this would amount to a relatively small increase that
would be lower than the impact predicted in relation to the original South Quay
proposal in 2011 and also noted that this increase would necessarily be
accompanied by a reduction in the convenience goods impact arising from the
store. The study’s overall finding was that the level of adverse impact upon
Hayle’s town centres would not be materially different to the approved scheme.
It was concluded that the amended convenience/comparison split would not
therefore lead to a significant adverse impact upon Hayle’s town centres.

8. The Council does not rely upon an alternative retail impact analysis to support
its refusal of planning permission. Instead, it raises three broad areas of
concern. First, with reference to relevant retail studies including the Cornwall
Retail Study Update 2015, it notes that the original aim of allowing the store
was to claw back convenience goods expenditure being lost to other towns. It
considers that the reduction or dilution of the store’s convenience offer would
compromise that aim. However, while some reduction would clearly result, the
proposed variation to the disputed condition would retain over 1,500 square
metres of convenience floorspace at the store. No substantive evidence has
been put forward by the Council to explain why this would either materially
alter the present position with regard to the potential loss of convenience
goods expenditure to other towns or – with reference to the stated refusal
reason – adversely affect the vitality or viability of Hayle’s town centres.

9. Second, the Council raises concern about the absence of specific details about
the types of comparison goods which would be sold from the enlarged area and
the overall comparison goods offer that would result within the store.
However, given that the proposed variation is aimed at increasing flexibility,
I share the appellant’s view that it would be difficult to model the impact of
specific goods ranges in any meaningful way. Impact assessment should be
undertaken in a proportionate manner and, as noted above, the Council’s own
consultants were satisfied that a robust conclusion could be drawn from the
information that had been provided. I agree with that assessment.

10. Third, the Council objects to the lack of an assessment of the rationale for a
greater range of comparison goods and raises concern about the lack of ‘any
assessment of any positive changes that would flow from the increased
comparison goods area’. However, these objections do not directly address the
stated reason for refusal, which is that the appeal proposal has failed to
demonstrate that there would not be a significant
adverse impact on the town
centres concerned (my italics). This is a different test to a requirement that
the appellant should either justify the ‘rationale’ for its proposal to vary the

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disputed condition or demonstrate that ‘positive changes’ would result from
such a variation. In the event, as noted above, the assessment by the
Council’s own consultants noted that there would be some benefit for the town
centres in respect of the reduced impact in respect of convenience goods.

11. Drawing the above together, it is clear that the Council has put forward no
substantive technical reasons that are sufficient to override the view of the
appellant, the Council’s own consultants and its planning officers that the
proposed variation to Condition no. 30 would not lead to a significant adverse
impact upon Hayle’s town centres. The evidence before me is sufficient to
demonstrate that such an impact would not be likely to occur, and that the
proposed variation would not conflict with policy TV-17(iii) of the Penwith Local
Plan 2004 or paragraph 27 of the National Planning Policy Framework.
I therefore conclude that the condition as presently worded is neither
reasonable nor necessary to safeguard the vitality and viability of the
Copperhouse and Foundry town centres. It should be amended in line with the
wording proposed by the appellant.

12. The Council suggests that an additional condition should be imposed to set a
minimum floor area to be used for the sale of branded George clothing. It is
noted that this was agreed with the appellant at the time that the planning
application was being considered. However, bearing in mind the retail impact
evidence discussed above, it seems to me that there is no clear planning
reason to impose such a restriction. Furthermore, the reference to a particular
brand of clothing would be unduly precise and inflexible: to my mind, this
would fail the test of reasonableness.

13. The Council suggests a number of other changes to the schedule of conditions
that accompanied the previous grant of planning permission. However, these
changes are not justified or explained in any detail and, moreover, they do not
relate directly to the variation to Condition no. 30 that is the subject of this
appeal. In most cases, there is therefore inadequate justification for making
these amendments. Furthermore, the grant of planning permission in the
present decision only applies the previous conditions in so far as they are still
subsisting and capable of taking effect. However, the previous planning
permission contained a separate outline element and I have seen no evidence
that the date for the application of approval for reserved matters in respect of
that element should be extended. I therefore agree with the Council that a
specific date should be inserted into the respective conditions (nos. 3 and 4).

14. For the reasons given above, and having regard to all other matters raised,
I conclude that the appeal should succeed. I will grant a new planning
permission without Condition nos. 3, 4 and 30 but substituting new conditions
as described above, and retaining the other non-disputed conditions from the
previous permission.
M J Hetherington
INSPECTOR

 

http://planning.cornwall.gov.uk/online-applications/files/CA61FFFADB4F9C...

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