Appeal Decision The Planning Inspectorate 4/11 Eagle Wing ... · • The Council's reference is...

Appeal Decision Hearing held on 26th June 2007

Site visit made on 26th June 2007

by B C Wilkinson BEng DipTP MRTPI

The Planning Inspectorate 4/11 Eagle Wing Temple Quay House 2 The Square Temple Quay Bristol BS1 6PN

0117 372 6372 email:[email protected]

an Inspector appointed by the Secretary of State for Communities and Local Government

Decision date: 17th July 2007

Appeal Ref: APP/R1845/C/06/2022489 Land at Unit 26 Clensmore Business Park, Clensmore St, Kidderminster Worcs • The appeal is made under section 174 of the Town and Country Planning Act 1990 as

amended by the Planning and Compensation Act 1991. • The appeal is made by Kidderminster Property Investments Ltd against an enforcement

notice issued by Wyre Forest District Council. • The Council's reference is ENF170/3369 (WFA 1217). • The notice was issued on 6th July 2006. • The breach of planning control as alleged in the notice is the unauthorised change of

use from industrial use to pallet storage and distribution. • The requirements of the notice are (i) To permanently cease the distribution of pallets

from the land; and (ii) To remove all pallets stored on the land. • The period for compliance with the requirements is 3 months. • The appeal is proceeding on the grounds set out in section 174(2) (a) and (g) of the

Town and Country Planning Act 1990 as amended.

Summary of Decision : The appeal is allowed, the enforcement notice is quashed, and planning permission is granted in the terms set out below in the Formal Decision.

The Appeal on Ground (a)

The Planning Background

1. The appeal site is a sizeable plot within a mixed industrial/housing area in the northern part of Kidderminster. Access to the site is via Clensmore Street. Development fronting onto the north-west side of this road is primarily industrial but across the road to the south-east is residential development. The main access to the area is via Broad Street to Stourbridge Road (A451) at a junction controlled by traffic lights known as the Horsefair Junction.

2. There are two main components to the Local Development Plan. The Worcestershire County Structure Plan was adopted in 2001 and the Wyre Forest District Local Plan in 2005. The latter shows the appeal site to be within an area allocated for Classes B1, B2 and B8 of the Town and Country Planning (Use Classes) Order 1987, that is business use, general industry, and use for storage or as a distribution centre. The Council accept that the current development falls within the last of these categories and is a use acceptable in principle on the site. Prior to the current use the appeal site was last used by a carpet manufacturer, and although the Council was not able to identify a specific planning permission relating to that use, both main parties agree that it fell within the “general industry” classification.

Planning (DC) Committee 14/08/07

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Appeal Decision APP/R1845/C/06/2022489

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The Main Issues

3. There are four main issues in determining the appeal on Ground (a). The first is the visual impact of the development. The second is its acceptability in terms of fire risk and noise. The third is whether the site is capable of providing adequate access, manoeuvring, storage and parking arrangements. The fourth is whether the retention of the development would unacceptably affect traffic conditions on roads in the vicinity of the site, particularly at the Horsefair Junction.

Visual Impact

4. Both the Council and local residents who spoke at the hearing considered that the main visual harm from this development arose from the large piles of pallets at the front and sides of the main building. At present the stacks are large enough and tall enough (up to 6m) to dominate views of the site from Clensmore Road and the houses to the south-east. However, at the hearing the operators of the site (PRS Ltd) indicated that they would be prepared to confine all stacks to a maximum height of 4m, and that they would keep the area in front of the building entirely clear from pallets except when being loaded or unloaded.

5. Stacks of pallets are an inevitable consequence of PRS’s operations and are unsightly when as tall as those currently on the site. However, their height could be controlled and they could be restricted to an area between the appellants’ building and a building of similar size on the adjoining site to the north-east. These buildings would screen views of the pallets from both sides, and trees, bushes and the contours of the land would severely restrict views of 4m stacks from most viewpoints at the rear of the site. The stacks would still be in view from Clensmore Roads and some of the houses beyond it. However, they would be considerably lower than the buildings on either side and existing trees and proposed planting partially screen and certainly soften the appearance of the pallet area. If the site were to revert to industrial use the area now used for pallets could, and probably would, be used for purposes such as the parking of vehicles and the storage of materials, waste skips etc.

6. I understand, and have taken into account, the concerns expressed by some local residents. However, this is an industrial area and the sites on either side of the appeal site are used for either industry or some form of storage/ distribution purposes. In such a setting, and subject to the changes referred to above (which can be achieved by appropriate conditions), I conclude that the retention of this development would not unacceptably harm the appearance of the area or the outlook from residential properties. On that basis it would not contravene local planning policies which seek to safeguard visual amenity.

Noise and Fire Risk

7. Some local residents have complained about noise from the site arising from several sources including the operation of machinery, vehicular activity, the movement of pallets and materials, and shouted conversations. However, whilst I do not doubt that such matters are audible and sometimes intrusive at houses near to the site, most of them are typical of industrial activity and would in all probability be present at similar levels whatever industrial use the


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site was put to. The main static machines used in this business are band saws and nailing machines, all of which are usually operated within the building.

8. Having taken professional advice the Council believes that, subject to the installation of an acoustic curtain on the building’s main doors, noise from the site would not unacceptably increase noise levels at any residential property. I have observed the ambient noise levels in the area, heard the band saws in operation, and borne in mind that noise from the site would usually be restricted to normal working hours. I am satisfied that, subject to installation of the acoustic curtain and control over the hours of working, the continued operation of the site would not unacceptably affect living conditions in any houses in the area.

9. Another anxiety of some local residents is the risk of fire in the stacks of pallets, possibly due to arson. I understand that some incidents have arisen in the recent past, one involving pallets on premises close to the appeal site. Such a fear is entirely understandable and large stacks of pallets can aggravate fire risk. However, no-one at the hearing professed expertise in assessing the level of that risk or the efficacy of precautionary measures. I understand that the site has been assessed by the local fire service which, I am sure, does possess the necessary expertise. That organisation is prepared to accept the business on this site subject to compliance with several measures including leaving a minimum gap between stacked pallets and buildings, reduction in height of the pallet stacks, and adoption of a security system which includes adequate supervision of the site during non-working hours. I understand that such measures have been carried out and that, should they cease, the fire service have powers to require their resumption.

10. Nothing at the hearing or in written representations gave me any reason to doubt the accuracy of the fire service’s analysis and I find no reason to substitute my judgement on fire risk for theirs. I conclude that the retention of this development need not entail an unacceptable risk of fire. In view of this conclusion and that summarised in Paragraph 8 above I am satisfied that the development meets the requirements of Local Plan Policies such as D1.

Access and Parking

11. It is a requirement of local and national planning policies that industrial premises must possess adequate facilities for parking, access, manoeuvring, and the storage and disposal of waste. It is not in dispute that at the time of service of the notice the appeal site was deficient in some of these regards. However the appellants have submitted a plan indicating a site layout which they believe to be acceptable, and discussion at the hearing led to some agreed amendments to this plan. The Council accept that such amendments would be improvements but it remains of the view that, even as improved, the proposed layout was not fully acceptable. Nevertheless I have assessed this issue on the basis of this improved layout.

12. Policy TR17 of the local plan requires that new development is required to provide on-site parking in accordance with the County Council’s standards (in this case indicating approximately 28 spaces). However, the policy also states


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that such standards should be regarded as a maximum. Furthermore PPG131 advises that, in general, local plans should not impose minimum standards for development, and that local authorities should not require developers to provide more spaces than they themselves wish. No doubt bearing in mind such advice the Council, at the hearing, accepted as satisfactory the appellants’ proposals for car parking. This would involve provision of about 10 spaces on the appeal site and the remainder on an immediately adjacent unit which is owned by the appellants and occupied by PRS.

13. This solution to the parking problem would release land within the appeal site (previously intended for car parking) which would then be available to site the two waste skips used by the operators. It would also allow more space for the manoeuvring of the large vehicles which visit the site on a regular basis. Nearly all of the deliveries to the site utilise the one large door to the main building and this is close to the main external pallet storage area. Consequently the range of manoeuvres necessary on the site is a limited one, and I consider that the space available is sufficient to allow vehicles to turn within the site, and carry out other manoeuvres without unacceptably reducing standards of safety and convenience. There is sufficient room for this to be so even if more than one lorry is parked on the site. This is, of course, dependant upon the securing by conditions of the implementation and retention of the proposed arrangements.

14. Because of the increased space safeguarded by such arrangements, the likelihood of hazardous conflict between vehicles entering or emerging from the appeal site, and those from other sites using the same point as an exit, would be much reduced. From my site visit and submitted information I formed the impression that traffic along Clensmore St is neither very heavy nor fast moving, and visibility at the access is reasonably good. Bearing in mind, too, that reversion to a general industrial use would result in a level of vehicular traffic which might well be comparable with that arising from the current use, I conclude that this development has not unacceptably reduced levels of safety in terms of the use of the site access. Overall, I conclude that the site, in conjunction with adjacent land owned by the appellants, is capable of providing a layout which would be acceptable in terms of access, manoeuvring, storage and parking arrangements.

Traffic Implications

15. The only significant vehicular exit from the area of housing and industrial development which includes the appeal site, particularly for lorries, is via Broad Street. Most of those using it use Horsefair Junction, and this junction and the area around is subject to serious congestion. The appellants’ submissions indicate that the current operations on the appeal site produce somewhat higher levels of vehicular traffic than would be likely from reversion to industrial use on the site. Consequently the present development exacerbates, to some extent, an already unsatisfactory situation at Horsefair Junction. On that basis the Council, acting on advice from the County Council (the Highway Authority) included this factor in the reasons for serving the enforcement notice.

1 Planning Policy Guidance 13 – Transport Paras 51 and 52


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16. All parties agree that a major improvement in the congestion along Horsefair and other town centre areas will only result from a major scheme involving substantial road building works. Such a scheme is in the early planning stage but is unlikely to be implemented for several years. However, the Highway Authority believes that a significant improvement on an interim basis can be achieved by improving the traffic lights at Horsefair. It proposes to install a control system which would enhance overall efficiency at the junction by increasing sensitivity and responsiveness to changing traffic flows in the various arms of the junction. The appellants have undertaken to make a contribution to the costs of installing such a system in proportion to their contribution towards the congestion. On that basis the Council and Highway Authority have withdrawn their opposition to the development on this ground.

17. The proposed system is well established and widely used, and the Highway Authority believe that if it is installed the effects of traffic from the appeal site will be tolerable. A local Councillor fears that the junction is so congested that, until major road improvements are implemented, allowing more flow from Broad Street will increase delays on the main road for lengthy periods. I accept that this may be so at certain times of the day, but I have observed the junction several times (admittedly over a very brief period) and my impressions are consistent with evidence from the appellants that this will be the case during only limited periods of the day. Local residents, understandably, have adduced no quantitative evidence to the contrary. I have also taken into account that the traffic arising from this development adds to the total volume of traffic passing through the Horsefair Junction to only a minor extent. On the evidence before me, I see no reason to take a different view from the final position of the Council and the Highway Authority on the acceptability of the development on this ground. On that basis the development is not contrary to Local Plan Policy TR9.

Other Matters and Overall Conclusions

18. I recognise that public perception of danger is capable of being, in itself, a valid planning consideration. I have also taken into account, as well as those specifically mentioned, all of the other policies referred to by the parties. However neither these matters, nor any other raised, is sufficient to outweigh the considerations which have led to my overall decision. For the reasons given above and having regard to all other matters raised, I conclude that the appeal should succeed on ground (a) and conditional planning permission will be granted. The appeal on ground (g) does not therefore need to be considered.

Conditions

19. I have already referred to the Unilateral Undertaking entered into by the appellants and which forms a significant part of the basis for granting permission. In addition a number of planning conditions were discussed at the hearing and I have taken due account of that discussion in reaching my decision. Some conditions are based upon a site layout which is set out in Plan A attached to this decision. These ensure that the site functions correctly in terms of access, car parking, manoeuvring and the disposal of waste. Visual impact is limited by controlling the height and location of pallet stacks. A condition regarding hours of working, another prohibiting burning of waste, and


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one requiring the installation of an acoustic curtain are intended to reduce the impact of the development upon the amenity of nearby residents.

20. I have decided to impose a condition restricting the implementation of this development to the current appellants because the achievement of satisfactory parking arrangements depends upon the same company having control of both the appeal site and the unit to the south-west. I have also granted permission on a temporary basis so that the position regarding the Horsefair Junction can be reviewed when intentions regarding the overall improvements to the road system have become more definite. The appellants and the site operators indicated, at the hearing, that they would not find such restrictions unduly onerous. I have not incorporated conditions relating to the risk of fire since these are covered by legislation other than planning.

Formal Decision

Appeal Ref: APP/R1845/C/06/2022489

21. I allow the appeal, and direct that the enforcement notice be quashed. I grant planning permission on the application deemed to have been made under section 177(5) of the Act as amended for the development already carried out, namely the use of the land and buildings at Unit 26 Clensmore Business Park, Kidderminster as shown on the plan attached to the notice, for pallet storage and distribution subject to the following conditions:

1) The external storage of pallets shall take place only within the area indicated on Plan A as being for “outside pallet storage”. Other than within this area there shall be no external storage of pallets or other associated materials at any time.

2) The height of the stacks of pallets within the permitted storage area shall not exceed 4 metres.

3) Outside the working hours defined by Condition 4 of this permission there shall be no pallets or associated materials anywhere on the site except within buildings or within the bounds of the storage area referred to in Condition 1 of this permission.

4) The site shall not be open for use and no activity whatsoever shall take place on the site other than between 7.30 am and 6.30 pm on Mondays to Fridays, 8.00 am to 1.00 pm on Saturdays, and at no time on Sundays or public holidays.

5) There shall be no burning of materials on the site at any time.

6) The use hereby permitted shall cease and all equipment and materials brought onto the land for the purposes of such use shall be removed within 3 months of the date of failure to meet any one of the requirements set out in (i) to (iv) below:-

(i) within 3 months of the date of this decision schemes for

(a) the landscaping of the site, (b) the details of a vertical acoustic curtain in the main doorway to the building, (c) the permanent closure of the redundant vehicular access (currently fenced off) to Stoney Lane, and


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(d) the layout, construction, drainage and surfacing details of a site layout including areas for parking, manoeuvring and access to the site and locations for the placing of waste skips shall have been submitted for the written approval of the local planning authority.

Each of the schemes shall include a timetable for its implementation and Scheme (d) shall be consistent with Plan A attached to this decision.

(ii) within 11 months of the date of this decision the schemes shall have been approved by the local planning authority or, if the local planning authority refuse to approve the scheme or fail to give a decision within the prescribed period, an appeal shall have been made to, and accepted as validly made by, the Secretary of State.

(iii) if any appeal is made in pursuance of (ii) above, that appeal shall have been finally determined and the submitted scheme shall have been approved by the First Secretary of State.

(iv) the approved schemes shall have been carried out and completed in accordance with the approved timetable.

7) Following the completion of the schemes referred to in Condition 6 the land shall be maintained in the condition and for the purposes set out in those schemes.

8) The use hereby permitted shall be carried on only by PRS Ltd and shall be for a limited period being the period 4 years from the date of this decision, or the period during which the premises are occupied by PRS Ltd, whichever is the shorter.

9) When the premises cease to be occupied by PRS Ltd, or at the end of 4 years from the date of this decision, whichever shall first occur, the use hereby permitted shall cease and all materials and equipment brought on to the premises in connection with the use shall be removed.


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APPEARANCES FOR THE APPELLANTS:

Mr C J Didlick Agent to the Appellants Mr G D Acton CEng MICE Highways Consultant FOR THE LOCAL PLANNING AUTHORITY:

Miss C Eynon BSc MTP MRTPI Planning Officer, Wyre Forest D C INTERESTED PERSONS:

Cllr H Martin 84 Baxter Ave, Kidderminster DY10 2HB Mr and Mrs D Thombs 17 Shelley Ave, Kidderminster DY10 2LS Mrs R Morris 12 Stoney Lane, Kidderminster DY10 2LR Mr T Lloyd 3 Shelley Ave, Kidderminster DY10 2LS Mr M Forrester 205 Hamilton Ave, Halesowen B62 8UB Mr B Horton 65 Chawn Hill, Pedmore, Stourbridge DY9 7JA Mr T Cole 21 Blagdon Rd, Halesowen, B63 3PT DOCUMENTS 1 Copy of the Enforcement Notice 2 Planning Application 06/0432/FUL and Related Documents 3 Publicity Documents 4 Written Representations 5 Extracts from Planning Policy Documents 6 Copy of Planning Contravention Notice 7 Consultation Replies and Comments on Application 06/0432/FUL 8 Photographs of the Site and Surroundings 9 Planning Application WF/122/05 and Related Documents 10 Items of Correspondence 11 List of those Attending the Hearing 12 Copy of Section 106 Undertaking 13 Statements by the Appellants 14 Statements by the Council


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Appeal Decision The Planning Inspectorate 4/11 Eagle Wing ... · • The Council's reference is...

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