Committee Date:
14/05/2015
Application Number:
Accepted:
17/03/2015
Application Type:
Target Date:
12/05/2015
Ward:
Ladywood
2015/01955/PA
Full Planning
80 Eyre Street, Ladywood, Birmingham, B18 7AD
Change of use from general industry (Use Class B2) to a day nursery
(Use Class D1)
Applicant:
Agent:
Our Kids Nursery
c/o Agent
Star Planning and Development
140 Brandwood Road, Kings Heath, Birmingham, B14 6BX
Recommendation
Refuse
1.
Proposal
1.1.
This application seeks planning permission for the change of use of an industrial
premises to form a day nursery. The premises have recently been refurbished and
fitted out for the proposed use though the use has not commenced. The application
has been submitted following enforcement investigations (see planning history).
1.2.
The premises comprise a single storey building with an associated enclosed yard
area. The building provides 235 square metres of floorspace. The Nursery would
accommodate up to 68 children and would operate between the hours of 07:3018:30 Mondays to Fridays. The proposed use would provide 7 full time new jobs.
There would be one car parking space provided within the curtilage of the premises
within the yard area.
1.3.
The submitted plans show that the building would comprise a reception and office, a
large multi-purpose play room, classroom and a quiet room, associated staff room,
kitchen and w/cs. The yard area has been laid out with a turfed outdoor play area
and there would be an associated cycle store and bin store at the rear. There are
some associated external alterations that have been undertaken to add a new
glazed entrance to the main play room on the side elevation.
1.4.
The application has been submitted with a written supporting statement, a petition of
support containing 108 signatories, 7 letters of support from local businesses, and 5
letters from the landlord, two property agents, and two prospective purchasers who
decided not to acquire the site; all in relation to the issue of loss of industrial land.
1.5.
The supporting letter advises that the premises had previously been used as a
church (see planning history), such that the applicant believed that a change of use
had already occurred and therefore that planning permission would not be required
to open the proposed nursery.
1.6.
Link to Documents
Page 1 of 13
2.
Site & Surroundings
2.1.
The site is located within an industrial setting which includes B2, B8 and sui-generis
uses including vehicle repairs, warehousing and a waste transfer station. There are
no residential uses in this locality. The site forms part of a wider area of industrial
uses known as the Spring Hill Industrial area.
2.2.
Site Location
2.3.
Street view
3.
Planning History
3.1.
Application site
3.2.
The premises are known to have been used as a church for approximately 3 years
before this use ceased. The supporting letter from European African Trading Co. Ltd
(landlord) states that they acquired the premises from Birbeck and Sons Printing Ltd
on 29th April 2010. The landlord let the building to Victory Out Reach Church from
27th May 2010 to 31st March 2014. The premises were then vacated. No planning
consent was sought or approved for this change of use to D1 use which was
therefore unauthorised. The use had not been undertaken for a continuous period of
10 years or more to have become the lawful use of the site. The existing lawful use
is for B2 use.
3.3.
22/08/2014 - 2014/04806/PA – Change of use from D1 (place of worship) to hostel
accommodation (10 bedrooms) and alterations. Refused for three reasons : 1) The
proposed development will result in the loss of industrial premises as the last lawful
use was for industrial use. No details have been provided to justify the loss of
industrial land or to set out the exceptional circumstances that should be considered,
contrary to paragraphs 4.13-4.32 of the UDP, the guidance contained in the Loss of
industrial land to alternative uses SPD,and the guidance contained in the NPPF. 2)
The proposed development of the site as a hostel is likely to give rise to potential
problems of complaints regarding noise and disturbance from occupiers of the hostel
in relation to existing industrial uses, which could result in a consequential
detrimental impact on the continuing operation of existing businesses and on local
employment, contrary to paragraphs 3.8 and 3.10 of the UDP and the guidance in
the NPPF. 3) The proposed development as a hostel would lead to an unacceptable
living environment for future occupiers, by reason of noise and disturbance from
neighbouring industrial uses which include vehicle repairs and a waste transfer
station. As such the proposal would be contrary to paragraphs 3.8 and 3.10 of the
UDP and the NPPF.
3.4.
A subsequent written representations appeal was dismissed on all three grounds for
refusal.
3.5.
2014/1285/ENF – Unauthorised change of use to day nursery – case under
investigation.
3.6.
Land at Corner of Eyre Street/Cope Street
Page 2 of 13
3.7.
04/10/2012 - 2012/04875/PA – Continued use of site as a metal recycling/transfer
facility and incorporation of additional land into site – Approved subject to conditions.
This consent permits the use of the site between 0700-1900 Mondays to Fridays.
There are no restrictions on noise levels or any other operational restrictions on the
use.
3.8.
77 Eyre Street
3.9.
08/11/2010 – 2010/03562/PA – Change of use of existing office building (B1) and
proposed two storey side extension to form two self-contained flats at first floor level
(C3) with erection of new hipped roof, replacement windows in front, side and rear
elevation, and erection of new 3 metre high boundary wall to side – Refused.
Grounds of refusal were 1) development would be adversely affected by noise and
disturbance due to its proximity to adjoining industrial uses leading to restrictions
being placed on the operation of adjoining industrial premises and the resultant loss
of industrial land, 2) the flats are likely to be adversely affected by noise and
disturbance, and 3) the residential use was unacceptable as it is isolated from other
residential areas and local amenities and provides no private amenity space.
4.
Consultation/PP Responses
4.1.
Site Notice erected. Ward members, residents associations and neighbouring
occupiers notified. One objection received from a neighbouring business objecting
on the following grounds : This is not a suitable location for the proposed use being
surrounded by existing businesses including two registered waste transfer stations.
We are licenced with the Environment Agency to receive and process all BCC Fleet
and waste services street collections of domestic appliances and waste televisions.
We are also licenced to receive and process domestic waste cooking oil for
conversion to bio-diesel. We also collect and restore furniture. The other adjoining
premises include a vehicle repairs use and a metal recycling plant. We consider that
the proposed use will affect the current activities of the adjoining businesses due to
future objections to noise and general disturbance or the health and safety of the
proposed children. If approved, the area will become less suitable for industrial and
commercial use and will lead to a reduction in local employment opportunities. The
pick-up and drop-off of children by parents parking in the street could affect access
for commercial vehicles visiting neighbouring premises. The area is identified by the
Council’s development plan as being of industrial importance and the premises
should be restored to industrial use.
4.2.
Regulatory Services – Recommend refusal on the grounds that the area is highly
industrial in nature, which includes vehicle repairs adjacent, and these activities
often cause noise, dust, vehicle exhaust and odour emissions and utilise harmful
substances. The site is likely to be contaminated due to former industrial uses and
the presence of a sensitive use in the vicinity of the industrial and commercial uses
is likely to cause concern and constraint for the development and commercial
viability of the operators.
4.3.
Transportation Development – Recommend refusal. The proposed location is
unsuitable due to it being in an industrial area and only offering 1 off-street parking
space, increasing demand for on street parking and attracting non-industrial traffic
into the area.
5.
Policy Context
Page 3 of 13
5.1.
Adopted UDP (2005), Draft Birmingham Development Plan, Loss of Industrial Land
to alternative Uses SPD, Car Parking Guidelines SPD, Greater Icknield Draft
Masterplan, NPPF.
6.
Planning Considerations
6.1.
Relevant Policy
6.2.
The adopted UDP seeks to enhance what is good in the City’s environment and
improve what is less good (paragraph 3.8). Proposals that have an adverse effect on
the quality of the built environment will not normally be allowed (paragraph 3.10).
6.3.
Paragraph 8.16 sets out that favourable consideration may be given to proposals for
day nurseries in non-residential properties and locations within commercial/mixed
use frontages, subject to the availability of convenient on-street and where required
off-street parking with satisfactory access. A satisfactory environment must also
exist for the location of a day nursery.
6.4.
The UDP’s industrial policies in paragraphs 4.13-4.32 seek to maintain a portfolio of
industrial land to meet the City’s employment needs. In order to reduce pressure on
greenfield sites the loss of industrial land to retail or non-industrial uses will be
resisted except in cases where the site is a non-conforming use. Further detailed
guidance is provided in the Loss of Industrial Land SPD which sets out the
circumstances where the Council may consider the release of industrial sites for
alternative uses. Briefly these are :
i)
ii)
iii)
Where the site is non-conforming ie. where there is an isolated industrial use
in an otherwise residential area such that there may be evidence of past
complaints from residential neighbours;
Where the site has been actively marketed for industrial use (normally for a
minimum of two years) to demonstrate that there is a lack of demand for
industrial use with evidence provided by an established industrial property
agent;
Where the site would be unviable for industrial development, because the
redevelopments costs would be unduly restrictive, supported by evidence
providing a detailed breakdown of costs such as ground remediation.
6.5.
Within the draft BDP, the Spring Hill Industrial area is not proposed to be
redeveloped for non-industrial uses and is likely to remain as an area for industrial
uses going forward. This is consistent with the draft non-statutory guidance being
prepared in the Greater Icknield Draft Masterplan.
6.6.
The NPPF establishes in paragraph 14 a presumption in favour of sustainable
development. For decision making this means approving development proposals
that accord with the development plan without delay. Where the development plan is
absent, silent or the relevant policies are out of date, permission should be granted
unless any adverse impacts of doing so would significantly and demonstrably
outweigh the benefits when assessed against the policies in the Framework as a
whole.
6.7.
Paragraph 22 states that planning policies should avoid long term protection of sites
allocated for employment use where there is no reasonable prospect of a site being
used for that purpose.
Page 4 of 13
6.8.
Paragraph 120 advises that new development should be appropriate for its location.
It also discusses that the effects of pollution on health, natural environment or
general amenity, and potential sensitivity of the area or proposed development to
adverse effects from pollution should be taken into account. Paragraph 123 sets out
that decisions should avoid noise from giving rise to significant adverse impacts on
health and quality of life as a result of new development. The advice on noise is
supplemented by the national planning policy guidance (NPPG) on noise which was
revised on 6th March 2014, and includes guidance on how to determine noise
impact, how to recognise when noise could be a concern, and how the adverse
effects of noise can be mitigated.
6.9.
Taking all of the above guidance into account, I have significant concerns regarding
the issues of loss of industrial land, the impact of surrounding uses on the health
and amenity of the occupants of the day nursery, the impact of any complaints
raised by the proprietors or users of the nursery against the nearby/surrounding
businesses due to noise and/or odours resulting in these businesses having to
restrain or curtail their activities to the detriment of these businesses and their local
employment and also the impact on on-street parking and highway safety. I have
therefore set out my detailed assessment of each of these issues further below.
6.10.
Loss of Industrial Land
6.11.
The City Council have once previously refused consent for conversion of these
premises to a non-industrial use in 2014 on the ground that the loss of industrial land
would be contrary to the guidance in the UDP, the SPD for Loss of Industrial Land
and the NPPF. In that case no supporting evidence was provided to satisfy the tests
in the SPD and no other substantive case was presented to justify the loss of
industrial land. The Council’s decision to refuse consent was challenged at appeal
where the Inspector dismissed the appeal.
6.12.
It is notable that in respect of the issue of loss of industrial land the Inspector
concluded that the SPD tests had not been met, with the lack of marketing
particularly weighing heavily against the proposal. He commented that whilst he
accepted that the area has a slightly run down appearance, he felt that this stems
from the age of the buildings and does not automatically mean that they are
unsuitable for industrial use. He also commented that whilst the buildings in this area
provide accommodation for the lower end of the market, they nevertheless play an
important role in the supply of employment land and the economic structure of the
City.
6.13.
For this application, the applicant makes the following case. The premises have not
been used for employment for a period in excess of 5 years. The UDP now carries
less weight (para 214 of the NPPF) and the BDP is not adopted yet so only limited
weight should be given to it. The NPPF is a material consideration with particular
reference made to paragraph 14 (the presumption in favour of sustainable
development). The applicant refers to the supporting correspondence that there
have been no other viable potential occupiers having been advertised in May 2010
(prior to the church occupying the site) and again by a second agent in August 2014.
There is evidence supplied in the form of letters from two prospective industrial
users who concluded that the premises were unsuitable for their requirements. The
applicant makes the case this is not a scenario where unrealistic rents were being
sought, with concerns being raised regarding the condition of the property, the cost
of refurbishment and the location. The applicant therefore feels that the concerns
raised by the Inspector regarding marketing have been adequately met.
Page 5 of 13
6.14.
The applicant also makes the case that there is support amongst the community for
the proposed use in the form of the letters from local businesses and the petition of
support that should also weigh in the favour of approval when considering this issue.
They also comment that the development will in itself create new jobs.
6.15.
Taking the applicant’s case into consideration, I do not consider that the evidence
provided adequately addresses the guidance in the SPD regarding the loss of
industrial land. There is no detail as to the nature and extent of the marketing of the
premises for industrial use, including forms of advertisement, the terms offered etc.
When the premises were first advertised, a lease for the church use was taken up
almost immediately so the industrial land market was not adequately explored
before this lease was agreed. Despite advising that this was a rolling lease
arrangement and that the landlord continued to market the premises, I have concern
as to how much effort was put into finding an industrial user bearing in mind that
there was an existing tenant in place. The second period of marketing in 2014 was
again shortly before the current tenant (the applicant) took their lease for the
proposed day nursery. Notwithstanding the evidence supplied from two prospective
industrial tenants, I do not consider that the premises have been sufficiently exposed
to a minimum of two years marketing for industrial use, nor am I persuaded that the
premises are unsuitable due to their condition, location or cost of refurbishment as
there is no evidence to demonstrate this. I therefore consider that the applicant has
failed to adequately demonstrate compliance with paragraph 4.31 of the UDP, the
Loss of Industrial land to alternative uses SPD or the guidance in the NPPF.
6.16.
In respect of the weight to be given to these industrial land policies, whilst I accept
that the saved UDP policies are now to be given due weight (para 214 of the NPPF),
and that only limited weight can be given to the BDP policies until they are adopted,
I do not think that this is a case where it can be accepted that there is no reasonable
prospect of the site being used for industrial use (para 22 of the NPPF), and whilst
the benefits of job creation and providing nursery places to meet the needs of
families are positive, these considerations need to be weighed with the other
material issues so the overall case when considering the NPPF as a whole is that
the loss of industrial land cannot be supported.
6.17.
Impact on amenities of the nursery from surrounding industrial uses
6.18.
In considering the appeal for the refused hostel application, the Inspector
commented that the site adjoins a metal recycling/transfer facility and that he
witnessed lorries being unloaded and scrap metal being moved around the site
using heavy plant and machinery. He commented that this activity generated
significant levels of noise. He considered that the unregulated nature of the
surrounding premises lends weight to his overall conclusion that this is a wholly
unsuitable location for residential uses.
6.19.
The applicant has stated in their supporting statement that in their view the
neighbouring uses do not create the adverse noise or disturbance suggested by the
appeal Inspector. They comment that in any event the application can be
differentiated from the appeal proposal because it is not concerned with residential
use where a different noise regime applies. The applicant states that a quiet area
can be provided within the property for sleeping children. The applicant has not
provided any evidence in respect of noise or odours in the form of a noise impact
assessment or an air quality assessment.
Page 6 of 13
6.20.
I cannot accept that the surrounding uses are not noisy, or do not have the potential
to cause noise and disturbance. They include a metal recycling facility which
includes within its licence the sorting, separation, grading, shearing, compacting,
crushing, granulating and cutting of metals. In my view, these are operations that
tend to generate noise. Furthermore there is a vehicle repairs use that also adjoins
the site, and objections have been received from a recycling use that deals with
household appliances and furniture. Both the on-site operations and associated
commercial vehicle movements have a tendency to generate noise. These sites
operate within an existing industrial area without planning restrictions on noise levels
from their operations. Whilst I accept that this is a different use to that of a hostel, I
consider that the proposed nursery would be susceptible to noise, especially where
babies and younger children would be attempting to sleep during parts of the
working day when these neighbouring businesses are in operation. The applicant
states that a quiet room can be created for sleeping children, however I have
significant concerns whether sufficient noise insulation could be achieved and no
details have been provided. In addition, the outdoor areas for play would be
susceptible to noise and so in my view there is a significant likelihood that
complaints regarding noise would arise. I therefore conclude that the proposal is
contrary to the UDP and the guidance in the NPPF.
6.21.
In addition, I note the objections raised by Regulatory Services in respect of odour.
The neighbouring vehicle repairs use is known to undertake body repairs and whilst
there is not a spray booth on site (this activity is understood to be undertaken off site
elsewhere), the proprietor advised during my officers site visit that he does
undertake associated works at the site and would be concerned that this could raise
concerns regarding pollution. The workshop has some high level windows that face
towards the play area associated with the proposed nursery. I note that Regulatory
Services have concerns that the neighbouring uses have activities that can often
cause dust, vehicle exhaust and odour emissions and utilise harmful substances,
which cannot be considered to be compatible with the presence of young children.
They comment that the odour pollution issue is arguably more important here than
for the hostel, as children are developing physiologically and tend to be more
susceptible to health effects of exposure to chemicals than adults. The proposal is
therefore contrary to the UDP and the guidance in the NPPF.
6.22.
Regulatory Services also express concern in respect of the exposure of occupants,
particularly children, to ground contamination in the absence of information to
demonstrate that there has been appropriate assessment of the levels of ground
contamination, its appropriate remediation and subsequent verification. I share these
concerns though these matters could be dealt with by planning conditions and so I
have not recommended refusal on this ground.
6.23.
Impact on surrounding industrial uses
6.24.
In refusing consent for the proposed hostel in 2014, the grounds for refusal included
that the proposal was likely to give rise to complaints from noise and disturbance
from the hostel against neighbouring industrial uses which in turn may lead to a
detrimental impact on operation of those uses and on local jobs. The appeal
Inspector concurred stating that the likely impacts on the living conditions of future
occupiers of the development mean that there is a very real possibility of complaints
being made to the relevant enforcement authority. Where a statutory nuisance is
identified there would be an obligation on the responsible body to take action,
leading to possible restrictions on the operation of the business and potentially
additional costs. He commented that this could have serious implications for the
company concerned, for example preventing expansion, harming viability and
Page 7 of 13
threatening jobs. He concluded that this would be contrary to the objective of the
UDP for economic revitalisation and that of the NPPF to promote economic growth.
6.25.
I consider that these concerns are equally relevant for this application, and note that
objection has been received from the adjoining business raising this concern. I
therefore recommend refusal for this reason. The application is therefore contrary to
the UDP and the NPPF.
6.26.
Impact on Traffic and parking
6.27.
I note that Transportation Development have recommended refusal on the grounds
that the proposed development will unacceptably add to the demand for on-street
parking and will attract non-industrial traffic into an industrial area, to the detriment of
highway safety. The development proposes the provision of one car parking space
within the site for the manager with parental pick-up and drop-off taking place within
the adjacent highway.
6.28.
The applicant states that the property is not located in an area where there are any
on-street parking restrictions and there is availability of spaces along the road
without causing a danger to other highway users. They also comment that they feel
the site is accessible to the public transport services that run along Dudley Road and
Ladywood Middleway. The applicant feels that the vehicle movements could be
accommodated within the respective periods when neighbouring businesses would
also be in use.
6.29.
The Council’s car parking guideline specifies provision of a maximum of 1 space per
8 children which would equate to 9 car parking spaces and so there would be a
substantial shortfall when measured against these guidelines that would have to be
accommodated within the highway. Parking in Eyre Street is unrestricted and
demand for on-street parking from neighbouring uses tends to be high throughout
the day as most premises do not have off-street parking and limited servicing space.
Given its wholly commercial character, Eyre Street tends to attract a significant
proportion of commercial vehicles which tend to take up more space in the highway.
I share the concerns raised by Transportation that the introduction of a day nursery
would generate non-industrial traffic to an industrial area, to the potential detriment
of highway safety. I am particularly concerned about the drop-off and pick-up of
children within the highway as this activity could not be sufficiently managed or
controlled away from the movement and manoeuvring of commercial vehicles
associated with the nearby industrial uses. The proposal is therefore contrary to the
UDP and the NPPF.
6.30.
Other issues
6.31.
Notwithstanding the representations of support expressed in both the petition and
the letters from those businesses that support the proposal on the grounds that this
will improve provision of day nursery facilities in the area, I do not consider that this
outweighs the issues set out above. The provision of new jobs has been considered,
however I consider that this benefit could more appropriately be provided in a nonindustrial setting and so is not the determining factor in this application.
7.
Conclusion
7.1.
The proposed change of use to a day nursery will not accord with the provisions of
the UDP, the draft BDP, the Guidance in the Loss of Industrial land SPD or the
NPPF, with particular regard to the loss of industrial land, the impact of noise and
Page 8 of 13
odours from neighbouring uses on the occupants of the nursery, the impact on these
neighbouring uses from potential statutory nuisance complaints against their
activities resulting in restrictions being placed on their operations, and the impact on
highway safety due to the reliance on on-street parking for the pick-up and drop-off
of children where there is a significant proportion of commercial vehicle movements
taking place.
8.
Recommendation
8.1.
Refusal.
Reasons for Refusal
1
The proposed day nursery will result in the loss of industrial premises as the last
lawful use was for industrial use. Insufficient details have been provided to justify the
loss of industrial land or to set out the exceptional cicumstances that should be
considered (particularly with regard to marketing for industrial use), contrary to policies
4.13-4.32 of the adopted Birmingham Unitary Development Plan 2005, the guidance
contained in the Loss of Industrial Land to alternative uses SPD which has been
adopted as a Supplementary Planning Document, and the guidance contained in the
NPPF.
2
The proposed development of the site as a day nursery would lead to an
unacceptable environment for the occupiers, by reason of noise and disturbance,
dust, vehicle exhaust and odour emissions from existing neighbouring industrial uses
which include vehicle repairs and a waste transfer station. As such, the proposal is
contrary to paragraphs 3.8, 3.10 and 8.16 of the Birmingham UDP 2005 and the
guidance contained in the NPPF.
3
The proposed development of the site as a day nursery is likely to give rise to
complaints regarding noise and disturbance, dust, vehicle exhaust and odour
emissions from occupiers of the day nusery in relation to existing industrial uses in the
area, which could result in a consequential detrimental impact on the continuing
operation of these established businesses and on local employment, contrary to
paragraphs 3.8 and 3.10 of the adopted Unitary Development Plan 2005 and the
guidance contained in the NPPF.
4
The proposed development as a day nursery would give rise to an increase in nonindustrial traffic and on-street parking in an industrial area, particularly in relation to
the drop-off and collection of children attending the nursery within the highway, to the
detriment of highway safety. The proposal is therefore contary to paragraphs 3.8,
3.10, 8.16 and 6.39 of the adopted Unitary Development Plan 2005 and the guidance
in the NPPF.
Case Officer:
Stuart Morgans
Page 9 of 13
Photo(s)
Figure 1 : Front elevation
Page 10 of 13
Figure 2 : View within play area towards Eyre Street
Page 11 of 13
Figure 3 : View towards rear site boundary with adjoining site
Page 12 of 13
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This map is reproduced from the Ordnance Survey Material with the permission of Ordnance Survey on behalf of the Controller of Her
Majesty's Stationery Office © Crown Copyright. Unauthorised reproduction infringes Crown Copyright and may lead to prosecution or
civil proceedings. Birmingham City Council. Licence No.100021326, 2010
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