Although the planning inspector has reached his decision by a somewhat circuitous route the end result is welcome news in Deptford.
Site visit made on 20 July 2011
by David Smith BA(Hons) DMS MRTPI an Inspector appointed by the Secretary of State for Communities and Local Government
Decision date: 16 August 2011
Appeal Ref: APP/C5690/A/11/2151228 93-95 Deptford High Street, London, SE8 4AZ
• 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 Done Brothers (Cash Betting) Ltd against the decision of the Council of the London Borough of Lewisham.
• The application Ref DE/156/93/TP, dated 17 January 2011, was refused by notice dated 30 March 2011.
• The application sought planning permission for use of the ground floor and basement as a building society branch premises without complying with a condition attached to planning permission Ref DE/156/93/TP, dated 16 September 1974.
• The condition in dispute is No (2) which states that: “The premises may be used only for a building society and for no other purposes (including any other purposes within Class II of the Schedule to the Town and Country Planning (Use Classes) Order 1972).”
• The reason given for the condition is: “In order to ensure that any other office use would be appropriate in this shopping frontage”.
1. The appeal is allowed in part and planning permission is granted for use of the
ground floor and basement for financial and professional services (Use Class A2) at 93-95 Deptford High Street, London, SE8 4AZ in accordance with the application Ref DE/156/93/TP, dated 17 January 2011, without compliance with condition (2) previously imposed on planning permission Ref DE/156/93/TP, dated 16 September 1974 and subject to the following conditions:
1) The premises shall be used for any purpose within Class A2 of the
Schedule to the Town and Country Planning (Use Classes) Order 1987 (or in any provision equivalent to that Class in any statutory instrument revoking and re-enacting that Order with or without modification) other than as a betting office.
2) A shopfront window display shall be provided at all times.
2. As set out above the proposal relates to non-compliance with a condition that
limits use of part of the appeal property to a building society. Permission is sought for any use within Class A2 of the Use Classes Order but the premises are intended to be occupied as a licensed betting office trading as BetFred. I shall therefore concentrate on the proposed end user. The application also refers to external alterations but planning permission for these works was subsequently given separately and the appeal does not concern them.
3. The last occupier of the unit was Halifax which, according to the appellant, has been a bank since 1997. There is also confirmation that occupation by the Leeds Building Society initially and then by Halifax took place for at least 23 years. It is therefore argued that Condition (2) has been breached for in excess of 10 years and that use for other purposes within Class A2 is therefore lawful having regard to section 171B of the Act. This is not a matter to be determined as part of this appeal. Moreover, in order to give it significant importance a definitive Lawful Development Certificate should be in place. As there is not only limited weight can be attached to this possibility.
4. The main issues are the effect of the proposal on the vitality and viability of
Deptford District Centre and whether it would give rise to anti-social behaviour, crime or disturbance to local residents and users of the town centre.
Vitality and viability
5. Policy CS6 of the recently adopted Core Strategy sets out the retail hierarchy across the Borough and the Council’s general expectations and intentions including the designation of primary areas within the District Town Centres. The appeal relates to a unit within the pedestrianised section of Deptford High Street which is within the Core Shopping Area of the District Centre. Here Policy STC4 of the Lewisham Unitary Development Plan seeks to strongly resist any changes of use involving the loss at ground floor level of Class A1 shops.
6. However, as the use of Nos 93-95 as a building society is already permitted
there would be no breach of Policy STC4. Moreover, over 70% of the units in the centre would remain in retail use if the condition was removed and the premises do not form part of a row of 3 non-retail uses together. According to criterion (a) these are both indicators of an over-concentration of non-retail uses to be taken into account when considering exceptions to the general thrust of the policy. On this basis, there would not be an undue proliferation of office uses generally.
7. The premises have not been vacant for long and the Council is critical of the
absence of marketing evidence to show that its preferred retail use should be discounted. However, this does not form part of any of the relevant policy tests and the reality is that a non-retail use was accepted in 1974. Therefore this does not form a reasonable basis for resisting the proposal.
8. There are 5 other betting offices within the Core Shopping Area and 2 more in
the High Street but outside the Core. This seems excessive to many but the proposal would result in less than 6% of the total of 108 units within the Core Area being in that use. In any event, the Use Classes Order does not limit the particular nature of uses within Class A2. ODPM Circular 03/2005 Changes of Use of Buildings and Land confirms that this class is designed to allow flexibility. Furthermore, there are no local policies that seek to distinguish between betting offices and other kinds of Class A2 use.
9. Some representations bemoan the loss of the former building society/bank use
and say that the proposal would lead to a less diverse mix of uses as a result. That may be so but as previously explained the planning system does not operate to regulate the number of any particular type of financial and professional service. Rather, as Circular 03/2005 puts it, there should generally be “free interchange” within a wide range of such uses.
10. The appellant maintains that a betting office could generate more custom than
a Class A1 use and refers to appeal decisions from Long Eaton, Paignton and Bridgwater. However, no direct evidence in this regard has been placed before me and therefore this point has little weight. It is also claimed that the proposal would increase diversity in line with Policy EC4.1 of Planning Policy Statement (PPS) 4: Planning for Sustainable Economic Growth but that is patently not the case. Nevertheless, there is also nothing to indicate that other types of Class A2 use would be significantly different to the permitted building society in terms of customer attractiveness and contribution to the economic well-being of the District Centre.
11. The key divide in terms of development plan policy is between retail and non- retail uses. The proposal would not lead to the loss of a retail use and so would not conflict with the Unitary Development Plan or Core Strategy in that respect. Furthermore, by that yardstick there would be no harm to the vitality and viability of Deptford District Centre.
Anti-social behaviour, crime or disturbance
12. PPS1: Delivering Sustainable Development refers to the creation of safe
communities as a key principle. Safe environments where crime and disorder or fear of crime does not undermine quality of life or community cohesion are also a key design objective. In a more general way criterion (d) of Policy STC4 of the Unitary Development Plan indicates that non-retail development within Core Areas should not harm the amenity of adjoining properties.
13. There is a strong body of evidence from local residents and shopkeepers that the existing betting offices in the Core Area give rise to anti-social behaviour, crime and disturbance. Representations refer to feelings of being intimidated and threatened by groups of people ‘hanging around’ outside other betting offices. There is a persistent thread of concerns about associated drinking, drug taking and begging as well as reports of verbal abuse, fighting and shouting. As far as many of those living and working locally are concerned there is a clear link between these happenings and the existing betting offices.
14. The appellant company regards the views of third parties as subjective and
prejudiced. It may be that some have other objections to betting offices which are not planning matters but this does not mean that their observations, based on experience of the area on a daily basis, should readily be put aside. It is true the information provided is anecdotal rather than “formal” with exact details of dates and incidents. However, the frequency of the views expressed paint a clear picture of the nature of the problems experienced with betting offices in Deptford High Street.
15. The evidence of the Police is also instructive. Both the Sergeant for the New
Cross Safer Neighbourhood Team and the Licensing Officer oppose the proposal. The position ‘on the ground’ is confirmed by the Police in terms of complaints about existing premises and of harassment, alarm and distress caused to the public by beggars, drinkers and drug users. The Sergeant believes that another such venue would add to crime in the area.
16. The Licensing Officer has provided statistics of reported crime for betting
offices across the Borough and in Deptford High Street. There were 18 offences locally between March 2010 and March 2011. Of these, 12 involved criminal damage, theft or public order offences but details are scanty. Indeed, as the appellant company points out, these figures have little meaning because they provide no comparison with individual retail uses in the High Street or other betting offices elsewhere or the High Street in general. It could be, for example, that they were linked to a single operator. A higher proportion of offences could also be explained by the requirement to report them all.
17. In addition, over the same period a total 102 calls were made to the existing 7
betting offices in the High Street which did not result in a recordable offence. Again the purpose of these calls is not apparent and there is no comparative data to assess whether this is a high or a low figure. A resident states that according to Police statistics crime is twice as high at the southern end of the High Street, where there are 5 betting offices, than at the northern end where there are 2. However, a range of other factors may affect the situation.
18. A Premises License under the Gambling Act of 2005 was issued in February
2011. This includes a number of conditions including the installation and maintenance of a fully operational CCTV system and the display of notices stating that drugs and drunkenness will not be tolerated on the premises. It has to be assumed that these will be adhered to. This provides a degree of confidence about the manner in which the establishment would be run although it cannot, of course, guarantee behaviours outside it.
19. In addition, the letter of 14 February 2011 to those who made representations comments that public nuisance is not a matter that can be taken into account. Furthermore, that the observations made by the Police about the link between the number of betting offices in the High Street and public nuisance was not a “relevant representation”. Licensing is a separate matter but, in any event, this correspondence suggests that it should not be treated as determinative.
20. Drawing things together the evidence shows that betting offices in the area are
associated with crime but whether this is abnormally serious has not been established. More persuasive are the accounts of people familiar with the area about disorder associated with existing premises. In general terms there is no reason to suppose that those visiting betting offices would be more likely to commit a crime or to behave in an anti-social manner than anyone else. However, for whatever reason, the evidence that premises in Deptford High Street act as a ‘magnet’ for miscreants is compelling.
21. Just because there may be problems in connection with other betting offices does not necessarily mean that these would be repeated in conjunction with Nos 93-95. The appellant company suggests that this could lead to a greater dispersal. However, this is a large unit and presumably it would not open unless the operator was satisfied that it would generate sufficient custom to make it profitable. If the appeal were dismissed then the current state of affairs would remain but, to my mind, an additional premises would simply add to problems and should not be supported.
22. Consequently the proposal would be likely to increase anti-social behaviour and
disturbance although the implications for crime are less certain. The appellant company is critical of the Council for referring to the potential for harm to be caused in this respect rather than expressing certainty. It seems to me that it is not possible to be categorical but that the weight of well-informed evidence suggests that this outcome is likely to materialise. Put another way, it would be foolish to ignore the convincing accounts given or to assume that they would not be repeated in association with the proposed betting office.
23. As a consequence the proposal would make the High Street a less safe place
for residents and other users of the town centre. In this way there would be a broad conflict with the intentions of criterion (d) of Policy STC4 of the Unitary Development Plan and also with the aims of PPS1. The same would not necessarily be true of every betting office but it is the conclusion in this case based on the evidence about existing operations in Deptford High Street. In making this finding limited weight has been given to the Portobello Road appeal decision quoted since full details have not been provided.
24. The proposal would not harm the vitality and viability of Deptford District
Centre since it would not lead to the loss of a retail unit and would comply with relevant development plan policies in this respect. However, it would be likely to give rise to anti-social behaviour and disturbance to local residents and users of the town centre. There is also a risk of an increase in crime. As a result use of the High Street would become less safe and pleasant.
25. PPS4 confirms the overarching objective of sustainable economic growth and
that such applications should be treated favourably. This theme is reiterated in the Ministerial Statement on ‘Planning for Growth’ of March 2011 as significant weight is attached to the need to secure economic growth and employment and also in the draft National Planning Policy Framework. The proposed betting office would occupy an empty unit and create jobs. However, there is no indication that this is the only viable use of the premises or of the employment that would be generated. Since the main aims of PPS4 also encompass safe environments these factors do not outweigh the harm identified.
26. The application sought to vary Condition (2) to enable all Class A2 uses to
occupy the unit. Apart from betting offices there is no evidence that the limitation to a building society only should continue. Hence the condition in its current form is no longer necessary or reasonable and should be replaced. Paragraph 87 of the Annex to Circular 11/95 The Use of Conditions in Planning Permissions indicates that conditions should not be imposed which restrict future changes of use which the Use Classes Order would otherwise allow save in exceptional circumstances. In this case I am satisfied that excluding a betting office is justified because the tests set out in the last sentence are met.
27. The appeal should therefore be allowed so that the range of acceptable
activities within Class A2 can be broadened in line with Government economic objectives. However, a condition should be imposed which precludes use as a betting office. The original permission contained a condition regarding a shop window which should be re-worded and re-imposed. As a fresh permission is issued to stand alongside the original it also makes sense to adjust the description of development to suit. So although a betting office use would be unacceptable the appeal should be allowed for the reasons given.