Unfathomable

While we are on the subject of unnecessary conditions (Double trouble), here is an appeal case in which the inspector found the imposition of a condition to be unfathomable (DCS Number 400-028-145).

This case concerns the planning permission for the redevelopment of a local police station and section house in a residential area of Surrey with a Co-operative convenience store and three flats, to which the council had attached a condition restricting opening hours. The condition stated that the use should not operate outside the hours of 7am to 11pm for the first twelve months and after that the use should be between 7am and 10pm unless otherwise agreed in writing by the local planning authority. The reason given for the condition was to safeguard the amenities of neighbouring properties and to allow the LPA to monitor the situation.

The inspector remarked that whilst the area was predominantly residential in nature the previous use of the site had not been wholly domestic. Furthermore, the site was on a relatively busy main road, in places with commercial use, and the immediate ambient environment was not one of total peace. There was some separation of parking spaces from immediate neighbours, and the layout would minimise manoeuvring. The shop was intended to meet convenience needs, he noted, and these do run through the evening. 

The inspector stated that he was acutely aware of the need to safeguard residential amenity. However, given the factors above he just did not fathom or support the idea of a trial period and an automatic reduction of one hour’s trading. This, he went on, was only to be set aside through an unspecified performance target, with the appellant convincing the council via some form of written process at a point towards the end of the initial twelve months that the reduction should not stand. He was satisfied that in all the circumstances opening until 23.00 hours would not unreasonably impinge upon local living conditions. 

The inspector concluded that the condition was not necessary to protect amenity and it was also unreasonably restrictive towards, and added uncertainty for, the appellant’s operating regime in the future. He varied the condition, deleting the requirement to close at 10pm after twelve months. 

The tests for conditions are given at section 6.1372 of DCP Online.