Agenda item - BH2013/02050 - Aldi Stores Ltd, 7 Carlton Terrace, Portslade - Removal or Variation of Condition

Application for variation of condition 1 of BH2011/02857 to vary the hours of operation of the store to read: The store shall not be open for trading to the public except between the hours of 0800 and 2100 on Monday to Saturday and 1000 to 1600 on Sundays and Bank Holidays. Staff may be within the premises between the hours of 0700 and 2200 hours on Mondays to Saturdays and 0930 and 1730 on Sundays and Bank Holidays.

RECOMMENDATION – GRANT

Application for variation of condition 1 of BH2011/02857 to vary the hours of operation of the store to read: The store shall not be open for trading to the public except between the hours of 0800 and 2100 on Monday to Saturday and 1000 to 1600 on Sundays and Bank Holidays. Staff may be within the premises between the hours of 0700 and 2200 hours on Mondays to Saturdays and 0930 and 1730 on Sundays and Bank Holidays.

(1)                   The Area Planning Manager, Nicola Hurley, introduced this application and gave a presentation by reference to plans, photographs and elevational drawings. The application site related to Aldi Stores on Carlton Terrace which consisted of a large detached building with residential properties above and a smaller unit also with residential units above. The planning history was noted; in particular a refusal for changes to the car park. This application sought the variation of Condition 1 to allow the store to be open until 2100 hours Monday to Saturday and for the staff to be allowed in the store until 2200 hours Mondays to Saturdays; attention was also drawn to additional letters of objection in the Late List. The main consideration in relation to the change of hours were the impact on neighbour amenity, and the applicant had submitted a detailed noise assessment which set out that the change of hours would not have a detrimental impact; Officers had analysed this report and agreed with the findings. For the reasons set out in the report the application was recommended for approval.

Public Speakers and Questions

(2)                   Ms Angie Ross spoke in objection to the application in her capacity as a local resident. She stated that she was representing the residents of the 12 flats situated above the premises, and the grounds for their objections related to the existing noise from the premises and the lack of compliance by the store with the planning conditions currently attached to the premises. Ms Ross explained that she had personally made over 100 complaints, and felt that the matter had not been taken seriously. There was no sound proofing between the premises and the residential properties above and the noise of staff talking; doors banging; shopping trolley movements and cash registers were all audible by residents. A noise assessment had been commissioned by the operator; however, this had been taken from the car park and did not give consideration to the impact of the residential flats above. Ms Ross went on to point out that no Officers from Environmental Protection had visited the store to assess the noise problems, and the residents where of the view that an independent noise study should be undertaken. The premises also did not comply with the current planning conditions, and it was highlighted that on Sunday 21 July 2013 contractors had been present in the store all night to undertake a refit; similar work had also been undertaken the following weekend. It was also noted that the store was only permitted one main delivery and one milk delivery on bank holidays; however, they had received five deliveries on the last bank holiday. Ms Ross closed by stating that she was concerned the problems would get worse if the hours were extended, and asked that the current conditions be properly enforced.

(3)                   Councillor Hamilton asked if there was noise after the store closed, and in response Ms Ross explained that the noise was worse and it would travel more during these times.

(4)                   Mr Scadding spoke in support of the application in his capacity as the Planning Agent for the applicant. He stated that the premises had a long planning history, and the number of planning restrictions caused the store operational problems; this application sought to allow Aldi to better fulfil its role as a local store. The decision to trade until 2100 hours was largely driven by customer demand and to address modern work and shopping patterns. The majority of competitors were open until 2200 hours, and the additional half an hour after the premises was closed would allow staff to undertake duties that could not be completed whilst the store was open. The noise assessment had been prepared which considered actual activities on the site; this had shown there would not be a negative impact and this had been scrutinised by Council Officers. The operators had also acknowledged the various objections, but were of the view that they ‘could not please everyone’ and that a compromise needed to be reached. Mr Scadding stated that the premises would operate within the existing restrictions, but did make reference to the period of essential maintenance – highlighting that the residents had been informed and given hampers as a gesture of good will – stating that the premises was not ignoring the planning restrictions. The store was a key town centre anchor, and the report had demonstrated that the change of hours would not have an adverse impact. In closing Mr Scadding asked that the application be granted.

(5)                   Councillor Hamilton asked why the noise assessment had only been undertaken from the car park, and not from within the store or the residential flats above. In response Mr Scadding explained that this was the standard approach. Councillor Hamilton went on to ask about the location in the car park from which the assessment was undertaken; however, Mr Scadding explained he could not confirm this as he was not part of the noise assessment.

(6)                   Mr Scadding confirmed for Councillor Sykes that the applicant had commissioned the noise assessment.

Questions for Officers

(7)                   Councillor Cox asked if the operators were obliged to undertake a noise assessment, and in response Officers explained that they were not; however, such an assessment could give weight to applications, and the Planning Authority could be minded to ask that they undertake one.

(8)                   In response to Councillor Wells the Senior Solicitor, Hilary Woodward, confirmed the store would need to comply with relevant legislation and therefore only be able to trade for six hours on Sundays.

(9)                   Councillor Sykes asked about the recent enforcement investigations referenced in the Committee report, and in response the Deputy Development Control Manager explained the resolution of this had been suspended subject to the outcome of the planning application before the Committee.

(10)               Councillor Gilbey asked if the Planning Authority would direct the premises on how to undertake the noise assessment, and in response it was explained that this could sometimes be the case, and the Authority could direct if they considered more information was needed.

(11)               It was confirmed for Councillor Hamilton that the report made reference to the assessment being undertaken from the car park.

Debate and Decision Making Process

(12)               Councillor Hamilton stated that the premises were located within his Ward, and he had been receiving complaints in relation to these premises for some time; he also referenced mistakes and inaccuracies within the sound assessment. He went on to add that the assessment should have considered the impact of noise on the residential units and taking readings from within the store itself. The report also made reference to a wall, and Councillor Hamilton noted that this wall had not been built properly; nor had the operator sought to install parking bays for residents as agreed. The residential flats were occupied by key workers and the extra hour of operation would have an adverse impact on them. The premises also had a bad relationship with the residents, and it was felt that the store was already very busy and arguments in relation to viability were unfounded. The problems at the premises had been going on for years, and Councillor Hamilton was of the view that the current hours were adequate, and the application should be considered using the appropriate information in relation to the noise assessment. Councillor Hamilton summarised that the application should be refused.

(13)               Councillor Carden stated that the store was very successful, and people used it as it was a cheaper place to shop. Reference was also made to some of the local traffic problems caused due to how busy the premises had become. Councillor Carden was of the view that all staff duties could be undertaken whilst the premises was open; the impact of the noise for residents was already bad enough and the current opening hours were sufficient.

(14)               Councillor Wells stated that his main concern was the residents in the flats above, and he could not understand why Officers had not undertaken their own noise assessment. He stated that viability was not a matter for the Committee to consider, and the residents should not be subjected to additional noise. In summary he stated that he would not support the Officer recommendation.

(15)               Councillor Sykes stated that he was quite shocked by the very poor nature of the noise assessment, and he felt the operators were trying to get around the residents complaints by regularising the conditions; he stated he would not support the Officer recommendation.

(16)               Councillor Carol Theobald stated she was surprised Officers in Environmental Protection had not looked into the matter or undertaken noise assessments, and she was not satisfied that any new restrictions on the premises would be properly adhered to; she stated she would most likely be voting against the Officer recommendation.

(17)               Councillor Cox stated that he was pleased to hear that the store was doing well, and felt this was positive for the town of Portslade; however, he stated that the problem was with the relationship with the neighbours, and he said that if the Committee were minded to refuse the application this should be considered as means to begin restoring a positive relationship.

(18)               The Deputy Development Control Manager suggested that the item could be deferred to allow a further noise report to be undertaken which would give a report on the readings from the store and the flats above; however, the Committee was minded to put the application before them to the vote.

(19)               A vote was taken and the Officer recommendation to approve was not carried on a vote of 9 against with 1 abstention. Councillor Hamilton proposed reasons for refusal and these were seconded by Councillor Sykes; a short adjournment was then held to allow Councillor Hamilton  and Councillor Sykes; the Deputy Development Control Manager; the Senior Solicitor and the Area Planning Manager to draft the reasons for refusal in full. These reasons were then read to the Committee and it was agreed that they reflected what had been put forward by Members. A recorded vote was then taken and Councillors: Jones, Ken Norman, Carden, Duncan, Gilbey, Hamilton, Sykes, Carol Theobald and Wells voted that planning permission be refused and Councillor Cox abstained from the vote.

68.3       RESOLVED – That the Committee has taken into the Officer recommendation to grant, but resolves to REFUSE planning permission for the reasons set out below:

              i.           The noise assessment is considered inadequate by reason of the limited location from which measurements were taken. Therefore the applicant has failed to demonstrate  that the additional hours proposed would not have a detrimental impact on the amenity of neighbouring residents by reason of noise nuisance, contrary to policies SU10 and QD27 of the Brighton & Hove Local Plan 2005.

Note: Councillors Littman and Wakefield were not present at the meeting.