Q & A 21.3/10
We have received an application for a new B8 use with shop window and ancillary trade counter. Do we have any control over the trade counter?
A genuine trade counter could be considered ancillary to a warehouse use, and therefore even if omitted from a development description, it is possible that it could be introduced later without planning permission being required. If your authority has no planning objection to the trade counter element as such, provided it is limited in scope and no retailing is carried out, then it is possible that a reasonable planning condition may be formulated to secure this. If no such condition is applied it may be possible for the operator to argue that a small amount of retailing at any trade counter may be ancillary thereto, or be de minimis.
I am advising clients who are being troubled by HGV movements from a storage and distribution business (B8) which has recently moved onto a former industrial site (B2). The planning authority have taken the view that, although the premises are substantially in excess of 235 sqm, there is no material change of use as the previous industrial user occupied a much larger site and premises and that the provisions of Part 3 Class B(b)(1) of the GPDO do not apply.
The point made by my clients is that the vehicular movements resulting from the former industrial use were insignificant compared with that which is now taking place from the albeit smaller sized (in area terms) more active and intense B8 user. Surely the provisions of the GPDO were drawn up to prevent such occurrences?
As you say Part 3 allows a movement from B2 to B8 use provided the change relates to no more than 235 sqm, and the purpose of imposing this limit must have been to provide business with some flexibility while limiting large scale changes which might have policy or environmental implications. The local authority's argument in this case is seemingly that although the GPDO might allow a change of up to 235 sqm this cannot be interpreted as meaning that changes above this ceiling would necessarily constitute a material change of use. This is right, but in all cases concerning whether the question of whether a material change has occurred one has to look at the correct planning unit. If there has been subdivision of a previous industrial curtilage a new unit could well have been created. Therefore in this circumstance the size of the original industrial undertaking would have no relevance.
My client wishes to commence a use for the storage of fireworks but the building is located within 25-30 metres of a grade II* listed timber framed building. English Heritage have objected on the basis that if there was an explosion the listed building would be at risk. Is this a reasonable material consideration?
The Planning (Listed Buildings and Conservation Areas) Act 1990 at section 66 imposes a general statutory duty upon local authorities to have special regard to listing buildings when determining nearby planning applications. In practice this nearly always relates to consideration of the protection of a listed building's setting. So far as I know the possibility of physical damage as a consequence of an adjoining use has not arisen before at appeal or in the courts, but I have no doubt that the concern of English Heritage is a reasonable one . In this circumstance I would have thought that some form of risk assessment would need to be carried out having regard to any safeguards proposed by the applicant. This would enable a decision to be made whether there is any reasonable likelihood of an explosion occurring which would damage the listed building. Has any reader had experience of this type of situation?
Premises that store fireworks have to be registered with the local authority. Minimum distance to any third party buildings and public highways are often required depending on the type and amount of fireworks stored, but there is a threshold below which no separation distance is required. Currently the regulation concerning the storage of fireworks and other explosives is out for consultation by the Health and Safety Executive. I would advise that the questioner get in touch with the local trading standards officer who is usually responsible for such matters.