Officer Report

Application No.: 17/00936/B Applicant: EfB (IoM) Ltd/Mr R Chatha Proposal: Variation of condition 2 of PA 15/00004/B for the creation of a leisure/industrial development, to extend the period of approval for a further 2 years Site Address: Land Adjacent Industrial Estate Ballafletcher Road Cronkbourne Douglas Isle Of Man Case Officer : Miss S E Corlett Expected Decision Level: Planning Committee Recommended Decision: Permitted Date of Recommendation: 06.10.2017 _________________________________________________________________

Conditions and Notes for Approval

C : Conditions for approval N : Notes attached to conditions

• C 1. Approval of the details of design, external appearance of the building(s), internal layout, landscaping of the site (herein called 'the reserved matters') shall be obtained from the Planning Authority in writing before any development is commenced.

Reason: to comply with the Town and Country Planning (Development Procedure)(No2) Order 2013.

• C 2. The application for approval of the reserved matters shall be made to the Planning Authority before the expiration of two years from the date of this permission. Reason: for the avoidance of doubt.
• C 3. The development to which this permission relates shall begin within 4 years of the date of this permission or within two years of the final approval of the reserved matters, whichever is the latter.

Reason: to comply with Article 14 of the Town and Country Planning(Development Procedure)(No 2) Order 2013.

• C 4. This approval relates to the creation of a mixed use development providing warehousing, offices/retail accommodation and leisure facilities including service road and car parking as shown in drawing numbers 1699.01.P01, 1699.01.P02, 1699.01.P03 and 1699.01.P04 date stamped 31st August, 2017. Reason: for the avoidance of doubt.

• C 5. The plans and particulars submitted in accordance with Condition 2 above shall include:

• 1. a Design Statement;
• 2. a Green Travel Plan;
• 3. details of cycle shelters; and
• 4. a detailed Transport Assessment, which should include, but not limited to, both a detailed parking and junction assessment. Reason: for the avoidance of doubt.

• C 6. The buildings shall not be used until the vehicular and pedestrian means of access have been constructed in accordance with the approved plans, and those means of access shall thereafter be kept available at all times for their respective purposes. Reason: for the avoidance of doubt.
• C 7. The buildings shall not be used until the car parking and manoeuvring areas have been provided in accordance with the approved plans, and those areas shall thereafter be kept available at all times for their respective purposes. Reason: for the avoidance of doubt.
• C 8. The goods to be sold within the trade counter/showroom/retail shop area must be restricted to alcohol, soft drinks, tobacco, bar type snacks and confectionery in conjunction with the office and warehouse unit associated therewith. Reason: for the avoidance of doubt.
• C 9. The retail unit may not be brought into operation until such time as the warehouse and offices associated therewith are in use. Reason: for the avoidance of doubt.

Plans/Drawings/Information;

This approval relates to drawings 1699.01.P01, 1699.01.P02, 1699.01.P03 and 1699.01.P04 all dated August 2011 and received on 31st August, 2017.

_______________________________________________________________ Interested Person Status – Additional Persons

It is recommended that the following persons should not be given Interested Person Status as they are not considered to have sufficient interest in the subject matter of the application to take part in any subsequent proceedings and are not mentioned in Article 6(4):

MyWay, who are not close enough to the site to be considered to be directly affected by the development. A company who put forward a similar case, IOM Enterprises, was not afforded interested person status in the case of 15/00004/B.

Officer’s Report THIS APPLICATION IS REFERRED TO THE PLANNING COMMITTEE DUE TO THE PLANNING HISTORY OF THE SITE

THE SITE

1.1 The site is a parcel of land which lies to the north of Ballafletcher Road. The site has a frontage to the road of 125m and stretches northwards away from the road by between 71m and 130m. To the west of the site is land which is part of a sports facility with rugby, cricket and football pitches and amenities: to the east is existing industrial/commercial development in the form of Mannin Media's premises (who specialise in printing, signage, advertising and web design): to the north are the sports pitches and an HGV testing roadway. - 1.2 Access to the site is currently from the existing estate road which serves Mannin Media and a number of other premises within the Ballafletcher Industrial Estate. - 1.3 The site slopes downward from north to south and upward from east to west. THE PROPOSAL

2.1 Proposed is the variation of one of the conditions of an approval in principle for the creation of a leisure/industrial development on the site to extend the period within which the reserved matters application must be submitted, for a further two years. The applicant explains that the additional time is requested in order to provide additional opportunity to design the details of the scheme. They comment that whilst approval was granted for an extension of time in September, 2015, there was a legal challenge to this decision which was not resolved until December, 2016. That approval required that the reserved matters application was to be received by 2nd September, 2017. This has provided inadequate time in which the fully detailed scheme could be prepared. PLANNING HISTORY - 3.1 The application to which this current application refers is 15/00004/A which itself was an application to vary the time condition attached to an earlier application, 11/01290/A which approved the principle of a mixed use development to provide industrial/warehousing, office/retail accommodation and leisure facilities including service road and car parking (discharging siting and means of access) on this site.

3.2 11/01290/A proposed the layout of the site to accommodate a pub/restaurant (630 sq. m), play barn (300 sq m), office (300 sq m), 12 lane bowling alley (1225 sq m) and warehouse (1400 sq m) together with associated parking, access, marshalling area, children's play space and landscaping in the form of tree planting within a 7m wide strip parallel and alongside Ballafletcher Road. A new access was also to be provided off Ballafletcher Road to the leisure and office facilities. - 3.3 This was approved by the Planning Committee and an appeal was requested by the owner of a nearby property. Braddan Parish Commissioners also objected to the application. The appeal was dismissed by the Minister, having been so recommended by the independent inspector who noted that whilst part of the site was not designated for development, the surrounding area was no longer open, agricultural land and the inclusion of this area would have no material impact on safeguarding agricultural land nor the Manx countryside given the presence of the sports pitches at a higher level and, beyond them, the hospital. He considered that the warehouse element fell within the land use designation which had a strong functional link with the office, showroom and trade counter and a significant link with the public house, restaurant and motel especially as the motel would serve the company's business visitors. Whilst the other leisure uses had little direct functional link with the warehouse, it was not difficult to envisage how, taken together, they could reinforce the location as an attractive destination and help underpin the business vitality of the whole. He referred to the unlikelihood of this development diverting sales from the town centre as sales here are envisaged to be in larger bulk and he notes the condition imposed to deal with this. He appreciated the benefit of separating traffic serving the leisure elements from that associated with the industrial elements and therefore considered that the new access was acceptable. He acknowledged draft PPS Planning and the Economy as carrying weight as an indication of Ministerial intentions but

• notes that behind the PPS are real fiscal and economic pressures, unprecedented in our lifetime and how the development could have potential for long term job creation and the establishment of a new corporate headquarters, both of which gave powerful support to the scheme.
• 3.4 The application was approved subject to the following conditions:

• 1. Approval of the details of design, external appearance of the building(s), internal layout, landscaping of the site (herein called 'the reserved matters') shall be obtained from the Planning Authority in writing before any development is commenced.
• 2. The application for approval of the reserved matters shall be made to the Planning Authority before the expiration of two years from the date of this permission.
• 3. The development to which this permission relates shall begin within 4 years of the date of this permission of within two years of the final approval of the reserved matters, whichever is the latter.
• 4. This approval relates to the creation of a mixed use development providing warehousing, officers/retail accommodation and leisure facilities including service road and car parking as shown in drawing numbers 1699.01.P01, 1699.01.P02, 1699.01.P03 and 1699.01.P04 date stamped 16 September 2011.
• 5. The plans and particulars submitted in accordance with Condition 2 above shall include:

• 1. a Design Statement;
• 2. a Green Travel Plan;
• 3. details of cycle shelters; and
• 4. a detailed Transport Assessment, which should include, but not limited to, both a detailed parking and junction assessment.

• 6. The buildings shall not be used until the vehicular and pedestrian means of access have been constructed in accordance with the approved plans, and those means of access shall thereafter be kept available at all times for their respective purposes.
• 7. The buildings shall not be used until the car parking and manoeuvring areas have been provided in accordance with the approved plans, and those areas shall thereafter be kept available at all times for their respective purposes.
• 8. The goods to be sold within the trade counter/showroom/retail shop area must be restricted to alcohol, soft drinks, tobacco, bar type snacks and confectionery in conjunction with the office and warehouse unit associated therewith.
• 9. The retail unit may not be brought into operation until such time as the warehouse and offices associated therewith are in use.

3.4 The reserved matters application was not submitted within the appointed time, rather an application to extend the period in which the reserved matters could be submitted, was made, 15/00004/B. This was refused by the Planning Committee and taken to appeal by the applicant. The inspector considering the appeal recommended that it be allowed and the Minister accepted that recommendation on 30th July, 2015. A corrected notice was issued on 2nd September, 2015 to provide a full list of conditions (one had been omitted in the original notice). - 3.5 The Inspector did not accept the Planning Committee's view that a recent approval for the creation of a wine warehouse, cafe and offices for the same applicant in a more central

• location in Douglas (14/00836/B) was a material change in circumstances since the original decision and that this justified a requirement for the extension of time application to be refused as a Retail Impact Assessment was now required to be submitted to justify the development previously approved in principle on the application site. She considered that the Committee may have jumped to the conclusion that the more central site was to be an additional facility, not a stop-gap facility pending the final development of the Ballafletcher site. She considered that "entirely reasonable" to have such an interim facility. She also commented that the Committee was incorrect to require a Retail Impact Assessment for a development whose retail element was "far too small" to justify such a requirement. She considered that the Central Douglas Masterplan should be given "only minimal weight" in the assessment of that appeal as it refers to vacant sites in Douglas, not edge of town sites such as Ballafletcher Road, and was not part of the Development Plan. She concluded that there would be no material harm in allowing the appellant an extra 2 years for the submission of an application for the Reserved Matters and whilst some of the objectors had considered that the original approval should never have been granted, this was outwith the scope of that appeal.
• 3.6 The Minister reiterated the conditions attached previously, modifying them to replace the reference to "the Planning Authority" with "the Department", removing the reference to development commencing within 4 years of the date of the approval in principle as this would have expired before the approval of the last of the reserved matters (condition 3) and adding reasons for every condition. He added in the decision letter, although this is not a condition of the approval in itself, that "to assist the Department's consideration of any future Reserved Matters application submission in respect to PA 11/01290/A and its impact on Douglas Town Centre, the Minister for Environment, Food and Agriculture, the Hon R A Ronan MHK, has suggested that consideration be given to the submission of an economic assessment (including the anticipated benefits/dis-benefits and multiplier/displacement effect of the proposed development) as part of the supporting documentation to the application."
• 3.7 This decision was subject to the submission of a Petition of Doleance to the Courts on the basis that firstly, it says that the decisions were unreasonable or irrational because the Inspector (on whose report Minister Ronan relied) failed to take into account a relevant fact (namely the cumulative impact of the two planning permissions enjoyed by EFB in respect of the Ballafletcher site and the Peel Road site) and also took into account an irrelevant factor (namely the intention of EFB in respect of the Peel Road site). Moreover, the Claimant says that the Inspector, and consequently Minister Ronan, were wrong to place too much reliance on a letter in support of EFB from Minister Shimmin (as he then was) and secondly, it says that the links between EFB and Chief Minister Bell (as he then was) resulted in special treatment for planning applications made by EFB, or that there was a perception of special treatment, and it is further alleged that there was apparent bias on the part of Minister Ronan, the decisionmaker, in respect of the Ballafletcher site extension of time planning appeal.
• 3.8 These grounds both failed and notice was given of this judgement on 9th December, 2016.

PLANNING POLICY

4.1 The site lies within an area designated on the Braddan Local Plan of 1991 as Predominantly Industrial and partly as "Land Owned By Government (Open Space in Agricultural Use)". This is as it was when both of the earlier applications were determined.

4.2 Cabinet Office has commenced the preparation of an Area Plan for the East which will, if and when adopted by Tynwald, replace the Area Plan for Laxey and Lonan, the Local Plans for Braddan, Douglas and Onchan and the Isle of Man Planning Scheme (Development Plan) Order 1982 as it refers to the parishes of Santon and Marown. The plan's preparation is still in its preliminary stages, a Call for Sites having been undertaken and the Cabinet Office's response to these suggestions having been published. A draft Area Plan will have to be published before the end of May 2018 in order to accord with the Town and Country Planning Act 1999.

4.3 The application site has been the subject of a proposal for development for employment purposes and Cabinet Office's published response is: the site is brownfield and not situated within a conservation area. There are no protected trees on the site or close to the boundary and it is judged that the surrounding land uses are compatible with the proposed employment use of the land. The site is situated close to both an existing employment area and residential area where there are good transport links and community facilities and it is thought that the required infrastructure improvements could be easily provided in this area. Overall, the site is judged to be a good employment site, improving the appearance of a currently derelict site and not harming the quality of the surrounding landscape. - 4.4 It can be confusing when planning applications are submitted at a time when a development plan or plans are being reconsidered and in some cases, developments can be considered premature where they would prejudice the proper consideration of the reconsideration process. This tends to be where a development is clearly contrary to the emerging advice, particularly where the existing land use designation would not support the proposed development either. In this current case, the majority of the land is designated for development, two previous applications for an identical development have been approved and the emerging advice is that the site is suitable for employment-based development.

REPRESENTATIONS

5.1 Braddan Parish Commissioners object to the application on the basis that the development should already have commenced and the courtesy of extending planning approval is rarely extended to other businesses on the Island (13.09.17).

5.2 Highway Services comment "The proposal is to extend the period of approval of an approval in principle. There have been no changes in circumstances to warrant refusal of this application. Highway Services does not oppose this application subject to the same conditions being added as previously" (28.09.17).

5.3 An objection to the application has been received from MyWay, a company based at Centre House, Little Switzerland, Douglas who are operators of "a large grocery store in Douglas town centre". They reiterate their previous objection to any retail permission on this site and they consider it to be contrary to the land zoning on the Braddan Local Plan of 1991 and Business Policy 5 of the Strategic Plan. They suggest that the Employment Land Review of 2015, supplemented in 2017 identify a shortage of land for employment development in the east and what is proposed seems at odds with this. They are concerned that the documents submitted with the application are 7 years old and interim and proposed developments in the leisure market should be considered as impacting on this. They refer specifically to a site owned by the applicant on Peel Road which has permission for similar warehousing and office uses and suggest that the cumulative effect should be assessed before any permission is granted on this potentially valuable piece of industrial and technology land where the proposal is to low density employment uses such as warehousing and leisure (25.09.17).

ASSESSMENT 6.1 The most recent application which extended the original approval in principle, remained valid until 2nd September, 2017. This current application was submitted prior to that, on 31st August, 2017. For the purposes of the consideration of this current application, the provisions of the earlier application remain valid. As such, it is important to consider whether there have been any changes in circumstance, policy or other material matters which would justify a decision which is different from that taken in respect of 15/00004/B and essentially 11/01290/A.

6.2 Whilst the Commissioners are concerned that the development should already have been commenced (perhaps they mean that the reserved matters details should have been submitted as the development cannot commence until they have been determined), this is not a valid

reason to refuse the application. They also state that other businesses are not generally afforded the same courtesy although no evidence is provided to support this suggestion.

6.3 Over time, the Department has only once refused an application for the variation of a condition which would extend the period of commencement, that being 15/00004/B for this site, which was subsequently approved on appeal. It is not clear why the Commissioners believe that other businesses are not extended the courtesy of extending their planning approvals. The opportunity is with any applicant to apply for such a variation to extend the period for commencement and the evidence would suggest that in all cases, this is granted by the Department.

6.4 Some of the objections raised by MyWay are the same as those raised earlier and which were not accepted by the Minister or indeed in the legal challenge. Reference is made to the Employment Land Review which was first published just before the issue of the approval for the extension of time (15/00004/B). This identifies a general need for industrial land into the foreseeable future and particularly in the east of the Island where demand is highest. The statistics provided report that warehousing and distribution is an area which is not only expanding in employment but is projected to continue to do so up until 2026 (between 20142016 wholesale distribution increased by 25.9%, second only to e-gaming) with retail distribution increasing by 1.4% and catering and entertainment increasing by 20%. In this report, the site is referred to specifically with the comments "Current planning application for warehouse and entertainment centre. Due to limited land availability for a mixed use development of this scale, officers have recommended there is sufficient justification to allow the land to be used for an alternative use." - 6.5 Simply because one type of industrial use may employ fewer people than another, this does not give the greater employment use priority over whether other forms of industrial use should be allowed to be developed. It is clear from the earlier applications, and the comments in the Employment Land Review, that it has been accepted that this land can be developed for the mix of uses proposed, not all of which are industrial and there has been no material change in policy or other information which would support a different conclusion now. Moreover, the Cabinet Office comments in the Area Plan for the East on this site, report that it is within "an existing employment area and residential area where there are good transport links and community facilities" all of which make the proposed development acceptable, being accessible and relatively sustainable. - 6.6 The applicant has explained that the Peel Road site is currently not being progressed and due to other relatively recent changes in the consideration of that development by them (the future relocation of the current car showrooms alongside and the potential change in nature of the Peel Road area), it is not currently clear whether that development for a wine warehouse, cafe and offices, will proceed there. They advise that should the trade counter/showroom and retail shop area open, it would transfer to the site at Ballafletcher if and when this is available.

CONCLUSION

7.1 It is not considered that there have been material changes in policy or circumstances which would warrant a decision different to those taken in respect of 11/01290/A and 15/00004/B and as such the application is supported. INTERESTED PERSON STATUS - 8.1 By virtue of the Town and Country Planning (Development Procedure) (No 2) Order 2013 (Article 6(4), the following persons are automatically interested persons:

• (a) The applicant, or if there is one, the applicant's agent;
• (b) The owner and the occupier of any land that is the subject of the application or any other person in whose interest the land becomes vested;
• (c) Any Government Department that has made written submissions relating to planning considerations with respect to the application that the Department considers material

• (d) Highway Services Division of Department of Infrastructure and
• (e) The local authority in whose district the land the subject of the application is situated. 8.2 The Planning Committee must determine:

• * whether any other comments from Government Departments (other than the Department of Infrastructure Highway Services Division) are material; and
• * whether there are other persons to those listed in Article 6(4) who should be given Interested Person Status.

I confirm that this decision has been made by the Planning Committee in accordance with the authority afforded to it under the appropriate delegated authority.

Decision Made : Permitted Committee Meeting Date: 16.10.2017

Signed : J CHANCE Presenting Officer

Further to the decision of the Committee an additional report/condition reason was required (included as supplemental paragraph to the officer report).

Signatory to delete as appropriate YES/NO See below

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