Problems in getting planning permission
Although most planning applications receive permission, some proceed more smoothly than others. Here we highlight some of the main stumbling blocks. <?xml:namespace prefix = o ns = "urn:schemas-microsoft-com:office:office" /?>
If there are problems before your application gets in front of the planning committee it is usually because a scheme is contrary to the authority's planning policy. So, as highlighted in our basic guide to planning permission, it is essential to research the planning background before proceeding with a scheme.
But some applications are refused permission even though officers may not have flagged up any problems and have recommended that the planning committee should approve them. Unfortunately, applications involving development in A3 properties (restaurants, pubs and takeaways) tend to have a particularly unpredictable ride through the committee stage because of the public interest they generate.
The majority of restaurants, pubs and takeaways tend to attract most of their business during the evening and sometimes well into the night. In a city centre, late-night uses are more likely to be encouraged to develop the "evening economy" and are generally welcome in principle. However, in residential areas such developments can lead to problems with noise from customers and their cars, food smells, and litter.
Sometimes, in city centres, A3 properties are not so welcome if they're in a prime retail area, as they may have a harmful effect on the vitality of shopping centres. A shop may have been vacant for some time, but this does not normally persuade the planning authority to allow a change of use to A3.
Opening hours
Opening hours are always a contentious issue with A3 planning applications. Pub opening hours are usually regulated by licensing laws rather than by planning conditions, but in the interests of residents, the planners can often require that a pub be closed earlier than the increasingly liberal licensing laws might permit.
However, the planning authority and the licensing authority work independently. The planning authority could grant permission for a pub or wine bar "having proper regard to all planning considerations", but the licensing authorities may consider that there are too many licensed premises already in the area, making the planning permission useless.
It is accepted that restaurants and takeaways do most of their business late in the evening. Conditions limiting hours of opening to the early evening to avoid conflict with the interests of nearby residents would be unreasonable as it would inhibit trade. The planning authority would probably just refuse the scheme in the first place.
Planning conditions regarding closing time for any A3 property other than pubs are often vaguely worded. It is often unclear whether closing time refers to last orders, leaving time for customers, or the time at which all cleaning-up operations are finished and the staff leave. Noisy extractor fans and bin movements can be as disruptive to nearby residents as customers.
Vehicle noise
Noise from vehicles coming and going can be a decisive factor in a planning application, whether it be delivery vans or customers' cars. Several restaurant planning permissions contain conditions specifically to prevent use as takeaways for this reason.
Parking
Although, by definition, takeaway trade involves eating off the premises, some parking spaces may be required to avoid on-street congestion and blocking of private drives. Although restaurants generate a lower level of traffic movement, they retain their customers for longer periods, and therefore need to make more spaces available. Planning authorities normally provide car parking guidelines in the Development Plan and if the scheme cannot substantially meet these, then it may be refused. In town centres, these standards are relaxed.
Smells and fumes
Cooking smell and fumes are one of the most common reasons an A3 application is either refused or restricted. For example, conditions can be placed which limit the type of cooking - pizzas, for instance, rather than currys. Provided that they are properly designed and maintained, modern carbon filters vastly reduce cooking smells and greatly reduce these problems in the eyes, and noses, of the planning officers.
Litter
Although litter can be a big problem for the area around a takeaway, planning conditions cannot cover litter dropped by customers off the premises. All that takeaway owners can do is provide and maintain bins on the premises and hope that customers will use these rather than discard their litter in a neighbour's front garden.
The larger the number of takeaway outlets in an area, the more these problems are likely to arise. An application for a takeaway in a parade where there are already several similar outlets is more likely to be refused than in one where few, if any, exist.
Altering a pub
Thanks to falling beer sales and the increased development of restaurant and family facilities, the nature and function of pubs has changed a lot over the last few years. A pub that is listed as of special historic or architectural value can only be extended without loss of its character and planners look closely at the showy equipment in play gardens. In rural areas it may not be easy to expand a country pub substantially if it lies within a Green Belt, National Park or other area where there are severe restrictions on building developments. Ironically, many closed village pubs have been refused permission for residential conversion because the planning authority, and the inspector on appeal, considered the pub to be an essential part of village life.
What to do if an application is refused
An applicant can appeal against a council's decision if:
The application is refused
The application is approved subject to conditions that the applicant thinks are unfair
The council fails to make a decision within a certain time limit.
The applicant has the right of appeal to the Secretary of State for Transport, Local Government and the Regions, or his equivalent in Wales, Scotland or Northern Ireland.
There is no fee for submitting an appeal to the Secretary of State, and there are three main routes of appeal:
The first is by written representations: the quickest and cheapest, but not necessarily the most effective.
The second is by informal hearing: the issues are discussed verbally and no significant public interest is involved.
The third is the formal inquiry where complex and detailed issues can be discussed and witnesses cross-examined in depth, although the need to obtain legal advice and representation, together with expert witnesses, can lead to heavy costs. These costs have to be balanced against the chances of success. This route is often particularly useful where public concern has swayed a committee member or where refusal is based on inconsistent or outdated policies.
Appeals must be made within six months of the date of the decision notice and a copy of the committee report studied to check if the planning officers' views are fully reflected in the final decision.
If a scheme is "nearly there, but not quite" it is usually possible to resubmit a second application free of charge within 12 months provided that it differs only in slight details from the first application. A word with the planning officer may help decide whether this is a good course of action. If so, then it is likely to save time and expense of an appeal.
by John Seacome
John Seacome is a chartered town planner at Eversheds
