Agenda item

PROPOSAL: Variation of condition 3 (opening hours) of planning application 21/01254/FUL to extend existing opening hours.

OFFICER RECOMMENDATION: Permit

72.53        This application was for the variation of condition 3 (opening hours) of planning application 21/01254/FUL to extend existing opening hours.  The Planning Committee had visited the application site on Thursday 14 April 2022.

72.54        The Planning Officer advised that this was a Section 73 application to vary condition 3 (opening hours) for 7 St Mary’s Lane.  This was a business called ‘The Ice Cream Cottage’ which operated as a food takeaway under the Sui Generis use class.  The proposal was to increase the current opening hours from 1100-1730 hours to 1030-1830 hours with the exception of opening 1030-2000 hours on Friday and Saturday of the Queen’s Jubilee Weekend, the Medieval Festival and Fireworks at the Vineyards.  A Committee determination was required as a Member had called in the application to assess the impact upon the neighbouring amenity.  The concerns raised had been considered; however, it was the Officer opinion that the proposed additional opening hours would not cause undue harm to the amenity of the neighbouring dwellings, as outlined in the Committee report.  Therefore, it was recommended that the application be permitted.

72.55        The Chair indicated that the speaker on behalf of Tewkesbury Town Council had to leave for a Town Council engagement and that the speech on behalf of Tewkesbury Town Council would be read by an Officer.  The Town Council had indicated that the recent pandemic had changed people’s lives in myriad ways; for many people their homes had become their workplaces too and, for some, working practices had changed – this was clearly true for the applicant; however, the Town Council questioned how many business owners considered it appropriate to change their working practices to such an extent that the surrounding public realm, plus the walls and ledges of neighbours had become an integral part of them.  This particular business was Sui Generis and there was no other like this on St Mary’s Lane, as such, it impacted on the community and should be carefully observed in order to be properly understood; it was easy to make inaccurate assumptions, as the Town Council had when it first looked at it.  A business like this depended on lots of people, all with minds of their own and different priorities and it was not easy to manage people’s behaviour, particularly within an environment over which you had no control or ownership.  If the pavement was crowded, people would occupy the road; if there were no tables or chairs, they would make do with a convenient garden wall or window ledge without a thought for anything but solving the immediate problem they had of finding a level surface on which to put their purchase.  Over the weekend, a little boy in the queue was observed leaning against a neighbour’s wall, kicking at it repeatedly – that would not have been a pleasant situation for the householder nor much fun for the child to be stuck in a boring queue.  The Government’s Plain English guide to the planning system stated that planning ensured that the right development happened in the right place at the right time, benefiting communities and the economy.  Although there was a mixture of different activities going on along this stretch of St Mary’s Lane, it was predominately residential and the hours requested in this application were key hours for family life – winding down after a busy day and spending quality time with each other.  Families had a right to spend that time in the comfort of their own property, without the kind of intrusion or interruption that was considered more tolerable earlier in the day.  For many people the pandemic had prompted them to re-evaluate what was most important – the local community was there before this business expanded and neighbours had been happy to support it, but that could not be at any price.  The delicate balance between community and the economy must be maintained and the Town Council urged Members to think very carefully before making their decision today.

72.56        The Chair invited a local resident speaking in objection to the application to address the Committee.  The local resident indicated that the issues experienced stemmed from the unique operation, not the business itself – if the business operated from inside the premises as it did before the pandemic there would be no objections.  Post-COVID restrictions lifting, no other business in Tewkesbury Town continued to trade from a doorway directly onto the street and pavements.  The only constraint on the business was the opening hours with the intention of protecting the noise climate and amenity of residents.  The local resident questioned how this decision could be any different and be considered for change so quickly.  Trading was supposed to stop at 1730 hours in accordance with the condition but the business had already been staying open until 1800 hours and local residents were concerned that, if planning permission was granted to extend opening until 1830 hours, that would quickly become 1900 hours.  The business had been closed during the first application so the consultees had made representations without observing the operation, as such, local residents questioned how the safety, noise, nuisance and harm to neighbours could be accurately assessed - surely residents were best-placed to know what was happening outside their own homes and the impact it had upon them.  The local resident felt that County Highways had not seen the full impact and associated dangers and questioned whether it would take someone getting injured before the road safety issues were taken seriously.  Local residents felt the comparison with Wetherspoon’s opening hours was unfair as the pub operated within its own boundaries, had measures to control its customers and had little impact as it was not directly outside of their homes.  They objected to extending opening until 2000 hours for special occasions as that was open to interpretation – would this mean every event, big or small?  There were also concerns about late opening for winter events as that would be when the road was darkest, exaggerating road safety issues as well as the potential for anti-social behaviour.  The residents had lived there for many years and had no issues with the tearoom business; however, they questioned why they now had to live like this, just because the business chose not to open any of its previous indoor space – the owners may have their home back but residents felt they were losing theirs.  It felt they had been given no choice and were now living next door to a very busy takeaway and the local resident questioned whether Members would like to have that happening outside their homes up to seven days per week.  Upon walking out of their front doors, local residents were confronted with customers stood on the doorstep, leaning against their houses and eating food off their window ledges and they were not able to enjoy their gardens without hearing every order being called out, forced to keep doors and windows closed because of noise and privacy issues.  The local resident indicated that, nearly two years on, the associated stress and anxiety of living next to this takeaway business was now unbearable and their homes were no longer a happy and pleasant place to live – they felt they were being slowly pushed out, through no fault of their own.  The planning permission granted for this business to continue to operate in this way would have a long lasting negative effect on their lives for the foreseeable future, therefore, the local resident asked that the detrimental effect was not increased by extending the opening hours, particularly into the evening and on special occasions.

72.57        The Chair invited the applicant to address the Committee.  The applicant indicated that she wanted to speak today to explain a bit more about the business and why she had applied to open for slightly longer hours.  As many would know, the business was borne from COVID-19 lockdown; prior to this, they had run a tearoom for 20 years but the pandemic had forced it – like many others – to close.  She had wanted to continue trading as a takeaway and therefore had to adapt the business model to cater for the restrictions.  She accepted that the business was very different to anything else in Tewkesbury but that was something she was extremely proud of as it made it unique. The customer base was consistently growing and she was proud to have a larger social media platform than any other hospitality business in the town centre.  She loved living and working in Tewkesbury and felt privileged to be able to promote the beautiful town to customers and social media followers, many of whom would travel for miles to visit and then go on to explore the area.  It was not intended to open any earlier than 1100 hours as St Mary’s Lane was quietest in the morning and it was hoped to keep it that way in respect to the neighbours; however, after that time the lane came alive.  It was very much part of the town centre and many people walked around and took advantage of the riverside walk or the neighbouring Wetherspoons.  The application was seeking permission to extend the hours of opening from 1730 hours to 1830 hours which was in response to customer feedback.  The applicant considered this was well within the busy time in the local area as people were still commuting from work and the lane remained busy as people used St Mary’s Lane car park so she did not believe it would impact neighbours.  The application also sought to open until 2000 hours on three occasions per year in order to support community events – the events this year were the Queen’s Jubilee, the Medieval Fayre and Bonfire Night which would all bring huge crowds to Tewkesbury and would support the local economy.  She did not feel that her business being open would have a detrimental impact on neighbours as the lane would continue to be busy until Wetherspoons closed.  The business currently had a licence to open seven days per week but, as a family-run business, it would never open for that whole period.  She pointed out that the business was seasonal so it was only intended to open for the times being sought between April and September. The applicant explained that she had chosen to speak today as she felt she needed to stand up for independent businesses but also for the future of the town centre.  There would soon be an outlet centre within the town and tourists must have a reason to continue to explore the High Street, as such, it was necessary to continue to build independent businesses that were owned and run by local people.  It was important to ensure the town centre continued to thrive and that businesses felt valued and were encouraged to grow in these ever challenging times.  She always had, and would continue to, run her business in a way that was professional, and mindful of her customers and local neighbours; living next to a large pub chain had caused her concerns but she accepted that she lived in a town centre which came with an expectation of increased customer footfall.  She asked Members for their support to allow her to continue to trade in the way her customers wanted and to help keep Tewkesbury as a destination for all.

72.58        The Chair invited a local Ward Member for the area to address the Committee.  The local Ward Member explained that, prior to lockdown, residents were happy; during lockdown they understood and accepted street trading; however, with COVID restrictions being lifted, the business had not – as was required by law – reverted to being a café.  Notwithstanding this, retrospective planning permission had been granted and residents had felt completed ignored.  The local Ward Member had been told the business was already advertising and staying open until 1800 hours and she questioned whether the special occasion opening hours would be monitored if planning permission was granted.  Residents felt that further extending the opening hours would be totally unacceptable.  The noise of crowds waiting, order numbers being shouted out, issues of litter from takeaway food and drink containers and accidents waiting to happen were all major concerns to those living there.  Customers waiting for hot and cold food orders leant on residents’ walls and windows and had conversations outside residential homes and gardens.  Idling engines were an issue from the large number of customers not wanting to pay to park.  People queuing had nowhere to go and so spread onto pavements, stood in the road or in the car park and residents were worried that the relatively low numbers during lockdown would increase considerably now that was over.  She had provided photographs and a video to the Committee which had been sent to her and showed a child very nearly being hit by a car – these had been taken when the business was open with lots of people and street furniture, rather than the photographs shown today when it was closed with no crowds or signs.  This area was not suitable for large numbers of people and extended hours would only make it worse.

72.59        The Chair indicated that the Officer recommendation was to permit the application and he sought a motion from the floor.  It was proposed and seconded that the application be refused as it would have an adverse impact on neighbouring amenity. The proposer of the motion thanked the local Ward Member for the photographs and videos and welcomed the site visit as the photographs displayed today did not give a true reflection of what was actually there with people queuing across the car park.  This type of business would usually be found on a High Street, away from residential areas and, whilst lots of takeaways catered for people to go into the establishment, this one did not.  He felt that the residents’ quality of life needed to be taken into consideration and he believed it was unreasonable to extend the opening hours on that basis.  A Member noted that the applicant had stated that the extended opening hours were only required between April and September and he asked for clarification upon that as he could not see it in the Committee report.  He also questioned how many complaints had been received by the Council regarding noise or any other issues in the area and whether concerns about car parking could be dealt with by traffic warden control.  He did not like to see retrospective planning applications and could not support the proposal.  The Development Manager explained that it was within Members’ gift to restrict the extended opening hours to between April and September if they so wished.  He clarified that traffic warden control was outside of the planning remit and any issues in terms of parking irregularities would need to be dealt with by the relevant department.  He advised that two complaints had been received by planning enforcement but he was not sure how many, if any, had been received by Environmental Health. 

72.60        A Member indicated that she was surprised by the motion to refuse the application.  The town was of Medieval origin and had been built for horses and carts rather than cars – people had chosen to live in houses fronting straight onto a pavement.  There was a focus on revitalising town centres and it was necessary to engage with businesses in order to achieve that.  In this instance, she did not consider it an outrageous request to extend the opening hours by an extra hour in the evening and 30 minutes in the morning, or to further extend them for the special events mentioned when the town centre would be packed with people so a few extras on the pavement, or even the road, would make little difference.  She could not see any issues and wished to support the application.  Another Member expressed the view that the crux of the problem was that, during the pandemic people were not going into premises like cafés in the same way they used to - most businesses had been able to use outside space to regain some of the profit and he could not see an issue with the extension of hours being proposed in this case.  He could not imagine that the applicant would want to open if there was nobody in the High Street and he felt it was important to support local businesses and the economy.

72.61        Upon being put to the vote, it was

RESOLVED           That the application be REFUSED as it would have an adverse impact on neighbouring amenity.