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AGENDA ITEM:

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TO: / PLANNING COMMITTEE
DATE: / 29 JUNE 2005
REPORT OF: / HEAD OF BUILDING AND DEVELOPMENT SERVICES
AUTHOR: / Darren Williams
APPLICATION NO: / 03/00848/F / WARD: / MSJ / RECEIVED: / 15/04/03
APPLICANT: / Pilgrim Band Trust / AGENT: / Mr B J King
LOCATION: /
13 FURZEFIELD ROAD, REIGATE
DESCRIPTION: / Single storey side extension to form group rehearsal room, instrument store and disabled toilet facilities
DRAWING NUMBERS: / O/S location plan, existing floor plans, PB/1/04, Management Plan dated 20/10/2003

SUMMARY

Consideration of this application was deferred at the meeting held on 25 February 2004 to seek an amended plan showing the main entrance to the extension relocated to the front, further advice on the acoustic assessment, and to review the proposed conditions.

The subsequent report prepared for the 12 May 2004 meeting was withdrawn from the agenda to allow further negotiations with the applicant.

Following the negotiations with the applicant a further report was prepared for the meeting of 8 September 2004. However on this occasion it became clear that there were perceived conflicts between the terms of the recommendation and the views of the applicant and objectors to be addressed. In summary, the objectors considered the extensions and the conditions to be more generous than the description of the use outlined on the Certificate of Lawful Use and conversely the applicant considered the conditions to be too onerous and restrictive. The application was therefore withdrawn from the agenda to enable these differences to be reviewed in greater detail.

A copy of the previous report to the February 2004 meeting is appended, with policy changes included in italics for ease of reference. None of these policy changes have altered the assessment of issues in this report or the attached report. The Certificate of Lawful Use, referred to in that report, is also appended. However because the reports to the May and September 2004 meetings were withdrawn from the agenda, and not debated, these covering reports are not reproduced, as this report serves in their stead.

The further review of the application therefore aimed to investigate these issues further and to involve both parties (applicant and objector) an opportunity to comment on the emerging officer recommendation. This process has now been undertaken with further legal advice sought on the interpretation of the Certificate of Lawful use and what level of activity would be consistent with the terms of that Certificate. It is important to note that the Certificate of Lawful Use set out what, on the balance of probability, the Local Planning Authority considered had taken place over the 10-year period of the claimed lawful use. During this period there will inevitably have been changes in the pattern and intensity of activity and therefore the terms of the Certificate can only offer a guide to the activity associated with the lawful use, not a definitive statement.

The Planning Committee undertook a site inspection on 27 June 2005.

With regard to the legal advice is it evident that whilst the level of activity at the premises has been described in the Certificate of Lawful Use this is not prescriptive as to the upper limit of the use of the property and therefore the threshold as to where a material change of use could be deemed to have occurred, by way of intensification. In this instance, activity at the premises varied during the 10-year (minimum) period claimed as lawful. The description of the lawful use therefore reflects this variation and is not precise in its description of activity, although an indication of the average use is reflected. This description does not, in law, impose limitation on the use in the same way as a conditional planning permission can.

On this basis and on taking account of information provided by the applicant, it is considered that the present use of the premises, whilst not strictly in accordance with the summary on the Certificate of Lawful Use is not materially different from the use described in the Certificate. It is therefore considered to within the terms of the lawful use of the site.

To assist in affording greater clarity to the terms of the original recommended, condition 4 has been split into three separate conditions (4, 5 and 6) to assist in a more precise interpretation of the threshold considered to be appropriate for the use in light of its history, the terms of the Certificate of Lawful Use, and what would be reasonable for the enlarged premises. Whilst I accept that the thresholds proposed in the conditions are, to some degree based on a subjective view and open to differences of opinion, they have been drafted with regard to legal advice and also a judgement on the benefit to be gained from imposing conditions that would regulate the long-term use of the premises, namely:

·  A restriction on the hours of use (condition 3);

·  A limit on the number of pupils registered (condition 4);

·  A limit on the number of students attending the premises at any time (condition 5);

·  A restriction on the number of visits made by pupils (condition 6);

·  The introduction of secondary glazing on the existing building to provide soundproofing (condition 7);

·  The design and specification of the extension to prevent noise disturbance (conditions 8 & 10); and

·  Maintaining a log to assist in monitoring conditions 5 and 6 (condition 11).

It must be acknowledged that the conditions do not follow, precisely, the terms of the Certificate Of Lawful Use but rather the way the premises are currently operated and may reasonably be expected to operate on completion of the extension.

RECOMMENDATION

Permission is GRANTED subject to conditions.


Amended Plan

An amended plan was received on 5 April 2004 showing changes to the main entrance as requested by the Committee in February 2004.

Interested parties were re-notified by letter on 6 April 2004. 22 letters of support have been received, as have 73 further letters of objection, largely in the form of a circular letter re-stating previous objections and raising the following points:

Issue / Response
The existing premises are ‘non-conforming’ in this predominantly residential area / The premises have a lawful use for music tuition
Movement around the side and rear of the extension would lead to increased noise / The design of the extension has been revised and its entrance has been located to face the road
The proposal does not accord with Local Plan policies / See attached report
The proposal is the equivalent of two-storeys and is not subservient / The proposed extension is single storey with a pitched roof
Concern that the level of use cannot be controlled by conditions / The proposed conditions have been reviewed and amended and are considered to meet the required tests of Circular 11/95
Other premises are available / The application has to be considered on its own merits
The noise report is misleading as it does not include adult rehearsal or those occasions when the band is in concert / Environmental health officers have considered the noise report. See attached report paragraphs 5.5 – 5.7
The building would not be attractive to domestic buyers if the Pilgrim Band Trust were to become insolvent / This is not a material planning consideration
Details of the mechanical ventilation have not been submitted / See recommended condition 8
The potential for children to play outside and cause disturbance would increase / Recommended condition 3 would restrict the times when pupils can practice or play instruments outside. Conditions 4, 5 and 6 would limit the use and levels of activity in general together with change in the location of the access to the front of the proposed extension
The greater number of group sessions would increase noise disturbance / The use of the premises is to be controlled and the proposed extension would be sound insulated, along with secondary double-glazing to the main building. See recommended condition 5
External use, even on one occasion a year, would be wholly unacceptable / Use of the grounds once a year has taken place for many years and is therefore identified in the Certificate of Lawful Use. Recommended condition 3 would bring this under control

Acoustic Assessment

At the Planning Committee’s request, a further consultation with the Council’s Environmental Health Service was undertaken. This has resulted in reaffirmation of advice that the proposed sound insulation measures proposed in this application and the recommended conditions would reduce the risk of potential noise pollution from the present un-insulated premises.

Review of Conditions

The conditions set out in the attached report would place controls over the use of the premises. The scale of the existing lawful use is indicated by the detailed description of development in the first schedule of the Certificate of Lawful Use (copy appended). However, specific details in that description were difficult to measure and are not necessarily binding. If the present intensity of use were to change firstly, it would be necessary to judge whether that amounted to a materially different land use from that described in the Certificate of Lawful Use. In particular it should be noted that the evidence available when the Certificate was granted did not permit pupil numbers over the preceding 10 years to be stated with any greater accuracy than the approximate figures given in the first schedule.

The imposition of conditions would allow greater control over activity on the site. The recommended conditions have largely been framed to accord with the description of activity in the Certificate of Lawful Use and the way it has been used that has been deemed to be in accordance with the lawful use. Where they differ, it is either for legibility, ease of monitoring, or to reflect the reasonable use of the extended building. A comparison of the recommended conditions and the description of activity in the Certificate of Lawful Use is summarised below.

Proposed Condition / Certificate of Lawfulness
3 / The premises shall only be used for the tuition and practice of musical instruments between the hours of 15:30 and 20:30 Monday to Friday inclusive. External use of musical instruments is permitted only once per calendar year and may occur on any day between 14:00 and 18:30 inclusive / Each weekday normally between the hours of 3:30pm- 8:30pm and occasionally on weekends, normally only during school term time with occasional meetings/ instruction during school holidays. Annual, single ‘outdoor’ concert and occasional discos held in the summer for children
4 / The number of musicians registered to use the building for the purposes of receiving tuition and practice of musical instruments shall be restricted to a maximum 100. No unregistered musicians shall be permitted to use the premises unless agreed in writing by the Local Planning Authority / Use of the property by the Pilgrim Band Trust comprising use of the house for music tuition and practice by a total of approximately 100 pupils, registered by the trust for tuition and practice
5 / The number of musicians using the building for the purposes of receiving tuition and practice of musical instruments shall be restricted to a maximum of 40 musicians at any one time. The maximum number of 40 musicians shall only be exceeded on no more than 4 occasions per calendar year when the maximum number of musicians shall not exceed 50 / Approximately 100 pupils, with an average, calculated weekly, approximately 20 pupils attending each weekday
6 / The number of visits to the premises, made by the registered musicians, each week shall not exceed 145 / Approximately 100 pupils, with an average, calculated weekly, approximately 20 pupils attending each weekday
11 / For the purposes of monitoring and enforcement of conditions 5 and 6 above, the applicant or any subsequent manager of the premises shall maintain a detailed log of the attendance of musicians/ pupils entering and existing the premises. The log shall be available for the Local Authority to review upon request, if required, and archived for a minimum period of 24 months / No restriction
Proposed informative /

Certificate of Lawfulness

4 / With regards to condition 6, the maximum number of pupils shall be taken as ‘per visit’ to the premises. For example, if the same pupil visits the premises seven times in a calendar week, it will count as seven visits. However if during one visit they have 2 or more tutorials then that would count still as only one visit / No restriction

Condition 3 above has been clarified with the applicant to reflect the existing operation. In particular, the applicant has satisfactorily demonstrated that their annual outdoor concert has previously occurred on Sundays.

Conditions 5 and 6 have been modified to reflect the existing number of musicians using the premises and allowing a marginal increase to reflect the increase in floor area hereby recommended. The recommended condition stipulates a maximum number of musicians at any one time as well as per week. This approach allows the Trust to operate with the flexibility that they currently benefit from, while maintaining an upper maximum number per week.

Informative 4 above is recommended to clarify condition 6, which refers to the number of visits to the premises.