Change Of Use from Class E 'Commercial, Business and Services' to a mixed-use comprising uses within use Class E and Sui Generis 'Drinking establishments and venues for live music performances and events' with ancillary facilities, alterations to the external elevations and provision of a roof-top terrace with external seating and associated facilities.
The Senior Planning Officer, Scott Henderson gave a detailed presentation on the report relating to the abovementioned planning application, a copy of which had been circulated (for copy see file of minutes). Members noted that the written report was supplemented by a visual presentation which included photographs of the site. The application was for change of use from Class E 'Commercial, Business and Services' to a mixed-use comprising uses within use Class E and Sui Generis 'Drinking establishments and venues for live music performances and events' with ancillary facilities, alterations to the external elevations and provision of a roof-top terrace with external seating and associated facilities and was recommended for approval, subject to the conditions as set out in the report.
The Senior Planning Officer noted that the fire strategy was not considered via planning policy, rather would be for approval by the County Durham Fire and Rescue Service, who had not responded to the consultation on the application.
The Chair thanked the Senior Planning Officer and asked Parish Councillor Grenville Holland, representing the City of Durham Parish Council, to speak in relation to the application.
Parish Councillor G Holland thanked the Chair and Committee and explained that there were those who might have anticipated that this application to bring STACK into the very heart of our city would have been welcomed with open arms. He noted that yet nothing could be further from the truth, as the public responses in paragraphs 54 to 57 in the Officer’s report illustrated, there were no words of welcome.
He noted that the Parish Council shares those concerns as yet another large drinking establishment offering long and generous opening hours was being proposed in a scheme which would bring no long-term benefit to the welfare of Durham City.
Parish Councillor G Holland added that the intended development was very close to a World Heritage site in a Conservation Area, and there are established planning policies, national, regional and local that were designed to protect this very special setting.
He noted an example, County Durham Plan (CDP) Policy 45 which warned us that the Durham Castle and Cathedral World Heritage Site was a designated asset of the highest significance. He added that development within, or affecting the World Heritage Site and its setting, “must protect, sustain and enhance” the significance of this designated asset and be based on an understanding of the Outstanding Universal Value of the site by having regard to the adopted World Heritage Site Management Plan and Statement of Outstanding Universal Value.
Parish Councillor G Holland explained that approving a large drinking establishment open all hours directly adjacent to our World Heritage Site most certainly did not protect, sustain and enhance it. He added that the justification in Policy 45 of “wholly exceptional circumstances” did not apply here. He noted that even when it was the quiet, undemonstrative but useful retail outlet, Marks and Spencer had little architectural merit but had been constructed long before the present planning constraints.
Parish Councillor G Holland noted that in fact, if interpreted as designed, this application failed the guidance of a string of carefully drafted National Planning Policy Framework (NPPF), CDP and Durham City Neighbourhood Plan (DCNP) policies, adding he would return to those later.
He explained that however, the general theme of those policies was that any proposed new development at this locality must protect, sustain and enhance the heritage setting, it must preserve the vitality and viability of the city centre shopping area, and, to quote, “redress the over-reliance on restaurants and licensed establishments”. He noted the policies also carried a warning about the cumulative impact on the residential amenity of the city centre, an amenity that we were seeking to encourage and expand. He emphasised that those protective policies could not be re-written or set aside.
Parish Councillor G Holland noted that yet, in paragraphs 72 and 126 of his report, in a form of deflected justification, the Officer twice alluded to the 14.3 percent of vacant units in the city at present which was no more than the national average.
He added these had been hard times for all our retailers throughout the UK, and the Parish Council was already working hard with local businesses to encourage the positive retail use of those vacant sites. He explained that city needed retail activity and residential presence far more than, to use STACK’s own description, a “drinking establishment and venues for live music performances and events”, Durham City already having a surfeit of them.
Parish Councillor G Holland noted that by way of attracting support, in paragraph 73, the Officer notes that, in Seaburn, a seaside resort near Sunderland, the STACK facility attracted about 100,000 visitors per month. He noted that equated to, in rain or shine, 1.2 million people flocking to Seaburn every year just to enjoy STACK’s hospitality. He noted that furthermore, 55 percent of users visit them more than once and 65 percent spend more than 2 hours with them. He added that a similar story emerged in Newcastle where apparently 66 percent of those who visited STACK undertook to shop for non-essential goods, 90 percent also visited another licensed premises, and 70 percent dining at another restaurant. Parish Councillor G Holland noted that to their credit, STACK makes no mention of them in their own submission in this report. He explained that Durham was not Seaburn, it was not Newcastle and therefore those comparisons were a redundant allusion.
Parish Councillor G Holland noted that again, Paragraph 63 set out that this version of STACK included a roof terrace which was a key feature of the scheme and that it “will be an attractive selling point”. He asked, ‘selling to whom?’.
He noted that the Parish Council has also raised concerns about Public Safety, and this has been brushed aside in paragraph 124 of the Officer’s report which reads: “The issue of unsafe fire evacuation has been raised. Consultation was carried out with the Fire Brigade, but no comments were received.” He noted that evidently, STACK must now get its own fire safety certificate outside the Planning System and to quote “it is understood this is in place”. Parish Councillor G Holland asked ‘so, where was it?’.
Parish Councillor G Holland noted the application proposed using 2,729 square metres of floor space to its full extent, no doubt broken into smaller units serving different tastes. He added that judging by the very high level of usage anticipated in paragraph 73 of the Officer’s report, secure fire escape routes were absolutely essential.
He noted the plans showed two exits from the second floor of the premises and those accompanying the licensing application had 150 people escaping via the narrower further door, and 410 via the nearer door.
Parish Councillor G Holland noted that if Members of the Committee had been on a site visit they would have seen that the width of the unlit, cobbled and uneven Moatside Lane which narrowed to 1.18 metres with a fall of 7.61 metres down uneven steps over the 41 metres from the exit into the relative safety of Silver Street. He noted there was also a bend in the lane and Silver Street could not be seen from the fire exits. He added that as a result, Members will understand the dangers to about 560 people of varying ages and abilities hurriedly making their way out of the building and down into the darkness of Moatside Lane to Silver Street, Moatside must be lit, restored and made safe.
Parish Councillor G Holland explained that paragraph 124 of the report therefore flied in the face of the demands of NPPF Paragraph 97 and DCNP Policy E4. He noted there was the brief note in the Officer’s report that “escape into narrow lanes to be reviewed by fire engineer”. He noted again, ‘what has happened to that?’.
He reiterated that the application was for a large development set in the heart of our city very close to a World Heritage Site and added that from all the evidence given, STACK did not meet the aspirations of those who live and work in the city who want more accommodation and retail options. He noted there was already a surfeit of premises that fulfil the leisure, eating and drinking needs and some of those were already causing social problems that have become an increasing burden on our Council’s limited resources.
Parish Councillor G Holland explained that the Parish Council believed that the application was contrary to the guidance of many of our policies, in particular: firstly, CDP policies 9, 29 (e) and (d), 31, 44 and 45; secondly, DCNP policies E4, H1 and H2; and thirdly, the important but more generalised paragraphs 90, 97,174 and 185, 197, 199 and 206 of the NPPF. He noted that, taken together, all those policies were designed to protect the city centre from this type of overbearing establishment, and they should be used. He added that furthermore, by diminishing their relevance in his report, and by his enthusiastic endorsement of this proposal, the Officer had placed the Committee in a difficult position.
Parish Councillor G Holland explained that the Parish Council most certainly did not agree with the Officer’s conclusion in paragraph 105 that “the significance and setting of the heritage assets… would be either sustained, conserved or slightly enhanced” by the proposed development, a comment the Parish Council believed to be unfounded, nor did the Parish Council believe that it could be achieved by the imposition of conditions. Parish Councillor G Holland concluded by noting that unless the Parish Council’s clear concerns could be fully addressed, the Committee, acting on our behalf, should refuse the application using the planning reasons outlined.
The Chair thanked Parish Councillor G Holland and asked Roger Cornwell, representing the City of Durham Trust to speak in objection to the application.
R Cornwell thanked the Chair and Committee and noted that the City of Durham Trust’s objection in this case was site specific and should not be taken as criticism of the approval for STACK in Bishop Auckland. He noted the Trust remained concerned about the emergency escape routes, especially onto Moatside Lane, which was not a safe escape route.
He noted it was narrow, dark, twisting and sloping, adding people escaping may not be sober, may be wearing high heels, and the path may be wet and slippery. He added that funnelling crowds into a confined space was a recipe for catastrophe, anyone falling could be crushed and serious injury or death could result.
R Cornwell noted the applicant had multiple opportunities to elaborate on their fire safety assessment, however, had kept their plans confidential. He noted that CDP Policy 29 (b) required that development to ‘ensure public safety and security’, adding the Committee were being asked to take that on trust, that an expert appointed by the developer had assessed all the risks. He asked why the developer would not say where all the emergency exits were, and how they could be used safely. He explained there were copious multi-page reports on issues such as noise assessments, however, only a few words and no details on this key matter.
R Cornwell explained that there were a lot of people, mostly students, living close to the application site, and referred to a map on the projector screen highlighting those. He noted that the University had told the Licensing Committee there were over 100 students living nearby. He added that alongside the map, there was a list of recent planning permissions to house students above shops in Silver Street. He noted the Trust believed that some of the statutory consultees were not aware of this and that their assessments did not take that into account. He noted that those residents would be disturbed, not only by noise from the roof terrace, but also the crowds emerging on to Silver Street when the night was over.
R Cornwell explained that STACK had told the Licensing Committee that the venue would have a total capacity of 1,548 people. He added that the licence permitted them to stay open until 1.30am at weekends, and when the night was over the crowd would come out on to Silver Street. He noted that it was a confined space where sound echoed off the surrounding buildings, adding that, with the sound of live acts ringing in their ears, patrons would not be quiet. He explained that another issue was that there could also be crowds building up at the start of the evening, which was when deliveries were made on Silver Street, the street only being pedestrianised until 6.00pm.
He referred to photographs with his last two presentation slides that showed how little room there was when a Tesco lorry made a deliver. He added that STACK was planning that separate deliveries of food and drink would be made by large vehicles coming five times a week, each to drop off at the Silver Street entrance.
R Cornwell explained that the photographs showed that there could well be conflict between those delivery vehicles and even modest crowds queuing to get into STACK.
He explained that the Trust failed to see how it was relevant that STACK might bring significant economic growth to the city as was claimed in paragraph 74 of the Officer’s report, however, on the other hand the negative impact that Stack could have on the 24 established food and drink businesses that had objected was not a material planning consideration. He added this was not to mention the people working at Yorkshire Trading who would lose their jobs. He noted that surely they were the opposite sides of the same coin.
R Cornwell noted that unlike other STACK sites, which had been temporary structures on cleared sites, what was proposed for Durham was a partial demolition to create a building suitable for STACK’s offering, however, which if and when they leave, would not be suitable for conversion back to other commercial uses. He added that therefore, for a potential short-term gain, there could be a long-term large vacant unit in the city.
R Cornwell noted that the Trust supported all that Parish Councillor G Holland had said on behalf of the Parish Council, especially in terms of the impact upon the World Heritage Site. He noted in conclusion that the Trust believed that STACK was the wrong development for this key site and therefore the Trust would ask that the Committee refuse the application.
The Chair thanked R Cornwell and asked Matthew Sobic, Agent for the Applicant, to speak in support of the application.
M Sobic thanked the Chair and Committee and explained that the application would help support the vitality of the city centre and STACK were committed to their communities, including in County Durham at Bishop Auckland. He noted the building was currently only part occupied, only covering its rates. He explained that the proposals would bring the whole building back into use, with a coffee shop, food and drink offer, live music, dog shows, children’s shows and many other uses. He explained that the use in the morning would be a coffee shop and the flexible use proposed would help increase footfall in the city centre. He noted a change of use granted in 2020 meant that café, residential and leisure use were permitted without planning and explained that many old retailers no longer require city centre sites.
He noted that the previous change of use with student accommodation on the upper floors, only had the ground floor for use for retail, whereas the current proposals would be for use of all floors all days for customers to use, helping to ensure the vitality of the city centre.
M Sobic noted the proposals would represent 176 employees, contribution around £4million in wages. He noted that while STACK was modern, it would fit in with heritage.
He noted the current level of vacancies on Silver Street was 14.3 percent, above the national average and therefore the purpose of the application was to help bring the area back to life and STACK could help attract more businesses into the city centre.
M Sobic noted that conditions relating to noise management were accepted and the opening hours had been agreed by the Licensing Committee. He concluded by noting the application represented a positive contribution to the area, adding that all the technical aspects attached to the application were in accord with the CDP and NCNP and therefore he would hope the Committee would approve the application.
The Chair thanked M Sobic and asked the Senior Planning Officer to comment on the points raised by the Speakers.
The Senior Planning Officer noted the issues raised in terms of the fire safety strategy and competition to other businesses as a consequence of the proposed development and explained that those issues were not for the planning process to deal with, with fire safety strategy being an issue for the applicant to address.
The Chair thanked the Senior Planning Officer and asked the Committee for their comments and questions.
Councillor L Brown asked as regards takeaway food, operating hours and delivery times, noise impact upon nearby residents from the ‘beer garden’ and music until 11.00pm. She noted that in terms of public safety, CDP Policy 29 (b) referred, as did DCNP E4, and Paragraphs 92 and 97 of the NPPF. She explained that Moatside Lane was not safe, it was cobbled, dark, un-lit and the idea of funnelling 800 people down this lane was a deal breaker and noted therefore she could not support the application.
Councillor J Elmer explained he felt it was important to consider the overall desirability of the application. He noted that current use had retail use and student use and he noted that once a large shop was lost in the city centre the overall density of shopping would decrease, making the area less attractive for other retailers and businesses.
Councillor J Elmer noted he had concerns as regards residential amenity, with students sleeping in close proximity to the proposed roof terrace, operating until 1.30pm with a lot of people drinking and likely making noise. He added there would also be the associated noise of people leaving the premises upon closing. He noted that he was also extremely worried as the fire escape and the funnelling of that many people into the narrow lane. He explained that CDP Policy 29 (b) referred to safety and asked why there was no evidence or any response as to whether the Fire Service was satisfied, as this would give the Committee assurance.
Councillor J Elmer explained that there was the setting of the World Heritage Site and Conservation Area and noted that the Committee had a duty to ensure that they were conserved and enhanced. He noted he appreciated the lighting assessment and added that he would appreciate details, such as whether there had been a visual impact assessment as regards the World Heritage Site.
The Senior Planning Officer noted that as regards takeaway use, it was primarily intended for food to be eaten on the premises, though there may be some ancillary takeaway use as that could happen. Councillor L Brown asked if the Licence allowed for hot food takeaway use. The Senior Planning Officer noted the applicant’s agent may be able to answer. Neil Winch noted they do allowed deliveries, accounting usually around five to ten percent, M Sobic added it would be no more than any other usual food and beverage business.
The Senior Planning Officer noted the question in terms of the public safety element of policy, adding the fire escape strategy was very specific, with the planning policy relating to the general operation and use of the premises, separate to any emergency situation, which fire safety regulations would apply.
He reiterated that from the planning policy perspective, the application would be looked at in terms of general public safety and that was how the application was assessed. He added it was for the applicant to get the requisite approvals from the Fire Service.
Councillor J Quinn noted he disagreed with the Members who had spoke so far and he felt that the proposals represented a good application, adding he felt it was difficult to attach businesses to these type of large units, noting many that remained empty for years in Newton Aycliffe. He felt it had many benefits in terms of employment, adding a music/comedy venue in the city, and noted his positive experience of the similar venue previous at Newcastle. Accordingly, he moved approval as per the recommendations within the report.
Councillor K Shaw noted he echoed the comments from Councillor J Quinn and understood that applications within the city were often contentious, and there was the existing change of use for students. He noted that the proposed alternative mixed use for arts was desirable and would have been exactly the type of application the Council would have wanted had the City of Culture bid been successful. He noted he had attended the STACK at Seaburn and noted that during the daytime it was well used by families, and he felt this type of use would help those coming to see the World Heritage Site as those people would need places to eat. He seconded the motion for approval.
Councillor C Marshall noted that he did think there were issues with the role of place for our towns and the city. He noted that there was a lot of adverse publicity from empty units in town centres and noted the debate on what was felt to be a solution. He added there were difficulties in getting tenants for such large units and there was always the concern that large empty units would end up as a blight if not repurposed. He explained he felt that the proposals represented an improved leisure offer for Durham and that it was not just for alcohol, it was a diverse offer. Councillor C Marshall noted that pre-COVID the tourism economy was worth around £1 billion in County Durham and noted the number of jobs this had supported. He added that he had visited the STACK offers at Newcastle and Seaburn previously with his family and dogs and noted that those had offered positive regeneration for those sites and had proven very popular with the public. He noted they had a good track record of running safe establishments and added that the improved job offer may help bring more people into the city and therefore he would support the application and would welcome more visitors to the county.
Councillor J Elmer noted the claims that the proposal would help retail, however, that was not the opinion of retailers who were in objection to the application.
He noted that it was important to consider the future direction of the city and to consider the DCNP, with this application not being alignment with that Plan. He reiterated that he had a major concern as regards the large number of people being channelled via Moatside Lane and reminded Members of the tragedy a few years ago at the nearby Millennium Place, noting that there were issues to consider in terms of operation as well as fire safety. He noted that he felt the application was disregarding CDP Policy 29 (b) and therefore he would move refusal of the application on the basis it was contrary to that policy.
The Lawyer (Planning and Highways), Neil Carter noted the emphasis of the Senior Planning Officer as regards the issues of fire safety and the general policy in terms of CDP Policy 29 (b). He noted that generally fire safety was outside of planning and was not for the Committee to consider.
Councillor J Elmer noted asked if there was not an issue why had the Fire Service had not responded. The Lawyer (Planning and Highways) noted that he did not know why the Fire Service had not responded and noted the comments relating to the general safety under Policy 29 (b), however, he did not feel it was significant in terms of sustaining refusal. The Senior Planning Officer noted he did not know why the Fire Service had not responded and added it may or may not have been signed off.
Councillor L Brown noted that it was not just CDP Policy 29 (b) that the application was in conflict with, she felt it was also in conflict with DCNP Policy E4 and Paragraphs 92 and 97 of the NPPF, which also referred to public safety. She noted she felt that 800 people having to evacuate down Moatside Lane was a concern and therefore she would second Councillor J Elmer’s motion for refusal.
The Chair noted that all Members would wish for our city and town centres to be vital and financially viable, however, he felt this application was beyond that. He noted Durham already had leisure development at Millburngate and Framwelgate Waterside, and therefore the use that needed to be build back up was retail. He noted the current use on the ground floor was for retail, and he felt that this would help attract more retail into the city. He noted he was not sure the proposals added to the vitality of the city and that he too had concerns as regards the exit on to Moatside Lane, as well as the delivery lorries attending at the prime time for use of the proposals.
Councillor J Elmer noted a final point that he appreciated what the Lawyer (Planning and Highways) had said in relation to safety and the Fire Service, however, he felt the Committee were gatekeepers and as he was not confident as regards the fire safety arrangements he felt the Committee could not allow the application to move forward.
The Chair noted that the first motion to be proposed and seconded was by Councillor J Quinn for approval, seconded by Councillor K Shaw and upon a vote being taken it was:
That the application be APPROVED, subject to the conditions as set out within the report.