planning44pubs - Brighton & Hove City Council

planning4pubs

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Charlotte Bush Planning Officer Brighton & Hove City Council Hove Town Hall Norton Road Hove BN3 3BQ 14th July 2017 Address:

218 Dyke Road Brighton BN1 5AA

Description: BH2017/01917

Part change of use of ground floor from retail (A1) to public

house (A4). Enlargement of existing studio flat at first floor level using ancillary storage space to create one 1no bedroom flat (C3). Roof alterations incorporating dormers to south and east elevations and insertion of rooflights to facilitate creation of two flats (C3) and other associated alterations. Dear Ms Bush I am instructed to write to you by my client, the Save the Dyke Pub campaign, objecting to the planning application referenced above. This objection is in several parts: this substantive argument and supporting appendices which are listed on p3. As laid out below, the application fails to meet local and national policy in material ways and should be refused. Sincerely

Dale Ingram Director

Dyke Brighton BH2017/01917

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Planning For Pubs Ltd 207 Massingberd Way London SW17 6AR [email protected]


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Contents

Paras

Page

Introduction

1-5

4

Author

6-16

5-7

Summary of objection

17-25

8-10

Outline Heritage Appraisal

26-48

11-16

The application

49-69

17-23

Planning context

70-77

24, 25

Objection

78-129

41

Conclusion

130-134

42

Appendices APP1

Early drawings of the Dyke 1893 and 1932

APP2

Appeal decision 3137749 Royal Hunt, Bracknell Forest DC

APP3

Appeal Decision 3006147 Three Horseshoes, Braintree DC

APP4, 4a, 4b

Licensing Plan 2004 furnished by BHCC Licensing Dept.

APP5

Appeal decision 3009190 Toby Inn, Brighton & Hove CC

APP6

Obar Camden Limited v The London Borough of Camden [2015] EWHC 2475 (Admin)

APP7

Kwik Save Discount Group Ltd. v. Secretary of State for Wales and Another; Kwik Save Discount Group Ltd. and Others v. Secretary of State for the Environment and Another - Court of Appeal. Presiding: Stephenson and Dunn L.JJ. and Sir David Cairns.

APP8

Noquet v SoS DCLG & Cherwell DC [2016] EWHC 209 (Admin) – S288 appeal in the High Court. ('Bishop Blaize').

APP9

Beehive Lambeth – planning consent.

APP10

Obar Camden Ltd v London Borough of Camden – Judicial Review

APP11

Appeal decision Rivers Arms Cheselbourne 2013

APP12

Appeal decision Rose & Crown Croydon 2010

APP13

Appeal decision Wood End DE8 2016

APP14

Google Earth roof plan image Dyke Brighton BH2017/01917

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Introduction 1. This objection is made to the present application for consent for a mixed use scheme of retail (use class A1), public house (use class A4) and non-ancillary residential flats (use class C3) at 218 Dyke Road Brighton BN1 5AA, hereafter referred to as “The Dyke”. 2. Following the closure of the Dyke on or about September 3 nd 2016, a campaign group formed to secure the future of the premises in use as a full-service community public house. Planning For Pubs is instructed to advise and act for the Campaign in this matter. 3. The Dyke (designed in 1893) is an 1895 rebuilding of premises previously known as The Windmill beerhouse. From pictures the premises was previously an amalgamation of domestic cottages converted for the purpose probably in the C18th. In appearance the present building is an accomplished essay in the style favoured by architects in the last decade of the C19th with its historicist references including half-timbering, rubbed brick decoration and substantial brick chimneys. It is deserving of its place on BHCC's Local List, by virtue of which it is a 'non-designated heritage asset' (NDHA) protected by local and national policy. 4. An application has been made to Historic England for the Dyke to be assessed for inclusion on the Statutory List. A report has been prepared by the Designations team and will shortly be forwarded to the Secretary of State, Department for Culture, Media and Sport for a decision. 5. The Dyke was listed as an Asset of

Community Value under the Localism Act and

Regulations by BHCC on 6th December 2016. Planning For Pubs provided support to the Dyke Tavern Supporters listing application.


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procure protect preserve promote Author 6. I am an historic buildings and planning consultant of 16 years experience. I have a Masters degree in Conservation of the Historic Environment from Reading University (MSc CHE). I have practised as an independent consultant since 2008, having previously worked on the staff of SAVE Britain's Heritage and for Stephen Levrant, the conservation architect. 7. Between 2001- 2010 I worked on a wide variety of projects including country houses, nonconformist and cemetery chapels and pubs and breweries. I have specialised in the licensed leisure sector since 2010. 8. In the past 8 years I have made, taken part in, analysed, commented on or objected to more than 200 planning and listed building consent applications affecting pubs and breweries. This work has included the formal and informal assessment of more than 100 pubs for their heritage significance. My clients include owner/operators, breweries, local authorities (planning policy), developers (for enabling development to return or keep pubs in use), the Campaign for Real Ale and community campaign groups. 9. I have a forensic knowledge of the Assets of Community Value regime under the Localism Act 2011, representing and advising during the application, Review and First Tier Tribunal appeal stages of more than 30 public house registrations. 10. I have undertaken a comprehensive programme of training as an Expert Witness through ProSols and The Academy of Expert Witnesses and have professional experience of giving opinion and evidence in the courts (Landlord & Tenant Act) and at planning public inquiries on both planning and heritage aspects of development control. 11. Professional affiliations and memberships: Brewery History Society, Pub History Society, Society of Architectural Historians of Great Britain, Tiles and Architectural Ceramics


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procure protect preserve promote Society, Victorian Society, Georgian Group, Society for the Protection of Ancient Buildings, the Wallpaper History Society, Urban Design Group. I am a Fellow of the Royal Society of Arts (FRSA). 12. From 2010 to 2013 I worked pro bono as a volunteer for the Campaign for Real Ale, advising and acting for community pub campaign groups and lobbying councillors and Ministers for better protection of public houses in local, regional and national planning policy. 13. I was a member of CAMRA's Pub Heritage and Planning Advisory Groups, London Region Pub Protection Adviser and Pub Protection Officer for SW London branch. In 2013 I was awarded CAMRA's National Campaigner of the Year Award in recognition of my work on pubs campaigns and policy making. For reasons of professional objectivity, I am no longer a member and consequently hold no CAMRA portfolios. 14. In 2014 I was nominated for a Wandsworth Civic Award for lobbying for better pubs protection in the borough. This culminated in the issue of a borough-wide Article 4 Direction removing permitted development rights for change of use and demolition from 120 of the borough's pubs. The Direction was issued in August 2016 and becomes effective in August 2017. It has been retained by Wandsworth is its powers are greater than the recent amendments to the GPDO enacted through the Neighbourhood Planning Act 2017. 15. I am a shareholder in two ACV community pubs projects, the Garibaldi in Bourne End Bucks. and the Duke of Marlborough in Somersham, Suffolk.

16. Planning For Pubs Services 1. The company advises and acts for a variety of clients including developers, pub


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procure protect preserve promote tenant and brewery operators on heritage conservation, planning and community engagement matters in pre-acquisition and related PP/LB consent applications. 2. Since 2010 I have assisted, advised and/or represented more than 150 pub campaign groups resisting change of use applications from pre-application and determination stages to appeals at hearing and public inquiry. Summary of services: Procure: securing existing pub premises as pubs & conversion of other buildings to pub & brewery use. Pre-acquisition due diligence, planning & listed buildings compliance. Protect: registration and defence of Assets of Community Value & applications for Article 4 Directions; Rule 6 and Third Party Advocate; Expert Witness in planning and court proceedings Preserve: heritage conservation- informed repair & alteration; planning & listed buildings consent; project team lead or member, instruction of & advice to other professionals. Operator diversification advice. Promote: protection of pubs through planning reform locally and nationally; speaker at conferences & events; political liaison from Minister to MP/ local Councillor level. Media.


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procure protect preserve promote Summary of objection 17. The application is so deficient in significant dimensions without countervailing planning benefits that it should be refused. Invalidity 18. We submit that the application is in fact invalid and should not be progressing to determination until the relevant policy and statutory requirements have been met. These are: 1. The Dyke is a 'non-designated heritage asset' in the definiton of the Framework. Consequently the application should have been supported by a Heritage statement assessing the building's history and measuring the impact of the proposals and where harmful, justifying the harm. No such Statement has been provided and consequently the authority cannot determine the application. This aspect breaches local plan policy HE10 and the Framewoork P129 and related policy on non-designated heritage assets. 2. The site is situated in an area with a number of open green spaces; it was constructed before 1914 and thus the roof space is attractive to wildlife and protected species. No Habitats Report has been supplied to prove that there is no harm or that any harm can be mitigated. This is contrary to the Habitats Regulations and cannot be secured by condition. The application is invalid and cannot be determined without the required Habitats assessment. 3. The application has been inaccurately described. The present use of the premises is an unlawful sui generis mixed use and consequently there is no lawful retail use. The proposal therefore represents a significant limitation on the Dyke's continued purposes as a public house for the benefit of the wider community and this runs


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procure protect preserve promote contrary to LP policy HO21 and P69 and P70 of the Framework. Reasons for refusal 19. The proposed flats have not been demonstrated to meet BHCC's Strategic and Saved plan policy and the requirement of P17 of the Framework that residential dwellings should provide a suitable amenity for residents, both in terms of room sizes and floor-to-ceiling heights and the lack of provision for external amenity spae. Policy CP19 of the BHCP and Saved Policy QD27 of the BHLP refer. 20. The requirements of the Local Plan to deal with waste and recycling have not been met. There is no provision at all for the retail unit and that provided for the residential and proposed PH use is inadequate, contrary to QD27. 21. The proposal fails to meet the requirements of SPD14 on car parking and cycle storage provision across all three uses of the site. No parking survey or Travel Plan has been submitted as part of the application, contrary to the SPD 22. While provision has been made for wheelchair accessible toilet, no accommodation has been made for wheelchair accessibility of the premises itself where the principle access is from a stair from the pavement. 23. The proposal removes the garden, the ancillary residential accommodation and the cold store from the proposed PH use. No mention is made of the cellar or of appropriate alternative provision for cellarage, nor has the extract and ventilation for the reformed kitchen been dealt with. The proposal will not preserve a pub use at the site which meets the needs of the local community in all its forms and consequently does not meet the requirement of HO20 or of P70 of the Framework to protect valued community facilities, or SO15 Sport & recreation. 24. Notwithstanding the applicant's failure to provide a Heritage Statement, our own


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procure protect preserve promote assessment of the proposals indicate that consent should be refused because of demonstrable harm to the building's architectural merit through the proposed alterations (operational development), the potential permanent loss or diminution of a site of considerable communal value and loss or related amenity, contrary to HE10, SO13, SO16 and Framework policy on heritage assets. 25. The DCLG Non-Statutory Advice Note to local authorities dated 2012 (para 2.20) makes clear that the local authority may decide whether listing as an Asset of Community Value is a material planning consideration and if so, what weight to give it. The ACV listing clearly demonstrates the 'valued' principle of the Framework at P70 and we contend that this should be given significant weight in the planning balance.

For the above reasons we respectfully submit that the application should be refused.


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procure protect preserve promote Outline Heritage Appraisal 26. I am grateful to the Save the Dyke Campaign group whose diligent research has provided much of the factual evidence in this part of the submission and to whom the credit largely belongs. The architect 27. The Dyke Tavern was designed in 1893 for the local Tamplins Brewery by Charles Henry Buckman. Construction took place during 1894 and it was completed and opened in 1895, as recorded on the main gable. 28. Charles Buckman was baptised on 21st May 1862, in the Chapel Royal, Brighton, the son of William Bulley Buckman and Emily Buckman. His father’s occupation is Brewer’s Clerk. In the 1881 census he was living in Woolwich, his occupation is given as architect. By the time of the 1891 census was back in Brighton. He died in straitened circumstances in Woolwich in 1904 aged just 41. 29. Buckman was a prolific and versatile architect, with more than 40 projects to his name in and around Brighton alone. He worked on both domestic and commercial projects, including designing utilitarian 'copper houses' (brewhouses) for Tamplin's Brewery as well as offices and pubs. His Tamplin's office building at Phoenix Place Brighton is another accomplished essay, this time in a pared-down classical style rendered in red brick and terracotta, and Grade II listed in 1999. The building, design and alterations 1893- 2017 30. I have been provided with colour photocopies of the original plans, elevations and section by Buckman dated 1893. These appear as Appendix 1. The building's exterior street presence (front and side elevations) appears complete and unaltered (except some of the window glazing) from the original design. This is not reflected in the 'as existing' drawings Dyke Brighton BH2017/01917

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procure protect preserve promote provided by the applicant, which I turn to at the section dealing with the application. 31. The Dyke is as typical an example of the architectural styling of public houses of the last decade of the C19th as it is possible to find. It is a substantial building of red brick, pierced with large leaded windows in the 'Tudoresque' style with timber and stone mullions and transoms. Handsome and substantial stacks bookend the building and pierce the roof centrally. The first floor has elements of half-timbering. The roof is of tile and while these may have been relaid at some point (no close inspection was possible) the structure and covering appear to match the architect's drawing and annotation 'tiles'. Such examples are legion across the country. 32. The interior has lost much of the coherence of its original plan form with the removal of walls and partitions over time. Originally the spaces were designed to separate social classes from each other, and this was reflected in differential pricing between the rooms. The Bar Parlour and Tap Room being slightly more comfortably furnished with carpets, plants, pictures and provided with newspapers etc, the prices were higher. 33. The original 1893 plan shows a typical arrangement (working left to right and anticlockwise) of Tap Room, Jug and Bottle (off-license sales area), Public Bar, Private Bar, Bar Parlour and Coffee Room for trade (customer) use, supported by a large kitchen and scullery/larder. Staff and customer WCs were provided adjacent to the Tap Room, Kitchen/scullery and in the corridor near the Coffee Room. Stairs descend to the cellar and rise to the first floor from the corridor. A 'beer drop' (flapped access to the cellar directly from the street) is shown in the pavement outside but the architect has marked this with a cross. It is said that it was moved and is now located near the front door on the Dyke Road elevation. It does not appear on any of the post-1932 drawings but the cellar is reported to have been in regular use as such until the pub's closure in 2016. 34. The Dyke was extended in 1932 to the southern (side) elevation with the addition of male


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procure protect preserve promote and female toilets and a Dining Room to the rear, across the corridor from the 'Saloon Bar' created at the same time by the removal of the walls separating the Coffee Room and the Bar Parlour. A new bar counter, a squared quadrant typical of the Art Deco era, is shown as an addition to service the Saloon Bar. 35. In 2004 the Licensing Plan (Appendix 4, 4a, 4b) describes the site as: 253.6 sq m, 2 storeys, staff accommodation 7 bedrooms, no letting rooms with or without mini-bar. 2 bar flaps are shown in the bar counter. The plan shows the g/f as it was post-works in 1932. 36. There was a further extension to the rear infilling the 'courtyard' outdoor space between the original Tap Room and the 1932 Dining Room in 2010 (BH2010/00601, approved). This created a new kitchen and cold store with associated extraction and ducting. The plan reads “Existing extract duct extended to vent through new flat roof”. Part of the rear external wall was removed to create a more open and accessible layout into the kitchen extension. 37. Other alterations of unknown date. 1. The stairs were reconfigured and walled off from the trade area and the neighbouring WCs removed to create an external access to the upper floor. This change occurred before 2004. 2. The quadrant bar installed in 1932 was removed before 2004. 3. The original bar counter serving the original Public Bar, Private Bar and Jug and Bottle was truncated along its left hand side before 2004. This element may have been reinstalled/reused on the right hand side. 4. All of the partitions and dividing walls between the rooms were lost before 2004, probably in the 1950s or 60s when 'opening up' was seen to be a fashionably democratic move, and this would also explain the reconfiguration of the bar counter.


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procure protect preserve promote Some nibs survive to indicate where these once were. 5. A doorway was cut into the wall to give access to the kitchen from the old Tap Room on its north side after 2010. 6. A smaller part of the same bar counter and its connecting flap were removed between 2004 and 2010. 7. Most of the decorative glass in the windows of the ground floor has been lost, some recently offered for sale on the premises. 8. The door to the garden from the 1932 Dining Room was enlarged after 2010. 38. Change of use 2016 from A4 drinking establishment to A1 retail unit effected under the GPDO 2015, but we challenge the lawfulness of this in our submission. 39. 2017 alterations: “Martin Webbski Webb Facebook page: We want to reopen the Dyke Pub this summer!1 12 July at 13:43 · In order to get the Dyke reopen as soon as possible we've carefully disassembled the original bar ready to reinstall it once we have planning permission in the smaller sustainable Dyke. It's been taken apart by craftspeople and is safely awaiting its repositioning. The bar shelving was recent and has been discarded along with some modern panelling in the southern side of the building. We're being very sensitive to the history and surviving features of this lovely old building and look forward to reopening soon with a fantastic new pub.” 40. Martin Webb, Facebook 13.7.17 “This photo actually shows rotten flooring, modern shelving and the modern panelling being taken away. The actual original bar is safe and well and ready to be reinstalled.” 41. The 'as proposed' plans do not show where this removed counter might be positioned. Removal of the bar counter without proper proposals for its reinstatement or 1https://www.facebook.com/groups/376281356089044/permalink/435791976804648/ Dyke Brighton BH2017/01917

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procure protect preserve promote repositioning, especially as it is one of the few remaining original features of architectural value in the interior, is most regrettable. The most significant element of any pub is the bar counter. It is where the 'trade' (beer for money) takes place and divides the customer space from the publican's domain. 42. Loss of the original bar counter constitutes very significant harm to this heritage asset. In the Rose & Crown 2010 appeal decision (Appendix 12) the Inspector (DipARCH, RIBA, IHBC) remarks “This principal room and its fittings are integral to the original function

of the listed building; they are a crucial part of its architectural and historic interest and of the significance of his historic asset.” The loss of the bar counter consequently represents substantial harm to the significance of the heritage asset. Assessment of significance. 43. Commentary is provided on the evidence available. No site visit to inspect the interior was possible (the retail unit closed circa 16 th June 2017). A brief inspection of the exterior was carried out on 20th June 2017. 44. Historic England assigns four 'values' to a heritage asset's significance. These are: artistic, aesthetic, historic and communal. 45. The building's architectural significance (artistic and aesthetic values) is assessed at 'medium'. It is clearly an accomplished design by a competent architect and is a very pleasant composition. However, successive alterations, both additions and subtractions, to the plan form, loss of window glass and fittings (bar counter, panelling etc) and interior appearance, (most of which took place prior to the present incumbents' ownership), have compromised its architectural significance. The loss especially of the original bar counter very recently without justification and without proposals for its replacement on the premises is very harmful not just for its appearance and workmanship but because of the significant role the bar counter plays in operational terms, its significance is symbolic. Dyke Brighton BH2017/01917

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procure protect preserve promote The Dyke's handsome and largely intact external appearance however fully justifies its position on BHCC's Local List of historic buildings and its recognition as a 'nondesignated heritage asset' in national policy. 46. The site's historic value is assessed at medium/low. The name clearly references the Devil's Dyke in the South Downs National Park (designated 2011) nearby. There are no identified historic events or nationally famous (or infamous) people associated with the Dyke pub. The architecture is entirely reflective of the historicism employed by architects of the Great Rebuilding of pubs at the end of the C19th and identifies it as one example of this important period in the nation's architectural pub history. 47. Communal value is defined by Historic England as "Value deriving from the meanings of a place for the people who relate to it, or for whom it figures in their collective experience or memory.” The Dyke's communal value is assessed at 'very high' and this has been recognised by BHCC by its registration as an Asset of Community Value under the Localism Act 2012. The communal value of the Dyke is also underpinned by the more than 300 objections registered against the application on the planning portal. 48. Conclusion: the overall heritage assessment of the Dyke Tavern is medium/high as a handsome exemplar of late C19th pub architecture and its expressed communal value recognised by registration as an Asset of Community Value.


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procure protect preserve promote Commentary on the application. 49. The application is deficient and inaccurate in some respects. Parts of this are explored more fully below in the 'Objection' paragraphs.

A number of the deficiencies and

inaccuracies are objected to in this section with reasons given. Inaccuracies and deficiencies. 50. The application form describes the proposal thus: “Change of use of south east side of ground floor from Class A1 retail to Class A4 public house with pizza service (with retention of Class A1 use on north-west side of ground floor and rear garden), change of use of ancillary first floor space to enlarge studio flat into one bedroom flat. Conversion of roof space (including dormer windows on rear elevation and installation of rooflights) to create two flats at second floor level (one1 bed flat and one 2 bed flat)”. 51. Application form 14. Existing Use states “Class A1 Retail with ancillary space and residential space above.” 52. The present (and unlawful, for reasons we come to below) use of the premises is in fact a sui generis mixed use as A1 retail and C3 residential flats. Indeed, the applicant's own Design and Access and Planning Statement itself admits this at p4 para 3.1 “ The site is currently in mixed residential and retail use. The ground floor (including rear garden) is in Class A1 retail use, the first floor comprises two Class 3 residential units and a storage room ancillary to the ground floor retail.” The upper floor is not in retail use as display/trade area (although we note one room is claimed to be used as storage for the retail unit), nor is it occupied as ancillary residential accommodation for the A1 unit on the ground floor (which in any case is not recognised as a usual arrangement, see Inspector's comment on shop and residential dwelling in the Horseshoes case below). Consequently the planning unit's only lawful use in its entirety is A4.


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procure protect preserve promote 53. Part of the residential accommodation is occupied, it is understood, by Mr Armsby-Ward who previously managed the Dyke when it was still trading as a public house. He is listed in the Premises License issued by BHCC as the Designated Premises Supervisor. Since the public house operation has ceased, Mr Armsby-Ward's residential occupation cannot be considered to be ancillary to it. Other rooms are understood to be rented as short-term residential accommodation to people not associated either with the retail use or the previous public house use. 54. At the time of my visit on the evening of June 20th, there were lights on in the premises on both floors, indicating that they were in use/occupation. Neither of the residential uses, being non-ancillary, have planning permission and the use is therefore unlawful. (The non-ancillary use of the premises as a dwelling has previously been reported to the planning authority's enforcement team). The several implications of the unlawful and unconsented uses are explored later. 55. Moreover, as we contend below, the A1 change of use is in any case not lawful as it appears to have been a 'device' resorted to by the applicant to circumvent planning protection for community facilities in the Local Plan and public house protection in the National Planning Policy Framework. 56. 3: Description of the Proposal. In respect of the non-ancillary residential use of the upper parts of the building the declaration that the change of use has not already begun is, at least in respect of the first floor, wrong. 57. 7. Waste storage and collection. No waste storage or recycling provision has been made for the proposed retail unit on the plans. The waste and recycling provision for the proposed A4 and C3 uses is in one location with 3 bins. There needs to be separate waste/recycling provision for trade and residential uses and we question the quantum of provision, especially for the A4 use, which can be a very substantial requirement even for


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procure protect preserve promote the smaller unit proposed. The provision for waste and recycling is not separated either, as required. There is the potential for excess waste or recycling from any of the three uses to be left next to the bin store when it is full, making it a trip hazard in a fire escape route, attracting flies and vermin and potentially creating a smell nuisance both for neighbours and pub patrons in the patio garden. This would breach saved policy QD27 & SU9. 58. 10. Vehicle Parking. Residential units: BHCC parking standards require up to 4 car parking spaces including visitor allocation and 2 assisted parking spaces. Likewise there is a requirement for 6 cycle spaces. The storage unit indicated on the plans appears only large enough for 2. Public House/Retail:. A further 3 cycle spaces are required for the proposed pub unit and another 3 for the retail unit. These are not reflected in the application which provides only cycle storage for the residential flats. No parking provision has been made for the PH use, but it has operated successfully without parking for private cars because of its substantial and densely-settled catchment area and good public transport provision. The application does not however state that it will be car-free. SPD14 requires that “if overspill car parking is likely from a proposed development the Highway Authority would look for an on-street parking survey to be undertaken and submitted with any planning application.. along with mitigation which may include a Travel Plan.” No parking survey has been submitted with the application.F 59. 13. Biodiversity. Referring to the Guidance published by BHCC, there is the potential for protected species and other wildlife to be affected by the proposed operational development which affects the roof. The Biodiversity Checklist at Indicator 5 reads 'No' when the roof structure is probably original and dates from 1893, well ahead of the 1914 threshold. Moreover, the roof has a bird or bat box installed on it and this has not been recorded in the drawings either 'as proposed' or 'as existing'. If its removal is proposed, there will be a habitats impact. Both in terms of the disturbance to a roof space attractive Dyke Brighton BH2017/01917

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procure protect preserve promote to wildlife and protected species and the 'beast box', a Habitats report should have been provided with the application.

60. In our opinion, the application is invalid without an appropriate Biodiversity Impact Assessment and should not be progressing to a decision until the applicant can prove either no impact or that any impact can be satisfactorily mitigated. Only in exceptional circumstances can Habitats matters be the subject of a planning condition and there are none in this instance that we can see to justify dealing with this matter by condition. The Inspectorate's commentary at paras 18 and 19 on this in the Wood End decision (3135550) (Appendix 13) is instructive. 61. 16. Trade Effluent. The proposal will require the disposal of kitchen waste and effluent from the provision of food. 62. 17 Residential Units. Market housing – existing. The number should be 0. The present use of the residential upper parts does not benefit from planning permission for nonancillary (market) residential Class C3 use. 63. 18. All types of development: Non-residential floorspace. The total floorspace indicated in the form and in the Design & Access Statement (2.1 and 2.2) is 300 sq m. This conflicts with the 2004 Licensing Plan which states that the floorspace is 253.6 sq m. Allowing for the additional space created by the 2010 kitchen and cold store extension, stated in the 2010 application to be 29 sq m, and then for the demolition of the cold store (about 6 sq m) the actual total – assuming the licensing plan is correct- would appear to be 276.6 sq m. If the retail unit is 140 sq m, the proposed pub unit would be about 137.6 sq m, and not the 160 sq m stated at para 2.2 of the Design & Access and Planning Statement. This is a very substantial inaccuracy which has implications for the capacity and on-going viability of the proposed pub unit, which we come to below. 64. 19. Employment. At present the number of employees is 0, although it is noted that the Dyke Brighton BH2017/01917

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procure protect preserve promote application was submitted 10 days before the retail unit ceased trading. The number of proposed employees is 6, which is probably about right for the proposed pub but makes no allowance for employees of the retail unit. 65. 20. Hours of Opening. The current premises license 2 445/3/2010/01279/LAPRET shows the Designated Premises Supervisor as Warrick Armsby-Ward and the operating hours as:

Activities: Licensable activity: Dancing Times: 07:00:00 - 01:00:00 Friday-Saturday 07:00:00 - 00:00:00 Sunday-Thursday Licensable activity: Exhibition of a Film Times: 07:00:00 - 02:00:00 Friday-Saturday 07:00:00 - 01:00:00 Sunday-Thursday Licensable activity: Indoor Sporting Event Times: 07:00:00 - 02:00:00 Friday-Saturday 07:00:00 - 01:00:00 Sunday-Thursday Licensable activity: Late Night Refreshment Times: 23:00:00 - 02:00:00 Friday-Saturday 23:00:00 - 01:00:00 Sunday-Thursday Licensable activity: Making music Times: 07:00:00 - 23:30:00 Friday-Saturday 07:00:00 - 23:00:00 Sunday-Thursday Licensable activity: Performance of Live Music Times: 07:00:00 - 23:30:00 Friday-Saturday 07:00:00 - 23:00:00 Sunday-Thursday Licensable activity: Performance of Recorded Music Times: 07:00:00 - 01:00:00 Friday-Saturday 07:00:00 - 00:00:00 Sunday-Thursday

2http://ww3.brighton-hove.gov.uk/index.cfm?request=c1204374&action=showDetail&application_number=2010%2F01279%2FLAPRET Dyke Brighton BH2017/01917

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procure protect preserve promote Licensable activity: Re live/rec music/perf of dance Times: 07:00:00 - 01:00:00 Friday-Saturday 07:00:00 - 00:00:00 Sunday-Thursday Licensable activity: Alcohol consumed:

Sale by Retail of Alcohol On Premises: YES Off Premises: YES

Times: 07:00:00 - 01:00:00 Friday-Saturday 07:00:00 - 00:00:00 Sunday-Thursday 66. 22. Industrial or Commercial Processes and Machinery. “N/A”. The proposal is for the installation of a commercial restaurant pizza oven. It is noted from the plans that the new kitchen will be accommodated in the 2010 extension and will not include the element to the left, historically the kitchen and presently described as 'ancillary area for shop'. No detail has been provided for how the extract for the kitchen will be managed, nor for any air conditioning for the proposed pub unit. See Appendix 14 Google Earth plan of the roof which clearly shows the existing extract/ducting. Because of the reconfiguration of the kitchen, the extract will require renewal or revision and this has not been detailed in the plans. There is, or may be, implications for noise or nuisance for neighbours.

67. The application relates to a building on BHCC's Local List, establishing its status as a non-designated heritage asset. The Council's planning application checklist and associated advice on heritage assets indicates that the application should be accompanied by a Heritage Statement. This should identify the significance of the building, assess the impact of the proposals on that significance and justify any harm. No heritage statement has been supplied with the application. The Inspectorate's commentary on the lack of statements in decisions on the Three Tuns (3144471) paras 22-24 and Wood End (3135550) paras 8 and 10 are illustrative. This has been raised in


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procure protect preserve promote writing with the Case Officer and discussed by telephone with the Council's Conservation Officer. Below we assess the impact on the heritage asset as being sufficiently harmful as to justify refusal of permission.

68. Moreover, a number of appeal decisions have turned, at least in part, on the applicant's failure to assess significance and justify harm. These are many, but perhaps the most useful is the court's judgement in the Obar Camden judicial review (Appendix 10). I draw your attention specifically to the judge's comments in allowing the judicial review and overturning Camden's decision in Ground 1, paras 9- 16 inclusive. It was precisely on the point that Camden's planning validation checklist and P128 of the Framework require the applicant to set out the necessary information and to make their case to the LPA and had not done so. As a consequence the officer report failed to make the assessment against the relevant parts of the Listed Buildings Act and the Framework and the decision by the committee to grant consent was considered flawed and set aside. 69. For this reason, we consider the application to be invalid and should not be progressing to a decision until the necessary evidence has been submitted. Planning context.

70. The application falls to be determined under policy contained in the City Plan Part 1 – Strategic Objectives adopted 2016 and Saved Local Plan 2005 Policies as well as policy in the National Planning Policy Framework ('the Framework'). Other relevant statute includes the Conservation of Habitats and Species Regulations 2010 & 2012 ('the Habitats Regulations'). BHCC's Planning Applications Checklist, Biodiversity Checklist and Planning Sustainability Checklist are also relevant, as is the 2016 SPD 14 ('Parking Standards').


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procure protect preserve promote Relevant policy:

71. City Plan Part 1 2016: CP1 Housing Delivery; CP12 Visual Impact; SA6 Sustainable Neighbourhoods; CP12 Urban Design; CP16 Open Space; SO12 Design; SO13 Enhancement and maintenance of image character and heritage; SO15 Sport & Recreation; SO16 Conservation; SO19 Sustainable Communities; SO20 Reducing inequality.

72. Saved 2005 Policy: SR7 Local Parades; SR12 Large Use A3 & A4 sites; HO19 New Community Facilities; HO20 Retention of Community Facilities; HO21 Community Facilities in Mixed Use schemes; QD 27 Protection of Amenity; HE10 Buildings of Local Interest and its supporting text 8.41 Early stage consultation with BHCC Design & Conservation team. Planning History

73. The online record for the building is very brief. Only the present application and that for the kitchen and cold store (2010) are viewable. The latter application was approved, apparently without conditions. The local archive has provided drawings of the original design and the 1932 scheme (drainage).

74. On May 20th 2016 the applicant, through their agent, submitted the required Notice under Schedule 2, Part 3, Class A of the General Permitted Development Order 2015 enquiring after the status of the Dyke in respect of the Assets of Community Value regime. On September 3rd or 4th 2016, the site ceased trading as a pub and reopened as a bric-a-brac shop called Emporium a few days later.

75. On 7th October 2016 the Save the Dyke Supporters nominated the Dyke as an Asset of Community Value under the Localism Act and it was registered as such by BHCC on 6 th December 2016.


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procure protect preserve promote 76. On June 17th the Save the Dyke Supporters applied to Historic England for the Dyke to be assessed for statutory listing. The draft report has been circulated for comments and it is expected that Historic England will be making their recommendation to the Department for Culture Media and Sport shortly, if they have not already.

77. On 7th July we made an application to BHCC for the issue of a Building Preservation Notice in respect of the premises once evidence had been received that the owner was intending to carry out works to the interior. This application is still under consideration by the authority.


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procure protect preserve promote Objection Preliminary Matters. The use of the building. 78. The Dyke is a purpose-built public house and operated as such from 1893 (or thereabouts) until 3rd September 2016. The trade area on the ground floor reopened as a retail unit a few days later. The use of the ground floor for retail uses ceased on or about 16th June 2017. 79. We contend that the use of the premises as a retail unit was 'de minimis', a device by which to circumvent local and national policy protecting community facilities generally and public houses specifically. 80. Recent case law includes the Bishop Blaize 3 public house in Shropshire in the High Court 2016 (Noquet v SoS & Cherwell: Appendix 8), and two significant Inspectorate ('PINS') decisions on the Royal Hunt (3137749) (Appendix 2) and the Three Horseshoes (3006147) (Appendix 3). Supporting the proposition in all of the above cases is the authority contained in the 1980 judgement in the Kwik Save Discount Stores case (Appendix 7) ('Kwik Save'). 81. Taking the Royal Hunt case first. The S195 appeal was against Bracknell Forest DC's ('Bracknell') decision to refuse a Lawful Development Certificate ('LDC') for the supposed Permitted Development ('PD') change of use from A4 public house to A1 retail unit. The appeal was decided by way of a public inquiry in June and July 2016. This change of use was purported to have taken place in late March before the amended GPDO 2015 and its new requirement (under Schedule 2, Part 3, Class A) to enquire as to the ACV status of the site before a PD use could commence. 82. Bracknell in its evidence relied on the judgement in Kwik Save to argue that the shop use

3 Following ten years of abortive planning activity, the pub reopened as the Pheasant Pluckers Inn, Oct 2016. Dyke Brighton BH2017/01917

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procure protect preserve promote was only a token use and that the minimal use had no significance in planning terms and should be disregarded. (Para 16 of the Decision.) 83. While we are in possession only of hearsay evidence, it appears that the hours of opening of the retail premises were somewhat erratic and that there appeared to be little retail activity actually taking place. No evidence has been provided with this application that the activity taking place was anything other than the public house business disposing of its own goods. Evidence of substantial purchases of goods for sale in the premises and receipts for goods sold from them, a contract of employment or timesheets for employees working in the retail business and a copy of any lease or letting agreement and details of rent charged (and paid) could provide the necessary proof, or part of it. 84. Per 'Bishop Blaize' discussed below however, an application at this stage for a Lawful Development Certificate (or Certificate of Lawful Use) is unlikely to succeed because the site is presently (although unlawfully) in a sui generis mixed use as A1 and C3. 85. Since the applicant is arguing that the public house use ceased because the income from it was insufficient to sustain the business, it seems reasonable to ask whether the revenues or at least the profits from the retail use were sufficient to sustain that business. Since it has ceased trading long before consent has been granted for the change of use (which may not be forthcoming), the indication is that the change of use was in fact merely 'a device to bring the benefits of General Development Order [as it then was] into operation' (their Lordships in Kwik Save, the penultimate paragraph of their judgement.) Either the shop use was genuine and viable in which case why has it ceased so precipitately when the applicant could continue to collect a rent (if any were being paid, and if not, the 'device' argument is further strengthened) or it was genuine and failed to make any money, or it was merely, as we argue, a 'device'. 86. We turn now to the Bishop Blaize case (Noquet v SoS & Cherwell DC). This is a case


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procure protect preserve promote with the most chequered history I have encountered in my experience. More than 50 planning actions have occurred in connection with the site since its purchase 10 years ago by the appellants, Mr & Mrs Noquet. They need not all be rehearsed. Relevant in this case are that the Noquets received in 2012 an Enforcement Notice requiring the use of the premises as a residential dwelling (C3) to cease. The subsequent PINS decision dismissed the appeal against the Notice. In 2013 the Noquets implemented an A1 use of the ground floor only as a shop selling wood burning stoves and continued to live on the premises, thereby creating the unauthorised mixed A1/C3 use. They later moved out but it appears the residential character of the upper floor remained- it was not used for A1 purposes. 87. The High Court challenge was a S288 appeal against a PINS decision on 27 th August 2015 to dismiss an appeal against Cherwell's non-determination of an application for a Certificate of Lawful Use ('CLU') of the premises as an A1 retail unit, claimed under the PD provisions of the GPDO. 88. At para 8 of the appeal decision quoted by the judge in Bishop Blaize, the Inspector says “I do not agree that the Bishops End [another name by which the pub was operated] was a vacant A4 use at the time the CLU application was made – its last use was as a mixed use of A1 (wood burning stoves etc) and a residential use. That use is unauthorised.” In both the appeal decision and the judgement it is clear that the retail use had ceased. In the present instance, however, the retail use has not been discontinued or abandoned, merely suspended pending the current application which includes a retail use of part of the premises. The breach is ongoing. 89. At para 4 the judge in Bishop Blaize quotes the PINS decision again “15. In my assessment permitted development rights can only be exercised if Bishops End is in use or last used as an A4 use. In other words the appellant cannot begin to rely on the Class A Provisions until Bishops End is being, or was last used, as a public house.” Dyke Brighton BH2017/01917

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procure protect preserve promote 90. Following the rationale of their Lordships in Kwik Save in summing up: The only question is, therefore, one of mixed law and fact: (1) was there in fact a use for the sale of goods by retail? (2) If there was, was it minimal? (3) if minimal, should it be disregarded? 91. The answer to the first is, admittedly, 'yes'. And the answer to the others is also 'yes'. On that reasoning the supposed 'retail' use can be disposed of, leaving the only lawful existing use of the premises in its entirety as an A4 drinking establishment. 92. If the planning authority are inclined to disagree with our submission on the question of the validity of the use argued in the paragraphs above, then the alternative argument advanced by Bracknell in the Royal Hunt case also applies here. That is, that the use created by the deemed grant of consent under the GPDO applies only to those parts actually in use as a retail unit, i.e. the ground floor and the 'storage' on the first floor. This leads inevitably to a submission that what was actually created was a sui generis mixed use which in any case is not PD and requires specific consent. 93. At para 44 of Royal Hunt, Bracknell submitted that the use thereby created (A1 and C3) was sui generis mixed use. The Inspector demurred, expressing the view that if the shop use were material, the mixed use created was a public house (the ancillary residential accommodation remains classified as A4) and a shop. “The Class A1 use was confined to part of the property only. The rest of the property was vacant and not being actively used. There was no attempt to show that the A4 use was abandoned..” And, as a matter of fact, BHCC has concluded that the resumption of a pub use is a realistic proposition by virtue of the listing of the Dyke as an Asset of Community Value which requires as a matter of law that the authority holds that opinion. 94. As described above in the section on Observations on the Application, it appears that the upper floors are in one or more residential uses. Public houses are rated and taxed Dyke Brighton BH2017/01917

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procure protect preserve promote separately for non-domestic ('business') rates and for dwellings under the Council Tax regime. The Council may use its powers to discover who is paying the Council Tax on the residential parts – it would usually be the occupier- to establish what use is being made of the upper parts at present. 95. In any case, the upper parts are not being used for ancillary purposes to the public house use since that has ceased, nor is there any provision in planning law to regard the residential use of upper parts of retail units as ancillary. The use is, we contend an unlawful sui generis mixed use as A1 and A4. 96. The authority in the instance laid out above is the Three Horseshoes (Appendix 3) . In 2016 the appellant appealed the refusal of Braintree District Council ('BDC') to issue an LDC for a change of use of the ground floor of the site from A4 to A1 following a PD change of use in 2014. The appellants continued to live on the premises in the upstairs accommodation and to use the only kitchen (downstairs) for their domestic purposes. 97. Para 14 of the decision records “the LPA in refusing to issue a LDC concluded that 'the proposal is for a change of use from a public house to a mixed use comprising residential and a retail area. Such a change of use is not permitted under the [GPDO] therefore permission is required'.” 98. The Inspector goes on to say “use as a dwelling is not ordinarily incidental to the use as a shop”. Para 23 “Consequently, on the evidence available, the proposed use would be a mixed retail and residential use within the single unit of occupation, each use being a primary use..... the proposed composite use would be a sui generis use outside a specific use class. The characteristics of the use would be significantly different to a public house by reason of the service and goods provided..., pattern of activity and the use of the property as a home unconnected with the retail use.” 99. Para 24 “In Part 3 of Schedule 2 to the 1995 GPDO there are no permitted development Dyke Brighton BH2017/01917

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procure protect preserve promote rights to change a Class A4 (drinking establishment) to a mixed retail and residential use.” 100.

Para 25 “Therefore the proposed use is development and requires planning

permission. No planning permission has been granted. The proposed use would not be lawful within the meaning of the [principal] 1990 Act as amended.”

...

“the appeal

should fail”. 101.

The implication and consequences of the Horseshoes and Bishop Blaize cases

are therefore that the Council were wrong in allowing the applicant to change the use of the premises into a retail shop in September 2016 and that further particulars ought to have been sought about the applicant's intentions for the remainder of the planning unit. Had the authority been aware that a sui generis mixed use was to have been created, they would have been within their rights not to allow the change of use and to have instead demanded a planning application. Because of the change in the GPDO 2017 brought about by the amendment to the Neighbourhood Planning Act this is not an issue which is likely to surface in the future but it may be germane to other PD CoU effected at other sites in the City between 6th April 2015 and 22nd May 2017. 102.

In the alternative, if the A1 use is regarded as 'de minimis' as a 'device' (per Kwik

Save) to take advantage of the GPDO and the planning authority regards the established use to remain as A4, the residential use(s) of the upper floor cannot be said to be ancillary as the pub business has ceased trading. The principal use of the premises if still occupied as dwellings or short term lets can therefore be considered to be C3 dwelling(s) which does not have planning permission and is therefore unlawful. Asset of Community Value and alternative operating models 103.

The site was listed as an ACV on 6th December 2016. Thus BHCC considered that

it was realistic to think that it continue in use for community purposes, whether as a public Dyke Brighton BH2017/01917

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procure protect preserve promote house or in some other qualifying use. The ACV regime provides a mechanism by which, if the owner wishes to dispose of the freehold or a long-term lease, the community are able to make a bid to purchase the freehold or a lease of not less than 25 years. 104.

This does not preclude any party from making an approach to the owner to bid on

the site at any other time. The Dyke Pub Preservation Society secured a professional valuation of the premises from a licensed leisure surveyor in March 2017. A meeting was held with the present owners (the applicant in this case) on 3 rd April 2017 at which an offer in writing to purchase the freehold was made. This was rejected by Mr Webb. 105.

Both DPPS and my client are aware of genuine interest from an established

operator of food-led pubs in Brighton, Gingerman Restaurants. A letter from them was submitted in evidence in the application for ACV listing. Their style of operation would require the whole of the premises and not just the site reserved in this application. 106.

The Non-Statutory Advice Note to Local Authorities from the Secretary of State

published in 2012 advises at para 2.20 that it is a matter for the authority to decide whether, and what weight ACV listing has in the planning balance. We respectfully submit that in this instance the weight accorded should be very substantial. Objection: substantive points 107.

We will take as our starting point that the present use of the building is an

unconsented change of use either to a sui generis mixed use (A1 and C3 residential) or that the A1 use is not genuine and that the actual established use is still A4 and because the upper parts are in use as non-ancillary residential dwellings, that an unlawful change of use has occurred to C3. On either basis the only lawful use of the whole planning unit is as A4 with ancillary residential accommodation and garden amenity. 108.

The application has not been supported by the Heritage Statement required by


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procure protect preserve promote BHCC and the Framework. The applicant therefore cannot demonstrate that the harm caused by the proposals is justified in the interests of the long-term conservation of the heritage asset. On that basis the application is invalid because the authority does not have sufficient evidence to decide the application on heritage grounds. 109.

The works of conversion and development are harmful to the character of the

building: 1. The loss of the attractive central stack will unbalance the architect's careful composition, and the building will appear denuded. 2. The insertion of dormers and rooflights will have a detrimental effect on the character and appearance of the roof. Because there has been no proper investigation of the building it has not been demonstrated that the new openings can be made without substantial harm to the structure of the roof. 3. The insertion of other windows into parts of the historic envelope will compromise its architectural integrity. 4. The conversion of the roof space to habitable dwellings does not appear to have taken account of the supporting elements of the roof structure (rafters, purlins, wall plates and joists) and how these will be affected or accommodated in the proposed development to secure the structural integrity of the roof. Nor is any detail provided on the means of insulating the roof and how this is to be achieved. 5. The roof plan shown in the 'as existing' drawing does not reflect the actual roof plan shown in the 1893 architect's design. Since no heritage statement has been produced to evidence that the roof has been altered or replaced at any time, and from the Google Earth image (Appendix 14), it can be seen that the roof plan is still as shown in 1893 (plus later extensions). Specifically the main range of the building facing Dyke


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procure protect preserve promote Road (oriented approximately N:S) has a pitched roof which ends at the apex of the range which runs at right angles to it to the N side (oriented approximately E:W). This second roof is set slightly lower than that of the main range because it is intended by its original architect to read as an 'extension' suggestive of an historic evolution of the building over time. This was a common device of architects designing in the historicist vernacular of the Victorian era. The failure to adequately assess the significance of the building is contrary to HE10, the Framework and policy on good design. 6. The failure to take proper account of the actual structure and external envelope of the roof has implications for the design of the reconfigured roof space (the new second floor) in which two new flats will be created. This may affect the placing of the dormers and will affect the placing of the Velux lights (and their visibility from the street) and may affect the room heights of the flat contained in that E:W range. This is contrary to HE10 Heritage and QD27 relating to visual impact. 7. The Nationally Described Space Standard is proposed to be adopted in Part 2 of the BHCP. At present therefore the residential space needs to be assessed against existing policy in the BHLP and the Framework. Because the roof plan has not been properly drawn on the plans and because there is a substantial difference in the measurements between the first and second floors, there is no guarantee that minimum room sizes or floor to ceiling heights will be achieved on the second floor. Accordingly, the proposal may conflict with Policy CP19 of the BHCP and Saved Policy QD27 of the BHLP, which, amongst other aims, seek to ensure that any change of use does not cause loss of amenity to proposed occupiers. It would also conflict with the Policies of the Framework,which include that planning should always seek to secure a good standard of amenity for all existing and future occupiers of land and buildings. 8. No submissions have been made about works to provide adequate sound insulation Dyke Brighton BH2017/01917

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procure protect preserve promote between the new non-ancillary residential flats and the proposed A4 use on the ground floor. This is notoriously difficult to achieve in historic buildings, requiring substantial intervention in the fabric. This is contrary to HE10 Heritage and QD27. 9. There is nothing in the proposals dealing with the requirements of the Equalities Act, such as wheelchair access, and this is contrary to HO19 (a). 110.

The plans as existing and as proposed do not include any reference to the cellar,

nor is the 'beer drop' (access from the pavement) shown on the drawings. By all accounts it was still in use when the pub closed in 2016. Access to the cellar inside the building is shown on the 1893 and Licensing plans as a lower flight from the existing staircase. No indication in the plan has been shown for the new A4 unit for a ground floor beer store or to reuse the existing cellar and how this might be achieved with an access from the pub unit rather than the existing staircase. No pub can function without a cellar/beer store, whether traditionally located in a basement or in an adjacent structure on the ground floor and even on an upper floor although the latter are very rare. 111.

The lack of a cellar is harmful to the building's significance as a public house in

use and the loss of a key- perhaps the most- significant element of a pub other than its bar counter, is harmful to the architectural integrity of the heritage asset as a whole. Local plan policy considerations. 112.

In the Toby Inn decision (3009190) the authority and inspector agreed that

relevant policy applicable in that case was HO20 Retention of Community Facilities, although it makes no express reference to public houses. The particulars of that case have no bearing in this instance (the scheme was for a change of use from A4 to sui generis temporary accommodation) but merely serve to identify the correct policy. 113.

Three saved policies are applicable in this case. HO19 New Community Facilities,


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procure protect preserve promote HO20 Retention of Community Facilities and HO21 Provision of Community Facilities in residential and mixed use schemes. 114.

HO19 requires that the design and use is accessible AND that there are

demonstrable benefits for socially excluded groups and that they make adequate provision for childcare and toilet facilities. While we contend that the site's existing lawful use is already A4 and that this policy does not apply, the LPA may disagree. In that case the policy considerations are: 1. The new scheme is not accessible under the Equalities Act insofar as the door has not been redesigned to make it wheelchair accessible. 2. More importantly, bearing in mind the Framework's para 69 “creating opportunities for those who would not ordinarily come into contact with each other”, the policy requires that schemes must have 'demonstrable benefits [for] socially excluded groups.' The reduction of the Dyke's footprint in the way proposed decreases its ability to meet the needs of a wide section of the community and to expand or improve its offer in terms of services provided. The proposed scheme does not make any claims that the scheme is HO19 compliant or even recognise that the policy applies. 3. HO20 Retention of community facilities. This policy states that planning permission will not be granted unless the facility is replaced OR relocated to a more accessible location OR nearby facilities will be improved to accommodate users OR that the premises are no longer needed. The Toby Inn appeal (3009190) records that the authority has no specific pub protection policy and that while HO20 does not specfically reference public houses, they can be considered community facilities and the policy applied. 1. The thrust of the 'replacement' part of the policy must surely be that any replacement is at least equivalent to the facility that is being lost. The replacement Dyke Brighton BH2017/01917

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procure protect preserve promote 'stub pub' is considerably less than half the present floor space and therefore cannot be considered an adequate replacement. While the applicant may have had difficulties generating sufficient revenues from the business, there is evidence that experienced and established operators consider the site in its present configuration perfectly viable, viz. Gingerman Restaurants. 2. Since the applicant is proposing a replacement it has clearly been recognised by them that the public house use is still needed and the other two limbs of the policy do not apply in this case. 4. HO21 Provision of Community Facilities in residential or mixed use schemes. While the policy does not appear to specify this, it seems reasonable to suppose that the authority expects this policy to apply to those schemes which might reasonably generate an appreciable demand for such uses. The provision of four flats (6b in all) does not fall into that category. 5. HE10 Buildings of Local Interest. This relates to the protection of buildings of local interest and which are conseuently to be regarded as non designated heritage assets per the Framework. The policy requires that these buildings are retained, well maintained, and kept in use. The policy also requires that development proposals should, in their design and materials, be compatible with the character of the building. We submit that the insertion of three substantial dormers and no fewer than 13 velux lights does not constitute good design and that these will be harmful both to the Dyke's appearance and lead to the loss of historic fabric (roof structure and tiles). 6. We note the supporting text at 8.41 which promotes the 'consultation with BHCC's Design and Conservation Team at an early stage'. The application form records that there was no pre-application advice taken by the applicant. Trojan Horses Dyke Brighton BH2017/01917

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procure protect preserve promote 115.

The expression has been used several times by Inspectors in appeal decisions to

describe development proposals which could be considered the 'thin end of the wedge' for further unwelcome schemes which are contrary to policy. In this instance we refer to the 2013 Inspectorate decision at the Rivers Arms Cheselbourne (2196058)(Appendix 11) dismissing the appeal. In that case there was a proposal to develop the PH site into a mixed use for tourism and residential purposes with the retention of a much-reducedfootprint 'stub pub'. 116.

Para 11, Rivers Arms. “The Council ... considers the café/bar’s viability as

dubious. The Council, accordingly, views this aspect of the development as a form of Trojan horse in the sense that it considers that future pressure would inevitably arise, were the appeal allowed, to convert it into residential accommodation.” 117.

Trojan Horse schemes, especially in urban areas where there is especial

pressure for new housing, are legion. It works like this. The developer submits a scheme for partial redevelopment of the pub premises (usually upper floors to flats), assuring the planners (and residents) that the pub use will be retained on the ground floor and cellar, so that there will be no breach of pub protection policy. 118.

Once that consent has been secured, the A4 use is 'marketed', usually at an

inflated price or onerous conditions to discourage interest. When predictably there is no interest from the pub trade, a further application is made to convert the A4 space to residential purposes on the grounds that there are no takers or that the pub is unviable. 119.

One illustrative case in point is the Beehive Lambeth (Appendix 9) where the

developer secured consent for an uppers flats conversion with assurances about the survival of the pub, and then sold the property on. The consented scheme included multiple conditions, almost all the applications for discharge of which were subsequently refused. The three flats development has been completed by the new owner without the


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procure protect preserve promote discharge of conditions and without, to my knowledge, Building Regs approval and all are occupied. The new owner 'marketed' the premises without the flat protected by condition in the previous approval and then made a new application to convert the 'stub pub' into two flats, claiming no interest in its ongoing use as a pub, despite expressions of interest both by a local operator and from me on behalf of my clients. The application was refused and dismissed on appeal. It is now the subject of a second application for flats. 120.

In the alternative, the A4 use is lost through PD change of use to retail or

financial services uses, sometimes (as at the Brewery Tap Wimbledon 2011) within days of consent being granted. No longer possible following the new GPDO 2017 rules on pub PD. 121.

Pubs can be made unviable simply through the loss of parts of the primary trade

space or of the ancillary spaces, such as domestic accommodation, gardens and event/gig rooms. In Camden this is recognised and the pub protection policy there does not permit the partial redevelopment of public house premises for that reason. 122.

Loss of Accommodation: Typically a tenant publican will pay one sum in rent for

the trade element and another for the domestic accommodation. 1. At the Golden Lion Camden, a ten minute walk from Camden Town tube station, the five bedroom flat was rented to the tenant publican for £283/month. The business had other challenges but the requirement to secure other accommodation at London market rents if the freehold developer's objective (flats on the three floors above) had been achieved was a financial challenge that the business could not meet, with the predictable consequence that it would fail. A series of applications were refused, the subsequent appeals dismissed and the publican now owns the freehold. 123.

One way to deal with this is to ensure by means of a legal agreement or condition

that one of the flats is reserved solely for the use of pub staff (Condition 4, Beehive Dyke Brighton BH2017/01917

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procure protect preserve promote Lambeth Appendix 9). 124.

Loss of the garden: At the Castle Battersea in 2012 the publican tenants

estimated that fully 25% of their annual income was generated by their garden, an expansive paved patio with multiple tables, shrubs in planters, roofed booths and wicker furniture. The garden accounted for about 20% of the total floor area of the pub. At urban pubs in central London where external spaces are very rare, the income generation can be as much as 30% of the weekly takings, even for a relatively small area. 125.

Policy CP16 in BHCP relates to Open Space as does SO15 Sport & Recreation.

The loss of the use of the garden for recreational purposes by pub patrons may be considered a breach of these policies. The present proposal reserves the greater part of the garden space for use by the 'retail unit' but there is evidence, both in BHCC's decision to list the Dyke as an ACV and published in various newspaper reports (complete with drawings) that the applicant is intending to develop this area with two new houses. The permanent loss of the garden will serve to reduce the attractiveness and utility of the pub for families and also harm the setting of the locally listed building contrary to HE10 and SO16 Preserving and Enhancing Cultural Heritage. 126.

It is noted that the application has reserved a small area to the rear of the old

dining room as a patio area and this is illustrated as accommodating 8 tables of 4 patrons. This seems highly optimistic because, apart from the tables being too close together to function, the area is also on the flight path for the emergency fire exit to the street down the side passage. 127.

The scheme proposes the loss of the cold store which was only built 7 years ago

to serve the kitchen. One wonders where (as for the cellar) the kitchen will keep its food. 128.

My client fears a Trojan Horse scenario at the Dyke. The means by which the

applicant secured a change of use, while on the face of it legal- although we now contend Dyke Brighton BH2017/01917

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procure protect preserve promote in part that in fact an unlawful sui generis mixed use was created- has left a bitter taste in a large sector of the community. This 'loophole' has now been dealt with in the Neighbourhood Planning Act and associated changes to the GPDO, not least because of the publicity surrounding the Dyke case. All pubs are now subject to full planning applications for any change of use or demolition. 129.

There is the question of the pub cellar, the floor to ceiling heights in the second

floor flats which may not meet national space standards, the failure to make proper provision for the all of the uses in the scheme for waste and recycling, the lack of adequate parking/cycle storage for each of the uses, no provision of outside amenity space for three of the four flats, no apparent consideration of proper sound-proofing between the A4 and C3 uses, and the removal of historic fabric during the consideration of the premises for statutory listing by Historic England. Other aspects of the scheme as well as these are causing, with some justification, anxiety that the proposed use will never materialise or if it does that the limitations on it from a lack of external amenity space for the pub, the economic pressure on the pub from a lack of ancillary domestic accommodation and conflicts between new residents in the flats and noise or other nuisance from the pub will eventually close it down completely.


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procure protect preserve promote Conclusion 130.

The scheme fails to give due consideration to heritage protection issues and as a

consequence it constitutes harmful development which is not justified by any substantial public benefit. The lack of a heritage statement and justification for harm required by local planning procedure and the Framework is a serious oversight in this respect, and this is grounds of itself to refuse consent. 131.

The scheme fails to deal adequately with car parking, cycle storage, waste and

recycling, outdoor amenity space and minimum room sizes and head heights, contrary to Local Plan strategic objectives and Framework policy. 132.

The application has failed to deal with the requirements of the Habitats

Regulations and there is no plausible reason why this should be dealt with by condition. This is a further reason for refusal. 133.

The Dyke in its entirety was listed as an Asset of Community Value and the loss of

a significant part of the ground floor and the alienation of all of the upper floors severely limits the opportunities for the business to diversify its business in future to sustain the benefit of the Dyke in use as a Community Asset. The consequence of this in the medium or long term is the complete loss of the Dyke in any format, contrary to HO20 and paras 69 and 70 of the Framework. 134.

For these many reasons my clients cannot support the proposals and respectfully

request that the application be refused and that enforcement action be seriously considered against the unlawful mixed use presently operating at the site.


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