l.

Sunderland
City Council

Mr L Lowther 2 Pier Cottages Marine Walk Sunderland SR6 OPL

Date: Our ref: 24 October 2013 MD/

This matter is being dealt with by: Complaints and Feedback Team Manager, Commercial and Corporate Services, PO Box 100, Civic Centre, Sunderland, SR2 7DN. Telephone Number: (0191) 5611065

Dear Mr Lowther
RE: YOUR COMPLAINT REVIEW I have now completed my review of your complaint. This review is on behalf of the Chief Executive and independent of the planning service .

Before reaching my conclusions I met with the case officer, the Development Control Manager and an officer from the Council's equalities team. I considered the Council's constitution, previous correspondence , the report by AID as well as the planning file itself. Finally I visited the site to familiarise myself with the area. I am sorry this has taken longer than I had hoped. However you did raise a large number (45) of issues and I wanted to be satisfied that I had addressed these. I will state that I have not upheld your complaint. Whilst your strength of feeling against the development is clear, my investigations have not revealed any evidence of fault on the council in the handling of the application. I am aware that you have been in contact with the Local Government Ombudsman on occasions and it is worth reflecting their advice here: 'Ombudsmen can investigate complaints about how a council has done something, but they cannot question what a council has done simply because someone does not agree with it. ' Clearly you do not agree with the decision but that does not necessarily mean there was a fault or fault in how it was reached.

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Before dealing with the issues there is also another important point to raise here - that of injustice. Whilst your complaint has been investigated and reviewed, I have, as I have said above, come across no evidence of fault on the part of the Council. Following on from that, neither have I seen evidence of any injustice that you have suffered. In other words nothing to suggest you have been personally affected in any way . I have considered each of the issues you have raised but it must be said that many were fully addressed in Mrs Pearson's response to you of 14 August. Clearly you do not accept the answers you were given but I'm afraid there is little different I can say to what is in effect the same question. Additionally whilst 45 questions were posed in your response, these fall into 12 categories and to avoid unnecessary repetition have been answered as such. Where an answer has been given earlier, a reference to that answer is given in response. In the case of the issue you raised about approval of the application without ensuring the plans for the area were adhered to, I have simply repeated Mrs Pearson's response in full.

1. The planning application should have been addressed by the Planning Committee. As you are aware, the Council's constitution sets out the parameters for determining how decisions are made and the procedures that are to be followed . In Part 3, Section 2 - Responsibility for Council Functions, Development Control Sub Committees it is stated: Subject to those matters delegated to the Deputy Chief Executive, and considering whether to refer an application to Planning and Highway Committee where it is of citywide significance or of a strategic nature, each of the three Subcommittees shall within its area, determine the following applications under the Town and Country Planning Act 1990 the Planning and Listed Buildings and Conservation Areas Act 1990, and any related secondary legislation : Paragraph 1 stipulates; Applications (other than those for approval of reserved matters) comprising of residential development of ten or more dwellings, or the site area is 0.5 acres or more; or other developments where the floor space is 500sq metres (gross) or more or the site area is 1 hectare or more. Whilst it is acknowledged paragraph 1 may be subject to different interpretations, the Local Planning Authority (LPA) considered that the 'mixed use' nature of the proposal which constitutes two elements, namely residential and commercial, did not meet the criteria to be referred to a planning committee. Paragraph 1 does not state that the combined elements of the scheme need to be considered together therefore for the purposes of validation the application was deemed to meet the requirement for delegation.

In this particular instance, as the development proposed less than 10 dwellings and the remainder of the floor space to be created resulted in less than 500 sq metres of commercial development, the application was not considered to trigger the requirement for it to be taken to a planning committee. Thus whilst I can appreciate that different interpretations of paragraph 1 may be made; this is a consistent approach that has historically been adopted by the Council, acting in its capacity as LPA, when considering 'mixed use' applications of this nature.

2. Has policy 82 of the UDP changed or is it the Council's interpretation of the plan which now allows the building of 20sq metres of office space and private dwellings on Marine Walk at first floor level. The UDP was previously used as a reason to oppose private dwellings on Marine Walk Whilst uses such as office and residential may not be explicitly referred to in the Marine Walk Masterplan this does not necessarily render them unacceptable uses. Rather uses not explicitly referred to in the aforementioned document will be considered on their individual planning merits when assessed against all of the relevant planning policies for the area. In this regard the LPA considered that the proposed development, (when taken as a whole) would contribute to the overall vibrancy of the area. The benefits of including elements of residential within the proposal were clearly outlined within the delegated report in terms of providing natural surveillance and security to the area. In terms of the LPA previously opposing private dwellings on Marine Walk, I understand this to be related to a planning condition that was attached to a 2003 approval for a restaurant with living accommodation above. (03/02413/FUL) It is evident that the description of this approved development was; Erection of a two storey building to provide bar with family area, restaurant and two staff apartments. Based on the above description, the applicant (Vedra Leisure Ltd) quite clearly stipulated within the application that the upper floor residential was to be utilised as staff accommodation solely in connection with the ground floor business. In this respect the LPA simply conditioned that this be the case through the imposition of a planning condition perhaps with the intention of retaining some control over the future use of the first floor . This is of course not to say that the introduction of private residential above would have been unacceptable had this been applied for in its own right. This was however not the case and the 2003 application, as with the 2013 application were considered on their own individual planning merits.

3. Why was the mass/height/building line and character of the area not a topic of the delegated decision report? I am unsure if you mean a separate topic, but the above matters were given appropriate consideration within the delegated report wherein it is stated that; "It is clear that the developments design principles have been thoroughly considered, with the form, styling and materials taking inspiration from the traditional timber buildings that historically lined the lower promenade. The 'beach hut' appearance of the proposed buildings would present a distinct and innovative form of development that would compliment the character of Marine Walk". Thereby the development was considered to be appropriate to the character of the area . The report went on to say: "Due to the sharp fall in gradient to the west, the development would be positioned substantially below the upper promenade of Roker Terrace thereby substantially reducing it's prominence within this context. Further, the Heritage Team have confirmed that the siting, scale and orientation of the buildings would also respond sympathetically and positively to the listed Pier and the opposing Roker Pier Cottages." Thereby the massing, scale and positioning of the development was considered to be acceptable.

4. Why was this application approved without consideration to plans for the area to ensure the plans were adhered to?

I think this issue has been fully addressed by Mrs Pearson in her response to you. For ease of reference I have reproduced it below: "When considering any application for planning permission it is particularly important to establish the acceptabil ity of the principle of development. Section 38(6) of the Planning and Compulsory Purchase Act (2004) provides that: 'if regard is to be had to the Development Plan for the purpose of any determination to be made under the planning acts, the determination must be made in accordance with the plan unless material considerations indicate otherwise .' The first test, and the statutory starting point is whethe r the application is 'in accordance with the plan', which is a phrase that has been the subject of debate in the High Court in the context of Section 54A of the Town and Country Planning Act 1990. In his judgment of 31 July 2000 (R v Rochdale Metropolitan Borough Council ex parte Milne), Mr Justice Sullivan (as he then was) concluded as follows:

'I regard as untenable the proposition that if there is a breach of any one Policy in a development plan a proposed development cannot be said to be "in accordance with the plan"' 'For the purposes of Section 54A, it is enough that the proposal accords with the development plan considered as a whole. It does not have to accord with each and every policy therein.'

This Rochdale judgment is applicable to the interpretation of Section 38(6) of the 2004 Act and the Council must reach a decision, therefore, as to whether the application is in accordance with the development plan when it is considered as a whole . The Unitary Development Plan (the UDP) for Sunderland was adopted in 1998. On commencement of the Planning and Compulsory Purchase Act (September 2004), the policies of the UDP were automatically 'saved' for three years, remaining in force until September 2007. The Council subsequently notified the Government Office of the policies it wished to retain and confirmation from the Secretary of State of the agreed saved policies was received on 4 September 2007. The Marine Walk Master Plan, referred to in your correspondence, is not the development plan, rather it is a document that was developed and adopted by the Council as supplementary planning guidance which would support and supplement the development plan where appropriate. The purpose of the Marine Walk Master Plan is to set out the parameters for the principle of development, focusing on providing a mix of uses which complement adopted planning and design policy, with a desire to achieve a range of cultural and tourism uses in order to provide a safe and pleasant environment for all. It should be noted that whilst the Marine Walk Master Plan is a material consideration when determining planning applications, in this area, the starting point for the determination of any planning application is the development plan and the relevant national planning policy (National Planning Policy Framework). With specific reference to planning application ref: 13/00249/FUL, I can confirm that the development proposal was considered against all of the relevant policies contained within both of the aforementioned documents to ascertain compliance or otherwise with the 'key' land use planning policies for the area . In this regard, it was considered that in relation to the Marine Walk Master Plan the proposed development offered a variety of uses which were specifically identified within the Master Plan as being acceptable, such uses include A1 (retail), A4 (drinking establishments) and A5 (hot food takeaways). These uses were considered to be key elements which would support the tourist driven regeneration of the seafront by proving a range of services. Similarly, whilst it is acknowledged that the introduction of residential accommodation and offices is not specifically outlined within the Master Plan document, it is nevertheless considered that the introduction of such uses would

aid in enhancing the overall vibrancy of the area whilst the residential occupancy of some, or part, of the upper floor would assist in offering a degree of natural surveillance and security to the area . On this basis it is considered that the development is in accordance with the development plan policies, when considered as a whole, and also the aims and objectives of the Marine Walk Master Plan. Therefore, based on the explanation set out above I trust that you now understand why the proposed development was not in conflict with development plan policies. " Whilst it is clear you do not accept her explanation there really is nothing else I can say.

5. & 11 Why was the planning application not subjected to the Tyne and Wear Validation Checklist? Why was the Tyne and Wear Validation Checklist not used to ensure that the planning application had been considered appropriately regarding parking and servicing requirements, and as required by Sunderland North UDP, not increase traffic generation? The application was validated against the requirements of the Tyne and Wear Validation Checklist. The Tyne and Wear Validation Checklist is used to ensure that an appropriate level of documentation has been received in order to make an application valid. This Checklist is not used to assess the quality of the information provided nor does it consider the acceptability or appropriateness of a development. If any further information is required once an application has been made valid, then an officer can request this information during the course of the application process if it is considered to be necessary. During the course of this application, the City Council's Transportation Engineers raised no objection to the development based on the parking or servicing requirements.

6. The UDP has been ignored to suit this particular development. I ask why? I refer you to Point 4 above.

7. How would the offices and private dwellings enhance the overall vibrancy of the area?

I refer you to Point 2 above .

8. The servicing of the development will increase traffic on Marine Walk and increase vehicle parking problems in the area. Therefore the

development is not in line with Sunderland North UDP and should have been rejected or at least subject to a committee decision.
The City Council's Transportation Engineers raised no objection to the proposal and did not consider it necessary to restrict deliveries to the approved development on grounds of public safety, further the area has an existing loading bay positioned directly opposite the site. In terms of refusing the application based on serv1c1ng and parking related issues, it is clear that any new commercial development proposed for Marine Walk would need to be serviced and would have the potential to generat .J additional parking. This is not considered to be a reason for refusal. In terms of being subject to a committee decision I would refer you to Point 1 above.

9. Has policy T14 of the UDP changed since I applied for permission a few months ago? I was restricted to deliveries from a vehicle no larger than a transit van?
The wording of policy T14 has not changed and the LPA are unaware of any preexisting restrictions on deliveries to your premises. I can also confirm that there are no conditions attached to your planning permission (ref: 12/02651/ FUL) which relate to the deliveries to your site.

10.Why was the same condition not applied to this planning condition?
I refer you to point 8 above .

Questions 12, 13, 1 4, 15, 17, 18, 1 9, 21, 22, 23, 24, 27, 28, 29, 30, 31, 32, 33, 34, 35 and 36 all relate to disabled access. I think before addressing these points it is important to differentiate the broader access issues and the detail of them. Ensuring an inclusive environment is delivered is not solely a matter for the LPA, rather it includes the council as Highway Authority, the Developer and Building Control with each having their own role to play. In respect of the broader issues of access, before reaching a decision the LPA consulted the Council's Building Control section to ascertain the level of disabled access required for a building such as this. This was the correct time to have such discussions on these broader issues. In respect of the provision of a lift, the LPA have previously responded to you based on the responses that were received from both South Tyneside Building Control Section and Sunderland City Council's Building Control Section . This matter was also addressed within the officer's delegated report.

Based on these responses, the LPA had no planning justification to expect that the applicant provide a lift within the building and as such there was considered to be no demonstrable grounds to warrant the refusal of the planning application on this basis. I note that you contest the advice provided by the respective Building Control departments however as has been clarified before, this is not a planning matter. In respect of the ground floor commercial units it is noted that the plans indicate that there would not be level access from the shop floor to the highway. However, again such issues would be addressed via Building Regulations where it is understood that level access to ground floor commercial units will be expected unless suitable mitigation is provided. It is understood that the applicant considered that the inclusion of a 'lip' between the commercial floor and highway was required to prevent the likes of rainwater and sand from being swept directly into the units from street level. It is appreciated that the LPA does have policies in place which encourage the provision of disabled access to new shop fronts. These policies include UDP policy S8 which in part states that;

.......Access for people with disabilities should be approved wherever possible in new shop front design.
In addition, further advice is also contained within the LPA's Supplementary Planning Guidance (SPG) wherein Section 10.1 does state that "All new build shops must be fully accessible to disabled people, with level thresholds and wide doorways " It must be noted however that policy S8 does state 'wherever possible ' whilst the advice contained within the SPG is 'advice/guidance ' and is not set in stone . Nonetheless, in order to overcome the floor level disparities, the applicants of the approved development stipulated to the LPA that they intended to draw up a management plan which would ensure that the occupants of the ground floor units would provide removable ramps or another appropriate measure which would be placed along the frontage of the parade. The LPA were satisfied that this approach, or an alternative approach, would overcome potential access issues to the ground floor units and it would certainly not be in the commercial interests of the unit's occupants to discriminate against a number of potential customers. As has been discussed above, it was also clear from the outset that other statutory mechanisms (i.e. Building Control) would be required to address the detail of providing appropriate access to the units within the forthcoming Building Regulations submission. This is not a case of leaving consideration of the access needs until late in the day or passing the responsibility to another party as detailed discussions were had with Building Control Officers before any decisions

were made. This is a case of considering the access needs in the most appropriate way by the most appropriate body at the most appropriate time. Given the above reasoning the LPA did not believe that there were sufficient grounds to consider a refusal of the application on matters of access. I understand that many of the issues raised in the report you commissioned from AID will be addressed as part of the Building Regulations application process. It is accepted the officer's delegated report did not specifically state that the council had had regard to the Public Sector Equality Duty. However it is clear from the explanation and consideration of the access issues within the report (page 12) that regard was had to the Duty. Furthermore, paragraph 6.2 of the Marine Walk Masterplan, which was a material consideration in the determination of the planning application, explicitly covers the issue of equality and diversity stating that a key objective of the Masterplan is to create an area which is physically and intellectually accessible. In order to ensure that the Masterplan will improve access to the seafront, guidance was sought from Sunderland's Independent Advisory Groups. While there is no requirement in law to do so, Sunderland City Council undertakes Equality Analysis on new and existing services, functions, major projects and policies to demonstrate equality in everything that it does. In this regard for the last few months, managers of the planning service have worked with the team responsible for equality policy to devise an equality analysis tool that will form part of the officer's site visits. It is hoped to finalise this very shortly. Once completed this will assist in demonstrating the council has appropriately considered needs and delivered an inclusive environment.

16. This planning application has no access element within the Design and Access Statement
The access element is located on Page 31 of the Design and Access Statement and is entitled Access Component.

20. Please explain how the UDP as you have stated it has not changed, be used to prevent the building of private dwellings on Marine Walk for one application, then used to allow the building of private dwellings on Marine Walk for another application.
I refer you to Point 2 above.

25. As the application is clearly contrary to the Council's own adopted planning policy for this area, for it to be determined by delegated authority is an abuse of the democratic process.
I refer you to Points 1 & 4 above.

26. Please refer to reply to point 2 above that confirm the clear requirements of the marine Walk Masterplan and the UDP. Considering all the conflicts to all relevant plans and government policy as a whole this proposed development is not in line with policy and procedure . Why? I refer you to Point 4 above.

37 & 38. My home is 11 metres from the public seating area and I was deliberately overlooked in the planning application.

As you have noted within your letter, the LPA were well aware of the fact that No.2 Pier Cottages was residential in nature and the case officer has confirmed that he was also aware of this fact due to the discussions that took place with the Head of Planning Implementation during the application process and following a site visit. The case officer has alluded to this within the delegated report by stipulating that the opposing cottages are partially commercial in nature with the inference being that one of the cottages was residential. The reference to No's 1 and 2 obtaining planning permission to operate as a cate/hotfood takeaway was unfortunately a typing error and was intended to read No.1 rather than No's1 and 2. If indeed the case officer did believe that both No's 1 and 2 were operating as a hot food takeaway/cafe then this would be contrary to the officer's assertion that the two properties were partially commercial in nature as quite clearly they would have been fully commercial. It is regrettable that the situation was not outlined with more clarity in the report however I can assure you that the officer was fully aware that No.2 was residential and that the impact of the development on No's 1 and 2 Pier Cottages was given appropriate consideration during the deliberation of the application. I note your concerns relating to privacy however, the distance between the proposed decking area and the facing windows of No.2 Pier Cottages is approximately 19m and one of these windows serves an obscurely glazed W .C. Further, the residential dwelling of No.2 is located on a public promenade which, as you acknowledge yourself, is focused on providing a mix of development which aims to enhance tourism and cultural uses. The regeneration of Marine Walk for such uses would undoubtedly enhance pedestrian footfall on the promenade and it is clear that the amenity afforded to No.2 Pier Cottages may potentially be impacted to some degree in future years as a result. It is also noted that despite a consultation letter being sent to the residential property of No.2 Pier Cottages and a site notice being posted within the vicinity of the proposed development, no objection was received from you during the course of the application. Clearly this was your opportunity to share your concerns with the LPA before a decision was reached. Ifind it surprising that you did not avail yourself of that opportunity given your strong views on the development.

39. The LPA is responsible for ensuring the allocation complies with current legislation/best practice guides.
Please refer to the Point on disabled access .

Questions 40, 41 and 42 also relate to the impact of the proposal on your home.
Please refer to Points 37 & 38.

43. The Marine Walk Master Plan states that the scale and massing must respond to the surrounding development and landscape. Building heights should be no higher that the existing built form. The proposed development has three floors not two.
Despite your assertion that the development is three storeys, the approved plans quite clearly indicate that the development is two storeys in nature both in terms of the elevations and the fact that only ground and first floor plans were approved. A two storey development is considered to be in keeping with the surroundi ngs and I would refer you back to the delegated report and Point 3 in this respect.

Question 44 relates deliveries

Please refer to Point 8.

to a condition on 031 02413/ful regarding

45. Why has Sunderland North UDP and Guidance plans not been considered in detail by the Sunderland LPA before approving this planning application?
Please refer to Point 4. Whilst it is clear you are deeply opposed to the development, as I have stated above I have not found any evidence of fault on the council's part. I hope that my response has addressed your concerns fully, however should you remain dissatisfied you can ask the Ombudsman to investigate. Her contact details are: The Local Government Ombudsman PO Box 4771 Coventry CV4 OEH

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