Caffe Nero: has Wiltshire Council become victim to a previous planning decision for Marlborough?

Written by Tony Millett on .

No. 10, The High StreetNo. 10, The High StreetAs Wiltshire Council’s decision over Caffe Nero retroactive application for change of use from retail to café for its new High Street premises languishes in a pending tray, fresh evidence has emerged of the criteria used in a previous change of use application for Marlborough. In January 2009, the appeal against Kennet District Council’s refusal to allow the ground floor of Number Ten, The High Street to be turned into a café, was dismissed.

Part of the report by the Inspector, Ken Barton, throws some very interesting light on how decisions are reached in such cases – and because Wiltshire Council inherited Kennet’s duty of care in planning matters for Marlborough High Street, it has direct application to the current Caffe Nero issue.

The Inspector identified the main issues at stake as being: “…the likely effects on the character and special interest of the appeal property [i.e. Number Ten] and on the character and appearance of the conservation area. A further main issue in respect of the planning appeal is the likely effect on the prime shopping area.”

At the time of the appeal Number Ten, the former Age of Elegance shop, had been empty for a year.  The main difference to the Caffe Nero case is that Number Ten is a Grade II listed building and the conversion involved some interior alterations to turn the top floors into flats and a new extension at the rear – replacing the existing ‘brick and corrugated sheet’ structure which was, in the inspector’s words, ‘in poor condition and in need of attention.’

The Inspector did not like some of the proposed alterations, saying they would change the character of parts of the listed building.  It would be interesting to know whether these same criteria were applied to the alterations now being undertaken at another High Street Grade II building – the former Ivy House Hotel.

However, more relevant to the Caffe Nero application is the Inspector’s argument over the effect of having another café in the High Street.  He quotes the Kennet District Local Plan as ruling that “within this area [of the town centre] change of use of ground floor premises to uses other than Class A1 [retail] will not be permitted unless certain criteria are met.”

Mr Barton does not itemise these ‘certain criteria’, but in the next sentence expressed his “reservations as to the potential contribution to the vitality and viability of the [town] centre” that would be brought by a new café, as he stated it, ”the likely effect on the prime shopping area.”  He went on: “The level of retail provision, however, is not high and I consider the loss of the appeal premises as a retail unit in this important location could have a material detrimental effect on the attractiveness, vitality and viability of the centre.”

The recession and the on-going economic downturn has reinforced the need to protect the obviously fragile retail base of the High Street – and that should impact strongly on the Council’s decision over Caffe Nero.  The Inspector’s optimistic view in January 2009 that “vacancy rates are not high” no longer applies.

In addition, there is a vocal number of people in the town who complain about the dominance of national chains in Marlborough as against the number of independent shops.  That is also something that should weigh heavily with the Council’s planners and councillors.
Mr Barton had not finished justifying his decision that Number Ten must remain a retail outlet rather than switch to becoming a café:  “An approval on appeal in this instance could also increase pressure on the Council to approve further applications for change of use from retail…with increased harmful impact on the vitality and viability of the centre.”

This statement is doubly important as in making planning decisions the Council must refer back to appeals in similar cases and the terms in which those appeals were either allowed or dismissed.

In case the owner tried to modify the proposed alterations to appease Mr Barton’s stringent views on the conservation of nineteenth century buildings and the effrontery of trying to open another café, he slammed the door shut: “It would not be possible to offset my concerns by any conditions that might reasonably be attached to a grant of listed building consent or planning permission.”

As will be obvious to readers of Marlborough News Online, this appeal verdict raises several issues in relation to the Caffe Nero case.  But most significant is the inspector’s point about losing retail outlets – a situation made much more relevant in the present economic climate.  And it is worth noting that the decision meant that that Number Ten remained empty for a further three-and-a-half years.

In terms of the Inspector’s arguments that is three-and-a half-years without another retail outlet in the High Street – not to mention the loss of the two flats or the effect on the conservation area of empty premises.

As Marlborough News Online has already reported, the owner of Number Ten complained to Wiltshire Council when Waitrose were allowed to open a café without gaining planning permission for change of use. Wiltshire Council’s response blurred the distinction between retail use (Class A1) and café use (Class A3.)

The Council’s Senior Planning Officer, Peter Horton, ruled that “the café element is ancillary to the main retail (A1) use” – that is to Waitrose’s main business of selling food.  This presumably opens the door to a café which sells beetroot juice drinks also selling beetroot, or a café that sells smoked salmon sandwiches also selling fresh salmon – all without permission for change of use.